*1 23 correctly why briefly explain rately trial court order “open” “default aside” the and “set the motion considered § pursuant 9-11-55 judgment” in OCGA set forth to the standards § (b) in OCGA opening contained default, than those rather for (b) (d) “[a]t applies setting judgment. 55 aside a Section for 9-11-60 any granting judgment. court’s order . . .” trial final time before things, among judgment,” contem- other “default the motion for plated company and stated auction selection of an the future be “[a]ny an auction shall as a estate realized result sale of real such subject be final until and shall not of the Court the review Despite trial court’s use confirmed the Court.” sale is clearly dispose judgment,” language did not that order “default judgment controversy a final thus, did constitute and, entire (b). App. § contemplated by Rutland, v. 259 Ga. 55 as Griffin 540) (2) (578 (2003);Rapid Broughton, 244 v. Taxi Co. SE2d 847-848 780) (1) (2000); Cryomedics App. Smith, SE2d Ga. Proper- App. Compare Lassiter 180 Ga. SE2d 650) (1) (371 (1988). Gresham, ties v. 258 Ga. Decided March April 9, 2010.
Reconsideration denied Christopher appellant. McFadden, J. for Douglas Connolly Flint, Flint, C. Walker, H. Lawrence O. appellee. Anderson, for et
S09A1543. SMITH et al. v. BAPTISTE al. (694 SE2d Presiding Justice. CARLEY, Baptiste complaint Baptiste Cheryl (Appellees) filed a
Salon damages (Appellants), against AM WQXI Chuck for Smith defamatory allegedly made Smith based on statements (a), § Appellants OCGA WQXI. broadcast Pursuant 9-11-68 Appellees respond did not $5,000. offered to settle the case for (c). § rejection 9-11-68 offer, which was deemed under OCGA summary granted subsequently Appellants’ motion court for trial complaint. Appellants judgment for moved as to all counts of the (b) (1). hearing, § attorney’s pursuant to 9-11-68 After a fees OCGA ground attorney’s fees on the the trial court denied motion appeal § This that OCGA 9-11-68 violates the Constitution. followed. § part 1. 9-11-68 OCGA was enacted of the Tort Reform Act (1) (646 Properties Dowland, Fowler 197) (2007). provides party may It that either serve the other
party specified a written demand or offer settle a tort claim for a (a). § money. party’s Moreover, amount of OCGA 9-11-68 if either rejected, party may settlement demand or offer is entitled attorney’s pursuant (b), *2 recover fees to OCGA 9-11-68 provides:
(1) If a defendant makes an offer of settlement which is rejected plaintiff, by the defendant shall entitled to attorney’s expenses litigation recover reasonable fees and of by incurred the defendant or on defendant’s behalf from rejection through the date of the of the offer of settlement entry judgment judgment the liability of if the final is one of no judgment by plaintiff
or the final obtained is percent less than 75 оf such offer of settlement.
(2) plaintiff If a offer makes an of settlement which is rejected by plaintiff the defendant and the recovers a final judgment greater percent in an amount than 125 of such plaintiff offer settlement, of shall be entitled to recover attorney’s expenses litigation reasonable fees and of in- by plaintiff plaintiffs curred or on the behalf from the rejection through date of the of the offer of settlement entry judgment. of (b) previously § This Court has concluded that OCGA 9-11-68
(1) retrospective is unconstitutional as a but law, has found it unnecessary pass constitutionality to other attacks of Motorsports, that code section. Mikesell v. RP 283 Ga. 534) (2). (2008); Properties supra SE2d Fowler Dowland, v. at 79 In impedes trial court ruled that OCGA 9-11-68 access to the I, courts thus violates Art. I, Sec. Par. XII Georgia by litigants depriving right Constitution of tort pursue provides I, to their causes of I, action. Art. Sec. XII Par. that person deprived “[n]o right prosecute shall be defend, to person attorney, person’s either in that own cause Contrary finding the courts of this state.” to the court, the trial this Court has provide I, held Art. Par. XII Sec. was never intended provide courts, of access to the but was intended to only right self-representation representаtion of choice between (1) (630 364) Parker, counsel. Couch v. 280 Ga. SE2d (3) (2006); Moseley, v. State Ga. Ga. 680, (1993); Georgian Nelms v. Assn., Manor Condo. 412-413 (3) (321 (2) express , “Thus, there is no constitu- Georgia ‘right Constitution. under the access to the courts’ tional supra. [Cits.]” Parker, Couch principle of well-settled seeks avoid this
The dissent Georgian by ignoring of Nelms the seminal case constitutional law supra, stare decisis. Assn., doctrine Manor Condo. However, system society’s judicial recognize
