Perdue v. Baker

• Court: Georgia Supreme Court
• Writing for the Court: FLETCHER, Chief Justice.
• Citation: Perdue v. Baker, 277 Ga. 1, 586 S.E.2d 606 (Ga. 2003)
• Decision Date: 04 September 2003
• Docket Number: No. S03A1154.,S03A1154.
• Parties: PERDUE et al. v. BAKER.

586 S.E.2d 606

277 Ga. 1

PERDUE et al. v. BAKER.

No. S03A1154.

Supreme Court of Georgia.

September 4, 2003.

Frank C. Jones, Cushing, Morris, Armbruster & Montgomery, Kirk M. McAlpin, Jr., Carlton M. Henson, Kelly R. Burke, District Attorney, for appellants.

Jeffrey L. Milsteen, Michael E. Hobbs, Deputy Attorneys General, Rogers & Hardin, Richard H. Sinkfield, Robert B. Remar, Ashley R. Hurst, Julie K. Bracker, for appellees.

David G. Oedel, John O. Cole, Anne S. Emanuel, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Jeffrey O. Bramlett, Randi E. Schnell, William H. Pryor, Jr., Attorney General of Alabama, Margaret H. Fleming, Assistant Attorney General of Alabama, Nathan A. Forrester, Solicitor General of Alabama, amici curiae.

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 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.

PRIOR PROCEEDINGS

Following the 2000 decennial census, the General Assembly enacted a bill that reapportioned State Senate districts and Governor Roy Barnes signed the bill into law as Act 1EX6.¹ The State then filed a civil action in the United States District Court for the District of Columbia seeking preclearance of the Senate redistricting plan under Section 5 of the Voting Rights Act, a prerequisite to enforcing the law.² The State sought a declaratory judgment that the plan did not have the purpose or effect of "`denying or abridging the right to vote on account of race or color' or membership in a language minority group."³ Denying the State's request for a declaratory judgment, the district court held that the State failed to meet its burden of proof under Section 5 that the State Senate redistricting plan did not have a retrogressive effect on the voting strength of African-American voters in Georgia.⁴ It denied preclearance.

The General Assembly enacted a revised Senate redistricting plan, Act 444, and the State submitted the new plan to the district court for preclearance.⁵ In June 2002, the three-judge district court approved the revised Senate redistricting plan.⁶ Act 444, which was not codified into law, expressly provides that its senatorial districts are contingent and shall take effect only if the original Senate redistricting plan cannot lawfully be implemented under the federal Voting Rights Act.⁷ "This Act [444] does not repeal or amend the provisions of the special session Senate redistricting plan [in Act 1EX6]; and those provisions are merely suspended pending a final determination of their enforceability under the federal Voting Rights Act of 1965, as amended."⁸ To obtain a final determination, the Attorney General filed a direct appeal in July 2002 to the United States Supreme Court challenging the federal district court's order rejecting the original Senate redistricting plan. The Supreme Court granted review in January 2003. ⁹

Ten days later, soon after being installed into office, Governor Perdue requested that Attorney General Baker dismiss the appeal. The Governor contended that the Georgia Constitution vests his office with the chief executive powers to dismiss an appeal pending in the U.S. Supreme Court when the State of Georgia is the sole-named appellant.¹⁰ The Attorney General disagreed, citing constitutional provisions that vest his office with exclusive authority in all legal matters related to the executive branch in state government.¹¹ Faced with this refusal, the Governor sought a writ of mandamus to require the Attorney General to dismiss the pending appeal in the Supreme Court. The trial court denied the Governor's petition, and he sought review in this Court.

While this appeal was pending, the Supreme Court issued its opinion in Georgia v. Ashcroft.¹² The Court vacated the district court's judgment and remanded the case for the district court to reweigh the facts in light of the Supreme Court's explication of retrogression. The voting rights case is now pending in the district court.

On the same day the Supreme Court issued its decision, the Attorney General moved to dismiss this appeal as moot since the relief that the Governor sought—dismissal of the appeal pending in the United States Supreme Court—had been achieved. We denied the motion for three reasons.¹³ First, the underlying voting rights case remains pending in federal court awaiting a final determination. If the Governor has the right to order the Attorney General to cease prosecution of the appeal, then he would have the power to order the Attorney General to cease prosecution of the same claims when they are pending before a trial court. Second, the issue of the Attorney General's authority, duties, and powers is one capable of repetition that has so far evaded review.¹⁴ Third, the case contains an issue of significant public concern concerning the roles of the State's chief executive officer and chief legal officer in litigation involving the State of Georgia. ¹⁵

ALLOCATION OF EXECUTIVE POWERS

1. Both the Governor and Attorney General are elected constitutional officers in the executive branch of state government,¹⁶ which is responsible for enforcing state statutes.¹⁷ The Georgia Constitution provides that the Governor is vested with the chief executive powers.¹⁸ Among those powers is the responsibility to see that the laws are faithfully executed.¹⁹ Other executive officers, including the Attorney General, are vested with the powers prescribed by the constitution and by law.²⁰ The constitution states that the Attorney General "shall act as the legal advisor of the executive department, shall represent the state in the Supreme Court in all capital felonies and in all civil and criminal cases in any court when required by the Governor, and shall perform such other duties as shall be required by law."²¹

Within the executive branch, both the Governor and Attorney General have statutory authority to direct litigation on behalf of the State of Georgia.²² Under the State Government Reorganization Act of 1931, which established the Department of Law, the Governor "shall have power to direct the Department of Law, through the Attorney-General as head thereof, to institute and prosecute in the name of the State such matters, proceedings, and litigations as he shall deem to be in the best interest of the people of the State."²³ The Governor also has the power to provide for the defense of any action in which the State has an interest.²⁴

OCGA § 45-15-3 sets out the Attorney General's general responsibilities. It repeats his constitutional duties to serve as the executive branch's legal adviser, represent the State in all capital felony appeals, and represent the State in all civil and criminal actions when required by the Governor; it further provides that the Attorney General may give written legal opinions to state departments on request and prepare all state contracts when advisable.²⁵ Of primary relevance in this case are the last two duties specified in the code section. Subsection (6) gives the Attorney General independent authority to represent the State in any civil action without the Governor's request: "It is the duty of the Attorney General ... [t]o represent the state in all civil actions tried in any court." The final subsection is a catch-all phrase similar to the language in the constitution, giving the Attorney General authority to perform "other services as shall be required of him by law."²⁶

Construed together, these constitutional provisions and statutes do not vest either officer with the exclusive power to control legal proceedings involving the State of Georgia. Instead, these provisions suggest that the Governor and Attorney General have concurrent powers over litigation in which the State is a party. Both executive officers are empowered to make certain that state laws are faithfully enforced; both may decide to initiate legal proceedings to protect the State's interests; both may ensure that the State's interests are defended in legal actions; and both may institute investigations of wrongdoing by state agencies and officials.²⁷ Thus, they share the responsibility to guarantee that the State vigorously asserts and defends its interests in legal proceedings.

A trilogy of decisions from the early twentieth century supports this conclusion that the Governor and Attorney General have joint responsibility to protect the State's interests in litigation. More than a century ago, this Court stated in Trust Company v. State of Ga.:²⁸

We are inclined to the opinion that the attorney-general has the power to institute suits necessary to the protection of the interests of the State; in case, for instance, where the State's property is involved, or where public rights are jeopardized, without direction

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