The Contested Supreme Court Race

The following material comes from an email I wrote to a legal listserve concerning the candidacy of Justice David Nahmias.

Jim Butler's comments below [at the bottom of the email] emboldened me to make public my reasons for voting against Justice Nahmias. If he is elected, I hope that he will prove these conclusions wrong. However, the election is upon us, and I have to make the best decision I can based on his record as it stands now.

My main contact with Justice Nahmias comes with the Smith v. Salon Baptiste case, in which the Supreme Court took away Georgian citizens' right to the courts, as previously guaranteed by Art. I, Sec. I, Par. XII of the Georgia constitution. However, I have been reading his opinions in all the cases, including criminal cases, concurring opinions, etc. I hope that the level of detail in this summary will help avert charges that I am engaging in "politicizing" this judicial election. That is the last thing that I want to do.

My first encounter with Justice Nahmias came in the oral argument in Smith v. Salon Baptiste, which was, I believe, his third day of oral arguments. I have never seen such badgering from the Georgia appellate bench as I saw from Justice Nahmias directed against the plaintiff's counsel, eating up her time as well as my own (I was waiting to give an amicus argument for GTLA), and continuously coming back to the same point: the OOJ statute [O.C.G.A. § 9-11-68] didn't "chill" the plaintiffs' right to the courts enough to prevent them from filing suit or declining a small settlement. 1 or 2 questions would have sufficed to make that point in a courteous way, but instead of reasoned disagreement, the atmosphere was that of a prosecutor's cross-examining a hostile witness in a criminal case, continually interrupting her presentation to get back to that point.

This initial intemperance has moderated in the remaining four times I've been to the Court. Therefore, I would not vote against him just on this account. But there's more.

It has been observed that Justice Nahmias generally votes against our interests. This strikes me not so much as a reason to vote against him as a reason to look more closely at the arguments he uses. In some of them, I can't fault his reasoning, but in others I see some significant problems.

It had been bedrock law that ambiguities in contracts are analyzed by the normal rules of contract construction, one of the main ones being contra proferentem, but Justice Nahmias decided in State Auto v. Matty, 286Ga611, a 4-3 decision, that this rule would take a back seat to a judicial construction of what an "accident" was in the case of serial collisions, choosing what he regarded as the "better" rule rather than recognizing that a reasaonable insured could understand the word to apply separately to various collisions, as other reasonable courts had done. If this result were the only problem, I would probably overlook it. But changing the law away from construing insurance policy ambiguities in favor of the insured toward the judicially legislated "better" understanding is a matter of some concern.

(In another case, Justice Nahmias concurred specially, providing the fourth vote for the point that a cancellation of insurance was not made ambiguous (and thus invalid) because it was conditional. Reynolds v. Infinity, 287Ga86 (4-3). Like him, I regard that as a close issue, and it would not be a reason for voting against him. I note it for completeness. Also for completeness, I note the Thornton v. GFB case, 287Ga379, in which Justice Nahmias upheld the one-year contractual limit on a fire insurance policy, without tolling it for the 60-day period in which the claim need not be paid; this was probably correct under existing law, though it is harsh.)

Another pillar that is being shifted is what suffices to get past a defendant's motion for summary judgment. This implicates the constitutional right to trial by jury, and as far as I am concerned, Justice Nahmias's decision in Cowart v. Widener, 287Ga622, substantially undercuts his pro-jury-trial concurrence in the caps case, Nestlehutt, 286Ga731. One way to beat a summary judgment motion had been to show the utter implausibility of the movant's case. Even if you can't directly contradict the defendant's motion, the circumstances make the factual presentation of their motion dubious. I've beaten summary judgments before with this approach (e.g. 246GaApp97). But in Cowart v. Widener, another 4-3 decision, Justice Nahmias writes:

