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Jun 29 16

American Bar Association Webinar Notes – Top Billing Mistakes Attorneys Make

by merlin

American Bar Association Webinar Notes –

Top Billing Mistakes Attorneys Make and How to Fix Them

 

Wednesday, June 29, 2016

 

Myrna Johns (TAB3 Trainer, Software Technology, Inc.):

  • #1 problem – Tardy Invoicing
  • Missing Time
  • Avoiding Accounts Receivable

Enter time as you work:

            Leads to greater confidence in the accuracy of time, less missed time, and higher billable hours.

Methods for solving the problem:

  • Use timers
  • Use macros – a tool that makes data entry easier, such as an abbreviation that fills in the consistent description when written
  • PracticeMaster – has a “convert to fee” feature; this adds a button to MS Word, to calendars and e-mails; automatically converts the time spent on that item to a billable fee on a central database
  • Try voice-to-text features on phones, etc., to make a quick note of time spent

Try to make billing REGULAR, even if it is a small bill that month!

Remember:

            Taking client to court makes them likely to file a malpractice lawsuit to avoid paying; even if your notes are good and it is found frivolous, can still add time and expense!

E-mailing statements:

  • Try to also keep a list of when, where, how much client was billed

Need to track IOLTA funds to avoid commingling!  For billing in advance, include amount in statement that is in account, to avoid commingling.

Keep track of “write off” fees.  You need to be able to list exactly which costs you have fronted them, and see what they are.

Check out ReportSuites – software for pre-billing

Check PROPAY – this lets clients pay by CHECK when you call.  Tabs3 can accept credit cards directly to IOLTA – the $ is billed later, and the amount paid by them is the amount paid by them (nothing deducted)!

Jun 21 16

A Piece of Practical Advice (Georgia Sex Offender Registry)

by merlin

Regarding a matter which I have learned the hard way, the Sex Offender Registration and Review Board takes Section 42-1-19(c)(2)(B) very seriously, and I learned today after a brief conversation with their office that nothing short of a Court Order, and certainly not a request by the Office of the District Attorney, will motivate them to do a risk assessment and provide a Level to a Defendant.

That section, again, reads as follows:

The individual has been classified by the board as a Level I risk assessment classification, provided that if the board has not done a risk assessment classification for such individual, the court shall order such classification to be completed prior to considering the petition for release.

(emphasis provided).

Today, I was glad that I withdrew my previous motions in exchange for a request by the Office of the District Attorney to obtain a level for my client only conditionally, and spent the day reinstating them, and adding to them.

Please, benefit from the lesson I learned the hard way.

Jun 20 16

American Bar Association Webinar Notes – Criminalizing Poverty (Debtor’s Prisons in the 21st Century)

by merlin

ABA CLE – Criminalizing Poverty: Debtor’s Prisons in the 21st Century

Webinar – June 20, 2015

 

Presenter: Lourdes Rosario (Chief of Civil Rights Bureau – New York State Office of the Attorney General)

 

Jessica Feierman (Juvenile Law Center):

  • Almost 45 States have statutes that pass some or all of the costs (even in juvenile cases) on to the Defendant; failure to pay fee is a violation of probation
  • Many statutes permit local courts to both use collection agencies and to charge interest; pushes the juvenile Defendants and their families further into debt

Alexis Harris (Professor of Sociology; University of Washington):

Monetary Sanctions

These are related to the fees, but include things like surcharges, etc. – these are LFO’s (“Legal Financial Obligation”)

  • In WA, fees are MANDATORY (involving DNA charges, etc., PER CONVICTION).
  • In some States like Massachusetts, they have a $300 jury charge
  • The money goes into certain fees and funds; in addition to interest and collection fees (IL 15%, AZ is 19%)
  • In Georgia, it is 7%.
  • “Fill the Gap” fund:       Money from fees is used just to fill budgetary shortfalls/gaps in other budgets.  They are viewing it as “extra money”
  • Problem is the lack of information available nationwide, but trend shows how impossible the administration is in the selection of States they have.

