Perdue v. Baker: Who Has the Ultimate Power Over Litigation on Behalf of the State of Georgia--the Governor or the Attorney General
| Jurisdiction | Georgia,United States |
| Publication year | 2010 |
| Citation | Vol. 21 No. 3 |
Georgia State University Law Review
3-1-2005
Perdue v. Baker: Who Has the Ultimate Power Over Litigation on Behalf of the State of Georgia--The Governor or the Attorney General
Erin L. Penn
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Recommended Citation
Penn, Erin L. (2004) "Perdue v. Baker: Who Has the Ultimate Power Over Litigation on Behalf of the State of Georgia--The Governor or the Attorney General," Georgia State University Law Review: Vol. 21: Iss. 3, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol21/iss3/3
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PERDUE V BAKER: WHO HAS THE ULTIMATE POWER OVER LITIGATION ON BEHALF OF THE STATE OF GEORGIA—THE GOVERNOR OR THE ATTORNEY GENERAL?
Introduction
After the 2000 census, the Georgia General Assembly enacted a bill to reapportion State Senate districts.1 After then-Governor Roy Barnes signed the bill, the State sought pre-clearance under Section 5 of the Voting Rights Act.2 Under the Voting Rights Act, a state must file for pre-clearance of a redistricting plan with the United States District Court for the District of Columbia.3 The Georgia Attorney General, Thurbert Baker, sought a declaratory judgment from the District Court for the District of Columbia declaring that the redistricting plan met the requirements of the Voting Rights Act.4 The district court held that the House redistricting plan "does not have the purpose or effect of denying or abridging the right to vote on account of race or color."5 However, the court ruled that "the Senate reapportionment plan [would] not have a retrogressive effect on the voting strength of Georgia's African American [voters]."6 The Attorney General appealed the district court's order to the United States Supreme Court.7 Sonny Perdue, the newly-elected governor,
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requested that the Attorney General dismiss the appeal. The Attorney General, however, refused to do so.9 The United States Supreme Court granted review of the appeal and found that Georgia
1. See Act of Aug. 24, 2001, 2001 Ga. Laws Extra Sess. 2 (codified at O.C.G.A. § 28-2-2 (2003)).
2. Perdue v. Baker, 586 S.E.2d 606, 607 (Ga. 2003); see 42 U.S.C. § 1973(c) (2004).
3. See 42 U.S.C. § 1973(c).
4. See Georgia v. Ashcroft, 195 F. Supp. 2d 25, 29 (D.D.C. 2002), vacated by 539 U.S. 461, 465 (2003). Specifically, the Attorney Genera] sought a declaration that the redistricting plan did "not 'have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color' or membership in a language minority group.*' Id. (quoting 42 U.S.C. § 1973(c)).
5. Id. at 91.
6. Id. at 94.
7. See Georgia v. Ashcroft, 539 U.S. 461 (2003).
8. /Wue,586S.E.2dat608.
9. See id.
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likely met its burden of proof to show that the reapportionment plan would not have a retrogressive effect on African-American voters, vacating the district court's ruling.10 The Supreme Court remanded the case to the District Court for the District of Columbia.11 During the appeal, the Governor filed a petition for writ of mandamus to compel the Attorney General to dismiss the appeal.12 While the Court remanded the original case to the district court for a hearing on the merits, the Georgia Supreme Court issued a decision on the Governor's writ of mandamus.
The Georgia Supreme Court addressed whether the governor or the attorney general has the ultimate power over litigation on behalf of the State of Georgia.14 Specifically, the Georgia Supreme Court addressed whether the attorney general must dismiss an appeal regarding the State's redistricting plan when the governor orders him to do so.15
This Comment will address the holding in Perdue v. Baker and the reasoning behind the court's ruling. Part I of this Comment will discuss the Georgia Constitution, statutes, and case law addressing the powers of the executive branch.16 Part II will begin by addressing the majority's holding in Perdue v. Baker and the interpretation of the Georgia Constitution and statutes assigning the executive branch power.17 Next, this Comment will address the majority's analysis of Act 444 and the doctrine of separation of powers.18 Part HI will analyze the dissenting opinion in Perdue v. Baker}9 This section will address the dissent's arguments regarding the executive branch allocation of power and the dissent's belief that Act 444 violates the doctrine of separation of powers.20 Part IV will discuss sample
