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.
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