The Georgia judiciary is to decide Friday whether to ignore Gov. Sonny Perdue's warning and take him on in a constitutional confrontation that could give new meaning to the term home-court advantage.
Supreme Court Chief Justice Leah Sears has called the meeting of state judges to decide whether the third branch of government should sue Perdue to stop him from withholding 25 percent of the judiciary's funding this month.
Perdue says he needs the money to balance the state budget in the last month of the fiscal year.
Sears said the governor has no such authority over the judicial branch's money.
Superior Court Judge Melvin Westmoreland -- who heads the Council of Superior Court Judges, which asked Sears to call the meeting -- said the governor is performing a power grab that puts the judiciary's independence at risk.
"There is no doubt that this will be politicized," said Westmoreland, who presides on the Fulton County bench. "I don't care if we win the public relations battle. I want to win the constitutional battle. I don't want this governor or any other governor to think they can do this with impunity."
The potential constitutional crisis arises from differing demands within the state constitution: It requires a balanced budget but also bans the governor from dictating the judiciary budget.
"It is kind of a Catch-22," said state Rep. Wendell Willard, R-Sandy Springs, who chairs a judiciary committee. "It is best for the heads of the branches of government to sit down and try to work things out."
In a letter to Westmoreland on Thursday, Perdue acknowledged the courts have taken voluntary cuts, although less than most state agencies, and sent his warning.
"I trust that the representatives on the Judicial Council will do the right thing: work together to manage within the revenues available and not race to the courthouse," Perdue wrote. "Let me be plain: Whatever assistance I can offer a co-equal branch of government will be impossible should that branch become an opposing party in a lawsuit."
Much of the judicial budget is in judges' salaries, and the law prevents cutting them. The state pays Superior Court judges about $120,000 a year, and some counties supplement them.
"We can't mandate a pay cut, but they can certainly volunteer one," gubernatorial spokesman Bert Brantley said. "All we're asking them to do is use a little innovation, show a little creativity to manage through this month, which all the state agencies and legislative branch have done."
The attorney general's office, which represents the governor, gave Perdue a written opinion that he may be able to withhold part of the judiciary's budget if it doesn't undermine the judiciary's ability to perform its duties.
Westmoreland said a 25 percent reduction would undercut justice. He noted that ultimately it would be up to the Georgia Supreme Court to decide whether withholding the funding is unconstitutional.
"It's their job to decide these issues -- they've done it before," Westmoreland said.
State Rep. Chuck Martin, R-Alpharetta, who chairs a House subcommittee on public safety, said he worried a deep cut in the judiciary budget could undermine court operations, but he suggested judges refrain from a lawsuit, especially one that gave the appearance of a conflict of interest.
"That is like you and I having an argument and I say, 'Let's take it to arbitration and, by the way, I'm the arbiter and I kind of like my position," Martin said.
Brantley questioned the fairness of the judicial branch deciding an issue. "I'm not sure a senior judge can be impartial on an issue of a judicial budget. I think there would be some serious questions about any judge who would put himself up hear this," he said.
Robert Schapiro, a constitutional law expert at Emory University, said the issue involving the constitution would almost certainly have to be decided by the state Supreme Court.
"There is the rule of necessity which is somebody has to hear the case, and it has to be a judge and you do the best you can."
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