“[w]e do could no eyed every that raised it. each afresh case work if it issue (Cit.) underlying very concept of the of law Indeed, the rule continuity requires over time such our Constitution own indispensable. precedent respect definition, is, for that a (Cit.)” support compelling [Cit.] . . . Stare decisis objections [the] holding despite [Nelms], adherence application of of stare “The the doctrine its rationale. performance well-ordered of a decisis is essential to the system jurisprudence. instances, In most it is more utility practical it law settled and to let remain have the up personnel open so, constructions, it as the than to to new though grave change, doubt arise of the court even originally given interpretation the correctness of the *3 (Cits.)” [Cit.] it. 210) (5) (519 (1999). Suarez, Etkind SE2d v. Ga. 356-357 quarter-century, consistently a has been followed for over Nelms including application in the author of the dissent case of its the 602) (3) (449 (1994). Corp., Whirlpool Love v. 264 Ga. Although applied the extent that an an
stare decisis should not be [Nelms] perpetuated[,] in is . . . Georgia, is error the law merely law of but a erroneous statement of the pronouncement by proper [unanimous] the Court as to [constitutional] the this state on a of law of construction impression. first matter of (5). supra Suarez,
Etkind v. at 357 majority following mistakenly is the claims that the The dissent 144) Myers, holding Liggett v. & in Bloomfield (1973). explained instead, as even have not cited longstanding We following law established above, rule of are the progeny. Regardless, in it is true that Nelms and its Bloomfield supra, quoted Liggett Myers, the a statement from this Court clearly which shows that the Convention of 1877 Constitutional adoption original now of the reason for the version person’s right self-representation, in issue was to ensure a and in of quote Nelms, this Court cited and recited the same Bloomfield reported by Convention, was in which Samuel W Small “A Stenographic Report Proceedings Conven- Constitutional of of (Constitution Georgia, Publishing Atlanta, tion Held Com- 1877).” pany, Georgian supra Atlantа, Assn., Manor Nelms Condo. (2). argues at The dissent that this Court’s on that reliance stenographic report improper because Small was not a member or secretary of the Rather, Constitutional Convention of 1877. posits, dissent the sole record official is found the Journal of Georgia, People City Constitutional Convention Held in of of (Jas. July August, Atlanta Months E Harrison 1877). & Co., Publishers, State Printers and journal
That is indeed official record of the motions, various votes and resolutions from the However, Convention. it is not a report full verbatim remarks and discussions from the part Convention. Instead, that of the record is found in the Steno- graphic Report Proceedings Convention, the Constitutional page as its which, all clarifies, cover transcribes the “debates in full on questions before fact, the Convention.” In the Journal following recog- Constitutional Convention includes the resolution nizing reporter stenographic Small as the exclusive of the Conven- tion:
Resolved, That the thanks of this Convention are due, hereby Esq., stenographic tendered, Small, Samuel W reporter, very impartial able, faithful and manner reported proceedings which he has Convention; of this agreed ... resolution to. supra p.
Journal the Constitutional Convention, 566. Notwith- standing misguided attempt the dissent’s tо diminish Steno- graphic Report Proceedings the Constitutional Convention as “journalist’s (Dissent, p. report account[,]” is in fact a legitimate and reliable record of the Constitutional Convention of *4 century, repeatedly, Indeed, for over this Court has and correctly, recognized stenographic report that as a valid record of Employees’ System that Convention. v. Parrish Retirement Ga., of (2) (398 353) (1990); 613, 260 Ga. 614 Barber, SE2d Barber v. 257 Ga. (360 574) (1987) (dissent); 488, 490, fn. 1 SE2d Ga. Power Co. v. (2) (212 628) (1975); Corp., Allied Chemical 558, 233 Ga. 566 SE2d (208 472) (1974);Leggett Collett, 668, 669, State v. v. Speer 232 fn. 1 Ga. (II) (205 197) Baptist (1974); 232 Assn., 27, Macon Ga. 30 (136 425) (1926) (dissent); Martin, 535, v. 163 Ga. 541 SE (1) (109 903) Wright (1921); v. Hardwick, 302, 152 Ga. 309 SE
27 449) (78 (1913); City 81, SE 140 85 Atlanta, Ga. v. Renfroe of (72 260) (1911) (dissent); Clark 1, 18 SE State, v. 137 Ga. Strickland 600) (1) (68 (1910); SE Southern Hammond, 792, 795 134 Ga. v. 665) (65 (1) (1909); Railway 285 SE Melton, 277, Ga. Co. 133 803) (43 (1903), City Epping 263, SE Columbus, 117 271 Ga. Whigham, grounds, v. Town other Harrell overruled on (1) 1010) (80 (1913); Candler, 113 Ga. 656 SE Park v. 289) 89) (1901); SE 109 233 Boswell, Blocker v. Ga. SE (1899). stenographic alone, as the Furthermore, this Court is approval report a credible with as relied and cited has also been Op. legal authorities. various other record of the 1877 Convention Atty. Meaning State Constitutional 89-16; Dinan, The Gen. John Convention Evidence Constitutional Education Clauses: (2007); Marsha L. Baum L. Rev. fn. 32 Debates, 70 Alb. Constitution-Making: Neglected Fritz, American Christian G. Hastings 199, fn. 91 Sources, L.Q. Const. State Constitutional Liberty (2000); Emily and Tassel, Freedom: Personal Field Van Antimiscege- “Only Us”: Law: the Law WouldRule Betwеen Private Economy Dependency, nation, and the Debate Over the Moral (1995); Rights L. Rights: Rev. fn. War, Civil 70 Chi.