OCGA 9-11-68, the rather overbearing version of an offer of judgment / offer of settlement statute that was enacted as part of Senate Bill 3 in 2005, has been held unconstitutional by several trial courts. Now the constitutional challenge is reaching the Georgia Supreme Court. In light of the fact that a plaintiff won $4 million in attorney fees added to an $11.7 million compensatory verdict in a medical malpractice case last week, I wonder how vigorous the opposition to this constitutional challenge will be.
Following is a copy of the GTLA amicus curiae (friend of the court) brief, minus the table of authorities and extensive footnotes.
IN THE SUPREME COURT
STATE OF GEORGIA
FOWLER PROPERTIES, INC. AND ST. THOMAS SQUARE, LTD.,
Appellants,
vs.
CYNTHIA DOWLAND,
Appellee.
Case No. S07A0342
BRIEF OF AMICUS CURIAE
GEORGIA TRIAL LAWYERS ASSOCIATION
Robertson Bodoh & Nasrallah
990 Cobb Pkwy. N, Ste. 205
Marietta, GA 30062-2410
(770) 424-1234
Mathew G. Nasrallah
Co-Chairman of the GTLA Amicus Committee
Georgia Bar No. 535200
Center for Constitutional Litigation, P.C.
1050 31st Street NW
Washington, DC 20007
(202) 944-2809
Ned Miltenberg
Admitted Pro Hac Vice
Attorneys for Amicus Curiae
TABLE OF CONTENTS
AUTHORITIES CITED……………………………………………………………….. iii
STATEMENT OF INTEREST AND SUMMARY OF ARGUMENT……… 1
I. . OCGA §9-11-68 VIOLATES the CONSTITUTION’s “InHERENT right of ACcess to the courts.”…………………………………… 4
A. Georgians “Have a Constitutionally Guaranteed Direct Right of Access to Seek Redress,” which Bars Taxing a Litigant with an Opponent’s Attorney fees Except For Bad Faith or Abuse…………. 4
1. Defendants ignore this Court’s decisions that the “constitutionally guaranteed right of direct access to the courts” is as “sacred,” “profound,” “precious,” and “solemnly guaranteed” as any other………………………………………………….. 5
2. Defendants’ reliance on Nelms and its progeny is misplaced….. 7
3. This Court has consistently held that the right of access to the courts bars a litigant from being taxed with an opponent’s attorney fees, except if he has impaired his opponent’s rights by bad faith, misconduct, frivolous claims, vexatious litigation tactics, or otherwise causing unnecessary delay and expense…. 9
B. Nelms, et al., Reinforce, Rather Than Undercut, Kemp et al…….. 13
II.. OCGA §9-11-68 VIOLATES The Constitution’s ProVisionS mandating “Uniform” Laws and barring “Special” Ones………………………………………………………………………………….. 15
A. §9-11-68 Is a Non-Uniform Special Law……………………………….. 15
1. Section 9-11-68 is unique because it applies solely to tort cases 16
2. Section 9-11-68 is one of only five OOJ provisions in the country that allows attorney fees to prevailing defendant-offerors………………………………………………………………………. 17
3. Section 9-11-68 is the only OOJ provision that divests courts of their inherent and historic authority over fee awards…………… 18
4. Section 9-11-68 not only treats tort cases differently than all other civil cases, it also stacks the deck against tort plaintiffs.. 19
5. Section 9-11-68 not only treats cases and litigants differently than any OOJ attorney fee provision in the country, its fee provisions also differ from Georgia’s other fee statutes………. 22
B. Section 9-11-68 Is an Unconstitutional Special Law………………… 24
1. Section 9-11-68 is unconstitutional because the legislature “‘ha[d] previously legislated in that area by general law.’”…… 25
2. Section 9-11-68 is also an unconstitutional special law because its “‘classification[s] of those affected [are] unreasonable.’”… 27
CONCLUSION………………………………………………………………………….. 30
APPENDIX…………………………………………………………………………. App-1
The Georgia Trial Lawyers Association (“GTLA”) is a voluntary organization of attorneys who are licensed to practice in this State. GTLA members typically represent consumers, workers, and other persons in tort actions for personal injuries. These individuals have a keen interest in preserving access to the courts and equal justice under law. The GTLA’s interest in this case lies in safeguarding the civil justice system, which is imperiled by the enactment and enforcement of offer of judgment (“OOJ”) provisions like OCGA §9-11-68 (2005). (The full text of the 2005 and 2006 versions of §9-11-68 are reprinted in Appendix (“App-”) A).
