No. 7

March 23, 2010

Georgia Cases and Comments

Lost Access Part 5: What Happened in 1877

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 believe that the meaning of this constitutional text was decisively set in the 1877 constitutional convention. Prior cases that they cite (addressed in the next post) mention that Mr. Nelson Tift explained this provision on the basis that people should have a right to represent themselves, in both instances citing p. 94 of Small's Stenographic Report. See Nelms v. Georgian Manor Condominium Assoc., 253 Ga. 410, 412 (1984); Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 484 (1973). Does the text of the 1877 constitutional convention show that those who adopted it understood it to grant a right to appear pro se, and nothing else? We may concede that it gives a right to appear pro se, but is that all?

As before, the answer is emphatically no. The GTLA amicus brief dug out Small's Stenographic Report and looked elsewhere than p. 94. We found that Mr. Nelson Tift was not the only member or even the first member to speak to such a provision. Mr. John C. Key was the first and the exemplary exponent of the provision. Neither was initially a member of the committees that proposed a Bill of Rights. Id. at 22. But both spoke out to add it after the committee recommendation lacked it.Id. at 55-56.

During a discussion of the due process provision of the committee report on the bill of rights, which identified it as the "fourth" provision (id. at 55, 82), Mr. Key sought to broaden that provision, including the addition of a provision that a citizen not be --

deprived of his rights to defend his course before any tribunal in this state in person by attorney or both ...

Id. at 82. His explanation was that the standard due process clause "does not go far enough" to guard the "inalienable rights" of "life, liberty [and] property."

His motion was tabled at the time (id.), but on the next day, as the first item of business, Mr. Key moved to reconsider the provision a second time, arguing that the due process clause needed to be strengthened, because it could be taken to mean having one's case heard by -

military commission - or the star chamber [or] the whim, or caprice or will of some person placed in one of the departments of the government, and presuming to exercise the powers of an autocrat. I say it is a fundamental principle in the United States, and in this state that a man shall not deprived of life or liberty, except by the judgment of his peers, and that he shall not be deprived of the right to defend his own cause. That is one of the great rights of the freeman, and I want it in the bill of rights.

Id. at 87 (emphasis added). As is obvious, this harkens back to the original version of the Right to the Courts in the 1777 constitution a century earlier.

This was also tabled, but a little later in the same day, Mr. Tift made his motion to add the section. His proposal was slightly different from, but substantially the same as, the one proposed by Mr. Key earlier in the day:

No person shall be deprived of the right to prosecute or defend his own cause in and of the courts in this state, in person or by attorney or both.

He called for it to be inserted after section four (the due process clause), which is where Mr. Key originally put it, though as part of section four. Mr. Tift explained:

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. Yet, I think, in every case, the person should have the right to appear himself, and by attorney also, I call for the division.

Even Mr. Tift did not limit his discussion to the right of self-representation, as the first sentence attests. He did not say to forget what Mr. Key said; that this means something very different. He did not say that this was only about self-representation.

The amendment passed this time. Id. The report does not say that the vote was based on contending versions of this item in the Bill of Rights. The report is completely consistent with seeing both a right to the courts and a right to self-representation. Comparing the two provisions, it is proper to say that Mr. Key's original proposal, as amended by Mr. Tift's changes, passed.

 

Nothing in this Stenographic Report would rationally justify a conclusion that this provision means only a right to proceed pro se. Mr. Tift was simply one member of the convention. Anything he said could not control what the convention as a group decided. Anything he said would not make a constitutional provision mean less than its plain language conveys. The views of an individual member of a legislative body do not and cannot control the judicial construction of the text for these reasons:

While the opinion of a member of the legislature which passed an act . . . as to its meaning and purpose, might possibly often be valuable and instructive in construing the act and arriving at the legislative intent, it cannot be seriously contended that courts can properly resort to sources of this kind in ascertaining the legislative will as expressed in a statute. These gentlemen might differ as to what an act did mean, which would only increase, rather than relieve, any difficulty a court might have in construing the law. But aside from this, which is only thrown out as a suggestion in passing, this method of arriving at the meaning of a public statute, cannot, after careful reflection, receive the sanction of any fair mind.

Fulton County v. Dangerfield, 260 Ga. 665, 666-667 (1990).

Judicial inquiry into legislative motives or purposes is a "hazardous matter," for what motivates one legislator to make a comment about a law is not necessarily what motivates fellow legislators to enact the law. United States v. O'Brien, 391 U.S. 367, 383 (88 S. Ct. 1673, 20 L. Ed. 2d 672) (1968).

Goldrush II v. City of Marietta, 267 Ga. 683, 692 (1997).

Mr. Tift's proposal was an elaboration of Mr. Key's original proposal. He did not purport to negate Mr. Key's original proposal. Perhaps some anti-lawyer sentiment led to the tabling of Mr. Key's proposal, and Mr. Tift patched it with his version, but he did not alter the grammatical core: a right to plead one's case in the courts.

Consequently, treating the latter part of Mr. Tift's explanation as the only possible explanation for, and meaning of, this much broader constitutional text is arbitrary.

Accordingly, there is absolutely no rational basis to refrain from giving the constitutional right to the courts its full historic significance (while also reading it grammatically), which in this case precludes penalizing the Baptiste plaintiffs for presenting their claim in good faith to the courts.

"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.

PS (4/16/2010) On the point that one person's interpretation (here Mr. Nelson Tift's) cannot control the meaning of the text. Once more, Justice Nahmias reached a very different conclusion in a concurrence filed on the same date. Again, challenging the notion judges may determine the intention of a statute from any source other than the text, he states:

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. the State , No. S09A1476 (March 15, 2010). Would that the majority had looked at the text, as the constitutional conventions, scholars, and indeed, they themselves consistently looked at it, without altering its meaning to meet the (misunderstood) intentions of Mr. Nelson Tift.