-Kent After Georgia Dorothy Beasley, Emory Alive?, Dead or T. Bill of (1985); A 341, 386, McElreath, fn. Treatise L.J. Walter (The (citing Company, Georgia Harrison the Constitution of times). prior Report approximately Indeed, to the dissent Small’s authority legal questioned the clear in authenticity, accuracy no has ever this validity stenographic report, and provides Thus, the sole verbatim record of the Convention debates. contrary position to the dissent, this Court’s reference appropriate. stenographic report Nelms Bloomfield history Moreover, of the constitutional current version purpose provision “indicate[s] the sole at issue this case adoption underlying I, XII I, Sec. Par. was to in the revision and of Art. protect represent of an individual to himself define and Georgian Assn., state.” Nelms v. Manor Condo. the courts (3). ignores supra factor that at 413 The dissent also the critical compared the access to Nelms constitutional Georgia provi- provisions which, states, unlike courts sion, other every open person expressly “provide all shall courts injury Georgian him[.] [Cits.]” Nelms v. for the redress of an done (1). correсtly supra Assn., Thus, Manor Condo. Nelms (between ‘right I, Par. XII is a of choice’ concluded, self-representation “Art. Sec. counsel) provision, representation in the such as found consti- not an ‘access to the courts’ Georgian [other states].” Assn., Manor Condo Nelms v. tutions of (3). supra at 413
28
Accordingly, clearly finding the trial court erred in access” I, I, violation of Art. Sec. Par. XII. See Santana v. Ga. Power (4) (498 521) (1998); Georgian
Co., 127, 269 Ga. 129 SE2d Nelms v. (3). (2), supra § Assn., Manor Condo. at 412-413 Moreover, OCGA (b) (1) deny litigants simply 9-11-68 does not courts, access to the but attorney’s sets forth certain circumstances under which fees (4) (267 recoverable. See 230) (1980) (statute Ferrier, Eubanks v. 763, Ga. SE2d deprive plaintiff did not courts, access to but evidence). merely plaintiff types withheld from certain “There- ‘right provision fore, even if a constitutional of access to the courts’ applicable supra exist, did 582 it would not be here.” Couch v. Parker, (1). § The trial court also found that OCGA 9-11-68 violates Art. I, permits recovery attorney’s I, Sec. XII Par. because it fees prerequisite showings § absent of either OCGA 9-15-14 or § nothing 13-6-11. any However, there I, is in Art. XII, Sec. Par. provision Georgia other attorney’s Constitution, which mandates that only pursuant
fees can be awarded to those two code Georgia, “[attorney’s Rather, sections. fees are recoverable . .. statutory provision where [Cits.]” authorized some contract. Subsequent Injury Muscogee Ga. Trust Fund v. Works, Iron 265 Ga. (462 Glynn County 790-791 Employ- SE2d See also Fed. (3) Peagler, ees Credit Union v. 256 Ga. SE2d (1986). § statutory provision authorizing OCGA 9-11-68 is such a recovery attorney’s specific fees under circumstances. Because requirement attorney’s there is no constitutional fees be only pursuant § § awarded to OCGA 9-15-14 or 13-6-11, the trial finding contrary court’s to was erroneous. §
2. The special trial court further ruled that OCGA 9-11-68 is a uniformity law that violates the clause of the Constitution, applies only because it claims, to tort not all civil cases. This State’s uniformity provides “[l]aws general clause of a nature shall operation throughout have uniform special this state and no local or law shall be enacted in case for which has been made Const, existing general law. . . .” Ga. Ill, Art. Sec. VI, (a). Contrary ruling Par. IV court, trial OCGA 9-11-68 special affecting only is activity specific not a law a limited in a industry during Compare Corp. a limited time frame. Celotex v. St. 880) (1989) Joseph Hosp., (special 259 Ga. law claims); affected certain asbestos Lasseter v. Ga. Public Service (2) (319 824) (1984) Comm., applied (special law coal). only pоwer plant converting petroleum one “operates uniformly throughout Rather, subject it the state subjects proposes [Cits.]” or class of with which it to deal. Lasseter v. supra. Ga. Public Comm., Service “ requires only a law to have State Constitution ‘Our apply to all operation; that it shall that means
uniform If things to affect. persons, it is intended matters, or scope of its operates all who come within alike on it Uniformity uniformity provisions, is secured. constitutional universality. This constitutional not mean does complied uniformly upon operates all law with when brought and circum- *6 persons relations within the who (Cits.) operates uni- provided A law which it.’ stances general designated law formly upon persons a class is of a all provided meaning Constitution, within arbitrary unreasonable.” made is not thus classification [Cit.] 216) (1996). (466 (4) SE2d 244, 246 Martin, v. 266 Ga.
