PERDUE et al. v. BAKER
S03A1154
Supreme Court of Georgia
September 4, 2003
586 S.E.2d 606
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.
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 redistriсting 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
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
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
Construed together, these constitutional provisions and statutes do not vest either officer with the exclusive power to cоntrol 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 from the Governor; but when directed by the Governor, as in this case, to proceed, he has nо discretion in the matter, but should obey the mandates of the chief executive.
Subsequently, we held that when an act is silent about the right of a state board to bring suit, the Governor or Attorney General must decide whether an appeal should be made.29 The final decision, without referring to the first two cases, states as a controlling principle
As a result, we reject the broader claim by each officer that he 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. By giving both the Governor and Attorney General the responsibility for enforcing state law, the drafters of our constitutions and the General Assembly have made it less likely that the State will fail to forcefully prosecute or defend its interests in a court of law or other legal proceeding. This overlapping resрonsibility is also consistent with the existing practice in state government. Most important, it provides 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.
We also reject the dissent‘s narrow characterization of the Attorney General‘s role as merely that of legal counsel to the Governor. To imply that the Georgia Rules of Professional Conduct control the Attorney General‘s relationship to the Governor ignores the important and independent role assigned to the Attorney General under our constitution. Accepting the dissent‘s argument would eviscerate the Attorney General‘s separate constitutional role.
The State of Georgia is not one branch of government, one office, or one officer. The State‘s authority resides with the people who elect many officers with different responsibilities under valid law.
2. Our conclusion that both officers have the duty to enforce state laws is consistent with the language and legislative history of article V of the 1983 Georgia Constitution. The first paragraph on the Governor‘s duties and powers in the Executive Article states the following: “The chief executive powers shall be vеsted in the Governor. The other executive officers shall have such powers as may be prescribed by this Constitution and by law.”31 This provision made two changes from previous constitutions. It added the word “chief” to the first sentence and added the second sentence referring to the
Finally, the drafters wanted to ensure that the Governor did not possess unlimited authority over other executive officers. Immediately after granting executive powers to the Governor, the 1983 Constitution places a restraint on those powers: it grants to the other executive officers “such powers as may be prescribed by this Constitution and by law.” This provision means that the other constitutionally elected officers possess powers granted to them by the constitution and other laws.36 Another provision in the Executive Article concerning the “other executive officers” reiterates this point.37 It provides that the General Assembly shall prescribe the powers and duties of the Attorney General and the five other state elected executive officers, except as otherwise provided in the constitution.38 Consistent with these provisions, the drafters retained the language from earlier constitutions on the Attorney General‘s duties. There-
3. To support his claim that “the Governor, and the Governor alone” is authorized to make decisions related to litigation filed in the State‘s name, the Governor relies on the constitutional provision describing the Attorney General‘s duties and a section of the 1931 Reorganization Act.39 The 1983 Constitution, like all the constitutions since 1868, provides that the Attorney General “shall represent the state . . . in all civil and criminal cases in any court when required by the Governor.”40 In addition,
Contrary to the Governor‘s contention, we do not read these constitutional or statutory provisions as denying power to the Attorney General in representing the State, but instead interpret them as granting additional power to the Governor. They provide specific authority for the Governor to fulfill his duty to enforce state laws by directing the Attorney General to represent the State and its interests in court and other proceedings when necessary.41 Although the drafters did decline to add the Attorney General‘s specific statutory duties to the constitution, they preserved his authority to act under statutes by leaving the language on his duties unchanged from previous constitutions.
Even if we adopted the Governor‘s view that the constitutiоnal provision and
As a result, we decline to address the Governor‘s contention, adopted by the dissent, that his express right to initiate litigation
THE ATTORNEY GENERAL‘S DUTIES
4. The Attorney General is a state executive officer elected at the same time and holding office for the same term as the Governor.43 As an elected state constitutional officer, the Attorney General has the powers prescribed to him by the 1983 Constitution, statutes, and case law.44 The General Assembly has given the Attorney General specific authority to act independently on behalf of the State in a variety of civil and criminal cases. For example, the code chapter on the Attorney General empowers that officer to represent the State in all capital felony actions before this Court,45 prosecute any person for violating a criminal statute while dealing with the State,46 represent the State in all civil actions in any court,47 file and prosecute civil recovery actions against any person who violates a statute in dealing with the State,48 represent the state authorities that are instrumentalities of the State,49 represent the Comptroller General in collecting or securing any state claim,50 and represent the State before the United States Supreme Court.51
In 1975, there were two changes in the law related to the Attorney General‘s duties that made explicit what had previously been only implicit: the Attorney General has the power to represent the State in civil actions independently of the Governor‘s direction.52 First, this Court held in Coggin v. Davey that the Attorney General
On appeal, then Attorney General Arthur Bolton asserted that the trial court erred in holding that he lacked authority to defend legislators “on his own motion.”55 Although this Court declined to address the broader issue of the Attorney General‘s constitutional or statutory powers, the opinion concluded that the trial court erred in its ruling on the legal representation issue. The Court held that
Three months later, the General Assembly amended
40-1602. Duties required
It is the duty of the Attorney General-
. . .
