Lost Access Part 4: Revenge of the Grammarians

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 concurring opinions believe that this constitutional provision was "never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel." Maj. Op. at 3, Conc. Op. at 7.

COMMENT

I have already shown how every other human who looked at this text read it as providing a right, indeed a privilege inherent in the concept of being a freeman, to plead one's case in the courts. Georgia constitutional conventions, Georgia codifiers, and Georgia commentators, among others, all saw it this way. The Georgia Supreme Court itself saw it that way in a century's worth of opinions. Was this some sort of mass delusion?

No. As a matter of simple grammar, the words "[n]o 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," state a prohibition against depriving a person of something. The grammatical object is "the right to prosecute or defend one's own cause in any of the courts," not "the choice of self-representation or representation by counsel." The clause "either in person or by an attorney" is a subordinate adverbial clause describing ways in which the right may be exercised. That choice is of course significant, but it is still grammatically subordinate to the prohibition against depriving people of their rights to prosecute or defend their own causes. To rule otherwise is to accuse the drafters in 1877, 1945, 1978, and 1983 of poor English.

Perhaps similar examples would be helpful. Consider this, the first paragraph of our constitution:

Life, liberty, and property. No person shall be deprived of life, liberty, or property except by due process of law.

Art. I, Sec. I, Par. I of the Georgia Constitution.

As in the case under consideration, the drafters included a caption referring to what they thought was the crux of the constitutional guarantee, a "Right to the Courts" or "Life, liberty, and property." Under the majority's reading, though, those captions do not express the core values. Instead, applying the logic of the majority here to the due process clause, the focus is not on protecting "life, liberty, and property." The focus is on applying certain procedures when depriving citizens of them. It does not disparage the importance of the rights to adequate procedures and self-representation to suggest that the grammatical object of the sentences, which the drafters placed in their captions, is the core value that the constitution recognizes.

Consider another example that would be closer to the constitutional text:

"No ~~person~~ Supreme Court Justice shall be deprived of the right to ~~prosecute or defend~~ write an opinion, either in person or by ~~an attorney~~ a law clerk, ~~that person's own cause in any of the courts of this state~~ in any case appealed to the Supreme Court."

Under the majority's reading, the central point of such a provision would be that the Justice would have the right to type an opinion him- or herself, without having to use a law clerk. Obviously (or at least it should be obvious), the point is that the Justice has the right to participate in decisions of the Supreme Court.

To drive home this point, would it violate such a right to enact this statute: "Any Justice who files an opinion that fails to convince the majority of the Court shall pay a fine of $50,000." (The defendant in this case seeks more from the Baptiste plaintiffs.) According to the majority's view of the meaning of this text, it would not violate that right, since the Justice could freely draft the dissenting opinion without the aid of a law clerk. It is difficult to imagine a more ridiculous result, but that is the grammatical consequence of the majority's reading of this constitutional text.

"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.