State uniformly throughout § applies 9-11-68 Because OCGA purpose general of this law. The clear cases, it is a to all tort State general accept litigants encourage to make and in tort cases law is to unnecessary proposals good to avoid in order faith settlement (d) (2) (b) (2), rejecting (1), (party § litigation. 9-11-68 See OCGA attorney’s court fees, but be liable for offer settlement determine that an оffer was good an faith and disallow not made fees). legislative certainly legitimate attorney’s This is award “strong public policy purpose, encour- this State’s consistent with [cit.].” negotiations Boudreaux, aging v. settlements, Edelkind (2) (519 442) (1999). fact that Moreover, the SE2d 271 317 Ga. applies does not actions, other civil cases, to tort but not the statute Assembly may special impermissible “The General law. render it an general things application persons of a exclude certain (542 [Cit.]” 436, Auth., 273 Ga. Matthews v. Macon Water law. (2001). uniformly through- operates long As as such a law SE2d [Cit.]” general v.American McAllister State, it “is still a law. out the 247) (1977). (2) (240 246, 248 SE2d Cross, Red 240 Ga. Nat. uniformity § Accordingly, clause 9-11-68 does not violate OCGA Constitution. denying the motion for trial court based its order Because the § findings attorney’s 9-11-68 is un- that OCGA fees on erroneous must be reversed. constitutional, that order appeal argued Appellees that the for the first time have § after this became effective of OCGA 9-11-68 current version application case is of it to this filed, and that retroactive lawsuit was a claim that However, not consider this Court will unconstitutional. application when that is unconstitutional of a statute retroactive distinctly upon by trial court. Madison ruled issue was (2) (a) See аlso SE2d State, 281 Ga. (5) (507 862) (1998) App. State, Hindman (this Appeals retroactivity Court transferred case to Court of because challenges upon by claim and other constitutional were not ruled preserved appeal). court, trial and thus were not Because Appellees did not raise this constitutional issue the trial court and ruling obtain a distinct considered for the first time in this on it from that court, the issue cannot be Bechtel, Court. See Kromer v. (1) (656 910) (2008) (unconstitutional App. Ga. retroactiv- ity regarding claim OCGA 9-11-68 “cannot be considered when appeal”). asserted for the first time on Judgment except concur, reversed. All the Nahmias, J., Justices specially who Hunstein, J., concurs J., C. and Benham who dissent. concurring specially.
NAHMIAS, Justice,
I
join
majority opinion
Divisions
and 3 of the
and Division 1
except
page
for its discussion of stare decisis on
I25. believe that
rely
there is little need to
on stare decisis to decide this case. Our
precedents holding
“right
the constitutional
to the courts”
Const,
provision,
I,
Ga.
XII,
Art. Sec. Par.
does not create
express
including
and unfettered
courts,”
access to the
Georgian
Nelms v.
Manor
Assn.,
Condominium
1. The doctrine of stare decisis is it but is less compelling meaning when, case, the issue is the of a provision. constitutional That is because it is much harder for the process interpretation democratic to correct or alter our of the interpretation regulation. Constitution than our of a statute or exclusively upon by majority, case relied the Suarez, Etkind v. (519 210) (1999), statutory interpretation Ga. 352 SE2d was a case. just passage majority quotes length, Indeed, after the that the at see Majority Op. emphasized statutory at the Etkind Court the analysis context of the stare decisis at issue there: regard “[E]ven those who ‘stare decisis’ with some- thing recognize principle less than enthusiasm that the has greater weight precedent even where the relates to inter- pretation reinterpretation [Cit.] of a statute.” A of a statute Assembly’s implicit acceptance after the General original interpretation judicial usurpa- would constitute a legislative Abernathy City Albany, tion of the function. v. (495 (1998)].
[269 it сonstitutes Because SE2d Ga. statutory interpretation authority controlling the the Group Gynecology [Atlanta state, Obstetrics law this 557) (1990)] “binding is Abelson, present upon unless the case us be followed in and will changed subsequently [it is] based has been law which ruling require by legislative a different action so as supplied.) Brinkley (Emphasis present v.Dixie Constr. time.” Notwithstanding Co., Ga. support appli public policy arguments broader appears malpractice statute, it General cation our persuasive, arguments Assembly to be not those has found provide for a so as to it not amended statute since has City Albany, Abernathy wrongful birth cause of action. supra at 90. Etkind, Ga. at requires majority, statutory its context of Etkind also original replace quotation “construc- from that
second (emphasis supplied), with state,” id. at 357 tion of tort law this Majority Op. [constitutional] state,” law of this “construction of thing, perilous, in same and it our at 25. Those are they though system, to them as are the same. democratic treat malpractice Etkind, if at issue we Unlike medical statute interpreted the constitutional incor- courts” (or cases), rectly prior people’s representa- in Nelms our other Assembly powerless in the would be correct thаt tives General significant delays people have error, and the would to overcome the applicable to do so. See and barriers to constitutional amendments 1983, Const, generally X, Art. Sec. I. Ga. recently Thus, Justice of United States ex- as the Chief plained: promotes preferred it decisis is the course because