The GTLA fully supports the Plaintiff’s[1] contentions that §9-11-68 violates the Georgia Constitution’s guarantee of access to the courts, the Constitution’s insistence on uniform laws and rules, and the Constitution’s antipathy towards retroactive legislation. Amicus writes separately, however, to emphasize that the case against the constitutionality of §9-11-68 is stronger than Plaintiff has argued.[2]
OCGA §9-11-68 is unique. It is unique in the history of Georgia and it is unlike any other OOJ provision in force in any other court in the country, including Fed. R. Civ. P. 68 and Fla. Stat. Ann. §768.79 (2005), which served as its model. Although Georgia courts have long exercised their inherent authority to award attorney fees to deter bad faith conduct, frivolous claims, and vexatious litigation tactics, §9-11-68 strips courts of such discretion in OOJ cases. Instead, in such cases, §9-11-68 requires courts to award attorney fees solely because a tort plaintiff with a meritorious claim did not win more than an arbitrary minimum above a defendant’s offer of judgment. Requiring such a penalty for a bona fide action—one that has survived motions to dismiss or for summary judgment—treats losing, or not winning enough, as the equivalent of bad faith or misconduct.
As discussed in Section I, infra, the trial court correctly held that §9-11-68 chills litigants’ “inherent right of access to the courts,” and runs counter to eight unanimous decisions by this Court, which held that attorney fees may not be awarded in the absence of bad faith or other pre- or post-filing misconduct. These precedents are grounded in the “sacred,” “precious,” and “constitutionally guaranteed right of direct access to the courts,” which is secured not only by the “right to prosecute or defend” that is guaranteed by Ga. Const. (1983) Art. I, §1, ¶12 (App-E), but also by the “right . . . to petition” that is guaranteed by Art. I, §1, ¶9 (App-F).
As discussed in Section II, §9-11-68 is a non-uniform special law, because, inter alia, it applies only to tort cases, allows fee awards to prevailing defendant-offerors, and contains a formula for determining when fee awards are required that is stacked against tort plaintiffs. Although special laws are not unconstitutional per se, §9-11-68 violates the Constitution’s overlapping requirements of uniformity, Art. III, §6, ¶4(a) (App-G), Art. VI, §1, ¶5 (App-H), and Art. VI, §9, ¶1 (App-I), because it is preempted by previously enacted general legislation and because its “classification of those affected is unreasonable” and “arbitrary.’”
I. OCGA §9-11-68 VIOLATES the CONSTITUTION’s “InHERENT right of ACcess to the courts.”
A. Georgians “Have a Constitutionally Guaranteed Direct Right of Access to Seek Redress,” which Bars Taxing a Litigant with an Opponent’s Attorney Fees Except for Bad Faith or Abuse.
Defendants do not dispute that §9-11-68 has a chilling effect on tort claimants. Instead, they contend that the trial court’s decision invalidating §9-11-68 was based on “the erroneous premise that the Georgia Constitution guarantees unfettered access to the courts.” Initial Br. at 5. Defendants rely upon selective quotations from Nelms v. Ga. Manor Condo. Ass’n, 253 Ga. 410 (1984), which were reprised in Couch v. Parker, 280 Ga. 580 (2006), and Santana v. Ga. Power Co., 269 Ga. 127 (1998), for the notion that Art. I, §1, ¶12 is nothing but a “‘right of choice’ (between self-representation and representation by counsel) provision, and not an ‘access to the courts’ provision.” Initial Br. at 5 (cits. omitted).
Defendant’s claim of error is wrong. As discussed below, there are three reasons why: (1) this Court’s decisions have long recognized that the “constitutionally guaranteed right of direct access to the courts” not only exists but is as “sacred,” “profound,” “precious,” and “solemnly guaranteed” as any other right; (2) Defendants’ reliance on Nelms and its progeny is misplaced, as none of those cases concerned attorney fees, as Nelms explicitly recognized that the Constitution secures an “inherent right of access to the courts,” and as Nelms highlighted that “it is axiomatic that an individual must have access to the courts in order to assert the right of self-representation”; and (3) this Court has consistently held that the right of access to the courts bars a litigant from being taxed with an opponent’s attorney fees, except for bad faith, misconduct, or abuse.
1. Defendants ignore this Court’s decisions that the “constitutionally guaranteed right of direct access to the courts” is as “sacred,” “profound,” “precious,” and “solemnly guaranteed” as any other.