Latinos in WA and people that opt for a jury wind up paying far more (based on the study).

People cannot declare bankruptcy facing Court-imposed debt.

Nick Allen (Staff Attorney; Columbia Legal Services):

Restitution

            They commonly see that the person cannot afford to pay more than a small token amount per month, without even considering interest, etc., and once it is entered it is extraordinarily difficult to undo.

  • Need to look at what amounts get collected first (restitution often gets collected last, if there are 3 cases and only 1 has restitution, it won’t be collected until the other 2 are paid)

Interest penalty: Interest accrues when they cannot pay it off all at once, and there is generally a fine assessed also for failure to pay.  If interest is then charged on that amount, it may result in indigent people being incarcerated for failure to pay (it is supposed to be “willful”, but that is a fluid bar); people cannot get civil rights restored, etc., until LFO’s paid in full

THEY DON’T EXPIRE.

Potential Solution: Need to use community service as a viable solution; would be good to try to get negotiation as to restitution between victim and offender; need to be statutes of limitation and modification methods on collections; make it CIVIL and not CRIMINAL

Danielle Elyce Hirsch (Assistant Director of the Civil Justice System; Administrative Office of the Illinois Courts):

Court Assessments

Report generated as to makeup of a civil fine/Court assessment; Involves every add-on above basic cost of entering plea or trying case

Ex. cost of attorneys, crime lab, etc.

  • Court assessments are frequently passing the cost of both court administration and any and all special assessments onto court users.
  • Court assessments constantly increasing and they OUTPACE INFLATION

Chiraag Bains (Senior Counsel to the Assistant Attorney General; US Department of Justice, Civil Rights Division):

The Ferguson Report:

Found multiple Constitutional problems with police; also found that many Constitutional problems with MUNICIPAL COURTS.

  • Court routinely imposed excessive fines
  • Imposed fines without inquiry into ability to pay
  • Court issued arrest warrants only for failure to appear and not for municipal safety purposes
  • Jail time was viewed as too serious for the crimes, but then they couldn’t pay and they would be arrested, anyway
  • DOJ found racial bias in these numbers; African Americans were 68% less likely to have their cases dismissed by Court and 58% more likely to be arrested for same crime
  • Focus of arrests ceased to be keeping the peace and became primarily revenue generation.

PROPOSED SOLUTIONS

Chiraag Bains:

  • DOJ issued a legal guide to Courts; held a conference in 2015 with key personnel at every level – created a request for guidance to the DOJ in this area (released guidelines in letter in March 2016)
  • Basic findings: Courts MUST NOT jail for failure to pay fines and fees unless they first have a hearing on willfulness and ability to pay
  • Discussed Turner v. Rogers (2011 case) where right to counsel is implicated whenever jail may result (ex. solely because people cannot afford to pay); check Tate v. Short and Bearden (is that a Georgia case?)

Nick Allen:

  • The 2008 report by Alexis Harris was invaluable
  • Bills passed in Washington to restore voting rights and addressing relief from interest payments

Alexis Harris:

Legislation tried to get terms used defined, so there can be uniform enforcement of these laws.

  • Looking at alternatives to paying fines (ex. community service)
  • Reminding state’s Court system that the penalties are discretionary, and not cumulative
  • Change in Court rules: require INDIVIDUALIZED determination of ability to pay

What is “punishment” in terms of financially impoverished people?

  • There needs to be a fair relationship between assessment and access to the Courts, because if it impedes access to the Courts then it defeats the purpose.  Must be periodic review.

 

Jun 15 16

Proposed Civil Discovery Notice to Produce (Georgia Sex Offender Registry Removal)

by merlin

This list is relatively incomplete, I think, and I know that there are at least a couple dozen other people that follow this blog.  Please let me know in the comments what items you believe should be included on such a list!

