Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt ( 2010 )

NAHMIAS, Justice,

concurring specially.

I join all of the majority opinion except for Division 3, regarding retroactive application, in which I concur only in the result.

1. As the Court correctly and unanimously concludes in Division 2 of the majority opinion, OCGA § 51-13-1’s flat caps on noneco-nomic compensatory damages, as found by juries in common-law medical malpractice cases, violate this State’s constitutional guarantee that “[t]he right to trial by jury shall remain inviolate.” Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a). The General Assembly has broad authority to address the many vexing issues related to health care costs and the availability of health care providers, but the Legislature’s discretion is bounded by the fundamental rights enshrined in our Constitution.

2. I join only in the result of Division 3 of the majority opinion. I agree that our holding that OCGA § 51-13-1 is unconstitutional must be applied “retroactively” in this case. The majority reaches that result only after applying the flexible three-factor test set forth in Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (92 SC 349, 30 LE2d 296) (1971). See Majority Op. at pp. 738-740. I believe that retroactive application of our decisions cannot be so selective. That is also the current position of the United States Supreme Court, which disapproved the Chevron Oil test in Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97-98 (113 SC 2510, 125 LE2d 74) (1993).

Harper followed Griffith v. Kentucky, 479 U. S. 314 (107 SC 708, 93 LE2d 649) (1987), which overruled the similar multi-factor balancing test for selective retroactivity in the criminal context that had been adopted in Linkletter v. Walker, 381 U. S. 618 (85 SC 1731, 14 LE2d 601) (1965). Griffith’s holding “rested on two ‘basic norms of constitutional adjudication.’ ” Harper, 509 U. S. at 95 (quoting Griffith, 479 U. S. at 322).

First, we reasoned that “the nature of judicial review” strips us of the quintessential^ “legislative]” prerogative to make rules of law retroactive or prospective as we see fit. . . . Second, we concluded that “selective application of new rules violates the principle of treating similarly situated [parties] the same.”

Id. (quoting Griffith, 479 U. S. at 322-323).

The Harper Court explained that these basic principles of judicial adjudication applied to civil cases as well:

In both civil and criminal cases, we can scarcely permit “the substantive law [to] shift and spring” according to “the particular equities of [individual parties’] claims” of actual reliance on an old rule and of harm from a retroactive application of the new rule. Our approach to retroactivity heeds the admonition that “[t]he Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.”

Id. at 97 (citations omitted). Thus, the current doctrine as to federal law is that, when the U. S. Supreme Court “applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Id.

I recognize that, with respect to the retroactivity of this Court’s decisions on state law issues, the federal doctrine is not controlling. See Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364-365 (53 SC 145, 77 LE 360) (1932). But this Court has, at least until recently, followed the U. S. Supreme Court’s lead in this area. Thus, this Court adopted the Chevron Oil test for retroactivity of civil decisions in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673) (1983). Then, in Taylor v. State, 262 Ga. 584 (422 SE2d 430) (1992), this Court endorsed Griffith's rule of non-selective retroactivity for our criminal law decisions, using language that echoed the “basic norms of constitutional adjudication” underlying the holdings in Griffith and Harper:

In deciding this issue, we have been strongly influenced by considerations of fairness and the even-handed administration of justice. In order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, we deem it appropriate to adopt the “pipeline” approach, that is, that a new rule of criminal procedure (here, the disapproval of the sequential jury charge on murder and manslaughter) will be applied to all cases then on direct review or not yet final. Accord Griffith v. Kentucky, 479 U. S. 314 (107 SC 708, 93 LE2d 649) (1987).

262 Ga. at 586 (footnote omitted).

Foreshadowing the result in Harper, which was decided just eight months later, Taylor’s footnote 2 added that the rule the Court was endorsing for criminal law decisions “is consistent with the long-standing rule applied in civil cases,” which is that

“a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered . . . where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.”

Id. at 586, n. 2 (quoting City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759) (1944)).¹¹

In 2006, however, without mention of Griffith or Taylor, this Court unanimously rejected the U. S. Supreme Court’s holding in Harper and reaffirmed its endorsement of the “flexible Chevron Oil test with regard to the prospectivity of new state law decisions.” Findley v. Findley, 280 Ga. 454, 458-459 (629 SE2d 222) (2006). After reviewing some of this Court’s decisions over the previous three decades and surveying the approach of other state courts after Harper, the Findley Court concluded that “the juristic philosophy of this State is more consistent with that expressed in Chevron Oil than that of. . . Harper.” 280 Ga. at 460.