We fully agree with the dissent that "'where material issues can be eliminated only by making credibility judgments, the movant has not met his burden.'" Dissenting Op. at 639 (quoting Holmes v. Achor Center, 249 Ga. App. 184, 192 (547 SE2d 332) (2001). But that rule applies where what one witness says on a material point is genuinely contradicted by some other evidence -- what another witness says, a prior statement by the witness, or a document or other piece of physical evidence. See, e.g., Holmes, 249 Ga. App. at 192 ("Since accepting Officer Smith's version of events requires rejection of versions presented by Holmes and his wife, we cannot say the evidence is undisputed that Holmes made any such admission to the officer."). The rule does not mean that a witness's uncontradicted testimony can simply be disbelieved in order to eliminate the evidence it provides. Summary judgment cannot be avoided based on speculation or conjecture; once the pleadings are pierced with actual evidence, the plaintiff must point to admissible evidence showing a genuine issue of fact. See Butler v. Huckabee, 209 Ga. App. 761, 762-763 (434 SE2d 576) (1993) (affirming summary [*634] judgment in a negligence case where "the only admissible evidence of the speed of [Huckabee's] truck was Huckabee's statement" that he was driving below the speed limit, where the plaintiff's testimony that the defendant "'must have been going awfully fast for me not to see him coming'" was inadmissible conjecture). Indeed, if the dissent's approach were the law, summary judgment would be rendered virtually non-existent in [**789] cases where the evidence comes from witnesses.

Note that the statute, ocga 9-11-56(c) simply sets the standard as whether there is "no genuine issue as to any material fact." The statute doesn't say that a witness has to be believed -- even if his story is incredible or weird -- unless some other witness contradicts him, or he utters a prior inconsistent statement, or some document contradicts him. Yet Justice Nahmias seems to narrow the statutory standard. Only that kind of impeaching evidence suffices to raise a question of credibility, in his view.

You would never see him or other judges pen this in a criminal case where the defendant's story was as dubious as the one in Cowart, namely that the victim/passenger in his truck gave no indication that he needed to stop and get medical attention, when the driver was aware that the passenger died in his truck but continued driving for over 200 miles, stopping only when he had a parking lot accident. This and other facts were so odd that the defendant's story shouldn't be accepted as a matter of law; his credibility would be an issue in a criminal case, left to jurors who watch him testify and judge his demeanor. The take-away holding from Cowart is that you won't get to exercise your right to trial by jury against a defendant who is obviously lying unless you get an admissible document or eyewitness to contradict the defendant.

If I thought that this case simply marked the outer limits of credulity, of suspending disbelief, I might be willing to give it more of a pass, but I've recently seen a case in both appellate courts in which the defendant's story was even more implausible and unbelievable than in Cowart, but both appellate courts upheld summary judgment for the defendant (303GaApp478). In that case, we lacked what Justice Nahmias said we needed to contradict him on the central point -- another eyewitness, a prior inconsistent statement, or "a document or other piece of physical evidence" -- though the convicted felon contradicted himself on just about every peripheral point and his overall story made no sense. I hope I'm wrong, but look for further erosion of our right to trial by jury on questions of credibility.

I've already noted on the listserves Justice Nahmias's opinion (another 4-3 case) in which he absolved a mortgage company of responsibility for charging $350 for notarial services, in violation of a state law that limits notary fees to $4. Anthony, 287Ga448. It had been standard law that an employer is vicariously liable for acts of an employee acting in the scope of employment, even if those acts violate criminal statutes (214GaApp795 251GaApp356 among numerous others), and especially when an employer ratifies the act of an employee (as for instance by charging for it - e.g. 241GaApp611 (ratifying forgery), 225GaApp636, 214GaApp795), ratification being treated in Georgia law as the equivalent of an employer commanding the act. Likewise, Justice Nahmias held that the company couldn't be required to refund the criminal $346 overcharge based on the view that no private cause of action could be implied from the criminal violation. My reading of the cases is that the latter point overstates Georgia's rule, but my main concern about this case is the lack of attention to the existing theories under which liability could be established (primarily ratification) and the money recovered (primarily a constructive trust in equity, if not legal damages). My sense is that the existing case authority was represented selectively. If this were the only problematic case, I would probably ignore it.

I turn finally to the biggest problem I see, namely Justice Nahmias's concurrence in the OOJ case, Smith v. Salon Baptiste, 287Ga23, but begin with some context.

For those following Justice Nahmias's tenure, you will note a lot of concurring opinions, which will generally mark a judge who is energetically attempting to shape the law. There's nothing inherently wrong with that, but it magnifies the effects that the judge will have on the law, for good or for ill. In Smith v. Salon Baptiste, Justice Nahmias's concurring opinion is longer than the majority and dissent combined.

