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For more than two months, the power struggle between Georgia’s governor and attorney general has taken place in long legal documents. But on Tuesday, the case came alive in a spirited three-hour hearing before Fulton County Superior Court Judge Constance C. Russell, whose questions revealed a murky state of the law. At issue is Gov. George E. “Sonny” Perdue III’s claim that, as the chief executive officer of the state government, he has the authority to order Attorney General Thurbert E. Baker to dismiss the state’s appeal of a redistricting decision before the U.S. Supreme Court. Russell, a 1996 appointee of Georgia Gov. Zell Miller, probed each side’s arguments, asking how her ruling would affect not only this dispute but also the overall power distribution among the governor, the attorney general and the General Assembly, which passed the 2001 redistricting plan being reviewed by the U.S. high court. The justices are set to hear the case April 29 and should by July release a decision that would clarify the federal Voting Rights Act and possibly reinstate Democratic-leaning state Senate districts. Perdue is a Republican, Baker a Democrat. Baker maintains that the attorney general’s powers are independent of the governor’s and that final litigation decisions rest with him. Last year a federal panel voted 2-1 to strike down the boundaries of three state Senate districts as violations of the Voting Rights Act. The General Assembly then passed Act 444, which drew new boundaries for the Senate “pending a final determination” of the 2001 plan’s enforceability under the Voting Rights Act. Baker appealed last summer, before Perdue was elected governor, and the U.S. Supreme Court agreed in January to hear the matter. The agreement came a few days after Perdue took office. During Tuesday’s hearing, Russell pressed Frank C. Jones, a former King & Spalding partner who came out of retirement to represent the governor, to explain how Perdue could prevent the attorney general from appealing to the U.S. high court to defend an act passed by state lawmakers. “Who do they go to to get this enforced?” Russell asked. “The legislative branch is dependent on the executive to enforce the laws.” Jones argued that, in this case, the federal panel’s decision showed that the attorney general already had fought to defend the 2001 redistricting plan but lost. Baker was not obligated to defend every law all the way to the U.S. Supreme Court, Jones said. Jones’ argument led Russell to ask whether he’d be satisfied if she found that the governor had the authority to direct litigation after a lower court had made a ruling on whether a particular law should stand. “I’ll be satisfied if I win the case,” Jones deadpanned, adding that he would win under Russell’s suggested view of the law. “Someone has to make a final decision” on how far to appeal, Jones added, and that someone was the governor. As Jones tried to present his argument, which was based on an extensive look at precedent and laws dating back to 1877, Russell continued, in her words, to “harass” Jones with questions — mostly about the governor’s right to prevent appeals of lower court decisions that struck down state laws. Didn’t the Jones argument “in effect give the governor a chance for a second veto?” Russell asked. “Because if you don’t litigate, you can’t enforce” the law that sought a final determination of the 2001 redistricting plan, she added. Representing the attorney general, Robert B. Remar of Rogers & Hardin called Perdue’s view of his powers “breathtaking.” But Russell had tough questions for Remar, too. She posed a hypothetical situation in which, as now, the state faced a budget crisis, but the attorney general continued prosecuting a suit that was costing millions of dollars. Was there nothing the governor could do? she asked. Remar said the General Assembly could restrict the attorney general’s funds and possibly pass a law banning payment for specific cases. Russell asked who had the authority to initiate or settle major litigation. She pointed to the 1990s litigation over voting rights and the election of black judges, which was settled by Miller and then-Attorney General Michael J. Bowers. Russell asked whose decision it was to settle, and Jeffrey L. Milsteen, Baker’s chief deputy, who also worked under Bowers, said Miller, Bowers and the other parties decided together to settle. “The attorney general is not subservient,” Remar added. Referring to language in the 1983 constitution that the governor retained “chief executive” powers, Russell asked, “If that’s true, what does ‘chief’ mean?” Remar responded that the governor still did not have total power over other constitutional officers. Russell promised the lawyers she would rule “very quickly.” She had not done so by press time Tuesday. Whoever loses in Russell’s decision is expected to appeal to the Georgia Supreme Court.

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