Author's note. Adapted from the author's appellant's brief and opposition to certiorari in Frazier v. City of Albany, a Georgia case turning on whether OCGA 36-33-5 — a statute "in derogation of the common law" — could be read to impose pre-litigation notice requirements that appear nowhere in its text. The doctrinal point is portable: any state, and any statute that displaces a common-law right, will face the same interpretive choice between reading the canon as a brake on construction (which it is) and reading it as a thumb on the scale against claimants (which it is not).
The misconception
Plaintiff lawyers regularly meet the phrase "strictly construed against the claimant" in response briefs and bench rulings, and the phrase carries a tacit suggestion that the canon embodies a quasi-punitive bias against recovery. The defense use of the canon depends on the suggestion. If "strictly construed" really meant "construed harshly," then a statute that displaced a common-law right could be read to do more than the text says — to add requirements, to tighten technicalities, to expand the obstacles to suit. That is how the canon is sometimes used.
It is not what the canon says. As the Frazier briefing put the point bluntly:
Lawyers sometimes treat the derogation canon's phrase "strictly construed" as if it means "harshly construed" or as if the statute is to be applied in a quasi-punitive way. That's a mistake.
The canon, properly stated, is a textualist brake. It constrains how far a statute can move the common-law baseline. It does not enlarge the displacing power of the statute. And it does not authorize the courts to fill perceived gaps with implied requirements not contained in the statutory text. Read correctly, the canon is plaintiff-protective — a limit on judicial expansion of statutes that take rights away.
What the Georgia authorities actually say
Four Georgia decisions, spanning 178 years, set out the canon. Read in sequence, the cases speak with one voice — and the voice does not say what defendants who invoke the canon would like it to say.
The pedigree begins with Tuttle v. Walton, 1 Ga. 43 (1846), in the very first volume of Georgia Reports: "The Act of 1822, it will be recollected, is in derogation of the common law right, and must be strictly construed."
The Supreme Court restated the canon, applied to the predecessor of the municipal ante-litem statute, in West v. City of Albany, 300 Ga. 743 (2017), quoting a 1919 Court of Appeals decision: "This statute … is in derogation of common right, and should be strictly construed as against the municipality."
The Court of Appeals stated the same rule in City of Atlanta v. MLK, 372 Ga. App. 210 (2024): "The ante litem notice statute, however, is in derogation of the common law, which did not require such ante litem notice; therefore it must be strictly construed and not extended beyond its plain and explicit terms."
And again in City of Moultrie v. Price, 310 Ga. App. 672 (2011): "We recognize that OCGA 36-33-5 is in derogation of common law and must be strictly construed against the municipality."
Notice the directional language. The Georgia cases do not say "strictly construed against the claimant." They say "against the municipality." They do not say the statute should be "applied harshly." They say the statute should "not be extended beyond its plain and explicit terms." The cases describe a limit on what courts may read into the statute. They do not describe a punitive disposition toward the people the statute restricts.
Where the canon comes from: OCGA 1-1-10(c) and the common-law baseline
The derogation canon is not a free-floating disposition. It has a statutory engine in Georgia law. OCGA 1-1-10(c) adopts the common law and provides that the common law "shall remain of full force and effect … until otherwise repealed, amended," etc. Common law is the background against which every Georgia statute is enacted. The legislature can change that background, but only by saying so.
The derogation canon is what gives effect to that statutory choice. If common law remains in force "until otherwise" displaced, then the displacement extends only as far as the displacing text clearly extends. Any reading that pushes the displacement further than the text requires runs against the legislature's own command in OCGA 1-1-10(c) that the common-law rule remain in force until clearly altered.
Scalia and Garner state the same rule, in their treatment of canons that govern common-law-related statutes, in a single sentence: "A statute will be construed to alter the common law only when that disposition is clear." Scalia & Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012). That is the derogation canon. It is not a punitive instruction. It is a textualist instruction: the common-law rule yields only where the legislature has clearly told it to yield.
Applied to OCGA 36-33-5, the rule is straightforward. At common law there was no pre-litigation notice requirement before suing a municipality. MLK states the point in terms: the ante-litem statute "is in derogation of the common law, which did not require such ante litem notice." So OCGA 36-33-5 imposes only those requirements that are clear from its text — and nothing else.
