By: Randy Evans

Last October, the Evans Report made this prediction:

In 2013, Georgians — especially Georgia businesses — will pay higher, indeed likely much higher, insurance premiums. It will not be the result of any action (or inaction) by Insurance Commissioner Ralph Hudgens, Gov. Nathan Deal or the Georgia General Assembly. Instead, it will be the product of a series of unprecedented decisions made by the Georgia Supreme Court.

Consequently it came as no surprise when a report released by insure.com found that Georgians pay the third-highest car insurance premiums in the United States. As property owners and businesses can attest, other types of insurance have risen comparably.

Unfortunately, Georgians can expect that trend to continue as the Georgia Supreme Court continues to adopt positions rejected by a majority of other courts around the country. Indeed, in some cases, the Court creates and then applies rules unique to Georgia after other courts around the country have rejected the same approach.

The Georgia Supreme Court’s decisions are so out of line that they often prompt the Georgia legislature — and sometimes even voters — to intervene and overrule the Court. The most recent example (just weeks ago) of the Court being promptly overruled occurred in connection with a decision expanding attorneys’ liability to people who were not even their clients.

In Villanueva v. First American Title Insurance Company, Case No. S12G0484 (March 18, 2013), the Georgia Supreme Court declined to follow the vast majority of courts from around the country banning assignment or transfer of a legal malpractice claim to entities other than the client. Oddly, in rejecting the rulings of most other courts (banning such assignments), the Court recognized all of the reasons why such assignments should be banned, including:

“the need to preserve the sanctity of the unique and personal relationship between attorney and client; the incompatibility of assignment and an attorney’s duty of loyalty and confidentiality; the need to avoid encouragement of the commercialization of legal malpractice claims that could promote champerty and debase the legal profession; and

the concern that allowing assignment of such claims would cause attorneys to be hesitant to represent insolvent, underinsured, or judgment-proof defendants for fear that a malpractice claim would be used as tender.”

Not surprisingly, it took the Georgia legislature just eight days to overturn the Georgia Supreme Court’s decision. The legislative fix now awaits Gov. Deal’s signature.

If only this was an isolated instance. But, the list of examples of the Georgia legislature overturning the Georgia Supreme Court continues to grow every day.

Unfortunately, overturning the Georgia Supreme Court is not always as simple as the Georgia legislature passing a statute. For example, in Gwinnett v. Cox (2011), the Georgia Supreme Court struck down the ability of parents and teachers to come together and seek a charter for a school from an entity other than the local government responsible for the schools parents want to opt out of. Yet, because the Georgia Supreme Court cited the Georgia Constitution as the basis for its decision, the Court’s ruling could be overturned only by a constitutional amendment.

Georgians got the opportunity to exercise their ultimate control on Nov. 6, 2012, when they overturned the Georgia Supreme Court by approving an amendment to Georgia’s Constitution.

The question is, why does the Georgia Supreme Court continue down this path? Last year, the Court provided some useful insight into just how it thinks of itself.

In Georgia, citizens can force government officials to perform their duties as defined by the law through a “writ of mandamus.” Every government official from the governor to the dog catcher is subject to a writ of mandamus if they refuse or fail to perform the acts prescribed by law — EXCEPT seven people and one government entity — the Georgia Supreme Court and its justices.

In Clark v. Hunstein, Case No. S12O1700, decided Oct. 1, 2012, the Court held as follows:

“Instead, we conclude that, because the Supreme Court of Georgia is the highest court in this state, the writ of mandamus may not be issued against this Court or its Justices, and we dismiss Clark’s original mandamus petition on that ground.”

Say what? Indeed, yes, the Georgia Supreme Court decided that neither it nor its justices could be ordered to do their job even if mandated by law. Unlike every other government official, the Georgia Supreme Court is not subject to a writ of mandamus.

Just imagine if the governor proclaimed that as the highest authority for enforcing the laws, no one can enforce a writ against him. Well, that is what the Georgia Supreme Court effectively did.

Interestingly, in reaching its conclusion, the Court noted that until Georgia’s Constitution was amended in 1983, no one had any original mandamus jurisdiction to make even judges do their job. According to the Court, before the 1983 amendment to the Georgia Constitution, “no court could compel a recalcitrant superior court judge to enter an order

that the law required the judge to enter, “no matter how grave might be the error committed … or how irreparable the injury which might result therefrom.”

Now, only the Georgia Supreme Court has that privilege. The Court did note that in the past when that happened, the “only remedy against the judge was impeachment and removal from office.” Those are apparently now the only options against the Georgia Supreme Court. However, there was one remedy the Court left out — elections.