_______________________________________________________________

NOTICE TO PRODUCE

To:    Probation and Rehabilitation Personnel Assigned to the Supervision

          of XXXXX XXXXX as a Probationer and/or Sex Offender

 

            You are hereby notified to produce before or at the time of any trial or hearing in the above-styled matter the following documents, records, or things, which are in your custody or control, the same to be used as evidence by Petitioner in the above-styled case.  If said document(s) cannot be located by you but exist, please so indicate.  If said document(s) do not exist or do not apply, please so indicate.

1.

            A true and correct copy of every page, chart, graph, or file documenting any and all therapy or rehabilitation reports, summaries, reviews, or notes made concerning XXXXX XXXXX since XXXXX XX, 20XX, by any therapist, probation officer, counselor, or other person tasked with rehabilitation of XXXXX XXXXX in any form or fashion.

2.

            A true and correct copy of the GCIC of XXXXX XXXXX.

3.

            A true and correct copy of the level assessment made by the Sex Offender Registration and Review Board (hereinafter referred to as the “SORRB”) of XXXXX XXXXX.

4.

            Any written complaint or dispute of the risk assessment made of XXXXX XXXXX by any person since the date of the assessment made of him by the SORRB.

5.

            A true and correct copy of every Order issued by any Court regarding Petitioner since the date of filing of XXXXX XXXXX’ initial Petition for Removal from the Sexual Offender Registry at the initiation of case number XXXXX before the Superior Court of XXXXX County.

6.

            A true and correct copy of every complaint made against XXXXX XXXXX and filed with or available to the Office of the District Attorney for the XXXXX Judicial Circuit of the State of Georgia or any agency or division thereof since XXXXX XX, 20XX, concerning any sex offense or conduct related to a sex offense.

Jun 14 16

Proposed Civil Discovery Interrogatories (Georgia Sex Offender Registry Removal)

by merlin

As I stated that I would post the redacted Civil Discovery documents that I included as exhibits in the redacted brief that I posted yesterday on application of the Civil Practice Act to cases seeking removal from the Sex Offender Registry in Georgia, please see the following Interrogatories.  The Requests for Admission and the Notice to Produce will follow in subsequent posts over the next few days.

 I believe there are more and better Discovery items that should be sought, and I have purposefully made these limited in form because I am asking for your contribution!  Please, feel free to include information in the comments that describes the kind of responses that you believe would assist the Court in making a proper determination of eligibility for release from the Sex Offender Registry!

________________________________________________________________

PETITIONER’S FIRST CONTINUING INTERROGATORIES

TO RESPONDENT

            COMES NOW Petitioner XXXXX XXXXX, by and through undersigned counsel, and makes and files these, Petitioner’s First Continuing Interrogatories To Respondent, submitted to Respondent, the State of Georgia, represented by the Office of the District Attorney for the XXXXX Judicial Circuit, demanding that they be answered pursuant to the authority granted by O.C.G.A. § 9-11-33, et seq., and all other pertinent provisions of the Georgia Civil Practice Act.  Please note these Interrogatories are continuing in nature.  If the answer to or information provided in response to any question changes at any point subsequent to these requests, Respondent, by and through the answering party, is under an affirmative duty to update and supplement the responses as needed.

1.

            Please provide the full name of each person responding to each and every item in this document, specifying which Interrogatories that person or persons respond to if they respond to fewer than all of the items in this document and specifying if, instead, the same individual has responded to every Interrogatory below, providing the complete contact information for the person or persons so identified, including their contact telephone number(s), work address, contact e-mail address(es), and official job title and/or qualifications to respond to these Interrogatories, if they do not have a formal job title.

2.

            Please state the length of time which the person or persons responding to this document has been involved with administration or probation of sex offenders, in general, and XXXXX XXXXX, in particular.

3.

            Please list any affirmative qualifications, education, training, and specific experience (in terms of years involved or in terms of specific occupation) which you, the person responding to these interrogatories, feel qualifies you to assess the sexual and criminal danger or lack thereof of XXXXX XXXXX.

4.

            Please state the therapeutic or rehabilitative evaluations made to-date (from the date of relevant conviction) of XXXXX XXXXX, including any occasions in which he has been determined to be not in compliance with his assigned probation or post-judgment conditions and what steps were taken to address this issue.