10. Ashcroft, 539 U.S. at 487,491.
11. Id. at 491.
12. Perdue, 586 S.E.2d at 608.
13. Id.
14. See id. at 608.
15. See id
16. Seem/raPartl.
17. See infra Part D.A-B.
18. See infra Part H.C-D.
19. See infra Part III.
20. See infra Part m.A-B.
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opinions from other states regarding the allocation of power in the
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executive branch between the governor and the attorney general. Finally, this Comment will conclude with an overview of Perdue v. Baker and possible implications of the decision for future power
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struggles within the executive branch.
I. The Georgia Constitution, Statutes, and Cases Addressing the Powers of the Executive Branch
A The Georgia Constitution and Statutes
The Georgia Constitution provides that the governor has chief executive powers and the powers of other executive officers come from the constitution and the law.23 The Georgia Constitution also provides:
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.24
The constitution grants statutory authority to litigate on behalf of
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Georgia to both the governor and the attorney general.
21. See infra Part IV.
22. See infra conclusion.
23. Ga. Const, art. V, § II, para. i. ("The chief executive powers shall be vested in the Governor. The other executive officers shall have such powers as may be prescribed by this Constitution and by law.").
24. Ga. Const, art. V, § m, para. IV.
25. See O.C.G.A. § 45-15-3 (2003).
It is the duty of the Attorney General: ... (4) To act as the legal adviser of the executive branch; ... (6) To represent the state in all civil actions tried in any court; and (7) To perform such other services as shall be required of him by law. . . . The Governor shall have the 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.
Id.
GEORGIA STATE UNIVERSITY LAW REVIEW
B. Case Law
Several cases cited in the majority and the dissenting opinions of
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Perdue v. Baker provide additional support for each conclusion. In rejecting both the Governor's and the Attorney General's claims that his own office had the exclusive power over litigation, the majority
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cited several cases, including Trust Co. of Georgia v. State. There, the court decided that the attorney general may institute suits to protect the State's property interests and public rights without direction from the governor, but he must obey the governor's commands when the governor directs him to do so.28 Five years later, the court stated in dicta that the attorney general could institute a suit in the name of the State for matters relating to public health, possibly without the express authority of the governor. Additionally, in both the majority and dissenting opinions, the court in Perdue cited Walker v. Georgia Railway & Power Co., which stated that the
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constitution and statutes limit the attorney general's powers.
The majority's holding in Perdue ultimately rested upon Act 444 (the "Act").31 The Georgia General Assembly passed the Act after the District Court for the District of Columbia held that Georgia's reapportionment plan did not show a retrogressive effect on African-
26. See Perdue v. Baker, 586 S.E.2d 606, 610, 617 (Ga. 2003).
27. 35 S.E. 323 (Ga. 1900); see Perdue, 586 S.E.2d at 610.
28. Trust Co. ofGa., 35 S.E. at 326.
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 a case, for instance, where the state's property is involved, or where public rights are jeopardized) without direction from the governor; but when directed by the governor, as in this case, to proceed, he has no discretion in the matter, but should obey the mandates of the chief executive.
29. Woodward v. Westmoreland, 52 S.E. 810, 811 (Ga. 1905).
30. 92 S.E. 57 (Ga. 1917) ("[W]here the Constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed on him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions."); Perdue, 586 S.E.2d at 610, 617, 619. The court in Walker determined that the attorney general was without constitutional or statutory authority to bring a suit to enjoin a corporation from doing allegedly ultra vires acts. Walker, 92 S.E. at 58. However, the court stated: "Whether such an action could have been legally brought by the Attorney General by the express direction of the Governor is a question not involved in this case, and we therefore intimate no opinion on that subject." Id.
31. Act of Apr. 11, 2002, 2002 Ga. Laws 148, 149, § 1(d) (not codified into law); see Perdue, 586 S.E.2d at 614, 616.
Id.
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