The State of Georgia produced its first constitution in 1777; one year after the declaration of Independence and at least twenty years prior to the drafting and signing of the United States Constitution. As it has been with the federal constitution, the constitution of the state of Georgia has been through numerous revisions and rewrites over the years. As mans grasp of enlightenment has been incrementally advanced, their collective wisdoms have bestowed upon them, the reasonableness which enables them to fashion a document, which assures the maximum amount of safeguards for a majority of the people. As situations change and circumstances evolve, the need for applicable adjustments present themselves in the form of loopholes and challenges. Fortunately, The law is not cast in concrete, it evolves and is adjusted to the needs and desires of the populace.
There are some extremely delicate articles contained in the Georgia constitution and the doctrines of checks and balances and separation of powers are two paramount entities: I have sought to illustrate the importance of these two doctrines by the use of legal challenges; in the first instance, I have used the case of Perdue v. Baker, wherein the appellant (Governor) challenges the authority of the Attorney general (Baker), on the legal ground that Baker has violated the separation of powers doctrine. This case is of particular importance because as the challenge is initiated on separation of powers, the effect of the decision in favor of the defendant will support the checks and balance doctrine. The second case I have used as an illustration concerns HB 1158, which challenges the balance of power between the legislature and the Governor.
The separation of the judicial, legislative, and executive branches of government is a fundamental component of our democracy under which the legislative branch has the power to adopt and modify laws, the judicial branch has the power to review those laws, and the executive branch is vested with the power and duty to implement or execute the laws. The Georgia constitution is consistent in this design in that it vests executive power in the governor and states that he “shall take care that the laws are faithfully executed” (Ga. Const. Art V, S2 para2). The Georgia constitution further vests legislative power in the General Assembly, stating “it is their duty to enact laws”. (Ga. Const. Art III, S1 para 1). And finally, the Georgia constitution vests the judicial power in the courts (Ga. Const. Art VI, S1 para 1).
Another fundamental principle of the separation of powers doctrine is that no branch has the right or power to infringe upon the duties assigned to the others. This principle is also contained the Georgia constitution, which states, “The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of the others (Ga. Const. Art I S2 para3).
No matter that the words put forth in the Georgia constitution are both clear and emphatic, interpretation of the constitutional mandates are sometimes cloudy and confusing to those who are directly effected by them; one such example was a fight between Georgia Governor George E. Perdue III, and Attorney general Thurbert E. Baker over who controls the state’s legal decisions.
Perdue ordered Baker to drop the states’ U. S. Supreme Court Appeal of a lower Courts redistricting decision. Attorney General Baker refused the Governor’s request, and the refusal set up a state constitutional confrontation, wherein both sides claimed the other was engaging in an overstepping their individual bounds of authority; in the mind of the appellant it was a matter of an infringement of the separation of powers and the defendant it was a matter of checks and balances. Bakers position was, as that as the States’ Attorney General, he was constitutionally mandated to call all of the states’ legal shots. Additionally, Bakers lawyer said, “This is a special case’”, one in which the governor was trying to prevent the attorney general from enforcing a redistricting law passed by the General Assembly. (Ringel)
The governors position was that anytime the Attorney General seeks to file a lawsuit, he must have the approval of the governor. There have been other incidents (which I will highlight later in this paper), but this is the first instance where the governor has refuted the attorney generals’ authority to bring suit. One of the primary reasons it happened in this instance, is Perdue is the first elected Republican governor in Georgia since reconstruction – presenting a new political climate in Georgia. “The case stems from the 2000 census, after the Democrat- controlled Assembly aggressively gerrymandered the legislative map to favor the election of democrats” (Ringel)
At the hearing the lawyer for the appellant based his argument on a section of the state constitution which states that, “the attorney general shall represent the state” when required by the governor.” He also relied on O.C.G.A. 45-15-35, which says, “The governor shall have the power to direct the Department of Law, through the attorney general as head thereof, to instituteand prosecute in the name of the state such matters, proceedings and litigations, as he shall deem to be in the best interest of the state”. Upon conclusion The lawyer for the appellant stated, “It is hard for me to imagine clearer language”(Ringel) I also agree with Jones, that the language is clear, but, I must add that I agree on the basis of totally different reasons. Jones’ interpretation has been narrowed to fit into the sliver of truth which he has based his case. It is even clearer that the appellant’s case is clouded with and by partisan political considerations. The issue is crystal clear that the governor has a political agenda, which may or may not be in the best interest of the people of the state.
Presiding justice Leah Ward Sears attempted to make it clear that the attorney general did have some constitutional latitude, she made reference to the state constitution which said, after the “when required” language that the attorney general “shall perform such other duties as shall be required by law”. Justice sears suggested, “that could be the legislative enactment 444” (Ringel). The attorney for the appellant, disagreed pointing out that 444 only required a final determination of the redistricting case. He emphasized that a specific requirement by the legislature to bring appeal would place the legislature in the position of overstepping its bounds, whereupon they (legislature) would be in violation of the separation of powers doctrine between the legislature and executive branches.
