Georgia Supreme Court Blog

March 17, 2010

Can’t Afford to Try: Poor Have No Right of Access to Georgia Courts

Filed under: Carol Hunstein, George Carley, torts — bce30064 @ 5:40 pm

The Georgia Supreme Court has reversed by 5-to-2 a Fulton County court order and upheld as constitutional a provision in the 2005 Tort Reform Act that in some instances requires one side in a lawsuit to pay the other side’s attorney’s fees. The Court brushed aside claims that the fee-shifting provisions in the Act effectively deny poor litigants access to the courts, flatly concluding that there is no right of access to the Georgia Courts.

The case began with a couple’s lawsuit against Chuck Smith, former defensive end for the Atlanta Falcons football team. According to briefs filed in the case, in 2005, Smith’s wife took his 11-year-old daughter to have her hair chemically relaxed at Salon Baptiste, a hair and nail salon owned by Cheryl Baptiste.The next week, Baptiste and her husband learned that Smith, hosted a sports broadcast on WQXI radio, had made disparaging remarks on air about Baptiste and her salon.

In January 2006, the Baptistes sued Smith for defamation and other civil wrongs. In July 2006, the Smiths offered the Baptistes $5,000 to settle, but the Baptistes rejected the offer. In February 2007, the trial court ruled in the Smiths’ favor, granting them judgment on all counts raised in the Baptistes’ lawsuit.

While the Baptistes’ appeal was pending, the Smiths filed a motion asking the court to require the Baptistes to pay their legal fees, based on the “offer of settlement” statute that is part of the Tort Reform Act. Under the statute, if the Baptistes were ultimately to lose their case, or if they won but the judgment was less than 75 percent of the Smiths‟ offer, they would have to pay Smiths’ attorney’s fees. In response, the Baptistes argued that the statute is unconstitutional and denies poor people the right of access to the courts even when they have a legitimate cause of action.

In March 2009, the trial court ruled in their favor and found that the “offer of settlement” statute is unconstitutional. The Smiths then appealed to the Georgia Supreme Court.

In a majority opinion written by Presiding Justice George Carley (data), the high court has reversed the trial court’s decision and ruled in favor of the Smiths. The Georgia Constitution states that “no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” But contrary to the trial court’s ruling, that constitutional provision “was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel…,” the opinion states. “Thus, there is no express constitutional … right of access to the courts under the Georgia Constitution.”

The statute is not an unconstitutional specific law, as the Baptistes contend, but rather a general law whose “clear purpose” is to “encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation.” The majority underscores the importance of the “doctrine of stare decisis,” or the doctrine of precedent, under which a court is expected to follow earlier judicial decisions on the same topic. The majority points out that in one of its earlier decisions, the state Supreme Court quoted a statement from the 1877 Constitutional Convention, “which clearly shows that the reason for the adoption of the original version of the provision now in issue was to ensure a person’s right of self-representation.”

In the dissent, Chief Justice Carol Hunstein (data) writes that the Georgia Constitution “plainly and unambiguously accords the people of this State the fundamental right to access the courts.” But the majority has constricted its scope “to a mere right to self-representation in the courts.” And the sole basis for the majority’s interpretation is a report of the 1877 Constitutional Convention written by a reporter for The Atlanta Constitution. “The majority’s reliance on an unofficial journalist’s account is in direct contravention of our precedent refusing to accept as authority even the actual videotaped recordings of statements made by legislators themselves because those recordings are not official accounts on which this Court may rely when interpreting our statutes,” the dissent says.

As the trial court held, the statute “serves to impede, if not outright deter, plaintiffs with meritorious causes of action from filing suit to obtain judicial resolution of their grievances because of the financial peril in which that statute places them.” Justice Robert Benham joins in the dissent.

Case Details:
Attorneys for Appellants (Baptistes): Mark Trigg, Ryan Grelecki
Attorneys for Appellees (Smiths): Regina Molden, Oni Holley
Summary by Georgia Supreme Court Public Information Office

More Information:

  • Georgia Supreme Court Opinions Database: Smith, el al. v. Salon Baptiste, et al. (S09A1543)
  • Georgia Personal Injury Law: From the Center for Legal Solutions

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