Defendants rely upon selective quotations from Nelms, Santana, and Couch for the theory that Art. I, §1, ¶12 is nothing but a “‘right of choice’ (between self-representation and representation by counsel) provision, and not an ‘access to the courts’ provision,” Initial Br. at 5 (cits. omitted), to hop to the conclusion that the Constitution does not secure a right of access to the courts in any respect.
The Georgia Constitution does, however, guarantee a right of access to the courts, as Nelms’ reference to an “inherent right of access to the courts” makes clear. This Court has repeatedly stressed the importance of that right, without pigeonholing the precise constitutional text on which this right is grounded. Instead, this Court, like the U.S. Supreme Court, has taken the pragmatic approach that where the right is located in the text is secondary to how important the right is.
Thus, while the U.S. Supreme Court has variously “grounded the right of access to the courts” in at least five express constitutional provisions,[3] that Court long has viewed the right of access to the courts as indispensable to the vindication of all other constitutional and legal rights—despite the fact the phrase “access to the courts” appears nowhere in the text of the U.S. Constitution.[4]
Similarly, this Court has been less concerned about pigeonholing the right of access than in ensuring that Georgians enjoy its benefits. Thus, this Court has stressed that “the people have a constitutionally guaranteed direct right of access to seek redress,” that this right “is precious, . . . and [that] other branches cannot be allowed to rend it.” Grimsley v. Twiggs Cty., 249 Ga. 632, 643 (1982)(emph. added).[5] These views are not just rhetoric. To the contrary, this Court has held that the “‘right to prosecute or defend’” is “as profound and lasting [a] safeguard[] against the dangers of arbitrary power” as the surety that “’no person shall be deprived of life, liberty, or property, except by due process of law.’” Cutsinger v. City of Atlanta, 142 Ga. 555, 568 (1914)(emph. added). Indeed, it is “fundamental . . . that before the rights of a party can be passed upon he must have his day in court.” Biggs v. Silvey, 140 Ga. 762, 764 (1913).[6]
2. Defendants’ reliance on Nelms and its progeny is misplaced.
Although the three- and four-word phrases that Defendants rely on—i.e., “‘right of choice’” and “‘access to the courts,’” Initial Br. at 5 (cits. omitted)—were accurately plucked from Nelms, Defendants omit the language surrounding these seven words and the critical history behind that decision. Both are very instructive.
The plaintiff in Nelms had argued that Georgia’s eight-year statute of repose violated Art. I, §1, ¶12, which, he contended, bars the Legislature “from ever abolishing a cause of action unless there is . . . an overpowering public necessity . . . .’” 253 Ga. at 411. Significantly, he did not ground his claim on Georgia case-law, but instead “[r]el[ied] on the interpretations Kentucky, Florida and Alabama [courts] ha[d] 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.” Id. (emph. added).
Thus, the key question for the Nelms Court was whether Art. I, §1, ¶12 “provide[s] a ‘right of access’ to the courts within the meaning applied to that phrase by . . . the courts in Kentucky, Alabama and Florida.” 253 Ga. at 412 (emph. added). This Court compared Art. I, §1, ¶12 and the other states’ constitutional provisions and then examined the debates surrounding the relevant amendments to Georgia’s 1877, 1945, and 1983 Constitutions, ultimately concluding that those amendments were “‘primarily intended to guarantee the right of self-representation . . . and as only incidentally recognizing the inherent right of access to the courts.’” Id. (emph. added; cit. omitted).
Significantly, though, far from minimizing the importance of the “‘inherent right of access to the courts,’” id., Nelms took pains to caution that “it is axiomatic that an individual must have access to the courts in order to assert the right of self-representation provided by Art. I, §1, ¶12.” 253 Ga. at 413 (emph. added).
3. This Court has consistently held that the right of access to the courts bars a litigant from being taxed with an opponent’s attorney fees, except if he has impaired his opponent’s right by bad faith, misconduct, frivolous claims, vexatious litigation tactics, or otherwise causing unnecessary delay and expense.
OCGA §9-11-68 is new but the issues it raises are old. As the trial court noted, Op. at 4, this Court has consistently held—as early as 1874 and as recently as 2002—that “a law” that allows attorney fees to be awarded against one who “failed in his suit . . . would be a bar to the ‘open court,’ provided for by the constitution . . . .” Story v. Kemp, 51 Ga. 399, 404 (1874). The question Kemp asked—“[c]ould justice be said to be free if every suitor was to be subject to damage if he failed in his suit?,” id.—is as pertinent today as it was 133 years ago.
