Lost Access Part 6: The Nelms Cases are Irrelevant

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.

Having assessed the relevant constitutional history, its interpretation by the Supreme Court as protecting the right of parties to assert their claims without the penalty of a fee award, its literal meaning, and the report of relevant proceedings at the constitutional convention of 1877, we can now address the line of cases (the "Nelms" cases) that the Supreme Court has currently misinterpreted as permitting a statute like OCGA § 9-11-68.

___________________

Bloomfield v. Liggett & Myers, Inc.

230 Ga. 484 (1973)

In this case, the issue was whether the 1945 version of the constitutional provision precluded a trial court from staying proceedings pending the outcome of a declaratory judgment action in New York. The Supreme Court held that it did not preclude a judicial stay of proceedings. In the course of doing so, it wrote:

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."

In the light of the above and considering the prior constitutional history of this subject we view the present provision of the Constitution as primarily intended to guarantee the right of self-representation in the courts of this State (see Levadas v. Beach, 119 Ga. 613, 614 (46 SE 861) or by an attorney, or both, and as only incidentally recognizing the inherent right of access to the courts. But one having exercised his inherent right of access and having pleaded his case, in person, or by attorney, or both, subjects himself to the inherent power of the court to control its proceedings. A stay in proceedings is merely a suspension of further proceedings, as distinguished from an abatement on the one hand or a continuance on the other.

Id. at 484-485. Nothing in this case addressed the issue of punishing a party for asserting a claim in the courts. Nothing the case reconciled the opinion with the cases noted previously.

Nothing in the case explained why this narrow statement of Mr. Tift's thinking defined the limits of the plain language of the provision. Nothing in the case explained the failure to consider Mr. Key's remarks, who gave much broader reasons for the provision.

The concluding part of the opinion, recognizing that the plaintiff had access to the courts, but not the right to demand that they proceed on his schedule, was all that was needed to decide the case. Whatever else may or may not be embraced by the constitutional provision was a matter that did not need to be decided.

The Levedas case simply mentions self-representation in connection with a Justice of the Peace case, and therefore it was not authority for any statement about the scope and limits of the constitutional Right to the Courts.

___________________

Nelms v. Georgian Manor Condominium Assoc.

253 Ga. 410 (1984)

In this case, the plaintiff was challenging a statute of repose, OCGA § 9-3-51, which would preclude a claim based on faulty construction of improvements on real estate after eight years from the date of construction. If the statute was constitutional, the plaintiff's claim would fail.

The plaintiff challenged the statute citing cases from Kentucky, Florida and Alabama which invalidated such statutes of repose based on their constitutional provisions for access to the courts. The precise nature of those provisions is critical to understanding this case.

Relying on the interpretations Kentucky, Florida and Alabama have given to their state constitutional provisions which, in general, provide that all courts shall be open to every person for the redress of an injury done him,2 appellant argues that the 1983 Constitution, Art. I, Sec. I, Par. XII, "prohibits the legislature from ever abolishing a cause of action unless there is shown to be an overpowering public necessity and absence of any less onerous alternative" for doing so.

2 Section 14 of the Constitution of Kentucky provides "All courts shall be open and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

Art. I, Sec. 21 of the Florida Constitution provides, "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."

Article I, Sec. 13 of the Alabama Constitution provides, "All courts shall be open, and that every person, for any injury done him in his lands, goods, person or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or delay."

Id. at 411 (emphasis added). In addition to the declarations that the courts are "open," a provision for access, each added that the courts will provide a "remedy" or "redress" for any injury. With such additional provisions, the courts in those states have held that such strong "access to courts" rules "prohibit[] the legislative branch from abolishing existing common law or statutory rights of action for personal injuries caused by negligence." Id. Thus, the Supreme Court framed the issue thus:

The threshold question in this case is whether the purpose of either Art. I, Sec. I, Par. IV of the 1945 Constitution, or Art I, Sec. I, Par. XII of the 1983 Constitution is to provide a "right of access" to the courts within the meaning applied to that phrase by the appellant and by the courts in Kentucky, Alabama and Florida.

Id. at 412. The Supreme Court then reviewed the history about the purpose of the provision:

The constitutional history of this paragraph shows that it was proposed at the Constitutional Convention of 1877 to ensure, in the language of its proponent, Mr. Tift, "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 the courts. In cases where persons are not able to employ attorneys, the court appoints one for [them]. Yet, I think, in every case, the person should have the right to appear himself, and by attorney also. I call for the division." Small's A Stenographic Report of the Proceedings of the Constitutional Convention Held in Atlanta, Georgia, 1877 (Constitution Publishing Company, Atlanta, 1877). This court, after examining this constitutional history, construed the provision in the Constitution of 1945 "as primarily intended to guarantee the right of self-representation in the courts of this State . . . or by an attorney, or both, and as only incidentally recognizing the inherent right of access to the courts." Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484 (198 S.E.2d 144) (1973). We conclude that Art. I, Sec. I, Par. IV of the 1945 Constitution was not intended to afford a general "right of access" to the courts of this state, but that its purpose, as this court stated in Bloomfield v. Liggett & Myers, supra, was to provide the right of self-representation to every person. Therefore, O.C.G.A. § 9-3-51 does not deny appellant access to the courts in violation of this constitutional provision.

