Page:Code Revision Commission v. Public.Resource.Org, Inc. (F.3d).djvu/22

1250 This status necessarily causes the annotations to cast a long shadow over how the statutory portions of the OCGA are understood. Because these are the official comments to the Code, they are to be read as authoritative in a way that annotations ordinarily are not.

Indeed, demonstrating the importance of the state’s decision to stamp the OCGA with its imprimatur, the very first annotation in the very first section of the OCGA favorably cites to a court case that warns that “[a]ttorneys who cite unofficial publication of 1981 Code do so at their peril.” O.C.G.A. § 1-1-1 (citing State of Ga. ex rel. General Assembly of Ga. v. Harrison Co., 548 F.Supp. 110 (N.D. Ga. 1982) ). Similarly, the importance the Georgia legislature attached to its branding of the Code as “Official” is further demonstrated by its enactment of a law allowing the publisher of the “official Code… to use the state emblem on the cover of the publication,” whereas all other private parties are prohibited from using the state emblem in any context. O.C.G.A. § 50-3-8. Thus, while stamping the annotations with the state’s imprimatur and labelling it official does not suddenly elevate the annotations to the status of binding law, it too enhances their already potent cachet in a way that is undeniable and also impossible to ignore.

Moreover, as we have already noted, the annotations are not simply adopted by the legislature as an official reference work, but also, in a very meaningful sense, are written by the General Assembly -- a fact that further accentuates their legal significance. The annotations are not merely expositions on the meaning of statutes, but rather are official comments authored by the same body that also wrote the statutes. Thus, it would be only natural for the citizens of Georgia to consider the annotations as containing special insight into the meaning of the statutory text, and to therefore confer upon the annotations a special status. Cf. Stigars v. State, 674 A.2d 477, 483 (Del. 1996) (“In the search for legislative intent, considerable weight is given to an official commentary written by the drafters of the statute.”); Horenkamp v. Van Winkle And Co. , 402 F.3d 1129, 1132 (11th Cir. 2005) (“Although not binding, the interpretations in the Advisory Committee Notes [in the Federal Rules of Civil Procedure] are nearly universally accorded great weight in interpreting federal rules.”); Tome v. United States , 513 U.S. 150, 167, 115 S.Ct. 696, 180 L.Ed.2d 574 (1995) (Scalia, J., dissenting) (“Having been prepared by a body of experts, the [official Notes to the Federal Rules of Evidence] are assuredly persuasive scholarly commentaries—ordinarily the most persuasive—concerning the meaning of the Rules.”); Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) (“Although the Advisory Committee’s comments [to the Federal Rules of Civil Procedure] do not foreclose judicial consideration of the Rule’s validity and meaning, the construction given by the Committee is ‘of weight.’ ”); Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (giving substantial deference to an agency’s interpretation of a regulation that the agency itself authored).

Our view is reinforced by an examination of how the annotations have been treated by Georgia’s courts. In particular, the state courts frequently have characterized OCGA comments as conclusive statements about statutory meaning and legislative intent. See, e.g., Jackson v. S. Pan & Shoring Co. , 258 Ga. 401, 369 S.E.2d 289 (1988) (explaining that “[t]he express intent of [the statutory provision] … is set out in the Comment to O.C.G.A. § 14-2-86”); Cox v. Fowler , 279 Ga. 501, 614 8.E.2d 59 (2005) (citing OCGA comments as showing the “legal effect” of and “the General Assembly’s intention” with respect to a statutory provision); Prodigy