In July of this year, we wrote an article for the Daily Report regarding the Georgia Supreme Court’s decision in Lathrop v. Deal. While there was much public discussion surrounding the Lathrop court’s reliance on a law originally passed as Georgia was attempting to secede from the Union, we wrote that, in our opinion, the true import of the case was that the Georgia Supreme Court had gone all-in on textualism as the defining interpretative tool of our state.
In the recent Georgia Supreme Court decision—Patton v. Vanterpool—this issue again appears with a bang. In a remarkable dissent, Court of Appeals Presiding Judge Christopher McFadden, sitting by designation, took head-on the concept of textualism as a legal doctrine. His conclusion? The court’s reliance on the literal words of the statute at issue “violate[d] the principles of textualism to advance the cause of textualism.” While the public debate is fascinating to read, the fact that his opinion is written as a solitary dissent serves to highlight our previous conclusion: Textualism is now the guiding principle of statutory interpretation within Georgia courts.
The Patton decision was well-situated to highlight disagreements about statutory interpretation. As noted in a headline in the Daily Report, the court ruled an “In Vitro Baby Has No Legal Father.” The Patton court was faced with a situation where a divorcing couple consented to the use of the medical procedure in vitro fertilization (IVF) to impregnate the now ex-wife. In fact, while the decision does not make this clear, it is possible the IVF implantation took place before the divorce proceedings were finalized in superior court. Regardless, the now ex-husband consented to the procedure.
The legal issue was whether O.C.G.A. § 19-7-21 applied to create a presumption of paternity to the now- divorced husband. The statute expressly creates a presumption of legitimacy for children born through the “use and administration of artificial insemination.” The Supreme Court majority’s succinct decision held that IVF was technically a different procedure from artificial insemination, the statute did not address IVF, and therefore the statute did not create a presumption of paternity for a child conceived through IVF.
The majority’s decision relied on concepts usually associated with the interpretative principles of textualism. The court, in an opinion written by Justice Carol Hunstein, cited numerous nonlegal texts to support the conclusion that “artificial insemination” had a very specific meaning within the world of assisted reproductive technology. That meaning could not be expanded to include IVF. The opinion noted, and agreed, that the concept of IVF was essentially nonexistent at the time Section 19-7-21 was originally drafted. Nonetheless, the court held that, if the Legislature was inclined to change the law to include a presumption of paternity applicable to the use of all assisted reproductive technology, it had at least one opportunity to change the statutory language and chose not to. Accordingly, consistent with concepts of textualism, the plain meaning of the statute would be applied and, as headlined, the child would have no father.
This set the stage for Judge McFadden’s strongly worded and in-depth dissent. His dissent relied in large part on O.C.G.A. 1-3-1(a) and the concepts of latent ambiguity. In sum, 1-3-1(a) codifies what was known under the common law as the “mischief” rule. Judge McFadden argued that Georgia courts are statutorily required to understand any particular statute’s background, the evil (or mischief) the statute attempts to address, and the legislative remedy. This approach, it is argued, permits the creation of latent ambiguities which arise from the facts of a case rather than the literal words of the statute. Applied to the facts of Patton, that would mean that the term “artificial insemination” was really intended to apply to any form of assisted reproductive technology (the latent ambiguity) and the court had an obligation to address that ambiguity to see if the intent of the legislature was to create a presumption of paternity on the part of a divorced husband where the child was conceived through any form of assisted reproductive technology.
But the dissent went much further than an application of the analysis to the facts of the case. Indeed, Judge McFadden launched a frontal disagreement with the virtual bible of the textualist movement: former Justice Antonin Scalia and Bryan A. Gardner’s Reading Law, The Interpretation of Legal Texts (2012). At the risk of doing an injustice to a detailed analysis, Judge McFadden argued that the premise of textualism essentially overturns decades, if not centuries, of legal precedent, in Georgia and elsewhere. That precedent holds that the interpretive tools, and mostly the mischief rule (as codified in Georgia), were acceptable means to determine the scope of a statute or contract’s meaning beyond what was contained within the written word. Moreover, Judge McFadden argues that the textualist approach ignores Section 1-3-1(a), thus violating one of the very norms of textualism.
Judge McFadden’s dissent is interesting in its approach and noteworthy for its tackling of a growing legal doctrine. However, it is ultimately a dissent that was not joined by any of the other sitting justices. Thus, its import, legally, is to highlight that the interpretative tools it seeks to dispute are actually the views which the majority has adopted.
For people and companies doing business in Georgia, the takeaway is stark: Textualism is the law of the land in the state of Georgia. Courts will look to the plain meaning of the statute, determine the meaning of those words at the time the statute was passed, and enforce the statute accordingly. An argument relying on legislative intent that goes beyond the plain meaning of the words of the statute is unlikely to succeed. For individuals and companies doing business in Georgia, this should be the underlying foundation of any business decision that has any impact in the state. And Georgia litigators need to be very aware of how this analysis will impact your filings, your trials and your appeals.
Perhaps we owe a debt of gratitude to Judge McFadden for removing any ambiguity.
John Amabile is a trial attorney in the Atlanta office of Parker Poe Adams & Bernstein, working to resolve complex commercial disputes through trials, alternative dispute resolution and appeals. He has appeared in all levels of state and federal courts within the state of Georgia.
Todd Sprinkle is a litigation partner in the Atlanta office of Parker Poe Adams & Bernstein. He represents clients in business disputes throughout the states of Georgia and North Carolina, including companies in the financial services industry.
Micheal Binns is a registered patent attorney practicing primarily in the area of patent litigation in the Atlanta office of Parker Poe Adams & Bernstein. He advises his intellectual property clients on all matter of business issues that may arise within the state of Georgia.