How the canon fits with literal-meaning-first
Two related Georgia rules sit alongside the derogation canon and reinforce its limited function.
The first is the golden rule of statutory construction. Turner v. Ga. River Network, 297 Ga. 306 (2015): "The golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to ensure that the legislature meant something else."
The second is the threshold rule for when statutory construction is even available. Glover v. State, 272 Ga. 639 (2000): "Judicial construction is appropriate only when a statute is ambiguous, and when the statutory language is plain and unequivocal, judicial construction is not only unnecessary but forbidden."
Read with the derogation canon, the implication is clean. Canons of construction — including the derogation canon — are tools for resolving ambiguity. They operate only when the literal meaning has failed. If the text is clear, the canon does not come into play at all, because there is nothing for it to do. If the text is ambiguous, the canon tells courts to resolve the ambiguity toward the common-law rule, not away from it.
Either way, the canon never authorizes adding requirements the text does not contain. The canon is a tiebreaker for ambiguity, applied in favor of the common-law baseline. A defendant who invokes the canon to support unwritten requirements has both the function and the direction of the canon backwards.
The canon turned on its head: a worked example
The clearest illustration of how the canon gets misused appears in the City's own filings in Frazier. The City invoked the derogation canon and then said this:
Strictly construing [OCGA 36-33-5] means that it creates two requirements: (1) there must be a valid offer of compromise, and (2) it must be specific.
Pause on the move. The statute, OCGA 36-33-5(e), says only that the description of the extent of injury "shall include the specific amount of monetary damages being sought" and that "[t]he amount of monetary damages set forth in such claim shall constitute an offer of compromise." It does not say a claimant must use the words "offer of compromise." It does not require any specific phrasing at all. The statute's own text converts the stated amount into a settlement offer by operation of law. The "valid offer of compromise" requirement that the City presses is not in the statute. It is a judicial overlay.
The City's argument therefore reduces to this: strict construction of a statute in derogation of common law produces an unwritten "valid offer of compromise" requirement. That argument can only be correct if "strictly construed" means judges should add requirements that are not explicit but could arguably be implicit. That is the opposite of what the canon means. The canon limits judicial elaboration of the statute. It does not authorize it.
The Frazier cert-response framed the inversion this way:
The City's argument would turn the canon on its head. After invoking the derogation canon, the City says "Strictly construing [the statute] means that it creates two requirements" … That could only be true if the derogation canon meant something like "judges should add requirements to the statute that are not explicit but could arguably be implicit." That's the opposite of what the derogation canon means.
There is a second tell in the City's brief that any plaintiff lawyer can learn to spot. The City's argument is internally inconsistent: it asks for a casual, non-textualist reading of the statute (so that "include the specific amount of monetary damages being sought" can be read as also requiring "an explicit offer of compromise") and at the same time invokes "strict construction." Strict construction and casual interpretation cannot coexist in the same brief. As the cert-response put it: "an argument for strict construction sits uneasily alongside the City's simultaneous argument for a casual, inattentive reading of the statute." When the same filing demands both, the canon is being used as cover, not as a method.
The corollary: substantial compliance survives
The same misreading of "strictly construed" produces a separate error: the conflation of "strictly construed" with "strict compliance." The two are different things. "Strictly construed" describes how the statutory text is read. "Strict compliance" describes how the statute's requirements are enforced against the claimant. A statute can be strictly construed (its text not extended beyond plain and explicit terms) and at the same time require only substantial compliance (because the legislature did not opt out of Georgia's default substantial-compliance rule).
OCGA 1-3-1(c) is the default: "A substantial compliance with any statutory requirement … shall be deemed and held sufficient." Some statutes opt out of that default. The municipal ante-litem statute does not.
The Georgia Supreme Court's recent guidance is direct. Fleureme v. City of Atlanta, 322 Ga. 180 (2025):
As an initial matter, we doubt seriously that "strict compliance" with subsection (f) is required, as GA HY Imports held. That idea appears nowhere in the statute itself. And precedent of this Court reaching back more than a century has held that "substantial compliance with the [municipal ante litem notice] statute is all that is required."
Reading the derogation canon as a license for harsh, technical, gotcha-style enforcement is therefore wrong on two layers. It contradicts the canon itself, which limits construction rather than enabling it. And it contradicts OCGA 1-3-1(c) and a century of Georgia Supreme Court precedent treating the ante-litem statute as a substantial-compliance statute. The "strictly construed" language is doing none of the work the defendant's reading would require it to do.
