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Official Opinion 93-5

Official Opinion 93-5

March 2, 1993
To: 

Governor of Georgia

State Capitol Building

Re: 

The General Assembly may not enact a general law which by its terms conditions its effectiveness upon approval by the voters at a statewie referendum.

You have requested my official opinion with respect to whether the General Assembly may properly enact a general law which conditions its effectiveness upon approval of the voters at a statewide referendum. For the reasons discussed below, it is my opinion that in the absence of specific constitutional authority, the General Assembly may not so delegate its legislative power.

The legal issue is whether under the 1983 Georgia Constitution the General Assembly may make the effectiveness of a statewide statute dependent upon a statewide referendum when the Constitution does not authorize such a referendum. My reading of the language in the 1983 Constitution indicates that such a usage of a statewide referendum would be an abdication of the exclusive authority of the General Assembly to enact laws.  Lawmaking power is vested solely in the legislature.  Art. III, Sec. VI, Par. I.  The Constitution further provides that the General Assembly may not abridge its powers and may enact no laws which may be construed to limit its power.  Art. III, Sec. VI, Par. III.  [*2]  See also Art. III, Sec. V, Par.  XIII(a) ("all bills and 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. . . .").

The Georgia Constitution contains numerous provisions which provide for a referendum in particular circumstances.  See e.g., Art. VII, Sec. II, Par. II (laws enacted by the General Assembly exempting property from ad valorem taxation require statewide affirmative referendum) and Art. VII, Sec. II, Par. IV (same, for repeal of homestead exemptions); Art. VIII, Sec. V, Par. I (laws enacted by the General Assembly to consolidate local school systems require affirmative referendum of the voters within each school system) and Art. VIII, Sec. V, Par. IV (similar procedure for changing composition of school boards by local law and referendum); Art. VIII, Sec. V, Par. VII(a) (local referendum required for bonded indebtedness for special schools); Art. VIII, Sec. VI, Par. II (local referendum required to increase or remove the tax rate for school systems); Art. IX, Sec. I, Par. II(c) (enactment by the General Assembly for the consolidation of counties requires [*3]  affirmative referendum of local voters); Art. IX, Sec. II, Par. I(b)(2) (local election initiative to amend or repeal local acts); Art. IX, Sec. II, Par. VII(b) (certain local laws relating to community redevelopment require local referendum); Art. IX, Sec. V, Par. I(a) (affirmative local referendum required for local governments to incur new debt); Art. X, Sec. I, Pars. I & II (amendments to the Constitution may be proposed by the General Assembly or by a constitutional convention, but must be approved by the people of the State).  Thus, under the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), it appears that the current Constitution does not contemplate use of statewide referenda by the General Assembly in conjunction with laws enacted by it, other than in those specific situations provided for in the Constitution.

The legislature may enact a law to become operative on the happening of a certain contingency or occurrence or nonoccurrence of a subsequent event. Further, I recognize that there is case law in Georgia containing broad language which supports the conclusion that the operative event for the effective [*4]  date of legislation may be an affirmative referendum vote.  See, e.g., Long v. State, 202 Ga. 235 (1947); Hines v. Etheridge, 173 Ga. 870 (1931). However, these cases dealt with local situations and are not dispositive in resolving the instant question in the context of a general law and a statewide referendum. In Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358, 365 (1930), the Supreme Court expressly noted that the "precise question [of a statewide referendum] has never been decided in this State and it need not be decided in the instant case." Without a Supreme Court decision on point, I believe the better view is that the cases do not support the enactment of a general law to become effective only upon an affirmative statewide referendum.

It is important to recognize that the narrow issue of the General Assembly's making the effectiveness of a general law contingent upon an affirmative vote by the people does not alter the general rule that the General Assembly does have broad authority to condition the effectiveness of a law upon a subsequent event. It simply may not delegate its ultimate responsibility to make decisions on fundamental legislative [*5]  issues.  As a matter of general information, even if such a law could be enacted, the Voting Rights Act would require submission of the law to the United States Justice Department for approval.

While I recognize that this question is not free from doubt, it is my official opinion that that the General Assembly may not enact a general law which by its terms conditions its effectiveness upon approval by the voters at a statewide referendum.

Prepared by:

MICHAEL J. BOWERS

Attorney General