“Stare predictable, development evenhanded, and consistent judicial legal principles, decisions, and fosters reliance on integrity perceived to the actual and contributes *8 judicial process.” . . . time,
At stare decisis is neither an “inexorable the same , . . . nor “a mechanical formula of adherence command,” especially decision,” . . . in constitutional
the latest legal, segregation minimum it would be were, cases.... If wage unconstitutional, the Government would be laws suspects ordinary wiretap first ob- criminal without could “principle taining . is instead a warrants. . . Stare decisis policy.” considering prior . . . When whether to reexamine holding, importance erroneous we must balance the having against impor- questions decided constitutional having right. tance of them decided _ U. S. _, _ (130 Commn., Citizens United v. Federal Election 753) (citations (2010) (Roberts, concurring) J., SC 175 LE2d C. emphasis original). omitted; in reasоns,
For these stare in the decisis constitutional context requires age more careful consideration factors such of the precedent, workability reliance at stake, interests of the importantly, reasoning. decision, most and, the soundness of its See _ U. S__, __ (129 Montejo Louisiana, 2088-2089, 173 SC rely majority heavily LE2d If this case is to analysis decisis, stare it should such careful focus on rather than simply quoting importance exhortations about the of stare decisis interpreting my rely heavily view, statutes. In we need not on stare leading precedents decisis because our on this issue were right.” “decided interesting, largely
2.1 irrelevant, find but the extensive debate majority regarding between the and the dissent whether Samuel M. stenographic report Small’s on the 1877 constitutional convention is an “official” record of the If I issue, convention. had to decide the say report would that Mr. Small’s is not record, the “official” but — proceedings that it is a record reliable and that is the more important point for the task at hand. interpreting
Our task in the Constitution tois determine the meaning language people in that used document to the who adopted controlling meaning it as the law for our State. Where contempora- the neous sources issue unclear, is it is useful to look it, various kinds understand as well' as the problems meant address. The official certainly records of our constitutional conventions are one such they source, but are not the exclusive to which documents we contemporaneous legal refer. dictionaries, We look to treatises, period. cases, as well as histories of the why, example, interpreting meaning That customary United Constitution, States it is to look to such sources as James Madison’s notes of the Constitutional Convention of 1787 (which dissenting opinion say), “unofficial,” as the would Papers (including Jay, Federalist a written those John who was not delegate), writings people such as Thomas Jefferson (who convention). during e.g., was in Banco See, France Nacio- nal Sabbatino, de Cuba S. 398 11 LE2d U. SC
33 (1964).1 Heller, 570, U. S. District Columbia See also of 637) (2008) (discussing the 2803, 171 LE2d 2783, 17, n. SC writings interpreting Papers Second the and Jefferson’s Federalist (Stevens, Amendment); J., n. 2832, 17, id. at 654 SC at (same). dissenting) of record are an “official” None of these sources (and others) many Framing, because useful but all of them the they people intelligent time at the and informed demonstrate what language it to mean and what evils of the Constitution understood the wrong simply against. protect to it is Thus, believe meant to only Dissenting Op. consider “official assert, 44, at that courts see seeking interpret meaning or of constitutional to the accounts” statutory text. “right provision read as the courts” 1877,
As ratified in the to prosecute deprived right person or to shall be follows: “No by any person, State, his cause in of the Courts of this defend own Const, attorney, I, That 1877, I, of Art. Sec. Par. IV. or both.” Ga. language unchanged in the 1945 and Constitutions. remained regarding The Ga. at 412. short discussions Nelms, See during leading provision our the debates to current Constitution phrase both,” in order to on the deletion of the final “or focused clarify represented litigant himself that a is not entitled to be See id. at 412-413. It is indeed clear counsel at the same time. original purpose the the the 1983 Constitution did provision. alter purpose? So what was analysis,
Although
repeatedly
asserts,
the dissent
without
“plain
language”
the
a fundamental
that the
establishes
“right
Dissenting Op.
42, 44,
text
courts,”
45,
see
at
access
directly
right Georgians
provision actually
focuses
on the
both).
attorney (or,
litigate
person
originally,
It
their cases
or
express right
appear
not,
face,
does
on its
be an
access
provision.
Indeed, as the
Court discussed and
courts
Nelms
оur
refute,
constitutions of several of
dissent makes no effort to
provisions, sister states contain broad “access
courts”
contemplated
application
Framers
of international
For
extent to which the
body
law he
law in American courts and their concern that this
administered
(Bourne
3,
courts,
22, hy
uniformly
Jay
No.
John
in the federal
see
Federalist:
at
80,
114;
144,
82,
1947,
I);
83,
hy
112 and
at
and No.
Alexander
ed.
Book No.
at
No.
(Bourne
(Bourne
1947,
II);
42, by
ed.
No.
James Madison
ed.
Hamilton
Book
I).
Genet,
Jefferson,
Secretary
State,
speaking
Book
wrote M.
Thomas
Minister,
integral part...
of the laws
French
in 1793: “The law of nations makes
Warren,
Moore,
(1906),
Digest
Law
. Also
of the land.” I
of International
10...
see
Constitution,
II,
116;
Making
c.
in 1
Pt.
Madison’s Notes
Farrand
316....
Cuba,
451, n.
