Statutes in Derogation of the Common Law in the Georgia Supreme Court - R. Perry Sentell, Jr.

• Publication year: 2001

Special Contribution

Statutes in Derogation of the

Common Law: In the Georgiaupreme Courtby R. Perry Sentell, Jr.'

I. Introduction

The fabled canons of statutory interpretation¹ traditionally advance the overarching imperative that courts selectively afford some statutes a stricter than ordinary construction.² Statutes "in derogation of the common law" claim predominating prominence among enactments deserving of the counseled judicial disposition.³

The precept is one of perplexing proportions: It is generally understood to commend judicial restrictiveness in treating legislative enactments that change an existing body of law.⁴ That understanding, however, immediately confronts an obvious conundrum: By their nature and purpose, most statutes effect some changes in the existing legal order. This truism, in turn, reveals the potential expanse of the canon's operative range: In brief, it is limited only by the doctrinal persuasions of the construing tribunal.⁵ Those persuasions, as evidenced by the jurisprudence of each state's highest appellate court, dramatically and decisively shape the jurisdiction's ultimate statutory foundations.⁶

The canon itself reflects an ancient origin, reportedly rooted in the English judiciary's abiding jealousy toward Parliament.⁷ The precept is as controversial as it is historical. It receives praise as revealing innate respect for the wisdom of the common law, an inherent regard for tradition, and a deep devotion to popular derivations.⁸ "Laws thus established by the people would certainly seem entitled to the status which will be accorded them by the rule which requires statutes in derogation of the common law to be construed strictly."⁹ Contrarily, the canon bears the brunt of harsh criticism: it suffers dismissive condemnation as "archaic," "obsolete," an "ancient shibboleth," and a "historical hangover."¹⁰ "There is little reason in today's interpretation of statutes for a general rule or presumption that statutes in derogation of the common law should be 'strictly' interpreted."¹¹

The criticism, emanating primarily from the academic quarter, has taken its toll as legislatures in a number of states have explicitly abolished the canon.¹² State courts, however, reflect a different persuasion: "[T]he rule has remarkable staying power in the judicial process."¹³ Indeed, "there has been scant suggestion of judicial dissatisfaction with it" and "seldom has a court attacked it as ill-conceived or undesirable."¹⁴ In light of this decisional loyalty, perhaps, commentators grudgingly concede the canon to manifest an "essential soundness."¹⁵

To the extent that it is a true and valid insight about human nature that people do not ordinarily change the existing order of things with broad and sweeping strokes, there is justification for assuming, or even presuming, that legislatures would not ordinarily intend their enactments to make changes beyond their clear purport.¹⁶

Georgia's legislature has effected no reversal of the derogation precept, and the Georgia Supreme Court pays legendary reverence to the doctrine. Only a specific examination of the court's jurisprudence will yield an accurate appraisal of the canon's analytical essence in shaping Georgia's statutory foundations.

II. The Georgia Experience

A. A Perspective: Then and Now

As noted, the judicial practice of strictly construing statutes in derogation of the common law lays claim to an ancient heritage. The canon's English origin dates to the "time of Queen Anne" in 1708,¹⁷ with America's first doctrinal embrace appearing in a case of 1797.¹⁸ The Georgia Supreme Court explicitly employed the principle in at least four opinions appearing in the first volume of its official reports.¹⁹ The court delivered the first of those opinions at its May Term, 1846, in

Tattle v. Walton,²⁰ a decision that corporate by-laws governed a purchase of bank stock at a sheriff's sale so that the purchaser acquired the stock subject to a prior corporate lien.²¹ The purchaser, of course, had contended otherwise, relying both upon his judgment against the previous stock owner and upon a general statute "making bank stock subject to execution."²² In declaring that reliance ill-founded, the court made short work of statutory analysis: "The Act of 1822 ... is in derogation of a common law right, and must be strictly construed."²³