5.

            Please give the following information regarding rehabilitation therapy or treatment that has been afforded to Petitioner by any private, public, or corporate entity known to you:

  1. Type of rehabilitation therapy or treatment (group session or individual counselling, work therapy, web-based seminar, etc.);
  2. Name, telephone number, e-mail address, and physical and mailing address (if different) of provider;
  3. Date(s) of sessions attended by Petitioner;
  4. Any notes or specific commentary made by person(s) administering program.

Note: If a different metric was used to measure or record the progress of Petitioner toward rehabilitation, please specify.

6.

            Please provide the following information with regard to the specific Risk Assessment Level made by the Sex Offender Rehabilitation and Review Board (hereinafter referred to as “SORRB”) regarding Petitioner XXXXX XXXXX:

  1. Specific information that was provided to the SORRB by your office;
  2. Specific information that you are aware was not provided to the SORRB but which your office believes should have been;
  3. How information unavailable to the SORRB while assessing Petitioner would have negatively affected their Risk Assessment determination of Petitioner, specifically;
  4. Number of Petitions for removal from the Sex Offender Registry granted by your office;
  5. Number of Petitions for removal from the Sex Offender Registry granted by your office in which the Risk Assessment Level was greater than Level 1.

7.

            Please provide the specific factors which you use to evaluate a candidate for removal from the Georgia Sex Offender Registry and specifically state how XXXXX XXXXX meets or fails to meet these conditions, in your opinion.

 

Jun 13 16

Redacted Supplemental Brief – Application of Civil Practice Act to Georgia Sex Offender Registry Removal

by merlin

Note that this pleading specifically refers to three exhibits (“Exhibit A”, “Exhibit B”, and “Exhibit C”) that are examples of form Interrogatories, Requests for Admission, and a Notice to Produce in this kind of case.  I need to make them more specific, but I will post them over the next few days (since I have already filed this document, and included those as a tentative expression of the information the State possesses but which my client requires).

The following represents a double- and triple-checked statement of the law (though I found at least two grammatical errors on reviewing it further for this blog post), and I feel the argument is both persuasive and correct.

_________________________________________________________________

SUPPLEMENTAL BRIEF ILLUSTRATING APPLICATION OF CIVIL PRACTICE ACT TO SEX OFFENDER REGISTRY

            COMES NOW Petitioner XXXXX XXXXX, by and through under signed counsel, and makes and files this, his Brief in Support of Motion to Apply Civil Practice Act Provisions, as a supplement to the Motion to Apply Civil Practice Act Provisions submitted herewith, and more fully elaborates the principles upon which this reasonable and necessary request is made, and in support thereof states the following:

Relevant Factual Background

          Following unremedied pretrial incarceration over the course of months, XXXXX XXXXX pled guilty under a negotiated plea to two counts of Child Molestation on XXXXX XX, 19XX, in case number XXXXX.  No transcript is available of the initial proceedings, due to an error by the authorities responsible for maintaining same. , but he had to enroll on the Georgia Sex Offender Registry as a consequence of his plea.

          This is the second Petition for release that has been filed in this matter, following the denial of the previous Petition by the Superior Court of XXXXX County on XXXXX XX, 20XX.  In his Order denying the requested release from the registration, employment, and residence requirements for Petitioner, Judge XXXXX XXXXX, acting for and on behalf of Judge XXXXX XXXXX, specifically noted both that Petitioner was not a risk for committing a future violent sexual act, and also noted that Petitioner should not be released from the registry “just yet”.  No further indefinite extension of the economic sentence that Petitioner has served following his sentence of incarceration and probation was specified, and Petitioner believes that the Court should be lenient and merciful now that six more years have passed since the filing of the initial Petition with no incident of any kind.