Why the Frazier line of attack matters in any state
The doctrinal frame in Frazier is not Georgia-specific in any deep sense. The derogation-of-common-law canon is universal. Most states have an adoption-of-common-law statute analogous to OCGA 1-1-10(c). Most states have a textualist threshold rule analogous to Glover. Most states have a default substantial-compliance rule analogous to OCGA 1-3-1(c) — and exceptions to it that have to be earned by clear statutory text, not inferred from a canon.
The defense move that Frazier rejects — invoking "strictly construed" to justify adding unwritten requirements that increase the displacement of common-law rights — is the same move that defense lawyers across jurisdictions make in any case involving a statute that limits a traditional common-law remedy. Tort-reform statutes, ante-litem statutes, notice-of-claim statutes, statutes of repose, sovereign-immunity carve-outs — the canon is invoked the same way in each, and the inversion has the same structure. The Frazier answer is portable: name the directional language, name the textualist threshold, name the inversion, name the tension with substantial compliance.
The point is not that the canon is favorable to plaintiffs in some general sense. The point is that the canon, properly applied, does not authorize the judicial expansion of statutes that displace common-law rights. That is a textualist proposition. It is the same proposition for plaintiffs and defendants. It is the proposition the Georgia cases have stated for nearly two centuries. It is the proposition Scalia and Garner state in Reading Law. There is no respectable version of the canon that authorizes the move the Frazier defense made.
For the brief-writer
A response to a defense invocation of "strictly construed" should do five things, in roughly this order.
- Quote the directional language from the controlling cases. In Georgia, that is "strictly construed against the municipality" (West; Moultrie) and "not extended beyond its plain and explicit terms" (MLK). The directional language is doing real work, and most defense briefs either omit it or paraphrase it away. Putting the actual quoted language on the page reframes the canon before the merits argument begins.
- Anchor the canon in the adoption-of-common-law statute. In Georgia, OCGA 1-1-10(c). Show the court that the canon is not a free-floating disposition; it is the doctrinal expression of the legislature's own choice to keep the common law in force "until otherwise repealed, amended," etc. Scalia and Garner's formulation is the cleanest: "A statute will be construed to alter the common law only when that disposition is clear." The canon sits inside the legislature's own framework, not above it.
- Pair the canon with literal-meaning-first. Cite Turner and Glover for the proposition that canons of construction operate only when the text is ambiguous, and only as tiebreakers. Show that the defendant's argument depends on running the canon at the merits stage to add unwritten content — exactly what Glover says judicial construction may not do when the text is plain.
- Name the inversion. If the defendant has used "strictly construed" to argue that the statute creates additional unwritten requirements, the move is the canon turned on its head. Quote the brief language: that argument is only correct if "strictly construed" means "judges should add requirements to the statute that are not explicit but could arguably be implicit," which is the opposite of what the canon means. The Frazier cert-response language travels well. Use it.
- Pair "strictly construed" with the substantial-compliance rule. OCGA 1-3-1(c) is the default. Fleureme is the recent guidance. The defense's reading produces a quasi-punitive enforcement regime that contradicts both. Even if the canon let the court do what the defendant asks (it does not), the substantial- compliance rule independently defeats the gotcha enforcement that "strictly construed" is being invoked to justify.
Conclusion
The derogation-of-common-law canon is a brake. It is not a thumb on the scale, not a license for unwritten requirements, not a cover for casual reading. It tells courts to keep displacing statutes inside their text — and to leave the common-law baseline alone everywhere else. That is what the Georgia cases say (Tuttle, West, MLK, Moultrie). It is what the adoption-of-common-law statute requires (OCGA 1-1-10(c)). It is what the textualist threshold for statutory construction (Turner; Glover) makes inevitable. And it is what a century of substantial-compliance precedent (OCGA 1-3-1(c); Fleureme) confirms.
A defendant who invokes the canon to add requirements not contained in the statute is asking the court to do the one thing the canon was designed to prevent. The brief-writer's job is to make the inversion visible — to show the directional language, the textualist threshold, and the substantial-compliance backstop — and to put the canon back on its feet.