6. In other courts. - To represent the State in all civil cases in any court.59
Thus, this 1975 amendment resolved, at least in part, the broader issue of the Attorney General‘s powers that this Court declined to address in Coggin v. Davey. The amended code section provides authority for the Attorney General to represent legislators and other state officials “on his own motion” without any request, requirement, or direction from the Governor.60 We need not decide, however, the full extent of the Attorney General‘s power to represent the State under this statute or the circumstances, if any, under which the Governor may compel the Attorney Genеral to end his representation. In this case, a more narrowly drawn statute provides authority for the Attorney General to continue the voting rights litigation despite the Governor‘s order to dismiss the appeal.
ACT 444
5. The General Assembly is vested with the power to reapportion the State Senate and House Districts.61 Pursuant to this legislative power, the General Assembly enacted the original Senate redistricting plan in Act 1EX6 and the revised plan in Act 444. Section 1 (b) of Act 444 provides that the original Senate redistricting plan will apply if it “may lawfully be implemented under the federal Voting Rights Act.”62 In the event that the original plan may not be lawfully implemented, section 1 (c) provides that qualifying for the Georgia State Senate shall be conducted according to the revised Senate redistricting plan as described in Act 444. Section 1 (d) states: “This Act does not repeal or amend the provisions of the [original] Senate redistricting plan; and those provisions are merely suspended pending a final determination of their enforceability under the federal
Act 444 was enacted after the federal district court had denied preclearance to the original Senate redistricting plan, but before the State filed an appeal of that decision to the U. S. Supreme Court. By its terms, Act 444 expresses the legislature‘s intent that the original redistricting plan for the State Senate should be followed if allowed by federal law. Section 1 (d) states that the original plan‘s provisions are “suspended” until the State can obtain a final determination on the legality of the original plan under the federal Voting Rights Act. At the time the General Assembly enacted Act 444, the first step in the process for the State to obtain a “final determination” on its ability to enforce the reapportionment plan under the federal Voting Rights Act was to file a direct appeal with the Supreme Court seeking to reverse the district court‘s opinion. Although the Governor proposes other interpretations of “final determination,” no other action by the State would have achieved a decision upholding the validity of the original Senate redistricting plan under the federal Voting Rights Act.
As the State‘s chief legal officer, the Attorney General is the official charged with representing the State in reapportionment cases.64 Before any change affecting voting qualifications, standards, practices, and procedures may take effect, the Stаte must obtain preclearance of the change under Section 5 of the Voting Rights Act.65 One way to obtain preclearance is by instituting a declaratory judgment action in the United States District Court for the District of Columbia.66 If preclearance is declined, the State‘s only remedy is to file a direct appeal to the United States Supreme Court.
Accordingly, after the three-judge court denied preclearance, the Attorney General appealed to the Supreme Court. By appealing, the Attorney General was fulfilling his general duty as chief legal officer to execute state law and his specific duty to defend the reapportionment law as enacted by the General Assembly.
6. We next consider whether Act 444 violates the doctrine of separation of powers by directing that it takes effect only after a final determination is made regarding the enforceability of the provisions of Act 1EX6 under the Voting Rights Act. Because Act 444 does not impermissibly encroach on the power of the executive branch to control litigation, but instead is a proper assertion of legislative power to determine reapportionment, we conclude that it does not violate separation of powers.
Although the Georgia Constitution provides expressly for separate executive, legislative, and judicial branches, “this separation is not and from the nature of things can not be total.”67 This Court has previously recognized that “[t]he separation of powers principle is sufficiently flexible to permit practical arrangements in a complex government, and . . . it is not always easy to draw a line between executive functions and legislative functions.”68 The United States Supreme Court has enunciated a similar view of the federal doctrine of separation of powers - “the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other . . . [but] we have never held that the Constitution requires that the three branches of Government operate with absolute independence.”69 The Supreme Court noted that the Constitution “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”70 Because the Supreme Court‘s exposition of separation of powers is consistent with this Court‘s prior rulings on the issue, we find federal precedent persuasive in considering the question before us.
