No. 9

April 18, 2010

Georgia Cases and Comments

Lost Access Part 7: Aftermath

Smith v. Salon Baptiste

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

A motion for reconsideration was due in this case by March 25, 2010. I found out late in the afternoon of March 24 that plaintiff's counsel did not intend to file one in the Supreme Court. I thought overnight a long time and offered to file one in the early hours of March 25. My offer was accepted about 9:30, and thus I had only a few hours to pull the motion together, get it copied, and get it in the mail so that it would count as timely. Fortunately, the work in the preceding items helped immensely, but even so, there was no time to proof or otherwise perfect the motion, and thus here it is, with all blemishes.

The Supreme Court denied reconsideration on April 9, 2010. As far as I can tell, the majority and dissenting opinions are unchanged. Justice Nahmias, however, expanded his concurring opinion substantially.

• At p. 7, he added what will now appear as footnote 2 (noting that other courts interpreting different constitutional provisions reached his conclusion).
• At p. 8, he expanded the discussion of Faretta, citing this time some of the portions that I had cited in the motion for reconsideration (at pp. 8-10, also at pp. 4-5 of the amicus brief), but overlooking the point showing that there was no evidence that a denial of pro se appearance in court was ever a problem. He also drew the wrong conclusion from the texts. We agree that the right to represent one's position in court was the main right recognized in the new constitutions of the revolutionary period, and that the right to counsel supplemented that right, but he seems to believe that this supports the view that these documents, including Georgia's conveyed a right to present one's case free of lawyers. That is unlikely if for no other reason than the fact just noted: that there was not a single instance of this being a problem. Instead, the revolutionary right recognized a right to present one's case free of punishment. Remember that Mr. Key was concerned about having to present one's case in the Star Chamber.
• On p. 11, he took out two words that substantially gut the "Nelson Tift" theory, and thus the majority opinion as well. Consistently with the majority's total misreading of Nelson Tift's statement in the 1877 constitution, he misread it in this fashion:

  Thus, Nelson Tift – one of the most prominent Georgians of the time and someone directly involved in the framing of the Constitution – 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.

  (Bold emphasis added.) In the motion for reconsideration at pp. 5-6, 7, 12, we showed that this could not possibly have been a problem in Georgia because the prior constitutions granted the right to pro se status. To his credit, Justice Nahmias took out "in Georgia" from the final text; the majority maintains the fictional history. Thus, he recognizes 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. But we must observe that this is a textbook example of sloppily reading one's conclusions back into a historical text to justify those conclusions. Correcting that error, however, did not correct the equally sloppily 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. Failure to correct this error vaporized our prior constitutional right to present one's case free of punishment.
• On pp. 11-12, he adds a paragraph responding to our assertions about the 1777 and 1798 constitutions, again misreading them as referencing a right to proceed "free of lawyers" rather than "free of punishment." I don't need to repeat prior comments on this.
• On p. 15, he added the word "excessive" to "arbitrary" and "discriminatory" limitations on the ability of litigants to access the courts that he would consider.
• On pp. 15-16, he comments on a U.S. Supreme Court ruling that upheld an Arkansas statute on due process grounds that made insurers liable for failure to settle in good faith. I note that OCGA § 9-11-68 does not give the litigant an opportunity to show good faith in refusing a settlement offer. It should go without saying that state constitutions exist to govern the state, and that the people of a state are free to give themselves greater protections than those afforded by the federal due process clause.
• On the last line at the bottom of p. 16, he adds "due process or".
• On p. 18, before the first beginning paragraph, he adds 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. An 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. 19-24, he added division 5 which discussed the line of cases we cited all along. See the motion for reconsideration at pp. 15-22, and the earlier blog post. I give him credit for it, but the discussion, though lengthy, is entirely superficial. For instance, he does not ask how the "American Rule" became our law, if not for the constitutional change in 1777. Apart from the constitutional change, we adopted the law of England (and thus the English Rule of awarding fees) and never passed a statute that enacted the American Rule. What changed, except for the constitutional recognition of the dignity of every man before the bar of justice? Nor does he 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.
• In the course of that discussion, at p. 22, 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 right 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.
• He mentions that we have numerous statutes authorizing an award of fees, suggesting perhaps that the existence of legislation that may or may not be in violation of a constitutional norm is some evidence against the existence of a norm. I would submit that there are not very many such statutes. The cases, moreover, show that the right to the courts was never "absolute," never prohibiting awards for certain types of conduct in or out of court. (The comment below amplifies on this point.) Finally, I would suggest that the desired conclusion does not follow. If they are unconstitutional, it is the Court's constitutional duty to declare them as such.
• 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.

  Which would be true if and only if he and the majority had correctly read the text and history. Since the majority and concurrence did not, so much the worse.

The three opinions now total 46 pages in length. The people can now be punished for litigating in good faith.

 

An intriguing possibility is that the American Rule was a consequence of the constitutional right given to citizens to present their cases in court. The antiquity of the American Rule, and its connection with the American Revolution (and thus the time of our constitution), is clear. In the earliest U.S. Supreme Court case on the subject, almost the entire short opinion consists in a recognition that it is the established rule:

We do not think that this charge [of attorney fees against the losing side] ought to be allowed. The general practice of the United States is in oposition to it; and even if that practice were not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute.

Arcambel v. Wiseman, 3 U.S. 306 (1796).

In between the end of colonial rule, at which time the English Rule was in full force, and about twenty years later (1796), by which time the American rule was thus recognized as the "general practice," there is a hazy period in regard to attorney fees in litigation during which something radical must have happened. What more radical could have happened, and what more perfectly explains the phenomenon, than the American Revolution itself, culminating in the origin of self-government by free and equal individuals?

The foundational constitutional documents expressly recognize the people's rights to freedom of speech, to assemble peacably, and to petition for the redress of their grievances with regard to the Executive and Legislative branches. Why should we not regard as parallel the rights expressed in the Georgia constitution (as in other state constitutions) to present claims in court? They are only sentences apart in most of the constitutions. The 1777 Georgia constitution describes this right to present his claim in the courts as "inherent privilege of every freeman." 1777 Const. Art. LVIII.

Nor should we reject this hypothesis on grounds that the right to the courts is subject to exceptions (say, for bad faith litigation), unlike the absolute rights of free speech. None of the rights were absolute (or thought to be such at the time). The free speech provision in the 1877 Georgia constitution, after recognizing the "liberty of speech," advises that the speaker is "responsible for the abuse of that liberty." Art. I, Par. XV.

Everything fits for recognizing that the revolution and constitutions gave ordinary persons a right to present their cases in court without being punished for it, unless they "abuse[d] that liberty." Why else did the "American Rule" come about, so quickly and so universally?