Justice Nahmias's revised opinion is the only one that actually addressed the Supreme Court's prior cases, over the preceeding century, in which it held that the Georgia constitution's right to the courts prevented an award of fees against a party who presents a case in good faith, but simply loses. That is a big flaw in the variously flawed opinions from the Supreme Court in SB3 cases, but at least Justice Nahmias answered our position, so he gets credit for doing so.

Justice Nahmias actually wrote two opinions. A large one went with the court's original opinion on 3/15/10. He added about seven pages to it on denial of the motion for reconsideration, dated 4/9/10. The changes reveal a lot about his thinking.

But before addressing his reasoning in this case, let me share the relevant part of a concurring opinion he wrote on the same day, 3/15/10, in which he explained how good judges should, and should not, decide the meaning of texts like statutes and constitutions. Here, he was taking issue with the principle repeated in Georgia decisions that judges must consider whether a construction of a statute would cause absurd or unreasonable consequences, and not construe it to do so, to which he preferred the precepts of statutory construction favored by Justice Scalia in the US Supreme Court.

... But when judges start discussing not the meaning of the statutes the legislature actually enacted, as determined from the text of those laws, but rather the unexpressed "spirit" or "reason" of the legislation, and the need to make sure the law does not cause "unreasonable . . . consequences," we venture into dangerously undemocratic, unfair, and impractical territory. The "spirit or reason" approach to statutory interpretation invites judges to read their own policy preferences into the law, as we all believe that our own policy views are wise and reasonable, which tempts us to assume, consciously or unconsciously, that the legislature could not have intended differently. I do not doubt the general wisdom and reasonableness of judges, but this approach tends to replace democratic government with judicial government.

Moreover, this approach, in my view, is quite unfair to our citizens, who are required to obey not the law that the lawgiver actually promulgated but rather the law that the lawgiver is later determined to have intended to promulgate. Finally, as in this case, this approach usually leaves unanswered just how the "intention" of a multi-member legislative body is to be determined, if not from the text of the laws that it actually passed. The legislative history of a statute and the debates regarding it, along with many other sources like contemporary dictionaries and prior use of terms in statutes and cases, may help us to understand the meaning of the various terms used in the final text on which the legislature voted. But how, putting aside the text, are we to figure out what "intention" was in the head of the legislators when they voted? And are we searching for the intention of the entire legislature? A majority of the members who voted? Just the key members or sponsors of the bill or others who spoke or wrote about the bill at some point before (or after) passage, in some way that was publicly reported? What if no majority of members voted on it with the same intention? And what of the intention of the Governor who signed the bill?

Merritt v. State, 286 Ga 650, 656-57. This isn't the only theory of statutory construction on offer from the highest court, but it is a respectable one. So, on this theory, a good judge would not read his own policy preferences into a law, but would concern himself with the text rather than what some "key member" spoke or wrote about the bill. It would be "quite unfair" to litigants to make them conform in hindsight to standards that a judge announces afterwards.

So, how well did Justice Nahmias pass his own test in Smith v. Salon Baptiste?

5A.

Starting as Justice Nahmias says we should with the constitutional text, here it is:

Paragraph XII. Right to the courts. No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state.

It is obvious to just about everybody (see 5C below), excepting Justice Nahmias and the majority of the supreme court, that this is a rule about not depriving people of a right to prosecute or defend a case. To the majority of the supreme court, however, this is not a "right to the courts," but instead a "right not to have an attorney," a right to proceed pro se. To put the matter another way, the question is whether this passage allows citizens to assert positions in court without being punished for doing so, or only to assert positions in court without lawyers.

A textual analysis would confirms the correct view. If you were diagramming the sentence (do they still do this?), the central points would be the subject ("person"), the verb ("deprived (of)") and the object ("the right"). From this structure, the subordinate terms would descend. "No" would descend from "person," and "to" would descend from "the right." The "to" would be followed by a disjunct (stems going up and down) between "prosecute" and "defend," which rejoin before reaching the object of these verbs, "cause." Descending after this disjunct would be a second subordinate clause with a disjunction between "in person" and "by an attorney." In normal English, the subject, verb and object are generally the core of the sentence, and it is hard to imagine a case in normal English in which they are not important.