Kemp unanimously held that “justice” could not be “free” if a litigant was at risk for an opposing party’s attorney fees, explaining that American courts have invariably rejected the “loser-pays,” “English Rule” regarding such fees.
By ancient custom every suitor failing in his claim is liable to be mulct in the costs of his adversary as well as his own, but this is the farthest that has ever been allowed for simple failure. In England this included attorney’s cost, fees allowed by law to them as officers of court. But our law has abolished such fees and . . . furnishe[s] no means by which the defendant is to be reimbursed for counsel fees in ordinary cases.
Id. (emph. added).[7] Kemp thus admonished that “there is no law, and ought to be none, giving an action on the case for damages for . . . a suit . . . brought in good faith under a mistake . . . of law and fact.” Id., 51 Ga. at 402.
Kemp recognized, however, that access to the courts is not an absolute or unfettered right and that attorney fees awards could pass constitutional muster in “[extra]ordinary cases,” e.g., where the evidence “showed that a suit was frivolous and malicious” or that a party had “act[ed] merely to delay the other . . . .” Id. In such instances, but only then, fee awards would be “no hindrance to a wide open door of the courts, since freedom of access is perfectly consistent with a penalty if this right be abused causelessly and frivolously and in bad faith.” Id.
Although Kemp was based on the “open court” doctrine, this Court reached the result, with the same caveats, thirty years later by invoking the Constitution’s guarantee of the “right to prosecute or defend.” Thus, Traders Ins. Co. v. Mann, 118 Ga. 381, 386 (1903), stressed that the constitutional “right to prosecute or defend” ensures that “[t]he costs which are taxed against the losing party . . . are the only damages” allowable except “if the cause of action itself is . . . poisoned by bad faith” or “where [a defendant’s] litigation is for delay only.”[8]
This Court also has invoked Art. I, §1, ¶1’s “right to petition” to reach the same result. So, Fender v. Ramsey & Phillips, 131 Ga. 440 (1908), held that “[t]he constitutional right to appeal to the courts authorizes a fair and legitimate testing of one’s bona fide claim of right. A litigant is not subject to be penalized by the award of damages whenever he loses his case,” unless he “has acted in bad faith,” caused “unnecessary trouble and expense,” or been “stubbornly litigious.” Id. at 442.[9]
This Court has reiterated the Kemp-Traders-Fender teachings five more times,[10] most recently in David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849 (2002), each time without a dissent. Brown was particularly emphatic, stressing that everyone has
the right to prosecute . . . that person’s cause in the courts of this State. 1983 Ga. Const., Art. I, Sec. I, Par. XII. Accordingly, “[a] litigant is not subject to be penalized by the award of damages whenever [the litigant] loses his [or her] case. Otherwise, every [person] would enter the doors of the [courthouse], no matter how honestly or with what probable cause, with the danger of damages hanging over [the person].”
274 Ga. at 851 (brackets in the original; quoting Fender, 131 Ga. 440 at 442(2)).
Defendants attempt to distinguish only three of the numerous fees cases relied upon by the trial court: Tift, Traders, and Brown. Their efforts are completely unconvincing.[11] In this light, Defendants’ insistence that the trial court erred in supposedly holding that §9-11-68 has “a requirement to show bad faith, misconduct, or evidence of excessive indulgence of litigation during the course of the lawsuit in order for a party to recover its attorney fees,” Initial Br. at 6, not only misreads what the trial court actually said but misunderstands what this Court often has stressed the Constitution truly commands. The fact that §9-11-68 mandates attorney fees without a showing of pre-suit bad faith or post-filing misconduct—and treats losing a lawsuit as the equivalent of a frivolous claim, or one brought in bad faith, or one litigated in a vexatious manner—is not §9-11-68’s saving grace but its fatal constitutional infirmity.
B. Nelms, et al., Reinforce, Rather Than Undercut, Kemp et al.
Both Kemp and its progeny and Nelms and its descendants are based on a shared appreciation of the fundamental importance of the right of access to the courts. Nelms makes clear that the Constitution was amended in order to clarify the right to self-representation, i.e., a right that affords more people greater access to the courts, not less. Indeed, the concept that one is entitled to represent oneself in court, and not required to hire an attorney, assumes that access to the courts is not only “inherent” but also indispensable.