         The essence of this action is evaluating the capability of XXXXX XXXXX to be free from inclusion on the Georgia Sex Offender Registry.  The only way this can be accomplished is by rehabilitation and evaluation, and there is no proof that this has occurred at all.  The only way that the conditions of the Court may be met is if that rehabilitation and evaluation is being performed as part of the ongoing sentence XXXXX XXXXX is under.  Therefore, the mechanisms of Discovery under Title 17 of the Official Code of Georgia, which are concerned primarily with issues of guilt or innocence, are not able to properly evaluate the redemption and rehabilitation of XXXXX XXXXX, and it is instead the Civil Discovery provisions found in Title 9 and the civil law that provides the proper mechanism for evaluating the State’s actions thus far.  Mechanisms such as Interrogatories and Requests to Admit provide a manner by which it may be discovered whether therapeutic efforts are being made to return a human being into productive society, and what those efforts are.  With Court permission, depositions may be conducted that plumb the methods by which XXXXX XXXXX’ sexual issues are resolved.

Issue Presented

             Should a petition seeking removal from the Georgia Sex Offender Registry be governed by criminal law provisions or by the Civil Practice Act and applicable Civil Discovery mechanisms?

Short Answer

             The Civil Practice Act is the only logical way to evaluate a petition for removal from the Sex Offender Registry; the cases refer to this only in terms of civil procedure, Civil Discovery mechanisms are the only logical way to give the parties and the Court the information they need to make the qualitative judgments needed for removal from the Registry, and inclusion on the Registry is not a criminal punishment under the law.

 Argument and Citation to Legal Authority

            There is no doubt that the sex offender registry is a civil prophylactic measure and is not in and of itself a punishment, and the evidence is found throughout Georgia case law.  Because an action for removal from the Georgia Sex Offender Registry is a civil action, it is governed by Section 9-11-1 of the Official Code of Georgia (hereinafter referred to as the “Civil Practice Act”).  The Civil Practice Act, by its terms, lays out the procedure to be used in all courts of record in the State of Georgia of a civil nature, whether in law or in equity.

            As an aside, State v. Randle, 331 Ga.App. 1 (January 19, 2016), held broadly that the relief Petitioner is requesting is met automatically if he meets the conditions for such release, and Petitioner must be released from the Registry if he satisfies the prima facie requirements of OCGA § 42-1-19 and all six of the conditions set forth in OCGA § 17-10-6.2 (c).  However, in order to affirmatively satisfy the requirements of this Code section, it is first necessary to obtain certain information in the possession of or available to the State, for which Petitioner seeks a declaration that a petition for removal from the Sex Offender Registry is a civil action governed by the Civil Practice Act.

A. The Sex Offender Registry is expressly couched in civil law terminology.

              In no uncertain terms, the appellate courts in Georgia have stated that “[t]he sex offender registry requirement is regulatory and not punitive in nature.”  Wiggins v. State, 288 Ga. 169, 172, 702 S.E.2d 865 (Ga. 2010).  Registration is a civil disability that results as a collateral consequence of a finding of a guilt for a sexual offense, and the law has certain accoutrements that unquestionably show it is civil, and not criminal, in nature.  An action for removal from the Georgia Sex Offender Registry requires filing a civil initiation form and not a criminal initiation form, and it is crucial to the resulting action’s disposal.  Hawkins v. State, 330 Ga.App. 547 (Ga. Ct. App. 2015).  The action itself does not involve a direct punishment for a sex crime, but is instead concerned with a collateral consequence of a guilty plea to a sex crime, much like deportation for non-citizens.  Taylor v. State, 304 Ga. App. 878, 883 (Ga. Ct. App. 2010).

             The statute which makes an action of this type possible, Section 42-1-19 of the Official Code of Georgia, expressly couches the release in expressly civil law, not criminal procedural, terms.  In subsection (f) of that section, the Code expressly states the burden a petitioner must meet to obtain release, and it is a preponderance of the evidence.  That subsection states, in pertinent part, that “[t]he court may issue an order releasing the individual from registration requirements or residency or employment restrictions, in whole or part, if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense.”  It speaks in terms of “substantial”, as well, and not in terms of beyond a reasonable doubt, and the Code section itself only contains two direct references to criminal law actors.  These are identified in subsection (b)(2) as “the sheriff of the county where the individual resides” and the Office of the District Attorney “of the jurisdiction where the petition is filed”.  These are the best sources for information needed by the Court to make the determination, but it certainly invalidates the stance that criminal law governs this action.