On the contrary, the reading espoused by Justice Nahmias would be better communicated by revising the constitution to read "No person shall be deprived of the right to represent himself in any of the courts of this state." If the people were really clamoring for a right to proceed pro se in this amendment, as Justice Nahmias contends, it would have been odd of them to place this focal point of their will in a subordinate, parenthetical position and in grammatical parallel with the right to proceed by an attorney. The caption "Right to the Courts" would also be misleading, and should be changed to something like "Right to Self-Representation." Without doing a textual analysis, Justice Nahmias and the majority effectively re-write the constitution to read this way.

But you don't need to depend on my textual analysis. As shown below in 5C, numerous courts and authorities have concluded that the right guaranteed by this provision protects a litigant from paying attorney fees for stating a position in good faith in the courts. That's what having that "right" entails.

Justice Nahmias never did the textual analysis that he claims is what the judge should do. He writes later as if he did, but he didn't. Nor did he do any sort of logical analysis of what these terms meant. He doesn't show that a comparable provision like "no person shall be deprived of the right to vote" would be understood by the public as consistent with a statute requiring those who voted for losing candidates to pay the costs of the election or to pay the winner's campaign expenses. He doesn't explain what kind of "right" it is that can be thus penalized. Instead, at pp. 33-34, where this textual analysis would have been, he simply diverts attention from the lack of a textual analysis supporting his view by showing that very different kinds of constitutional provisions exist in other states.

5B.

But then, as if he had done a "plain meaning analysis" and then "look[ed] beyond" it to the history of the provision, he focuses in on what one of the members of the 1877 constitutional convention, a Mr. Tift who certainly qualifies as a "key member[] or sponsor[] of the bill ... who spoke or wrote about the bill at some point before (or after) passage." pp. 34-36. Justice Nahmias is thus doing what he wrote, on the same day in Merritt, should not be done:

As discussed in the dissenting opinion, the "right to the courts" provision emerged first during the 1877 convention as a proposal by Mr. Key to amend the due process clause, and then the following day in an amendment by Mr. Tift, as recounted in Nelms and [**92] Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484 (198 SE2d 144) (1973):

Small's A Stenographic Report of the Proceedings of the Constitutional Convention Held in Atlanta, Georgia, 1877 (Constitution Publishing Company, Atlanta, 1877) reflects the adoption of the language in 1877 as the proposal of Mr. Tift, who explained it as follows (p. 94): "Mr. TIFT. I see no provision of that kind in the printed bill before us. It is very important that every person shall be permitted to prosecute or defend his own case in any of the courts of this state. In some of the courts they have a provision that no person shall appear without an attorney. At any rate, that is the practice in nearly all of the courts. In cases where persons are not able to employ attorneys, the court appoints one for him. [Sic] Yet, I think, in every case, the person should have the right to appear himself, and by attorney also, I call for the division. Upon the division the vote was -- [ayes] 101; noes 29. So the amendment was received."

Bloomfield, 230 Ga. at 484. Accord Nelms, 253 Ga. at 412.

Thus, Nelson Tift -- one of the most prominent Georgians of the time and someone directly involved in the framing of the Constitution 3 -- explained that the problem to which a right of choice provision was the solution was widespread in Georgia and otherwise corroborated the conclusion that the words of the provision mean exactly what they appear to mean. That the debates leading to the 1983 Constitution focused solely on a subsidiary issue of the right of choice -- whether a litigant should have the right "both" to represent himself and be represented by counsel -- further confirms this understanding. See Nelms, 253 Ga. at 413 ("The vastly broader question of whether this paragraph affords an individual the right of [*36] access to the courts within the meaning appellant urges was never an issue in the [pre-1983] discussions.").

FOOTNOTES

3 Nelson Tift was a founder of the City of Albany, a three-term State Representative, a newspaper publisher and prominent businessman, and a post-bellum United States Congressman before serving as a delegate to the 1877 convention. See Biographical Dictionary of the United States Congress 1774-Present. Tift County was named in his honor.

Id. pp. 35-36 (adding "in Georgia" that was present in his original 3/15/10 opinion). In addition to the violation of his principles as stated in the Merritt case, there are several other things to say about this offering from Justice Nahmias:

* He arbitrarily prefers Mr. Tift's statement over Mr. Key's statement. Mr. Key had argued for the provision so that each person would have the right to have his case heard in open and deliberative courts rather than closed and coercive tribunals (mentioning military commissions, the Star Chamber, or the whim of an autocrat or bureaucrat).