As such, Nelms and its progeny stand for the principle that the “constitutionally guaranteed direct right of access to seek redress,” Grimsley, 249 Ga. at 643, is so critical to vindicating a litigant’s rights that she should be allowed to appear pro se, that is, without the burden of retaining and paying the fees of one’s own attorney.[12] Kemp and its progeny stand for an a fortiori proposition: that access to the courts is so essential that a party cannot be taxed with her opponent’s fees unless her misconduct hampered that opponent’s ability to vindicate its own rights.
In sum, OCGA §9-11-68 ignores this Court’s cases and flouts the “constitutionally guaranteed direct right of access to seek redress,” Grimsley, 249 Ga. at 643, on which they were based. Indeed, the principle first articulated in Kemp in 1874—and honored ever since—establishes that even losing parties cannot be compelled to pay the winning parties’ attorney fees absent either bad faith before or misconduct during the course of litigation.[13]
For these reasons, and because Defendants did not allege, much less establish, that Plaintiff’s conduct before suit or during litigation meets the constitutional criteria that warrant an award of attorney fees, amicus respectfully urges the Court to affirm the decision below and hold that §9-11-68 violates Art. I, §1, ¶¶ 9 and 12.
II. OCGA §9-11-68 VIOLATES The Constitution’s ProVisionS mandating “Uniform” Laws and barring “Special” Ones.
A. §9-11-68 Is a Non-Uniform Special Law
As noted above, §9-11-68 is unique in modern-day America, as it “is a dramatic departure from . . . Rule 68” and “goes well beyond any state” provision. 40 Ga. L. Rev. at 1010, 1009. Indeed, it is unprecedented in the annals of American law. This is so despite the fact that OOJ statutes and rules are neither new (the first one was enacted in 1873),[14] nor rare (a 2004 survey found them in force in the federal courts and those of 45 states).[15] Section 9-11-68’s sheer singularity testifies to its special nature and suspect constitutionality. See, e.g., Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 426, 427-28, 435 (1994).[16]
Section 9-11-68 combines five features that are either unique or very rare.
1. Section 9-11-68 is unique because it applies solely to tort cases
Section 9-11-68 applies exclusively to tort cases. §9-11-68(a). As Plaintiff has noted, and as Defendants have not disputed, of the 45 other states with OOJ provisions Oklahoma is the only other one with an OOJ statute that applies solely to torts, and Oklahoma has three additional other OOJ statutes that collectively cover all other civil cases. See 12 Okla. Stat. Ann. §§1101, 1101.1, 1106 (2006) (App-L). Notably, although Illinois once had an OOJ statute that applied solely to tort litigants, the Illinois Supreme Court invalidated that act—as impermissible special legislation—just four years ago. Allen v. Woodfield Chevrolet, Inc., 802 N.E.2d 752 (Ill. 2003).
2. Section 9-11-68 is one of only five OOJ provisions in the country that allows attorney fees to prevailing defendant-offerors.
Section 9-11-68 specifies that an offeror is entitled to an award of its post-offer attorney fees “if . . . the judgment finally obtained by the [tort] offeree was not at least 25% more favorable than the last offer,” §9-11-68(b), or “[i]f the offer of judgment was 25% more favorable than the monetary award,” §9-11-68(d)(1).
In these respects, §9-11-68 is unlike the federal rule and the OOJ provisions in the overwhelming majority of the states. Rule 68 allows a prevailing offeror to recover only his “costs,” which “typically exclude attorney’s fees.” McAlister, 40 Ga. L. Rev. at 998. The sole exception is if the underlying substantive statute (such as a civil rights or environmental statute) giving rise to the cause of action allows a plaintiff to recover fees as damages as a way of encouraging such cases. Id.; Marek v. Chesny, 473 U.S. 1, 9 (1985).
Rule 68 does not allow prevailing defendant-offerors to collect attorney fees under any circumstances; the only benefits defendant-offerors derive if they prevail are their own costs and the satisfaction that the plaintiff must forfeit his right to whatever attorney fees might be available pursuant to an underlying substantive statute. Marek, 473 U.S. at 9-10.[17]
Of the 45 states (besides Georgia) with OOJ provisions, 40 states follow Rule 68 while only five states allow a prevailing defendant-offeror to recover its “attorney’s fees incurred post-offer.” McAlister, 40 Ga. L. Rev. at nn. 9-10.[18] See note 17, supra.
