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Attorney General Thurbert E. Baker won his redistricting fight with Gov. George E. “Sonny” Perdue III on Thursday, courtesy of a Georgia Supreme Court that split 5-2 over fundamental questions of power within the state government. The majority, led by Chief Justice Norman S. Fletcher, held that the governor and attorney general “have joint responsibility to protect the State’s interest in litigation.” But in this case, in which Perdue demanded that Baker stop his legal battles to revive a Democratic-leaning state Senate map, Fletcher wrote that Baker had the obligation and authority to pursue an appeal to the U.S. 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,” wrote Fletcher. He was joined by Presiding Justice Leah Ward Sears and Justices Robert Benham, Carol W. Hunstein and Hugh P. Thompson. Justice George H. Carley, joined by Justice P. Harris Hines, issued a passionate dissent. “Far from the narrow holding portrayed by the majority,” Carley wrote, “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 written.” Carley called the majority’s finding of shared responsibility between the governor and the attorney general “completely illusory.” “Only one official of the executive branch can control the course of litigation,” wrote Carley, “and, according to the Constitution of this state, that official is the Governor.” Carley was especially critical of the majority’s view that Baker was authorized to refuse Perdue’s demand because the attorney general had to defend an act of the General Assembly that seemed to require a final determination from the federal courts. That holding, Carley argued, tipped the balance of power between the executive and legislative branches in favor of the General Assembly. Moreover, Carley added, “The Attorney General can flatly refuse to consider implementing the Governor’s decision, thereby leaving the head of the executive branch completely without legal representation.” Perdue v. Baker, No. S03A1154 (Sup. Ct. Ga., Sept. 4, 2003). In a written statement, Baker called the ruling “a clear victory for the people of Georgia and a win for good government.” “I am heartened that the court has upheld the checks and balances drawn into the Georgia Constitution and statutes, which enable me to continue to discharge my duties as the state’s chief legal officer,” Baker added. Perdue issued a statement late Thursday that said he was “deeply troubled” by the decision. He added that the court missed its opportunity to decide who controls the state’s legal matters and instead “left us with more questions than answers.” NOTHING LASTS FOREVER University of Georgia law and government professor Melvin B. Hill Jr., who was the staff director of the General Assembly’s committee that drafted the 1983 state constitution, said the decision surprised him. “I would have thought the governor might have an edge here,” he said. But Hill cautioned “nothing is ever settled forever.” The facts and parties of cases are unique, he said, so the question remains, “How long can we depend on this before something else happens that is different? The good thing about our system is that it’s not locked in concrete. And at least the issue has moved forward,” he said. Indeed, tension between governors and attorneys general is common, and Fletcher wrote that one reason the court agreed to decide the case was that the question of the attorney general’s duties “is one capable of repetition that has so far evaded review.” When first offered the job of state attorney general in 1965, the late Arthur K. Bolton turned it down, because at that time, the attorney general and his assistants were subject to the governor’s control. “He wouldn’t take the job unless it was made an independent office,” former Gov. Carl E. Sanders said in 1997. After Sanders promised Bolton that the Law Department would be financially independent and independent of the governor, Bolton accepted the post and stayed on for 16 years, thanks to voters who elected him four times. When Michael J. Bowers succeeded Bolton in 1981, Bowers staunchly defended the Law Department as an independent entity, suing state agencies that did not follow the law as he interpreted it. Baker took over from Bowers in 1997 and has maintained the same position, albeit in a lower-profile fashion than the combative Bowers. THE FIGHT FOR LEGAL CONTROL Perdue v. Baker had its roots in the 2000 U.S. Census, after which then-Gov. Roy E. Barnes and the Democrat-controlled General Assembly redrew Georgia’s legislative maps. Their plan, passed in 2001, gave Democrats a heavy advantage. But because the Democrats spread black votes around the state, reducing some black majorities to around 50 percent, a three-judge federal court in 2002 ruled that Georgia’s state Senate map violated the Voting Rights Act. The General Assembly then passed Act 444, which implemented a new map, pending a “final determination” on the old map. The new map was slightly more favorable to Republicans, who last year won the Senate because four Democrats defected to the GOP. Baker, a Democrat, appealed the three-judge panel’s ruling to the U.S. Supreme Court in an attempt to get a final determination, Georgia v. Ashcroft, No. 02-182. But the same week that the U.S. high court agreed to hear the case, Perdue took office as the state’s first Republican governor since Reconstruction. He had campaigned against Barnes’ redistricting plan and backed attempts by the new Republican Senate majority to pass a new plan. The effort ultimately was blocked by the state House of Representatives, which still is controlled by Democrats. Meanwhile, Perdue first asked, then demanded, that Baker dismiss the redistricting appeal that could have resulted in the reinstatement of the 2001 Senate map drawn by Barnes and the Democrats. When Baker refused, Perdue in February asked a Fulton County Superior Court judge to order Baker to drop the U.S. Supreme Court appeal. Thursday’s arguments from the respective majority and dissenting sides of the Georgia Supreme Court grew out of the legal positions the parties took in lower court proceedings. Perdue’s lawyer, retired King & Spalding partner Frank C. Jones, based his arguments on the state constitution’s statement that the attorney general shall represent the state “when required by the Governor,” and also on a state law declaring, “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.” Baker’s chief outside lawyers, Richard H. Sinkfield and Robert B. Remar of Rogers & Hardin, argued that the governor was trying to prevent the attorney general from enforcing a redistricting law passed by the General Assembly, effectively allowing Perdue a veto of a law already on the books. In April, Judge Constance C. Russell ruled for Baker. She concluded that Baker was required by Act 444 to decide if the appeal should be pursued. “His decision may not be overturned by the Governor,” she added. On April 29, the U.S. Supreme Court heard arguments in the redistricting case Georgia v. Ashcroft. As in previous redistricting cases, the court seemed divided. A week later, the Georgia high court heard arguments in Perdue v. Baker. The state justices surprised many when seven weeks went by without a decision. On June 26, the U.S. high court ruled 5-4 in favor of the state, against the result Perdue and the Republicans desired. Baker immediately asked the state justices to dismiss Perdue v. Baker as moot, but only Benham agreed. On Thursday, Benham included a brief concurrence to the majority decision, which stated that he still thought the case was moot. Staff Reporter Rachel Tobin Ramos contributed to this report.

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