Nacional de
376 U. S. at
Banco
language
entirely
of which is
different. See
To one looks provision, history meaning perceived confirms its and its need at — guarantee self-representation the time representation by to choose *10 Georgia’s in all
counsel cases in courts. Such a purpose constitutionally right limited may for a established, stand-alone lawyers judges operating seem counterintuitive for in a world where it has been settled for decades that the Sixth and protect Fourteenth Amendments to the United States Constitution right represent of criminal to defendants themselves. See Faretta California, 2525, U. S. SC 45 LE2d expressly guarantee right However, the need to to self- representation important in all cases was more to citizens in the (“The days Republic. earlier of the See id. n. 39 Founders self-representation right people. believed that awas basic of a free Underlying only antilawyer this belief was not sentiment of the populace, thinking but also the ‘natural law’ that characterized the (“After spokesmen.”); Revolution’s id. at 828-829 & n. 38 Independence, right self-representation, along Declaration of rights making with other basic to the of a defense, entered the new (citing state constitutions in wholesale fashion.” Article 58 of the Georgia Constitution of 1777 and III, Article VIII Section of the 1798)). Georgia Constitution of See also Law, Iannaccone v. 142 F3d (2d 1998) (discussing history right 553, 556-558 Cir. of the to cases). self-representation today right in civil Evеn of self- representation protected only by civil cases is statute federal (albeit Judiciary a statute that dates back to the formative Act of 1789). (“In 556; See id. at 28 USC 1654 all courts of the United parties may plead personally States the or and conduct their own cases by respectively, counsel as, the rules courts, of such therein.”). permitted manage to and conduct Thus, causes while the 2 It express “right should be noted that even where there exists an of access to the courts,” requiring litigant pay prevailing party’s statutes attorney unsuccessful fees upheld. See, e.g., Rowe, Comp. have been Florida Patient’s Fund. v. 472 So2d 1147-1149 (Fla. 1985) (unanimously upholding awarding attorney Florida statute reasonable fees to the cases). prevailing party malpractice Alaska, in medical See also Evans ex rel. Kutch v. 56 P3d (Alaska 2002) (upholding statutory judgment offer of scheme for tort cases and declining expand “right of access to the courts” based the Alaska Constitution’s courts”). process beyond “impediments due clause to actual access to the construing “right dissent contends that courts” right self-representation as a “mere in the courts” is so constrict- ing provision “meaningless,” Dissenting Op. as to render the 42at & profound misunderstanding 6,n. that contention reflects a of our history profound disregard self-representation. and a for the dissenting opinion,
As discussed in the
to the courts”
provision emerged
during
proposal
first
the 1877
convention as
Key
process
following day
Mr.
to amend
clause,
the due
and then the
in an amendment Mr. Tift, as recounted in Nelms and Bloomfield
144) (1973):
Liggett Myers, Inc.,
Thus,
Georgians
Nelson Tift
one of the most
of the
directly
time and
tion3
framing
someone
in
involved
of the Constitu-
— explained
problem
right
to which a
of choice
provision
widespread
was the solution was
and otherwise corrobo-
provision
rated the
what
exactly
conclusion that the words of the
mean
they appear
leading
to mean. That the debates
to the solely
subsidiary
right
Constitution focused
on a
issue of the
of choice
—
litigant
right
represent
whether a
should have the
“both” to
—
represented by
himself and be
counsel
further confirms this
(“The
understanding.
vastly
Nelms,
See
In the dissent Dissenting Op. 6, 45, n. n. 13 courts,” access the see Key’s proposal, (emphasis supplied), Mr. Tift’s neither Mr. nor heading proposal, or text of constitutional nor regarding Constitution, the 1983 nor other itself, nor the debates dissent makes mention of identified historical evidence protecting Indeed, the can to the courts. dissent unfettered “access” “plain language” interpretation express only by adding its appear it, our that does not a word reading history support into it. For these does not constitutional clearly leading precedents on this issue reached reasons, our right result.4 Court above, the discussion 3. Consistent with Bloomfield history “considering prior of this constitutional that,
held
pre-1983] provision
[the
subject
of the Constitution as
we view
self-representation
primarily
guarantee
intended to
*12
attorney,
230 Ga. at
or
an
or both.”
the courts of this State ...
“right
the courts”
then added that the
484. The Court
right
“only incidentally recogniz[es]
inherent
of access
issue,
I note that the trial court
instead
relying solely
unaccountably
on dicta
from a Court of
failed to
cite
Appeals
of our
case.
binding precedents
similarly
courts.” Id. The Court Nelms
stated that “it is axiomatic
that an individual must have access to the courts in order to assert
right
self-representation provided by
right
[the
the courts
provision].”
The Nelms Court therefore
that,
concluded
right
being
express,
“axiomatic,”
access to the courts
it is not
give
expansive
“we decline to
this constitutional
interpretation sought.”
entirely
Id.
consistent with
Bloomfield
position.
explained
having
this
his inherent
There the Court
that “one
exercised
having pleaded
person,
of access and
his
by attorney,
subjects
power
or both,
himself to the inherent
proceedings.”
court to control its
fees specified pay in grounds,” the time claims within fail tо reasonable systems procedure “[t]here explaining neither policy, are unenlightened, in arbitrary ours, of a stock akin and nor litigant, of the defeated is the normal lot to such a burden submission Nothing plaintiff in the Fourteenth defendant. . . . or whether procedure due here. The assurance of like forbids a Amendment stereotyped to the process at the rates known bills of costs has not Fathers.”). [Founding] perhaps challenges
Appellees in this do not raise such obviously fee-shifting provisions they fail. would because flatly deny anyone § courts, access 9-11-68 do not OCGA repose restrictions that have and and other statutes of limitation scrutiny Litigants judicial free to to do. remain can be said survived they a offer and cases, even if receive settlement file and defend tort question reject they little the offer. There is also if elect to even legitimate rationally § related to the State’s 9-11-68 is OCGA accept “encouraging] litigants objective in to make and tort cases unnecessary proposals good in order to avoid settlement faith Majority litigation.” Op. at 29. argument in made, at least on the record can a credible be
Nor
litigants
substantially impedes,
“chills,”
case, that the statute
prоcess
filing
pursuing
due
claims,
their
in violation of
from
originally
§
equal protection.
enacted in 2005.