3. Section 9-11-68 is the only OOJ provision that divests courts of their inherent and historic authority over fee awards.
Each of the five other states that allows fees to prevailing defendant-offerors vests their courts with substantial discretion to refuse or reduce such fees in “the interest of justice.”[19] This is consistent with longstanding equity practice and the inherent power of the courts to grant or deny such fees on a case-by-case basis, see Alyeska, 421 U.S. at 258-59; Kemp, 51 Ga. at 402-04, powers and practices that were incorporated into state constitutions upon their adoption.
Section 9-11-68 rejects this common practice and turns history on its head, uniquely mandating that courts “shall order the payment of attorney’s fees,” id., (d)(1), as long as §9-11-68’s rigid threshold criteria are met, regardless of the facts and equities of a particular case.
4. Section 9-11-68 not only treats tort cases differently than all other civil cases, it also stacks the deck against tort plaintiffs.
No other state has anything close to §9-11-68(2005)’s convoluted, “heads-I-win, tails-you-lose” formula for determining whether attorney fees must be awarded. “Rule 68 may be characterized as moderately confusing, but it’s ‘child’s-play’ compared to §9-11-68.”[20] What is worse, §9-11-68 singles out tort defendants for special benefits while it imposes special burdens on tort plaintiffs. See McAlister, 40 Ga. L. Rev. at 1000 & n.22; id., at 1007 & n.57. To understand how this occurs, it is essential to compare, on the one hand, the relevant provisions of the Florida statute (App-C) that provided the model for version of §9-11-68 that was originally proposed but never adopted and the current version of §9-11-68(d), as revised and adopted by the Legislature in 2006, and, on the other hand, the version of §9-11-68(d)(1) enacted in 2005, the provision at issue here.
Both §9-11-68 (2006) and Fla. Stat. Ann. §768.79(1) are triggered by a monetary award that is 25% above or below an offer, that is, if “the final judgment obtained by the plaintiff is less than 75 [%] of [defendant’s] offer of settlement,” id., §9-11-68(b)(1) (2006), or if “the plaintiff recovers a final judgment in an amount greater than 125 [%] of [plaintiff’s] offer.” Id., (b)(2).[21] Critically, the offer establishes the baseline for determining whether the award is inside or outside the 25% cushion, and therefore both the Florida statute and §9-11-68 (2006) treat plaintiffs and defendants identically and equally.
By contrast, the 2005 version of §9-11-68(d)(1) uses the award rather than the offer as the baseline for determining whether attorney fees are to be awarded. Because plaintiffs are only subject to fees when the award is smaller than the offer (with the reverse for defendants), this change has the effect of significantly favoring tort defendants over tort plaintiffs: in effect, tort plaintiffs have only a 20% cushion on an offer against paying attorney fees, while defendants have a 33% cushion.[22]
Finally, §9-11-68 also unreasonably punishes plaintiffs for being insufficiently clairvoyant, for failing to know—before discovery is complete and they actually participate in their right to trial by jury—what evidence will be uncovered and what findings a jury will make. As a unanimous U.S. Supreme Court cautioned, in considering fee awards, “it is important that . . . court[s] resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg, 434 U.S. at 421-22. This is so because the
course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
Id. Legislatures, which have no knowledge of the facts of a case, must resist that “temptation,” too, lest they enact unconstitutional statutes like §9-11-68. Because §9-11-68 compels a party to pay an opponent’s fees based on her refusal to settle a case before learning facts that would allow her to determine if the offer is a fair one, §9-11-68 is completely unreasonable. See Buchanan v. Heath, 210 Ga. 410, 412 (1954). This is particularly true of offers made in as little as 30 days after a complaint is filed, as §9-11-68(a) allows.
Like every other state, Georgia has adopted notice pleading, Cotton Inc. v. Phil-Dan Trucking, Inc., 270 Ga. 95, 95 (1998), which invests the “discovery process with a vital role in the preparation for trial.” Hickman v. Taylor, 329 U.S. 495, 501 (1947). Discovery not only narrows the issues, but also enables plaintiffs to assess the value of their case. To truncate plaintiffs’ chances for discovery in a complex matter, where defendants control critical information, while compelling plaintiffs to entertain a settlement offer that may mask the defendants’ true liability, transforms a vital and fair process into “three-card monte,” a con game in which only the dealer can truly know what is hidden on the down side of the cards.
5. Section 9-11-68 not only treats cases and litigants differently than any OOJ attorney fee provision in the country, its fee provisions also differ from Georgia’s other fee statutes.