* He reads an "only" into Mr. Tift's statement that is not there: Mr. Tift never said that the only reason for this provision is to guarantee our right to proceed pro se. This may be a personal preference of Justice Nahmias that he reads into this text, as a good judge should not do according to Merritt, but it isn't there in the text.

So in the space of a few paragraphs, Justice Nahmias applied different standards from those he claimed in Merritt that good judges should apply, then applied them arbitrarily, and simultaneously misread his own perceptions into text that did not bear them. This will become even clearer in considering the following points, but remember that in his original opinion on 3/15/10, he deduced from Mr. Tift's statement that the problem of judges requiring litigants to have lawyers was "a problem [that] was widespread in Georgia," and this amendment was its "solution."

5C.

Neither Justice Nahmias nor the majority discussed or even mentioned the cases that our amicus brief quoted from as controlling. Nor did they address the fact that everyone since 1877 considered that this right was properly a right to the courts, not just a right not to have a lawyer.

So, for the Georgia cases that read this constitutional provision as a protection against being punished for asserting one's right to plead or defend in the courts, see the following, which he (and the majority) did not address (and which they could only have failed to note if they failed to read the GTLA amicus brief):

* Traders' Ins. Co. v. Mann, 118 Ga. 381 (1903). The Supreme Court rejected an award of attorneys fees against a defendant which was sought under the predecessor of O.C.G.A. § 13-6-11 on the sole basis that the defendant refused to pay a loss on a fire insurance policy. The Court held that a party could be assessed the opposing party's attorney's fees based on bad faith in the underlying transaction or on bad faith in litigating, but absent such circumstances, the constitution prohibited an award of fees.

The provisions of the Civil Code, § 5701 [currently Ga. Const. Art. I, Sec. I, Par. XII], that "no person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both," is a privilege granted the defendant, as well as the plaintiff. And if the original contract was made in good faith, if there is an ordinary breach, if the cause of action itself is not colored or poisoned by bad faith on the part of the defendant, he will not be mulcted with additional damages because he refuses to pay. Some defendants fail to pay because they are not able, others because they are not willing, and many because they dispute the liability. The costs which are taxed against the losing party, and the interest allowed for the failure to pay promptly, are the only damages which the law imposes in such cases. . . . But it has long been the policy of Georgia not to require the defendant to pay the expense of obtaining a judgment against himself.

Id. at 386-87. The headnote summarizes this holding:

The constitutional right to be heard in the courts is granted defendants as well as plaintiffs; and a defendant will not be charged with expenses of litigation except in cases where he has acted in bad faith.

Yet if Justice Nahmias and the majority were right right about the "plain meaning" of the constitution, this headnote and discussion would have been complete nonsense. Nobody claimed that the defendant insurance company was trying to represent itself in court, but was being saddled with a lawyer against its will. Yet the Supreme Court read the constitution as being not just relevant, but controlling on the very point of the defendant's liability for attorney's fees. It did not see the provision as having a "sole purpose" to protect a right to choose pro se status.

* Georgia R. & B. Co. v. Gardner, 118 Ga. 723 (1903). Here, the defendant trespassed upon the plaintiff's land, but in the honest, good faith belief that it owned the land. The plaintiff sought damages and attorney's fees, and obtained an award of fees, which the Supreme Court reversed, explaining:

Expenses of litigation are not allowed except in cases where the defendant has been guilty of bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Civil Code, § 3796. "The constitutional right to be heard in the courts is granted defendants as well as plaintiffs, and a defendant will not be charged with expenses of litigation except where he has acted in bad faith. This refers to 'bad faith' in the transaction out of which the cause of action arose, rather than the motive with which the defense is being made." Traders' Ins. Co. v. Mann, 118 Ga. 381. And, as was said by Chief Justice Bleckley in Tift v. Towns, 63 Ga. 237, "No man is bound to forego litigation at the expense of yielding rights apparently well founded, much less those which prove to be so founded in the end. Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation."