A legislative enactment violates separation of powers when it increases legislative powers at the expense of the executive branch,71 or when the enactment “‘prevent[s] the Executive Branch from accomplishing its constitutionally assigned functions,‘” 72 even if it does not increase legislative powers. Thus, this Court must examine the respective roles of the legislative and executive branches and determine whether Act 444 inappropriately intrudes upon executive
The core legislative function is the establishment of public policy through the enactment of laws.73 Reapportionment of state legislative districts is a unique aspect of this legislative function.74 As the U. S. Supreme Court has recognized, reapportionment of a state legislature is the “most political of legislative functions.”75 Thus, the expressed intent of the legislative body to prefer one reapportionment scheme over another is plainly proper and within the sphere of legislative power. Nothing prevents the legislature from expressing this intent through a fallback or contingency provision.76
On the other hand, the executive branch generally has the power and authority to control litigation as part of its power to execute the laws,77 and a law that removes from the executive branch sufficient control of litigation may well violate separation of powers.78 However, the executive branch does not have the authority to decline to execute a law under the guise of executing the laws: “To contend that the obligation imposed . . . to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the Constitution and entirely inadmissible.”79 The power to forbid the execution of the laws would enable the executive branch to nullify validly enacted statutes. In that situation, the executive branch would encroach upon the legislative power to repeal statutes80 or upon the judicial branch‘s power of judicial review.81 What the executive branch cannot do directly, it cannot do indirectly. Thus, even though the executive branch generally has the power and authority to control litigation, it cannot exercise this power in order to prevent the execution of a law.
Balancing these principles in light of this case, we conclude that the legislature may require an appeal to the U. S. Supreme Court so
Because the legislative encroachment into the executive power of controlling litigation is limited to carrying out the legislature‘s chosen reapportionment plan, it does not impermissibly intrude into executive branch functions and does not constitute a separation of powers violation. The dissent‘s dire prediction of a political and constitutional crisis is possible only because it ignores the uniqueness of legislative reapportionment.
CONCLUSION
The Constitution mandates that the Attorney General perform “such other duties as shall be required by law.” Act 444 suspends the operation of the new redistricting provisions “pending a final determination of their enforceability under the federal Voting Rights Act of 1965,” which requires federal court resolution. Accordingly, when the Attorney General declined to dismiss the appeal, he was fulfilling a duty required by Act 444. Because the Attorney General was acting consistently with his constitutional and statutory duties, we conclude that the Governor does not have a clear legal right to compel the Attorney General to dismiss the appeal or case from the courts. Therefore, the Governor is not entitled to the writ of mandamus.
Judgment affirmed. All the Justices concur, except Carley and Hines, JJ., who dissent.
BENHAM, Justice, concurring.
In my dissent to the denial of appellee‘s motion to dismiss, I explained why I believe this matter is moot (Perdue v. Baker, 276 Ga. 822 (586 SE2d 303) (2003)), and I adhere to that belief. However, the denial of the motion to dismiss establishes as the law of the case that the matter is not moot. That being so, I concur in the affirmance of
CARLEY, Justice, dissenting.
The Governor of Georgia exercises “chief executive powers,” and the Attorney General of this state serves “as the legal advisor of the executive department.”
I would much prefer, if it were possible to do so in a case of such great importance, to join in the majority opinion of my learned colleagues rather than dissent from the conclusions of law at which they have arrived. However, having resolved the questions as best I could, and having reached a decided conviction contrary to that expressed by the majority, with due modesty I trust as one of two dissenters, and with all deference to [the Justices in the] majority . . . , I feel it incumbent upon me to state for the record, as briefly as I can but as fully as is necessary, the reasons which have impelled me to arrive at a different legal conclusion. While it is true that the majority opinion is the judgment of the court and therefore becomes the law of the land, it is also true that in the development of American jurisprudence the dissenting
opinion is believed to have ofttimes played a useful part.
Thompson v. Talmadge, 201 Ga. 867, 890-891 (41 SE2d 883) (1947) (Jenkins, C. J., dissenting). Giving full expression to my departure from the majority‘s analysis is especially important where, as here, it characterizes its own holding as “limited” and based upon the “uniqueness” of the legal area into which it approves “legislative encroachment into the executive power of controlling litigation. . . .” Majority opinion, p. 15.
