Perdue v. Baker
277 Ga. 1, 2003 Fulton County D. Rep. 2700, 586 S.E.2d 606 (2003)
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Rule of Law:
Under the Georgia Constitution, the Attorney General possesses authority to continue litigation on behalf of the state, even against a direct order from the Governor to dismiss, when a specific state statute vests the Attorney General with the duty to seek a final judicial determination on the validity of a law.
Facts:
- Following the 2000 census, the Georgia General Assembly enacted a State Senate redistricting plan, Act 1EX6, which was signed into law by then-Governor Roy Barnes.
- A U.S. District Court denied preclearance for Act 1EX6 under the Voting Rights Act, concluding that the plan would have a retrogressive effect on the voting strength of African-American voters.
- In response, the General Assembly enacted a revised, contingent redistricting plan, Act 444.
- Act 444 expressly provided that the original plan, Act 1EX6, was merely suspended "pending a final determination of their enforceability under the federal Voting Rights Act."
- To obtain this final determination, Attorney General Thurbert Baker filed a direct appeal to the U.S. Supreme Court challenging the district court's rejection of the original plan.
- After being inaugurated, Governor Sonny Perdue ordered Attorney General Baker to dismiss the pending appeal.
- Attorney General Baker refused the Governor's order, asserting that he had independent constitutional and statutory authority to continue the litigation on behalf of the State of Georgia.
Procedural Posture:
- The State of Georgia, represented by the Attorney General, filed a civil action in the U.S. District Court for the District of Columbia seeking preclearance of a State Senate redistricting plan (Act 1EX6).
- The U.S. District Court, a court of first instance for this matter, denied preclearance for the Senate plan.
- The Attorney General, on behalf of the State, filed a direct appeal of the district court's decision to the U.S. Supreme Court.
- Governor Sonny Perdue filed a petition for a writ of mandamus in a Georgia state trial court to compel Attorney General Thurbert Baker to dismiss the appeal pending in the U.S. Supreme Court.
- The Georgia state trial court denied the Governor's petition.
- Governor Perdue, as appellant, appealed the trial court's adverse decision to the Supreme Court of Georgia, the state's highest court, with Attorney General Baker as the appellee.
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Issue:
Does the Attorney General of Georgia have the authority to continue an appeal on behalf of the state challenging a federal court's invalidation of a state law, despite a direct order from the Governor to dismiss the appeal?
Opinions:
Majority - Fletcher, Chief Justice
Yes, the Attorney General has the authority to continue the appeal. The Georgia Constitution and state statutes grant concurrent, not exclusive, powers over litigation to both the Governor and Attorney General, creating a system of checks and balances. The Constitution allows the legislature to assign the Attorney General duties 'as shall be required by law,' and in this case, Act 444 implicitly required the Attorney General to seek a 'final determination' on the original redistricting plan's validity, which could only be achieved by appealing the adverse district court ruling. This limited legislative encroachment on executive power is permissible because legislative reapportionment is a core legislative function, and the legislature may ensure its preferred plan is fully defended in court without violating the separation of powers.
Dissenting - Carley, Justice
No, the Attorney General does not have the authority to defy the Governor's direct order. The Governor holds the 'chief executive powers' and is the ultimate decision-maker for the state in litigation, making the state the client and the Attorney General the lawyer. A lawyer must abide by the client's decisions regarding the objectives of representation. Act 444's requirement of a 'final determination' could be satisfied by the Governor's decision to cease appeals, thereby making the district court's judgment final. To interpret the statute as a legislative command to continue litigation against the Governor's will constitutes an unconstitutional violation of the separation of powers, as it allows the legislature to usurp a core executive function—the control of litigation.
Concurring - Benham, Justice
Yes, the judgment should be affirmed, but only because the court has already established as the law of the case that the matter is not moot. The author still believes the appeal should have been dismissed as moot. However, given the court's decision to proceed, the author concurs in the majority's ultimate judgment.
Analysis:
This decision clarifies the balance of power within Georgia's executive branch, establishing that the Governor's 'chief executive' authority over litigation is not absolute. It confirms that the General Assembly can, through specific statutes, grant the Attorney General independent authority to act, even in opposition to the Governor's directives. The ruling carves out a significant space for legislative interest in litigation, especially in the unique context of reapportionment, which is considered a core legislative function. This precedent solidifies the Attorney General's role as an independent constitutional officer who can derive authority directly from legislative mandates, shaping how future intra-executive conflicts over legal strategy are resolved.