Id. at 412-413. After noting that the 1976 and 1983 Constitutions were not significantly different from the 1945 constititution and that they had no other relevant discussions, id. at 413, the Court came to the point at issue:

The vastly broader question of whether this paragraph affords an individual the right of access to the courts within the meaning appellant urges was never an issue in the discussions. While it is axiomatic that an individual must have access to the courts in order to assert the right to self-representation provided by Art. I, Sec. I, Par. XII, we decline to give this constitutional provision the expansive interpretation sought by appellant. Thus, Art. I, Sec. I, Par. XII is a "right of choice" (between self-representataion and representation by counsel) provision, and not an "access to the courts" provision such as found in the constitutions of Florida, Kentucky and Alabama. We hold O.C.G.A. § 9-3-51 does not violate Art. I, Sec. I, Par. XII of the Constitution of the State of Georgia, 1983.

Id. (emphasis added). The Court decided that our constitutional Right to the Courts was not like those of Florida, Kentucky and Alabama. That ruling is entirely reasonable because, as emphasized above, each of those constitutions added to their "open court" guarantee a "right to a remedy" that our constitution lacks.

As also emphasized above, the issue was only whether our constitution was like theirs. The Court did not rule on the vastly different issue of whether the constitution protects a person's right to plead his claim in court from punishment. The Court did not consider, let alone overrule, its cases recognizing such protection. It is therefore irrelevant to that question. The unguarded language that purports to limit the constitution to a "right to be pro se" was not necessary to its opinion.

___________________

State of Georgia v. Moseley

263 Ga. 680 (1993)

In this case, the issue was the constitutionality of a provision of the punitive damages statute, OCGA § 51-12-5.1, that required that 75% of an award of punitive damages against a product manufacturer be paid to the State. Among other arguments that the plaintiffs made, they contended that the statute violated their right to the Courts, citing cases from Florida and Texas. Without any new analysis, the Court held curtly:

However, this Court has concluded that Art. 1, Sec. 1, Par. 12 was never intended to provide an expansive right of "'access to the courts'" but was only intended to provide a "'right of choice' (between self-representation and representation by counsel)." Nelms v. Georgian Manor Condominium Assn., 253 Ga. 410, 413 (321 S.E.2d 330) (1984) (parenthetical in original).

Id. at 681. Since the Court addressed the same Florida constitutional provision, it is reasonable to conclude that the reason for the ruling was the same as before: those constitutions provided a "right to remedy" component that is absent in Georgia's. It is difficult to conceive of any other reason for thinking that an "access to courts" provision was relevant; the plaintiff was in court.

The case clearly did not involve punishing a plaintiff for exercising his right to the courts, and it did not question the other cases holding that the constitution protects parties in pleading their claims. Therefore, it is irrelevant to that question.

___________________

Santana v. Ga. Power Co.

269 Ga. 127 (1998)

This case raises only the same sort of issue as in Nelms and Moseley. It involved legislation that restricted a common law right to sue electrical utilities by requiring certain notice to the utility in order for the suit to be viable. See OCGA § 46-3-39(a). Having already decided that the Georgia Right to the Courts provision is not the sort of "right to remedy" provision as in Florida and other states, the Supreme Court resolved the matter in a sentence.

As to the "access to the courts" argument, we find it without merit because this Court has held that "Art. I, Sec. I, Par. XII is a 'right of choice' (between self-representation and representation by counsel) provision, and not an 'access to the courts' provision.'" Nelms v. Georgian Manor Condominium Assn., 253 Ga. 410 (3) (321 S.E.2d 330) (1984).

Id. at 129. The Court did not, however, hold that the legislature could penalize the plaintiff's assertion of such common law rights in court if the required notice had been given.

___________________

Couch v. Parker

280 Ga. 580 (2006)

In this case, after the EPD settled claims with a scrap metal processor by entering consent orders, nearby landowners wanted to challenge those consent orders as inadequate. They ran up on the problem of standing: whether they were entitled to challenge those orders in an administrative appeal. In particular, they had to hurdle the statutory definition of an "aggrieved person" (one who has standing), which was limited to cases in which EPD enforced an order. See OCGA § 12-2-2(c)(3)(B). The consent order was "entered," not "enforced."

The neighbors therefore lacked standing under this statute to complain. They challenged the statute as a violation of the "Right to the Courts" provision.

In part, the superior court based its conclusion that OCGA § 12-2-2 (c) (3) (B) is unconstitutional on Appellees' right under the Georgia Constitution to unfettered access to the courts. However, “this Court has held that ‘Art. I, Sec. I, Par. XII [of our State Constitution] is a “right of choice” (between self-representation and representation by counsel) provision, and not an “access to the courts” provision.’ [Cit.]” Santana v. Ga. Power Co., 269 Ga. 127, 129 (4) (498 SE2d 521) (1998). Thus, there is no express constitutional “right of access to the courts” under the Georgia Constitution. Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413 (3) (321 SE2d 330) (1984). Compare Howard v. Sharpe, 266 Ga. 771, 772 (1) (470 SE2d 678) (1996) (discussing prisoners' federal constitutional right of meaningful access to seek habeas corpus). Moreover, Appellees do not seek access to the courts, but the right to initiate an administrative appeal. Therefore, even if a constitutional “right of access to the courts” provision did exist, it would not be applicable here.

Id. at 581-582. Accordingly, neither the Art. I, Sec. I, Par. XII nor the due process clause compelled the legislature to create a right to the administrative appeal that they sought.

This Court did not hold, however, that the legislature could (a) grant the plaintiffs legally enforceable rights but (b) penalize their asserting such rights in court. Quite to the contrary, the Court recognized that the plaintiffs were --

authorized to pursue all available legal remedies against those who are responsible for polluting their property. OCGA § 9-2-4. Insofar as administrative remedies are concerned, however, Appellees do not have standing to appeal the Director's consent orders unless and until she seeks to enforce them.

Id. at 584 (emphasis added).