THE GEORGIA CONSTITUTION
The Georgia Constitution places the responsibility for ensuring that “the laws are faithfully executed” on the Governor,
Certainly, nothing in our state constitution expressly authorizes the Attorney General to continue pursuing a lawsuit when the Governor directs him to cease doing so. Moreover, such unilateral authority would be completely inconsistent with a lawyer‘s professional role. “The scope of an attorney‘s authority when retained to prosecute or defend a pending case is determined by the terms of his contract of employment, and the instructions given by his client. . . .” (Emphasis supplied.) Dean v. Jackson, 219 Ga. 552 (134 SE2d 601) (1964). “An attorney of record is a party‘s agent in the prosecution of a legal action.” Shepherd v. Carlton‘s Nice Cars, 149 Ga. App. 749, 750 (256 SE2d 113) (1979). If the Attorney General is an agent when pursuing litigation on behalf of the state, then he obviously cannot
As advisor, a lawyer provides a client with an informed understanding of the client‘s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client‘s position under the rules of the adversary system.
Preamble (2) to the Rules of Professional Conduct of the State Bar of Georgia.
Thus, it is clear that the Attorney General‘s constitutional role is to advise and to represent the executive branch, and not to defy the Governor‘s order to discontinue pursuit of a lawsuit on behalf of the state.
Both lawyer and client have authority аnd responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within limits imposed by law and the lawyer‘s professional obligations. (Emphasis supplied.)
Comment (1) to Rule 1.2 of the Rules of Professional Conduct of the State Bar of Georgia. The Governor is free to disregard the legal advice he receives and, if he does, his policy decision and instructions must control. Former Governor Barnes supported the Attorney General‘s appeal of the decision of the federal district court. However, Governor Perdue now heads the executive branch of the government of the State of Georgia. He has the same constitutional authority to make policy decisions regarding litigation involving the state as did his predecessors in office. Likewise, the Attorney General does not have any more discretion to ignore the instruction to end the lawsuit than he had to disregard a direction by the then head of the executive branch to initiate the appeal.
The Attorney General‘s lack of constitutional authority to defy the Governor‘s directive is apparent not only from the unambiguous text of our Constitution, but also from the transcripts of the proceedings leading tо its creation. Prior to the adoption of the Constitution of 1983, an effort was made on two occasions to include in it language that would expressly grant the Attorney General the power to proceed in civil cases without regard to the Governor‘s wishes. See Select
GEORGIA STATUTES
The Attorney General is also authorized to “perform such other duties as shall be required by law.”
well-settled legal principle recognized in various decisions of the courts of last resort in this country . . . that where 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.
Walker v. Ga. R. & Power Co., supra at 656. Thus, the power to ignore the Governor‘s directive must derive “legitimately” from some duty imposed upon the Attorney General by statute.
Certainly, there is not any statute which expressly grants 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.
For his part, the Attorney General is generally authorized to “represent the state in all civil actions tried in any court . . . .”
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 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. (Emphasis supplied.)
Trust Co. of Ga. v. State of Ga., 109 Ga. 736, 746-747 (1) (35 SE2d 323) (1900). Since that case was decided, the General Assembly has not expressly empowered the Attorney General to act independently of the Governor‘s direction. Thus, the Attorney General‘s power remains subject to the Governor‘s discretion, and he does not have any legitimate statutory basis to defy the order to end the litigation.
The majority ultimately bases its holding upon Act 444, stating that, “[b]y appealing, the Attorney General was fulfilling his general duty as chief legal officer to execute state law and his specific duty to defend the reapportiоnment law as enacted by the General Assembly.” Majority opinion, p. 12. Even assuming that to be a correct statement, it has no bearing on the disposition of this case. No one questions the authority of the Attorney General to initiate the appeal. The crucial issue is whether the Attorney General can defy the Governor‘s directive to withdraw the appeal.