Although there is no uniform OOJ law or model rule, most state provisions are patterned on Rule 68, Carlson, 46 S. Tex. L. Rev. at 738; ACTL Survey at 3-7, and all share its aims. “It is . . . generally recognized that the purpose of [OOJ] statutes ‘is to encourage judgments without protracted litigation,’” to “encourage[] settlement, and [to] discourage[] . . . frivolous claims.” Boston Ave. Mgmt., Inc. v. Assoc. Res., Inc., ___P.3d ___, 2007 WL 258419, *4 (Okla. 2007)(cit. omitted).[23]
As Defendants have acknowledged, Initial Br. at 6, Georgia has three other attorney fee statutes, OCGA §9-15-14 (App-R), §13-6-11 (App-S), and §51-7-80 (App-T), which predate the enactment of §9-11-68 and which codify the courts inherent authority to sanction misconduct, see, e.g., Osborn & Walcott Mfg. Co. v. Blanton, 109 Ga. 196, 196 (1899). As Defendants further admit, these three statutes aim to dampen frivolous litigation by awarding attorney fees, Initial Br. at 6, a purpose that overlaps those of the OOJ provisions in force elsewhere in the nation. These three statutes apply to all civil cases and constitute uniform laws. In enacting these general statutes, the Legislature effectively occupied this field of law, restricting the ability of political subdivisions and subsequent Legislatures to add to or detract from by way of local or special legislation.
In sum, any one of these anomalies would put Georgia in rare company. Significantly, no other OOJ provision shares any two of these abnormal features. The fact §9-11-68 manifests all five makes it unique beyond compare. Accordingly, §9-11-68 is a “special” law, within the meaning of the Constitution’s three uniformity provisions:[24] Art. III, §6, ¶4(a), on which the trial court relied, as well as Art. VI, §1, ¶4 and Art. VI, §6, ¶1.[25] Whether §9-11-68 is an unconstitutional special law is the critical issue before this Court.
B. Section 9-11-68 Is an Unconstitutional Special Law
The fact that §9-11-68 is a “special law” does not by itself require its invalidation, as “‘the constitution does not prohibit special laws per se,’” and as “‘[t]he Legislature may enact special laws affecting special classes.’” Celotex Corp. v. St. Joseph Hosp., 259 Ga. 108, 110 (1989)(quoting Lasseter v. Ga. Pub. Serv. Comm’n, 253 Ga. 227, 229 (1984)). Lasseter and Celotex establish two independent and alternative tests for determining whether a statute violates the Constitution: one is if the Legislature “‘has previously legislated in that area by general law,’” id.; the other is “‘if the classification of those affected is unreasonable.’” Id.[26] As explained below, §9-11-68 flunks both tests.
1. Section 9-11-68 is unconstitutional because the legislature “‘ha[d] previously legislated in that area by general law.’”
Defendants concede that when §9-11-68 was enacted, three general statutes aim to discourage frivolous and vexatious litigation by allowing awards of attorney fees for such misconduct: “OCGA §§9-15-14, 13-6-11, and 51-7-80.” Initial Br. at 6. Although these provisions do not mirror each other, each is a uniform law that applies in all civil cases, and each remains in force.
Defendants try to distinguish §9-11-68 from these three other fee statutes by claiming that the “general area” covered by these statutes is far afield from that covered by §9-11-68. In their eyes, the Legislature was “not attempting to curtail the type of [mis]conduct identified in §§9-15-14, 13-6-11, and 51-7-80 with §9-11-68(a),” because it “enacted 9-11-68(e) specifically to provide a tool for one party to obtain damages from another party who has asserted a frivolous claim . . . .” Id.
Defendants’ conjectures about the one true purpose of §9-11-68 are untethered to the statute’s legislative history, unsupported by any other authority, and somewhat baffling.[27] In fact, courts and commentators agree that OOJ statutes serve dual and congruent purposes: encouraging settlements and discouraging frivolous suits. See note 24, supra. In view of this fact and the facts that it is well-known that rules that allow a party to threaten to seek fees for frivolous claims have the effect of inducing settlements and voluntary dismissals,[28] it is plain that §9-11-68 and §§9-15-14, 13-6-11, and 51-7-80 are not strangers but close kin, as all four statutes have overlapping purposes.
It also is clear that when the Legislature enacted §§9-15-14, 13-6-11, and 51-7-80 it occupied the field and thus preempted anything but other general legislation.[29] As a result, this Court should hold that §9-11-68 is an unconstitutional special law.
