No. 4

March 21, 2010

Georgia Cases and Comments

Lost Access Part 2: Lost Constitutions

Smith v. Salon Baptiste

Case No. S09A1543, 2010 Ga. LEXIS 215 (March 15, 2010)

Art. I, Sec. I, Par. XII of the Georgia Constitution provides:

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.

The majority and concurrence trace this provision back to 1877, where they cite a journalist's review of proceedings for the statement of one delegate, Mr. Nelson Tift, referring to particular language that he urged to recognize the citizen's rights to self-representation in the courts, as "the sole purpose underlying the revision and adoption of" the constitutional provision. Maj. Op. at 8, 3-8; Conc. Op. at 6-11. Reviewing their opinions, one would not suspect that any relevant provision ever existed in any prior Georgia constitution. One would believe that it was called into being ("first emerged") in 1877 to put an end to the threat that some judge somewhere would not allow a party to represent himself pro se. Is it true that this provision simply emerged at that time without any antecedents, and only for the reason urged by a single member of the 1877 constitutional convention?

No. Emphatically and indisputably no. By the time of the 1877 constitution, this provision was a century old, emerging in Georgia's first constitution of 1777. The Digital Library of Georgia contains a collection of all of Georgia's constitutions here. These documents show the following evolution of this provision:

The Constitution of 1777, Article 58 provided:

No person shall be allowed to plead in the courts of law in this State, except those who are authorized so to do by the house of assembly; and if any person so authorized shall be found guilty of malpractice before the house of assembly, they shall have power to suspend them. This is not intended to exclude any person from that inherent privilege of every freeman, the liberty to plead his own cause.

Note that this first constitution already recognizes precisely the point which the majority and concurrence claimed -- citing Mr. Tift -- was the necessity and "sole purpose" (Maj. Op. at 8) of the assertedly new provision a century later. The 1777 constitution authorized only licensed persons to serve as attorneys, but recognized as the "inherent privilege" of "every freeman" (not just lawyers) the liberty to plead his own cause. This was not a mere rule of courtroom procedure or a tolerated exception to a monopoly of lawyers on the practice of law; it was a recognition of a fundamental human right, alongside freedom of religion, freedom from excessive fines and bail, habeas corpus, freedom of the press and trial by jury. Articles 56, 59, 60, 61. Indeed, the masterful survey of all American constitutions, 2 Thorpe, The Federal and State Constitutions 785 (G.P.O. 1909), shows that the drafters of this initial constitution themselves italicized the word "freeman" in this provision, the only word (except latinisms and proviso-conjunctions) so treated in the entire constitution. The right to the courts was recognized as in existence prior to the constitutions, and inherent in the concept of a freeman.

The Constitution of 1798, Article 3, Section 8 provided:

Within five years after the adoption of this constitution, the body of our laws, civil and criminal, shall be revised, digested, and arranged under proper heads, and promulgated in such manner as the legislature may direct; and no person shall be debarred from advocating or defending his cause before any court or tribunal, either by himself or counsel, or both.

This language is only slightly revised in 1877, showing again that the text in 1877 was no novelty. Nor could one plausibly argue that the meaning of the 1777 and 1798 constitutions could only be determined by what Mr. Tift said in 1877. This raises an obvious logical problem with the majority and concurrence. By what principle of logic could the statement of a legislator in 2090 change the meaning of a statute passed today, even if the wording of the statute is modified for stylistic purposes in 2090?

The Civil War and Reconstruction constitutions simplified the wording and combined the provision with the equally fundamental rights of citizens with regard to their government, namely, the rights to petition the government and to assemble for peaceful purposes. Thus, the Constitution of 1861, Article 1, Section 9 provided:

The right of the people to appeal to the courts; to petition Government on all matters of legitimate cognizance; and peaceably to assemble for the consideration of any matter of public concern shall never be impaired.

The Constitution of 1865, Article 1, Section 7 provided:

The right of the people to appeal to the Courts, to petition government on all matters of legitimate cognizance, and peaceably to assemble for the consideration of any matter of public concern, shall never be impaired.

The Constitution of 1868, Article 1, Section 5 provided:

The right of the people to appeal to the courts, to petition government on all matters, and peaceably to assemble for the consideration of any matter, shall never be impaired.

None of these constitutions address the question of representation by counsel and self-representation, let alone repeal the right of self-representation. To the contrary, they affirm the central core value of a right to present one's case to the courts. The question of representation is at best a secondary concern.

One might reasonably ask whether a statute penalizing a citizen who petitions the government, but fails to persuade it, would violate this provision, since the majority of today's court believes it is completely permissible to penalize a party for asserting in good faith a claim in the courts. What would the founding fathers have said about either point? Is there any doubt?

Turning now to the Constitution of 1877, on the significance of which the majority opinion turns, Article 1, Section 1, Paragraph 4 provided:

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.

The convention changed many other provisions of the reconstruction era constitutions, but here it reverted to the constitution of 1798, changing the wording in only insubstantial ways:

No person shall be debarred from deprived of the right to advocating or defending prosecute or defend his own cause before any court or tribunal in any of the Courts of this State, either by himself or counsel, or both in person, by attorney, or both.

As this comparison shows, the changes were merely stylistic, not a substantive change. Nothing new entered the law at this point.

The Constitution of 1945, Article 1, Section 1, Paragraph 4 provided:

Right to the Courts. 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.

Thus, the constitutional convention of 1945 added only a caption to the language from the 1877 constitution. If the majority and concurrence were right in their understanding of the 1877 constitution, the caption should have been something like "Right to Self-Representation" or "Right to Choose Representation." But how did the convention of 1945 understand the words? As a "Right to the Courts." If the majority and concurrence are right in their understanding of the 1877 constitution, the entire convention failed to understand the "plain meaning" and "sole purpose" of this provision.