* Fender v. Ramsey & Phillips, 131 Ga. 440 (1908). In this case, the closest on the facts to the Baptiste case, the plaintiff sued to enjoin the defendant's intereference with his timber, and the defendant filed a cross-action for damages on grounds that the suit was instituted without probable cause. The plaintiff appealed from the giving of instructions allowing damages to the defendant, presumably after the jury awarded them. The Supreme Court again cited this provision to reverse the erroneous instructions:

The constitutional right to appeal to the courts (Civil Code, § 5701) authorizes a fair and legitimate testing of one's bona fide claim of right. A litigant is not subject to be penalized by the award of damages whenever he loses his case. Otherwise every man would enter the doors of the court-house, no matter how honestly or with what probable cause, with the danger of damages hanging over him. The Civil Code, § 3796, declares that expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. See remarks of Bleckley, J., in Tift v. Towns, 63 Ga. 237; Traders Ins. Co. v. Mann, 118 Ga. 381 (45 S.E. 426); Ga. R. Co. v. Gardner, 118 Ga. 723, 726 (45 S.E. 600). The recovery of this character of damages presupposes a right on the part of the plaintiff to bring the action, and deals with the question of the measure of damages recoverable. If the defendant in this case is seeking to recover for malicious use of legal process, commonly called malicious prosecution of a civil action, there are three essential elements in such a case: (1) malice; (2) want of probable cause; and (3) that the proceeding complained of had terminated in favor of the defendant before the suit for damages based upon it was brought. Brantley v. Rhodes-Haverty Furniture Co., ante, 276 (62 S.E. 222). There is no law by which every case brought by a plaintiff can be turned into a damage suit by the defendant against the plaintiff for bringing it, while it is still pending.

* West v. Haas, 191 Ga. 569 (1941). In this case, property was sold at a tax sale improperly, and transferred to the defendants. The plaintiffs sued the defendants to recover the property and to recover their expenses of litigation. The Supreme Court affirmed the recovery of the property, but not the recovery of expenses of litigation.

In O'Neal v. Spivey, 167 Ga. 176, 180 (145 S. E. 71), where an award by the jury of attorneys' fees was upheld, they were claimed, so it is stated in the opinion, by reason of a stubborn and litigious spirit shown by the defendant in connection with the transaction. They are not asked for here on any such ground. In that case, however, it was pointed out in the opinion that the petition alleged "details and circumstances from which a jury would be authorized to infer a stubborn and litigious spirit." As observed by Mr. Justice Lamar, in Traders Insurance Co. v. Mann, 118 Ga. 381, 384 (45 S. E. 426), this court in Mosely v. Sanders, 76 Ga. 293, did not have before it a case involving bad faith, the holding there being that the sheriff was liable for expenses incurred as the result of his wrongful refusal to accept an affidavit of illegality, even though he acted in good faith. It is to be noted that the Code section quoted above contains the clause, "or has caused the plaintiff unnecessary trouble and expense." (Italics ours.) It may be assumed that every lawsuit causes the plaintiff some trouble and expense, but this is not what the statute has in mind. One of the provisions of the bill of rights contained in the constitution of this State declares that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." Code, § 2-104. This is a privilege granted to the defendant as well as the plaintiff. Traders Insurance Co. v. Mann, supra. "Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation." Tift v. Towns, 63 Ga. 237, 242. See also Ga. R. & Bkg. Co. v. Gardner, 118 Ga. 723 (45 S. E. 600.)

* David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849 (2002). Finally, and relatively recently, the Supreme Court addressed a claim that damages under OCGA § 13-6-11 (attorney's fees where the defendant has acted in bad faith, etc.) should include fees on appeal. It answered that question in the negative, and in the course of doing so, invoked this constitutional provision:

The purpose of O.C.G.A. § 13-6-11, on which Brown relies, likewise is not to ensure that the winning plaintiff is made whole. Our State Constitution gives every person the right to prosecute or defend that person's cause in the courts of this State. 1983 Ga. Const., Art. I, Sec. I, Par. XII. Accordingly, "[a] litigant is not subject to be penalized by the award of damages whenever [the litigant] loses his [or her] case. Otherwise, every [person] would enter the doors of the [courthouse], no matter how honestly or with what probable cause, with the danger of damages hanging over [the person]." Fender v. Ramsey & Phillips, 131 Ga. 440, 442 (2) (62 S.E. 527) (1908).

So, as late as 2002, the Supreme Court had no difficulty at all in connecting this constitutional provision with protecting a litigant from being "penalized" by an award of attorney's fees "no matter how honestly or with what probable cause" they enter the doors of the courthouse. Contrary to Justice Nahmias's reading of the right to pro se representation as the core of this provision, there is no hint in these cases that the defendants were trying to avoid having lawyers represent them. The unanimous Supreme Court thought that this constitutional provision was relevant and controlling on the question of whether fees could be awarded.