OCGA 9-11-68 was
appellees
books,
accessed
court
that statute on the
these
With
They
vigorously,
pursued
filing
those claims
their tort claims.
then
finally
ignoring
resolved
offer, until the claims were
a settlement
summary judgment against
appeal
grant
them, of which
a
with
they
(That
way,
judgment,
pursue.
determines as
final
did not
appellees’
zero,
claims was
that the value of
a matter of fact and law
so that
reasonable.)
appellants’
$5,000
settlement offer of
§
challenge
Appellees
or contend that it had
did not
OCGA 9-11-68
(or
merit)
their
the merit
lack of
affected their case until after
claims had been
processes
through
determined
the usual court
attorney fees was entered.5
until after an award of
rights
appellees’
were
no evidence that these
short,
In
there is
Consequently,
slightest.
their facial attack on the
chilled in the
constitutionality
fail, as it is clear that the
9-11-68 must
of OCGA
“staggering.” Dissenting
$53,087.15
attorney
expenses
fees and
The dissent calls the
expenses
the trial
remains for
Op.
the reasonableness of those fees
n. 14. The issue of
However,
expenses are found to he
if
substantial
fees and
on remand.
those
court to decide
against
proved
pay
light
appellants
to defend themselves
what
had to
of what
reasonable
appellees’
worthy
going
jury,
on the
their size would reflect more
even of
to he a case not
appellants’.
than the
and decisions
conduct
many
may
constitutionally applied
cases,
such
one
statute
as this
defendants)
(or
plaintiffs
demonstrably
and others which tort
(or
many
pursuing
defending) claims,
undeterred
as well as the
parties
reasonably
in which
case
cases
can
estimate
value
their
accept
range (plus
and nevertheless
a settlement offer in that
refuse to
25%). estimates,
or minus
It
sometimes be difficult make such
said,
Justice
but as
Holmes once
“the law is full
instances where
depends
jury
estimating rightly,
fate
his
that is,
man’s
as the
subsequently
degree.”
it, some matter
estimates
Nash v. United
1232) (1913) (explaining
States,
5. On motion
reconsideration,
contend that
the
disregarded
beginning
has
Court
a line of our cases
v.
with Tift
(1879),
Towns,
Although it was decided after ratification 1877 Constitu- “right v. tion, Towns not does mention the to the courts” or Tift provision. simply other constitutional Instead, and the Court stated background Rule, relied the American which and is the law (reversing attorney State. See 63 Ga. at an award of fees damages prevailing explaining “[w]here to the defendant, that controversy there is a bona for the the settle, tribunals fide parties adjust amicably, burdening cannot it there be should no one the counsel of the other, with fees there has unless been wanton indulgence litigation”). or excessive attorney claim for fees addressed a
The next case the series ground time, at on the that lawsuit was code under the civil brought Mann, Co. Traders’ Ins. in bad faith. See exception to discussed the bad faith SE Court explaining background rule, that costs and interest are while policy long prevailing party, “it has been awarded to pay expense obtaining require defendant to not to quoted against judgment Id. at 386. time the Court himself.” This noting passing, provision in that it “is the privilege to the courts” plaintiff,” granted but apply as well as the without the defendant explaining why discussing history or it would its text issue hand. Id. Ramsey Phillips, years later in Ga. 440 A Fender few 527) (1908), “[t]he right to constitutional SE appeal Court said legitimate testing . fair courts . . authorizes a litigant subject right,” “[a] is not one’s fide claim of so bona damages penalized by loses whenever he his case. award every no court-house, man enter the would doors Otherwise honestly probable danger cause, with matter how with what again appears damages hanging accurately over him.” Id. at This case statutory apply then-applicable and common law rules litigation expenses, regarding attorney but it does fees awards accurately analyze, quote, paraphrase the then- or even applicable provision. the Fender Court used Instead, constitutional language Constitutions, was revised 1861-1868 and 1798 Constitutions’ focus on the to revert back the 1777 *15 right self-representation. Division 2 See above. subsequent simply quote prior in this line cite or
The
cases
discussing
attorney
under the
cases in
claims for
fees awarded
quote
statutory
and common
of the time.
cases sometimes
or
law
“right
provision,
any
but without
summarize the
to the courts”
history
examination of the text or
constitutional
or
Georgia
appellate
cases that treat
mention of
dozens of other
history,
provision primarily
it, in
a
accordance with its text and
right
self-representation.
protecting
Our most
choose
recent
simply quotes
example,
refers
line,
case
for
Fender and
to the
in this
(omitting
“right
provision in
form
1983
to the courts”
truncated
analysis.
by
attorney”)
person or
See
“either in
an
and withоut
89)
Brown, P.E.,
Kent,
David
Inc. v.
Ga.
G.
(2002).
appear
right result,
because under
cases all
to reach
These
statutory
decided,
at the time each case was
and common law
attorney
party
prevailing
fees
not allowed under
award of
support
presented.
cases,
however,
do
circumstances
appellees’
to the courts”
broad contention that
person
being
exercising
prohibits
“punished
a
for
his
plead his claim in court.” Motion for
at 27.
