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Textualism Is the Law of the Land in Georgia: What to Do About It?

    Client Alerts
  • December 07, 2017

As we see it, the most important trend coming from the Georgia Supreme Court in 2017 is the court’s adoption of textualism as the guiding principle of statutory interpretation in Georgia. Because of the growing impact of textualism on litigation, and the potential effect it will have on contracting parties, it is important that you take this trend into account both in the way you operate your business in Georgia and in any formal legal dispute.

We first wrote about the lengthy opinion issued by the Georgia Supreme Court in Lathrop v. Deal in an article for the Daily Report. While notable for its subject matter – holding that the doctrine of sovereign immunity restricted the manner and method in which state laws could be challenged as violating the Georgia Constitution – we opined that the bigger impact of the decision is its forthright embracing of textualism as an interpretative tool. To put it simply, textualism requires the court to apply the plain meaning of the statutory text at the time the statute was originally adopted. In Lathrop, the court clearly adopted this principle as reflected by its analysis of the applicable law’s first draft, written in 1861, and what particular words meant at the time that statute was originally written.

In October of this year, we commented in the Daily Report on a remarkable dissent written by Judge Christopher McFadden in the case of Patton v. Vanterpool. Judge McFadden undertook a detailed analysis of textualism and why, in his opinion, it was the wrong approach. The dissent (like the court’s opinion in Lathrop) specifically cited the book often considered the veritable bible of textualism, Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts (2012). However, unlike the opinion in Lathrop, Judge McFadden challenged the very premise of the book and argued that its approach was incorrect, in violation of centuries of precedent, and in fact ignored the plain language of a Georgia statute requiring the application of other interpretative tools. Regardless of the in-depth and detailed “takedown” of textualism by Judge McFadden, the fact is that his opinion was a dissent, written by a lower court judge sitting by designation, and was not joined by a single justice from the Supreme Court. The dissent therefore serves to highlight the conclusion that textualism in Georgia is now the law of the land.

These cases were just two of many Georgia Supreme Court decisions this year embracing textualism. We noted the decision in Georgia Motor Trucking Assoc. v. Georgia Dep’t. of Revenue in our first article, and Judge McFadden quoted language in a concurring opinion (the “ethereal fiction of legislative intent in the context of statutory interpretation”) issued in Bellsouth Telecommunications, LLC v. Cobb County. Put in the context that the court was expanded effective January 1, 2017, to allow for two new appointees, and that six of the nine current Georgia justices were appointed since 2005, the revolution is as complete as it was swift.

What does this mean to corporations and people doing business in Georgia? Quite a bit. It is important to keep in mind that whenever there is any question of what a statute means, the final analysis must not stray from the literal meaning of the words written on the page and as understood at the time those words were written. If a statute says the sky is pink, the fact that most readers would assume a scrivener’s error is irrelevant. It is up to the legislature, and not the courts, to correct any statute’s inconsistencies or what Judge McFadden referred to as latent ambiguities created by particular facts applicable to the statute.

But, it is possible that the adoption of textualism will have a much broader impact on business in Georgia than just disputes over statutory interpretation. Specifically, Judge McFadden raised as a discussion point in his dissent what textualism means to contractual interpretation. He points out the presence of Georgia law that may distinguish contract law, but notes that Reading Law would argue against the use of interpretative tools to divine the parties intent. In other words, Judge McFadden believes that textualism will result in a very narrow reading of contracts, making it more difficult for parties to contend that their mutual “meeting of the minds” was something else. Thus, even more care must be used in drafting contract terms that will be effectuated in Georgia in order to ensure that the terms are clear, concise, and understood by both parties.

It will be very difficult in Georgia to argue against the strict interpretation of statutes, and the same may very well turn out to be true regarding contracts. We therefore encourage all of our friends, colleagues, and clients to be well aware of this trend when doing business in this state, and especially when undertaking litigation in Georgia.

Textualism and Technology: The Challenge of the 21st Century

As noted, any person or entity doing business in Georgia needs to take note of textualism and the way it will impact the law and your business. And while the Georgia Supreme Court has left little doubt about how important textualism is in this state, it does not mean textualism – as both a legal and a political doctrine – is not without its challenges. Perhaps the biggest conundrum strict textualists will face in the coming years is the significant advances in technology that have occurred over the past generation and promise to keep coming for the foreseeable future.

On November 29, the United States Supreme Court heard oral argument in the case of Carpenter v. US. The case involved the ability to obtain records from a cell phone provider to track the whereabouts of a criminal defendant, and, more specifically, whether the government needed a warrant (and its probable cause standard) to obtain such records. As noted in an article in The New York Times, the court was faced with the challenge of applying the Fourth Amendment to the United States Constitution (written in 1789) to the very modern technology of cell phones. The headline the Atlanta Journal-Constitution used summed up the problem: “Justices weigh how to apply 18thcentury law in digital era.” Based on the reporting of the oral argument, it appears several Supreme Court justices were struggling with the concept.

The headline of the noted article perhaps sums up the biggest challenge textualists will have in the coming years. How does one apply constitutional provisions written two centuries ago to concepts such as Facebook, Twitter, and the internet in general? What about laws written in the 1970s, or even more current laws that will face a challenge from some as yet to be conceived technology? Some will argue there is no challenge at all, and that textualism is easily applied. Some will argue that it is impossible to balance the two. Indeed, this is the very dispute underlying textualism as both a legal and political doctrine. However, the fact that this issue is one of the challenges before the United States Supreme Court means it is one that will be faced by courts throughout the country, including in Georgia.

Thus, while we note the rising importance of textualism in the state of Georgia, and believe all people doing business here need to be aware of its impact, it is worth keeping an eye on the technology conundrum going forward.