If selective retroactivity is in fact the “juristic philosophy of this State,” I do not share it, and I do not understand how that philosophy can justify the contrary doctrines for new criminal law decisions under Taylor and for new civil law decisions under Findley. I instead share the juristic philosophy of the common law, under which “there was no authority for the proposition that judicial decisions made law only for the future” — as the U. S. Supreme Court candidly acknowledged in Linkletter, before departing from that tradition and starting courts down the road to today’s morass. 381 U. S. at 622 (citing, among other things, 1 Blackstone, Commentaries 69 (15th ed. 1809)). See also Kuhn v. Fairmont Coal Co., 215 U. S. 349, 372 (30 SC 140, 54 LE 228) (1910) (Holmes, J., dissenting) (“Judicial decisions have had retrospective operation for near a thousand years.”).

My philosophy is, I believe, also that of Chief Justice John Marshall, who explained that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U. S. (1 Cranch) 137, 177 (2 LE 60)(1803) — not to say what the law will be, at least for those litigants for whom we think that law is equitable. See also United States v. Schooner Peggy, 5 U. S. (1 Cranch) 103, 110 (2 LE 49) (1801) (Marshall, C. J.) (applying on appeal a change in the law pursuant to a treaty ratified after the judgment in the trial court). Indeed, unlike the United States Constitution, the Georgia Constitution expressly provides that “Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.” Ga. Const, of 1983, Art. I, Sec. II, Par. V. I do not understand how we could declare a legislative act like OCGA § 51-13-1 void, yet still allow that statute to be applied as good law in pending cases. See American Trucking Assns. v. Smith, 496 U. S. 167, 201 (110 SC 2323, 110 LE2d 148) (1990) (Scalia, J., concurring in the judgment) (“To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours “applies” in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense.” (emphasis in original)).

It may be argued that the majority is simply adhering to stare decisis in applying the Chevron Oil test that this Court adopted in Flewellen and re-approved in Findley. That argument was advanced by the dissenters in Harper as well. See 509 U. S. at 113 (O’Connor, J., dissenting). But as Justice Scalia’s concurring opinion in that case demonstrates in detail:

Prospective decisionmaking is the handmaid of judicial activism, and the born enemy of stare decisis. It was formulated in the heyday of legal realism and promoted as a “techniqu[e] of judicial lawmaking” in general, and more specifically as a means of making it easier to overrule prior precedent. B. Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. 1 (1960). Thus, the dissent is saying, in effect, that stare decisis demands the preservation of methods of destroying stare decisis recently invented in violation of stare decisis.

Harper, 509 U. S. at 105-106 (Scalia, J., concurring). Like the U. S. Supreme Court cases disapproved in Griffith and Harper, our cases endorsing selective retroactivity have no deep roots in our legal tradition, but instead reflect a jurisprudence that “ ‘came into being’ ” with Linkletter in 1965. Harper, 509 U. S. at 106 (Scalia, J., concurring).

If the “juristic philosophy of this State” continues to support selective and flexible retroactive application of our decisions, then I hope that I am in the vanguard of change. I do not agree that the substantive law can “shift and spring” according to the particular equities of individual parties’ claims, or that we may disregard current law and treat similarly situated litigants differently. Harper, 509 U. S. at 97. I would instead hold that, “[w]hen this Court applies a rule of [state] law to the parties before it,” as we do in this case, then “that rule is the controlling interpretation of [state] law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Id. Because of this view, I respectfully can join only in the result of Division 3 of the majority opinion.

I am authorized to state that Presiding Justice Carley and Justice Hines join in this special concurrence.

Decided March 22, 2010. Peters & Monyak, Jonathan C. Peters, Melissa B. Johnson, Carlock, Copeland & Stair, Thomas S. Carlock, Eric J. Frisch, for appellant. Bondurant, Mixson & Elmore, Michael B. Terry, Sarah M. Shalf, Houck, Ilardi & Regas, Frank A. Ilardi, Rosser A. Malone, James D. Summerville, for appellees.

11 It should be noted that the rule is different where a party is seeking to use a new decision to undermine a final judgment, which occurs most commonly in a petition for a writ of habeas corpus — where again this Court’s approach follows the doctrine set forth by the United States Supreme Court. See Harris v. State, 273 Ga. 608, 610 (543 SE2d 716) (2001) (citing Teague v. Lane, 489 U. S. 288 (109 SC 1060, 103 LE2d 334) (1989)).