Reconsideration
To the
contrary,
statutory
excep-
these
each
cases
discuss
and common law
background
long
Rule,
tions from the
rized
American
have
autho-
monetary penalties
types
against
various
amounts
litigants.
e.g.,
(noting
See,
certain
Mann,
Ga.
that costs
only damages
imposes
and interest “are
which the law
in such
supplied));
(emphasis
(“Generally,
Kent,
cases”
expenses
at 850
Ga.
for
of a
defense
suit are unavailable unless authorized
supplied)).
(emphasis
Vogtle Coleman,
statute.”
See also
(1989) (“The
American rule has been that
defending
expenses
generally
for
a suit are
unavailable unless
by specific
(emphasis supplied)).
authorized
a
statute.”
statutory provi-
Indeed,
now has dozens and dozens of
provision, authorizing
sions, and even one constitutional
awards of
litigation
attorney
prevailing
including
parties,
costs and
fees
many
require
showing
litigation
that do not
a
that the
was frivolous
Const,
pursued
e.g.,
See,
bad faith.
Ill,
Ga.
Art. Sec.
(d) (“The
Assembly may provide by
Par.
General
law for the
payment by
expenses, including
the condemnor of reasonable
attor-
ney’s
determining just
fees, incurred
the condemnee in
(a)
adequate
cases);
§
compensation”
takings
OCGA 4-11-35
(“Any person
damaged by
has been
who
reason of violation of this
[protecting
crop,
facilities]
article
farm animal,
and research
consequential damages, punitive damages,
all
recover
actual and
including
attorneys’
person
costs,
court
causing
fees,
reasonable
from the
(c) (1) (“The
damage.”);
§
granted
such
OCGA 7-6A-6
relief
(b)
pursuant
[of
in an action
to subsection
of this Code section
Lending Act]
Fair
. .. shall not exceed the
sum of
amount of all
remaining indebtedness of the borrower under such loan and rea-
action”).
attorneys’
generally
sonable
fees
such individual
See
§§
(providing
litigation
OCGA 9-15-1 to 9-15-15
awards
costs
instances).
including attorney
cases,
in civil
fees in some
None of
in
unconstitutional;
the cases
v. Towns line held that such a
Tift
might
simply
statute
held
all оf those cases
applied laws then
We
statute,
books.
now have a new
first
Assembly
enacted
the General
in 2005. See OCGA 9-11-68. It
“policy Georgia,”
reflects the
Mann,
118 Ga. at
that continu-
ing
litigation
good
rejecting
tort
after
faith settlement offer
indulgence
litigation”
constitute
“wanton
excessive
and autho-
burdening
[litigant]
rize “the
of one
with the counsel fees of the
*16
rejection,
other”
that
Towns,
incurred after
plain language
of the constitutional
It
account of the 1877 Constitu-
itself.
is not
official
responsible
Convention,
the 1877
tional
the
for
Constitution
appeared.
right
Journal
to access the courts first
See
(“Journal”).
People Georgia
It is
Constitutional Convention
personal
member,
not
Mr.
recollections of a convention
such as
as
even
language
proposed
Tift, who
the resolution
add
Nelsоn
freestanding provision
Key,
constitution,
a
in the
or Mr. John C.
who
language
proposed adding virtually
part of
due
identical
majority’s interpretation
process
Art.
clause.
sole basis
single passage in
A
I,
Par. XII
a
one source: Small’s
I,
Sec.
is
meaningless
provide right
would be rendered
if it did not
Because
the courts
courts,
agree
special
interpretation
of Art. Sec.
to
I,
cannot
with
concurrence’s
access
statutory
contrary
rules of
construction. See
Par. XII that
is
to our
constitutional
(2)
396) (2006) (basic
Schrader,
generally
rale of constitutional
Blum v.
I am to state that Justice Benham authorized this dissent. Decided March April Reconsideration denied 2010.
Greenberg Traurig, Trigg, Ryan appel- Grelecki, Mark G. C. for lants. Holley Thompson, Regina Holley,
Molden, Molden, S. Oni A. appellees. for Goldstein, Schroeder, Jones,
Powell P. Eric LeeAnn William V. TV, Cork, Jr., Custer Charles M. amici curiae.
S09A1951. WEIS v. THE STATE. Justice. Melton, penalty Ryan appeals In this death Jamie Weis discharge аcquittal alleged denial his motion for and based on an rights speedy violation of his constitutional to counsel and a trial. As fully explained more trial below, because the court did not its abuse denying discretion in motion, Weis’ affirm. we February The record reveals that Weis was arrested on robbery, beating, shooting King, death of Catherine expense. senior citizen. has Weis never retained counsel his own originally appointed lawyers trial court from the Griffin Judicial represent Circuit Public Defender’s Office him. Several months attorneys Citronberg later, however, Robert H. and Thomas M. West appointed represent pursuant agreement were Weis to an with the (the Georgia Public Defender Standards Council “Standards Coun- cil”), attorneys appearance and these entered an on Weis’ behalf October
During representation the first six months Weis, of their Citronberg being paid, they West were filed several motions investigation By on Weis’ behalf and conducted of his case. mid-March however, counsel became concerned that the lack funding available to the Standards Council would result counsel being pay experts unable to for the services of and for counsel *20 paid themselves to continue to for their services. Counsel filed several motions continuance and funds hire for additional