In addition to these unanimous interpretations by the Supreme Court, which ought to have been enough, I would add that the very first printing of this 1877 constitution along with the code of Georgia denominated this as a "Right to the Courts," not a "Right to Self-Representation." See N. E. Harris, A Supplement to the Code of Georgia, 99 (W. Burke & Co., 1878), which is available online at http://books.google.com/books?id=asEXAAAAYAAJ. Interestingly, Mr. Harris asserted that he was placing "the new Constitution before the profession in a form better adapted to the purposes of study and reference," and that his text was "published in the Journal of the Convention under the auspices of the Public Printer," and corrected by a Col. N. J. Hammond, "a leading member of the Convention." Id., Preface. Thus, a leading legal scholar advising the state's lawyers on the meaning of the constitution interpreted otherwise than as having the "sole purpose" of establishing a right to choose not to have counsel.

Every following commentator has agreed with this caption. Indeed, the leading early text on Georgia's constitution (cited in the majority opinion as such), Walter McElreath, A Treatise on the Constitution of Georgia (The Harrison Company, 1912) uses the "Rights to the Courts" caption at 434, observes that the right derives from Magna Charta, and in the second paragraph discusses the thus-conveyed "right to resort to the courts" as precluding a defendant from suing for damages against a plaintiff because the plaintiff's suit was instituted without probable cause, or in short, it would preclude Justice Nahmias's conclusions in this case. McElreath's treatise is online at http://books.google.com/books?id=CTsuAAAAYAAJ. (And there is no evidence that courts were requiring litigants to have lawyers in 1215, when Magna Charta was first issued.)

Finally, the caption ("right to the courts") was adopted by the constitutional convention in the 1945 constitution. It strains credulity to believe that all of these courts, commentators, and constitutional conventions could so consistently misunderstand, misread and mislabel this constitutional provision, but if Justice Nahmias is right about the "plain meaning" of the provision, then all of them were wrong.

5D.

It should be obvious that the enforcement of the OOJ by an award of fees against a party who litigates in good faith violates Justice Nahmias's observation in Merritt that it "is quite unfair to our citizens, who are required to obey not the law that the lawgiver actually promulgated but rather the law that the lawgiver is later determined to have intended to promulgate." It should be just as unfair to punish them for not evaluating a claim in the way that a judge or jury later evaluates it. By way of justification, he claims that a "final judgment, by the way, determines as a matter of fact and law that the value of appellees' claims was zero, so that appellants' settlement offer of $ 5,000 was reasonable." Id. at 38. The same logic could be applied to the statutory analysis that he criticized in Merritt -- that the later judicial evaluation simply determined the meaning of the prior law -- but this would be "quite unfair."

5E.

Upon discovering that no motion for reconsideration was going to be filed, I got permission to take over from plaintiff's counsel and filed one. In it, I documented several things:

* This "right to the courts" provision did not "emerge first" in 1877. I documented in the MFR that it first emerged a century earlier, in the 1777 constitution, and was continued in various phrasings in later constitutions.

* That from this first provision in 1777, and in following constitutions, our citizens were guaranteed the right to appeal to the courts without lawyers. Therefore, there was no problem of self-representation, let alone a "widespread" one, in Georgia in 1877. Therefore, the sole reason for this constitutional provision that Justice Nahmias could identify was an illusion, at best. The "widespread problem in Georgia" was a product of Justice Nahmias's imagination.

* That the US Supreme Court had looked into history and found no example of any complaint of an unwanted lawyer before the revolution up through the time at which the Sixth Amendment went into effect. Faretta, 422US806 at 825-26, 828, 832. The "widespread problem in Georgia" wasn't even "widespread" anywhere else, as far as any research by anyone has shown.

* This very same Mr. Tift was probably quite interested in assuring that his right to prosecute and defend suits in the courts be protected. I discovered that the very first case in which the Supreme Court held that a party should not be made to pay his opponent's attorney fees just because he failed to persuade the court of his cause, Tift v. Towns, 63 Ga 237 (1879), protected this very same Nelson Tift (compare the description in Justice Nahmias's footnote, copied above, with the evidence in the prior case Mr. Tift lost at 53 Ga.47 (1874)) from having to pay the plaintiff's attorney's fees. The Supreme Court of that era protected Mr. Tift, and would protect recipients of offers of judgment:

No man is bound to forego litigation at the expense of yielding rights apparently well founded, much less those which prove to be so founded in the end. Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.