The majority points to nothing in Act 444 which addresses the relative authority of the Governor and Attorney General with regard to the litigation involving the original senate redistricting plan. The statute simply suspended the provisions of the plan ”pending a final determination of their enforceability under the federal Voting Rights Act of 1965, as amended.” (Emphasis supplied.) Ga. L. 2002, pp. 148, 149, § 1 (d). It neither specifies how the “final determination” will be made nor who decides what constitutes a “final determination.” Thus, there is not any language in Act 444 which expressly removes it from the general constitutional mandate that, as a law of this state, its faithful enforcement is a discretionary matter for the Governor, in his capacity as the head of the executive branch. “[T]he executive branch . . . enforce[s] the statutes passed by the General Assembly until such time as they are amended or [stricken] by the courts.” Adams v. Ga. Dept. of Corrections, 274 Ga. 461, 462 (553 SE2d 798) (2001). Because a federal district court had already held that the original senate redistricting plan violated the Voting Rights Act, a “final determination” of the enforceability of that plan would result from the Governor‘s policy determination that the ruling was correct. Nothing requires the executive branch to exhaust every avenue of appellate review, and declining to pursue an appeal is a valid exercise of executive discretion. In fact, there have been numerous instances in which the federal courts struck down state statutes, and the executive branch, in the exercise of its discretion, elected to forgo an appeal. See Tillman v. Miller, 133 F3d 1402 (11th Cir. 1998); Statewide Detective Agency v. Miller, 115 F3d 904 (11th Cir. 1997); American Civil Liberties Union of Ga. v. Miller, 977 FSupp. 1228 (N.D. Ga. 1997); Southern States Landfill v. Georgia Dept. of Natural Resources, 801 FSupp. 725 (M.D. Ga. 1992); Fernandez v. State of Ga., 716 FSupp. 1475 (M.D. Ga. 1989). As exemplified by those cases, any question of the enforceability of the original reapportionment plan should have been resolved once the Governor determined to end the appeal from the federal district court decision. The authority for the Attorney General to defy the Governor which the majority reads
SEPARATION OF POWERS
The majority acknowledges that an act of the General Assembly violates the constitutional doctrine of “separation of powers when it increases legislative powers at the expense of the executive branch” or “‘“prevent(s) the Executive Branch from accomplishing its constitutionally assigned functions,“’ even if it does not increase legislative powers.” Majority opinion, p. 13. Furthermore, the majority concedes that the validity of its holding is completely dependent upon “whether Act 444 inappropriately intrudes upon Executive Branch powers and functions.” Majority opinion, p. 13. Admittedly it is not always easy to determine the line between executive and legislative functions. Greer v. State of Ga., 233 Ga. 667, 669 (1) (212 SE2d 836) (1975). However, one area where the distinction should be absolutely clear is the control over litigation to which the state is a party. A lawsuit is the ultimate remedy to ensure compliance with the law, and our Constitution unequivocally imposes the responsibility for the faithful enforcement of the laws upon the Governor, and not upon the General Assembly. See
Thus, the conclusion on page 15 of the majority opinion that “[t]he intrusion by the legislature into the executive branch function of control of litigation is justified by the limited nature of the encroachment - pursuit of one case - and by the subject matter of the litigation - legislative reapportionment,” is a complete fiction which is contrary to the unambiguous provisions of the Georgia Constitution. Because the constitutional grant of authority to the executive
announc[ed] a fundamental principle of our State government under the Constitution. A departure from that high principle might well endanger the stability of the entire governmental structure. It declares a rule of law that denies any implied or inherent right or power in the legislative department to exercise any power that has not by the sovereign people, through that Constitution, been reposed in the legislative department of government.
Thompson v. Talmadge, supra at 887 (2). By holding that, notwithstanding the express provisions of the Constitution placing the unqualified responsibility for enforcement of the laws upon the executive branch, the General Assembly can intrude into the control of litigation involving reapportionment, the majority necessarily departs from that “high principle.” Sixty-Seventh Minnesota State Senate v. Beens, 406 U. S. 187 (92 SC 1477, 32 LE2d 1) (1972) is not authority for ignoring the clear mandate of our Constitution. All that case holds is that one house of a state legislature can intervene in federal litigation challenging an apportionment plan. The power to intervene in a federal action is in no way comparable to the constitutional power to control the ultimate course of the litigation. Under the Constitution of Georgia, that power is exercised only by the Governor in his capacity as the head of the executive branch of this state‘s government.
As the majority does correctly note, one branch of government cannot do indirectly what it cannot do directly. However, the correct application of that principle in this case means thаt the General Assembly cannot impinge directly or indirectly on the authority of the executive branch to control litigation. Thompson v. Talmadge, supra at 887 (2). The Governor may not have the authority to decline to execute a law, but he certainly has the power to seek to avoid enforcement of a law that he believes encroaches on his constitutional powers. That is precisely what the Governor did when he brought this mandamus action to compel the Attorney General to act despite the provisions of any statute purporting to authorize his refusal to act. If, as the majority holds, Act 444 can be read as directing the Attorney General to maintain an appeal to the Supreme Court of the United States over the express objection of the Governor, then that statute would be an unconstitutional legislative
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. 15. 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 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, p. 6. The Constitution dоes 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, the majority‘s notion of a system of checks and balances in the executive branch is completely illusory. Only one official of the executive
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.”
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 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 SE2d 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.
DECIDED 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.