PERDUE et al. v. BAKER.

S03A1154

SUPREME COURT OF GEORGIA 

September 4, 2003 Decided

OPINION: FLETCHER, Chief Justice.

Governor Sonny Perdue filed a petition for writ of mandamus seeking to compel Attorney General Thurbert Baker to dismiss an appeal filed on behalf of the State of Georgia in a case involving legislative reapportionment under the Voting Rights Act. The trial court denied the Governor's petition, ruling that the Attorney General had exclusive authority to decide whether to continue the State's efforts to enforce a law enacted by the General Assembly and signed by the Governor. The issue presented here is whether the Attorney General has the authority under state law to appeal a court decision invalidating a state redistricting statute despite the Governor's order to dismiss the appeal. Because there is constitutional authority for the General Assembly to vest the Attorney General with specific duties and a state statute vested the Attorney General with the authority to litigate in the voting rights action, we [*2]  hold that the Attorney General had the power to seek a final determination on the validity of the State Senate redistricting statute under the federal Voting Rights Act. ,Therefore we affirm the trial court's ruling that the Governor had no clear legal right to order the Attorney General to dismiss the appeal filed on behalf of the State of Georgia in the United States Supreme Court.

CONCLUSION

The majority seeks to minimize the effect of its holding by characterizing it as one which is narrowly premised upon the "uniqueness of legislative reapportionment." Majority opinion, p. 32. As a dissenter, I am gratified that the majority recognizes that its decision has limited applicability and should not be cited in the future as general authority. In truth, however, broad and serious constitutional and political implications are inherent in today's decision, notwithstanding the majority's efforts to minimize its holding.

This case does not concern the power to reapportion. The sole issue is the power to control the course of litigation [*59]  involving reapportionment. As to that controlling issue, the majority begins by positing generally that neither the Governor nor the Attorney General has the ultimate authority to decide what is in the best interest of the people of the State in every lawsuit involving the State of Georgia ... [They have an] overlapping responsibility ... [in] a system of checks and balances within the executive branch so that no single official has unrestrained power to decide what laws to enforce and when to enforce them.
 
Majority opinion, pp. 11-12. The Constitution does not provide for any such intra-executive branch "system of checks and balances," but confers the power to enforce the law exclusively upon the Governor, in his capacity as the head of that branch of government. Having ignored the clear language of the Constitution, the majority then promptly violates its own anomalous construction of that document by upholding the Attorney General's decision to ignore the Governor's directive. Obviously, the authority to pursue an appeal despite the objections of the head of the executive branch is the unrestrained power to decide what laws to enforce and when to enforce them. Thus,  [*60]  the majority's notion of a system of checks and balances in the executive branch is completely illusory. Only one official of the executive branch can control the course of litigation and, according to the Constitution of this state, that official is the Governor.

Having conferred on the Attorney General a power which the Constitution vests exclusively in the Governor, the majority then purports to limit the exercise of that power to litigation involving reapportionment. However, there is nothing unique about reapportionment. It may be the most political of legislative functions, but it is still a legislative function. The relevant question is whether litigation involving reapportionment is an exception to the constitutional mandate placing enforcement of this state's laws in the hands of the Governor.

No such exception appears in our Constitution. The General Assembly's power to reapportion is no different than its power to enact "all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States , which it shall deem necessary and proper for the welfare of the state." Art. III, Sec. VI, Par. I of the Ga. Const. of 1983. A reapportionment [*61]  statute is just like any other law passed by the General Assembly. Litigation over the validity of a reapportionment act is a case just like any other civil action. Thus, the attempt to limit today's decision based upon the "uniqueness" of reapportionment is necessarily unavailing. If, as the majority holds, the General Assembly can pass legislation directing the Attorney General to appeal this particular judicial ruling, then it is also authorized to enact future laws to control him in the conduct of other cases in which the state is a party. The power to determine whether to appeal or to allow a judgment to become "final" is the power to control the litigation. Because the majority's attempt to limit its holding to reapportionment cases is baseless, that power has now passed from the executive to the legislative branch. The result is that the Attorney General will "win" this particular case, but the power of the office that he occupies, as well as the entire executive branch of government, is irrevocably diminished. Until today, the Attorney General, in his capacity as legal advisor to the executive branch, could be assured of direct and immediate input in the Governor's decision [*62]  whether to appeal a ruling in a case in which the state is a party. However, that is now a decision which can be controlled by a majority vote of the members of the General Assembly. After conferring, the Governor and Attorney General may be in complete agreement as to which policy the executive branch should follow, but the General Assembly retains the ultimate authority to override them and to order that an appeal be pursued or abandoned. On the other hand, when the Governor and the Attorney General do disagree, there is no longer any incentive for mutual consultation and possible compromise. The Attorney General can flatly refuse to consider implementing the Governor's decision, thereby leaving the head of the executive branch completely without legal representation. Each intra-executive branch stalemate over policy will then escalate into a political contest, with each constitutional officer seeking the General Assembly's enactment of a statute validating his or her position.

The fundamental fallacy in the majority's analysis is that it purports to rest on legislation, no matter how narrowly drawn. The Georgia Constitution provides that the General Assembly enacts our laws, whereas [*63]  the Governor enforces them and the Attorney General serves as his legal advisor. The principle of separation of powers is "essential to the very foundation of our system of government" and must "be strictly enforced." McCutcheon v. Smith, 199 Ga. 685, 690-691 (2) (35 S.E.2d 144) (1945). A decision to terminate the appeal in the voting rights case may or may not have been wise policy. However, our constitution clearly confers the authority to make such policy determinations on the Governor, and the duty to implement that determination on the Attorney General. For the benefit of all of the citizens of Georgia , conflicts between the branches of government and disagreements between the elected constitutional officers of the executive are to be avoided if at all possible. Far from the narrow holding portrayed by the majority, however, I submit that today's opinion sows the seeds of a constitutional and political crisis which could and should be avoided simply by this Court following its own mandate to interpret the Georgia Constitution as it is written.

I am authorized to state that Justice Hines joins in this dissent.