As of 1846, therefore, the Georgia Supreme Court exhibited the derogation canon as a viable component of its interpretative arsenal. Without citation of authority, the court indicated a settled casualness in applying the principle, according it a presence requiring no persuasive demonstration of historic acceptance. The court's early performance also reflected other analytical tendencies. For example, its concept of "derogation" appeared a less-than-absolute notion. To qualify, the court implied, the statute must be perceived as changing the result of the bylaws to an extent greater than mere modification.²⁴ "Strict construction," accordingly, impeded the former rather than the latter. Moreover, the court's reference to the "common law," i.e., prior existing legal principles triggering the strict construction tactic, proved likewise illusive. If that reference implicated an ancient body of English judicial principle, the court gave no hint of the fact. Yet, the opinion also failed to specify a precise Georgia case-law evolution in peril of being "derogated" by the statute. Instead, the court's reference appeared simply to assume an existing general rule viewed as threatened by statutory change. Finally, it was by no means clear from the court's Tattle opinion that the derogation canon was pivotally essential to its decision.²⁵ The canon, that is, appeared to play a supporting, rather than controlling, role in the court's analysis. Whether these tendencies would endure the supreme court's continued interpretative exercises loomed, in 1846, as unfathomable. Like all futures, the future of the derogation canon lay ahead.

A century and a half later, the supreme court tendered its most recent contribution (at this writing) to the canon's legacy. In its 2000 decision of Albany Urology Clinic, P.C. v. Cleveland,²⁶ the court held that Georgia's 1988 "informed consent" statute²⁷ did not require a physician to disclose his abuse of cocaine to a surgical patient.²⁸ In arriving at its decision, the court emphasized two principle points. First, "the common law of this state" imposes no duty on a physician to disclose risks associated with a particular medical procedure.²⁹ Second, the 1988 statute specifies six "categories of information that must be disclosed" to patients.³⁰ However, the statute does not require physicians to disclose "any aspect of their personal lives which might adversely affect their professional performance."³¹ Because the statute "is in derogation of the common law rule," the court concluded, "it must be strictly construed and cannot be extended beyond its plain and explicit terms."³²

At the turn of the millennium, therefore, the Georgia Supreme Court left little doubt as to the derogation canon's continuing viability. In a context exuding outright "repugnance" on the part of the physician, the court nevertheless denied plaintiff the benefit of statutory disclosure.³³

The denial employed as its sole and solitary rationale the interpretative tactic of "strict construction," a tactic the court deemed an imperative concomitant to the common law condition.³⁴ That condition mandated a judicial analysis ignoring statutory spirit and focusing exclusively upon explicit terminology; any other interpretation would have "derogated" the common law. Once again, the court's opinion reflected notable tendencies. First, "strict judicial construction" counseled both a literal reading of statutory contents and an adamant refusal to elaborate analogies. Both exercises excluded a physician's duty to disclose lifestyle endanger-ments to his patient. Second, the court's reference to the "common law" clearly implicated no body of English principle existing at the time of the American Revolution, nor did the opinion simply assume the presence of a nebulous general rule. Rather, the court cited specific Georgia cases rejecting a physician's duty to disclose risks associated with medical procedures, extracting from those cases "the common law rule of this state."³⁵ That was the "common law" scrupulously immunized from statutory derogation.

This time-line of 154 years unfolds an illustrious Georgia heritage for the venerable derogation canon. A temporal expanse of such magnitude affords daunting perspective for a remarkable decisional legacy. The principle found impressive credentials in the sheer audacity of its genesis: A common law construct forthrightly birthed for the express purpose of insulating the common law itself against inordinate legislative interference. The doctrine's subsequent tenacity, in the teeth of caustic academic condemnation, invested the evolution with legendary status. In 1846 and in 2000, the Georgia Supreme Court manifested its full participation in the phenomenon. Revealing unremitting (indeed, intensifying) convictions of the canon's analytical sageness, the court featured it in both supporting and controlling roles. Across the ages, the cases indicated, the principle claimed a mandated rather than discretionary significance in restraining the reach of legislative lawmaking. To confirm these indications, and to fashion additional lessons from the Georgia experience, inquiry assumes a selective focus upon the supreme court's intervening exercises: that jurisprudence interlocking the "then" and the "now."

B. A Subject-Matter Sampler

The Georgia Supreme Court's strict construction of statutes in derogation of the common law knows no topical boundaries.³⁶ Over the scrutinized expanse of years, the court has indiscriminately employed the canon in all manner of civil litigation. Although no exhaustive...