63 Ga. at 242.

5F.

On motion for reconsideration, Justice Nahmias was the only one to change his opinion, adding approximately seven pages in response to our arguments. I give him credit for bothering to do so, though the changes raise substantial problems.

Foremost, as noted in 5B above, Justice Nahmias originally imagined that this constitutional provision was summoned into existence to combat the problem of courts forcing litigants to have lawyers, a problem that was "widespread in Georgia." In his revised opinion, he took out the words "in Georgia," and thus gutted the sole basis for the majority ruling against the Baptiste plaintiffs. Thus, he recognized that there was in fact zero need in Georgia for a constitutional provision to preserve the right to proceed pro se, which means that the constitutional provision as the majority conceived it was really pointless. I give him credit for recognizing that he had committed a textbook example of sloppily reading his conclusions ("widespread problem in Georgia") back into a historical text to justify his conclusion about the meaning of the text, contrary to his opinion in Merritt. Correcting that error, however, did not correct the equally sloppy reading of an "only" backwards into Nelson Tift's statement, which nowhere says that the right to proceed pro se is the "only" or "sole purpose" of the constitutional provision, even if Mr. Tift (contrary to Justice Nahmias's principles in Merritt) had the authority to limit the meaning of the provision. Failure to correct this error vaporized our prior constitutional right to present one's case free of punishment.

I won't nitpick a number of his other changes, but these stand out:

* At pp. 38-39, he added a quote from Justice Holmes (from Nash) to the effect that one's fate can depend on predicting the outcome of a case, including the penalty of death. Of course in those cases, the person is punished for out-of-court conduct, not for making a litigation decision. Here, the litigant is punished for making a litigation decision in declining a settlement offer. A real apples-to-apples comparison would note that, by failing to predict the outcome of this case on the merits, the Baptistes lost the opportunity to settle for an offer of some amount of money, and thus walk away empty, but under OCGA § 9-11-68, that loss is not enough; they should be punished further. Or conversely, it would be like tacking on to the sentence imposed for a criminal offense an additional $50,000 fine for failure to reach a plea bargain first. The difference between Justice Holmes's observation and the effect of OCGA § 9-11-68 should be obvious.

* At pp. 39-42, he added division 5 which finally discussed the line of cases GTLA cited all along. I give him credit for it, but the discussion, though lengthy, is entirely superficial. For instance, he does not ask ask why the Supreme Court regularly cited this constitutional provision in those cases if it were so obvious that its "plain meaning" and "sole purpose" were to grant the right to proceed without a lawyer, which was not an issue in any of those cases? He simply presumes incorrectly that he has done a correct job of reading the text, and expresses mystery at why everyone else read it differently. He concludes that these cases, if read to say what they actually say, are

inconsistent with the text and history of that constitutional provision as well as our Bloomfield/Nelms line of precedent. (p. 42)

This would be true if and only if he and the majority had correctly read the text and history, but they did not (see 5A and 5C above).

He attributes the decisions in those cases to the application of the "American Rule" only, which misreads those cases as noted just above (why would the constitution have been relevant?), but which also points at a tantalizing probability (that I don't fault him for overlooking): Where did "the American rule" come from, if not from the state constitutional rights to the courts? It wasn't legislated, and it isn't in the federal bill of rights. Yet it was recognized as "the general practice of the United States" by the US Supreme Court as early as 1796 (3US306). So, how did this legal revolution occur in just 20 years, apart from the political revolution? But here I digress.

* In the course of that discussion, at pp. 40-41, Justice Nahmias does get to the crux of the matter, expressly disagreeing with our "contention that the 'right to the courts' provision prohibits a person from being 'punished for exercising his right to plead his claim in court.'" I applaud his directness, admitting that his view allows the citizens of Georgia to have a right to the courts, while giving the legislature the power to punish the exercise of that right. This should be a self-evident contradiction, but at least it is out in the light of day for everyone to consider. What other "rights" do we have for the exercise of which the legislature may punish us? The right to vote? The right to free speech?

As noted at the outset, I hope that I'm wrong about Justice Nahmias. But I have to cast my vote based on the record as it currently stands, so I will vote for Matt Wilson.

Hopefully, some day, this constitutional right to the courts will be restored to a free people.