2. Section 9-11-68 is also an unconstitutional special law because its “‘classification[s] of those affected [are] unreasonable.’”
Celotex and Lasseter hold that a special law must be condemned as an unconstitutional one if any “‘classification of those affected is unreasonable.’” Celotex, 259 Ga. at 110, 376 S.E.2d at 882 (quoting Lasseter, cit. omitted). In enacting §9-11-68, the Legislature managed to achieve a rare “Triple Crown,” as §9-11-68 is simultaneously: (a) unreasonably under-inclusive (because it affects only tort litigants); (b) unreasonably over-inclusive (because it attempts to cure a healthcare crisis by targeting all tort cases and not just malpractice ones); and (c) unreasonably biased against tort plaintiffs (because its formula tilts against them).
As the trial court correctly held—citing this Court’s decisions on special legislation and recapitulating two previous lower court rulings invalidating §9-11-68 on special legislation grounds (Muenster and its own Order six months earlier in Harris)—once a special legislation challenger meets its burden of showing that the statute is special, the burden shifts[30] to the statute’s defender/proponent to prove that it is “‘reasonably related’ to the real ‘needs of the state,’” that “‘the classes included or excluded from [the statute’s] general effect are reasonable and not arbitrary,’” and that ‘“the law applies uniformly to the class or classes of persons or things affected by it.’” Order at 6 (cits. omitted).
Following Muenster and its earlier decision in Harris, the trial court held that Defendants had not met their burden, specifically finding, Order at 6-8, that:
Defendants had not shown and nothing in the statute’s legislative history demonstrates, that Georgia has a need for an [OOJ] statute, in general or that §9-11-68 is “reasonably related” to the “needs of the state,” . . . that [§9-11-68] is needed only in tort cases, . . . that the classes included or excluded from §9-11-68’s general effects are reasonable and not arbitrary, . . . [why] tort Plaintiffs must meet higher burdens than tort Defendants to qualify for an award of attorney’s fees, . . . or that the distinctions between tort Defendants and Plaintiffs are reasonable and not arbitrary.[31]
Despite the fact that the trial court’s decision in Harris alerted Defendants that in order to meet their burden they would need to show how §9-11-68 was reasonable and not arbitrary, they failed to do so below; their briefs to this Court likewise do nothing to controvert the trial court’s findings or meet their burden.[32]
If Defendants’ threadbare and conclusory averments suffice to meet their burden in this case, then the Lasseter-Celotex standard is meaningless and the Constitution’s prohibitions against special legislation and non-uniform court procedures are empty, “like a munificent bequest in a pauper’s will.” Edwards v. California, 314 U.S. 160, 186 (1941)(Jackson, J., concurring). In fact, as Celotex and Lasseter show, in special legislation cases this Court eschews deferential, any-conceivable-rational-basis review and engages in far more rigorous scrutiny of the ostensible need, fairness, and reasonableness of the challenged statute. This approach is especially suitable here, as §9-11-68 exemplifies the vice that the Georgia Constitution proscribes and this Court has long guarded against—the granting of unnecessary, unreasonable, and arbitrary privileges to some and the denial of equal laws to others. Section 9-11-68 suffers from the same infirmities that caused the Celotex Court to invalidate the tort “reform” statute in that case, and §9-11-68 should meet the same fate.
In sum, because Defendants have not satisfied their burden of establishing that there were reasonable grounds either for §9-11-68’s enactment or its arbitrary classifications, this Court should affirm the decision below and hold that §9-11-68 constitutes a special law that violates Arts. III, §6, ¶4(a), VI, §1, ¶4, and VI, §6, ¶1.
CONCLUSION
For the reasons set forth above, Amicus respectfully urges this Court to affirm the trial court’s decision invalidating §9-11-68 on access to the courts, special legislation, and retroactivity grounds.
Respectfully submitted this __th day of March, 2007.
Robertson Bodoh & Nasrallah
_____________________________
Mathew G. Nasrallah
Georgia Bar No. 535200
990 Cobb Pkwy. N, Ste. 205
Marietta, GA 30062-2410
(770) 424-1234
Center for Constitutional Litigation, P.C.
_____________________________
Ned Miltenberg
Admitted Pro Hac Vice
Attorneys for Amicus Curiae
1050 31st Street, N.W.
Washington, DC 20007
(202) 944-2809
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.