The Constitution of 1976, Article 1, Section 1, Paragraph 9 provided:

Right to the Courts. 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.

The Constitution of 1983, Article 1, Section 1, Paragraph 12 now provides:

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.

If the majority and concurrence were right in their understanding of the 1877 constitution, both of these conventions perpetuated the 1945 convention's failure to understand the "plain meaning" and "sole purpose" of this provision.

 

It should be clear that the right to the courts that is expressed in these constitutional provisions did not "first emerge" in 1877, and it did not come into existence solely to give parties a right to represent themselves in court. I do not disparage that right. But it is subordinate to the right to the courts, whether with or without counsel. But don't take my word for it. In a case we cited to the Court on this subject (GTLA Brief at 4-5), Faretta v. Cal., 422 U.S. 806, 816, 826-832 (1975), the Supreme Court of the United States reviewed the history of the period in which Georgia's right actually first emerged, 1777. Was the overriding purpose of provisions such as this to protect poor citizens from having lawyers foisted upon them? The Supreme Court said:

We have found no instance where a colonial court required a defendant in a criminal case to accept as his representative an unwanted lawyer.

Id. at 828. Was it the "sole purpose" of such provisions to guarantee the individual the right to self-representation, as the majority in the present case held, or did such provisions recognize a more fundamental right to present one's claims and defenses in court, as the GTLA argued? The Supreme Court answered that question too:

After the Declaration of Independence, the right of self-representation, along with other rights basic to the making of a defense, entered the new state constitutions in wholesale fashion.38 The right to counsel was clearly thought to supplement the primary right of the accused to defend himself,39 utilizing his personal rights to notice, confrontation, and compulsory process.

Id. at 828-380 (emphasis added, citing inter alia the Georgia Constitution of 1777 in n.38). The right to state one's position in court is the "primary" or "basic" right, and the right to counsel simply "supplemented" that basic right. Although the framers wanted to preserve citizens rights to represent themselves, this was not the "sole purpose" of such provisions:

The Founders believed that self-representation was a basic right of a free people. Underlying this belief was not only the antilawyer sentiment of the populace, but also the "natural law" thinking that characterized the Revolution's spokesmen. [Cits.] For example, Thomas Paine, arguing in support of the 1776 Pennsylvania Declaration of Rights, said:

"Either party… has a natural right to plead his own cause; this right is consistent with safety, therefore it is retained; but the parties may not be able,… therefore the civil right of pleading by proxy, that is, by a council, is an appendage to the natural right [of self-representation]…." Thomas Paine on a Bill of Rights, 1777, reprinted in 1 Schwartz 316.

Id. at 830, n.39. Extensive documentation thus shows that in 1777, the founders of our nation recognized a natural right to state a position in the courts without being punished, and the Georgia Constitution of 1777 was identified as one of the documents doing likewise. Compare this with the non-existent documentation by the Georgia Supreme Court majority of what appears to them as the "sole purpose" of similar text in the 1877 constitution. Apart from the statement of Mr. Tift, the misreading of which will be addressed later, the majority has no basis whatsoever to support its unique view (or revision) of constitutional history.

Contemporary legal scholarship held this right to justice free of liability by presenting claims to courts to be a fundamental right guaranteed as far back as Chapter 29 of Magna Carta (1215), as restated by Sir Edward Coke:

every subject of this realme, for injury done to him . . . may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.

Klopfer v. North Carolina, 386 U.S. 213, 224-225 (1967) (holding that the right to a speedy trial was a fundamental right). Judgment under the law must be free, full, and speedy. Id. n.14. The natural right to justice would not be "free" or "full" if a party had to pay the opposing side's legal fees.

Changing the perspective, now, if the majority's opinion about the "sole purpose" of the 1877 constitutional provision were right, one would expect that commentators would recognize it as a "Right to Self-Representation" or "Right to Choose Representation." I've noted above that the 1945, 1976 and 1983 constitutional conventions all flunked the majority's "plain meaning" test, all reading it as a "right to the courts." But perhaps the time gap is too wide, and a more contemporaneous reviewer would know how to read it correctly and to detect the "sole purpose" that is obvious to the Supreme Court's majority?

No, again. The very next year, in Georgia's leading codification of laws, the codifier added the then-new constitution and gave captions for each of the provisions. This provision he titled "Right to the Courts." See N. E. Harris, A Supplement to the Code of Georgia, 99 (W. Burke & Co., 1878). 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 by the majority (at 7), 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" would preclude 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 the majority's outcome in this case.

The context also shows the overarching importance of the provision. It was the fourth article of Georgia's Bill of Rights, following Paragraph I, which ordains that the government exists to serve the people and public officers are the trustees of the people; Paragraph II, which establishes the "paramount duty" of government to be the protection of person and property, which protection shall be impartial and complete; and Paragraph III, which states the majestic obligation to provide due process of law. After it, Paragraphs V through XI establish our fundamental protections in cases of criminal prosecution. If Paragraph IV were nothing more that a recognition of a right to choose self-representation in whatever courts the governing powers tolerated, it would not belong in this company. Instead, in this company, it should be equally majestic. Only a right to present one's case in good faith to a court of law fits this location.

As far as we can detect, the only people who have ever existed who read this provision as having the "sole purpose" to give a choice of self-representation, and not a right to plead a cause in the courts, are the five justices in the majority. The rest of the world apparently can't read.

"Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them." 1983 Ga. Const. Art. I, Sec. II, Par. V. There is always time for repentance.