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January 22, 2008

Interesting New Georgia Acquiescence Case

This is pretty interesting, since I always find legislative acquiescence to be a troublesome concept. 

We all know about the baseball case, Flood v. Kuhn, 407 US 258 (1972), which held that, because in 1922 and 1953 the Supreme Court had held baseball was not in interstate commerce, Congress had acquiesced in that interpretation through its "positive inaction."  Okay, fine, baseball is the national pasttime, and no doubt Congress pays attention to baseball (steroids included).  Perhaps it makes some sense to attribute "intent" to Congress to acquiesce in that interpretation.

Now, though, ponder RadioShack Corp. v. Cascade Broadcasting II, OOC, 653 S.E.2d 680 (Ga. 2007).  The statute there made recoverability of certain attorney fees turn on whether the claim was on an "evidence of indebtedness."  Long ago, a Georgia appellate court had held that commercial leases were "evidence of an indebtedness" under this statute, and several intermediate courts had done so since that time.  The Georgia Supreme Court found this compelling enough evidence to state:

When the General Assembly acquiesces in the construction of a statute by the

Court of Appeals, the effect is not to bind this Court with that court’s precedents

in violation of the Constitution. To the contrary, the result is to establish the

legislative intent of the General Assembly which binds this Court, as well as all

others, in construing the statutory provision in issue.

The dissent, the Chief Judge, argued to the contrary and viewed silence as not sufficient to attribute intent.  Interestingly, too, it raised other constitutional issues, perhaps limited to Georgia:

The majority opinion’s position on this point contradicts the

Georgia Constitution of 1983, which states plainly that “[t]he decisions of the

Court of Appeals . . . shall bind all courts except the Supreme Court as

precedents,”2 and that “[t]he decisions of the Supreme Court shall bind all other

courts as precedents.”3 Thus, this Court is writing on a “clean slate” where, as

here, it must decide an issue of first impression regarding statutory

interpretation, and prior interpretations by the Court of Appeals should be

considered for their persuasive value only

It's an interesting read all around. 

IMHO, apart perhaps from Flood v. Kuhn and a few other "high profile" statutes, or where the legislature after the decision amends the statute but leaves intact the construed language, I think it dangerous to attribute much to silence.

January 22, 2008 in Current Affairs | Permalink

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