Nonetheless, the question of the day was posed by Justice Sears when she inquired; “is it possible that the governor and the attorney general have independent co-equal powers?”
It was clear that the attorney general had initiated action on behalf of the state on his own.i.e. He (attorney general), initiated the states tobacco suit, on the basis of O.C.G.A. 45-15- 34 which says; “The Department of law is vested with complete and exclusive authority and jurisdiction in all matters of law relating to the executive branch of government.” While the wording of the language is written clearly, it obviously becomes convoluted when opposing sides venture to interpret the meaning as it relates to their individual authority. But in this case, in which Perdue demanded that Baker stop his legal battles to revive a Democratic-leaning state senate map, in the majority 5-2 decision, Georgia Supreme Court Justice Norman S. 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”(Fletcher) Fletcher further stated that “the governor and attorney general have joint responsibility to protect states’ interest in litigation”
In another separation of powers case, HB 1182 comes under scrutiny as a possible violation of the separation of powers doctrine between the legislative branch of government, which is responsible for creating law while the executive branch is responsible for implementing these laws, a duty that includes rulemaking. By interfering with the executive branch’s performance of its duties, namely rulemaking, HV 1182 was alleged to violate the separation of powers between the executive and legislative branches.
The presentment clause of the Georgia constitution states; “All bills and all resolutions which have been passed by the General Assembly intended to have the effect of law shall become law if the governor approves or fails to veto the same within six days from the date any such bill is transmitted to the governor” (Ga. Const. Art III S5 papa 8). Additionally, the Georgia constitution also stipulates; “no provision in this constitution for a two-thirds vote of both houses of the general Assembly shall be construed to waive the necessity for the signature of the governor” (Ga. Const. Art III S5 para 11). The aforementioned constitutional provisions together, makes it clear that all bills or resolutions “intended to have the effect of law” must be presented to the governor for approval and signature.
At issue is the proposal in HB 1182 to remove the Environmental Protection Division (EDP) exemption from legislative override procedures which would allow the general assembly, with a two-thirds vote of each branch (House and Senate), to avoid a promulgated EDP rule, without presentation to the governor. The APA provision which HB 1182 was proposed to amend, provided the override would have become effective the day after it was taken, and that would have circumvented the governor. And in essence, a violation of the Georgia constitution.
At the time of HB 1182, several states (Alaska, Oregon, New Jersey, Missouri, Michigan and west Virginia) had also dealt with the legislative override issue and each had found the act in violation of their constitutions. The New Jersey Supreme Court found a law similar to Georgia’s unconstitutional on separation of powers grounds, stating; “by allowing the legislative control agency rulemaking, the legislative veto can gravely impair the functions of agencies charged with enforcing statutes. The extremely broad legislative veto [which was present in this case] thereby frustrated the executives constitutional mandate to faithfully execute the law”. (State of New Jersey v. Byrne, 448 A 2d 438, 443 (NJ 1982). The United States Supreme Court has also struck down statutes that attempted to provide legislative override of agency rules on the federal level. See also INS v. Chadha, 462 U.S. 919 (1983).
Delegation of Authority to Local governments
Each municipality in Georgia has a charter that establishes its basic governmental structure, form of government, corporate boundaries and municipal powers. [a city’s’ municipal powers may include but are not limited to] In Georgia most municipalities have all of the following forms of government; the strong mayor-council form, the weal mayor-council form, or the council manager form. Under the strong and weak-mayor council forms, executive and policy making roles and responsibilities are divided between the mayor and the city council. Under the council manager form, the city council fills the primary policy making ro9le, and an appointed city manager is responsible for the primary executive functions. (Encyclopedia GCG)
In Georgia, unlike most states with large cities, the county is still the center of political and cultural life for a majority of the states’ citizens. Counties carry out locally a variety of state programs and policies, including collecting taxes, overseeing elections, conducting courts of law, filing official records, maintaining roads, and providing for the welfare of its citizens.
Georgia HB1182 separation of powers, Retrieved on line on July 25, 2006, from www.home.att.net
Justices hear governor and AG pitch for power, retrieved on line on July 25,2006, from www.lae.com
New Georgia Encyclopedia, retrieved on line on July 25, 2006, from www.georgiaencyclopedia.org
Ringel Jonathan, Georgia Supreme Court finds for Attorney General in Governor redistricting fight, Retrieved on line on July 25, 2006, from www.law.com
State of Georgia Constitution, retrieved on line on Jult 25,2006, from www.georgiaconstitution.com