           As an action that is “of a civil nature”, this petition would necessarily be governed by the clear terms of OCGA § 9-11-1, which plainly states that “[t]his chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity”.  The Civil Practice Act, therefore, applies.

B. The Registry is explicitly not a form of punishment under the law.

           The Court’s attention is called to the long litany of cases that have expressly held that it is civil in nature and not a form of punishment under the criminal law, including the direct quote from the Supreme Court decision in Smith v. Doe, 538 U.S. 84, 99 (2003)(purpose of providing notice to public is “to inform the public for its own safety, not to humiliate the offender”), and consistently so held in later cases, including United States v. Kebodeaux, 133 S.Ct. 2496, 2503 (2013)(specifying that registration is civil and a consequence of offense and conviction).  Georgia has not held differently, in both the Supreme Court, in Rainier v. State, 690 S.E.2d 827, 828 (Ga. 2010)(“because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is “sexual” in nature before being required to register”) and the Court of Appeals in Hollie v. State, 298 Ga.App. 1, 679 S.E.2d 47, 51-52 (Ga. Ct. App. 2009)(“it is a separate statute, the violation of which is a separate and distinct offense for which one can be prosecuted”).  The State argues that Registry removal petitions should be governed by the criminal law, but it is inappropriate in every way for resolving this situation.  The criminal law is concerned with appropriate levels of crime and punishment, as opposed to the civil rehabilitation aim provided by OCGA § 42-1-19.  That civil rehabilitation aim gives persons that have been suitably chastised and rehabilitated by society an opportunity to re-enter that society if the presiding judge feels that this is appropriate.  While the State insists that this kind of case is properly handled under criminal law and law enforcement in Georgia seems to have the view that the Registry represents an “enhanced criminal penalty”, nothing could be further from the truth.  An enhanced sentence, speaking generally, is a sentence which is increased by a prior conviction.  This is even more of a stretch than comparing apples and oranges; this is like comparing apples and cars.

             This dispute can easily be resolved by a quick comparison of the Georgia statutory scheme with the sex offender registry legal schemes of sister States that are conclusively punitive.  In Starkey v. Oklahoma Department of Corrections, the Supreme Court of Oklahoma was careful to point out that “[t]he fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See Kennedy, supra, at 169, 83 S. Ct. 554.”  2013 OK 43, 96 (Case Number: 109556, Decided: 06/25/2013).  Indiana likewise specifically uses a criminal statutory scheme, and has upheld the idea of lifetime registration for sexually violent offenders.  See Gonzalez v. State, 980 N.E.2d 312 (IN 2013).  Conversely, Hawaii specifies that the proceeding for a person who qualifies for removal from the registry is civil in nature, specifically noting that “[a] covered offender who has maintained a clean record for the previous ten years… and who has substantially complied with the registration requirements of this chapter for the previous ten years… and who is not a repeat covered offender may petition the court, in a civil proceeding, for termination of registration requirements…”  Haw. Rev. Stat. Ann. § 846E-10(d).  Iowa, Kansas, Louisiana, and Maine, among others, require ten years’ registration, rather than a potential lifetime of inclusion.  Because inclusion on the Registry is conclusively not a form of punishment under Georgia law, being a legal scheme more akin to the States that use the Registry for the civil prophylactic purpose it is intended to serve, it is not a tool for criminal law use.

C. Civil Discovery methods are needed to address a Petition for removal, because criminal Discovery statutes do not address the issues.

              There is certain information that is needed by Petitioner to establish a prima facie case in seeking removal from the Sex Offender Registry, and most or all of that information is in the possession of the State.  The basic criminal Discovery rules contained in Title 17 of the Official Code of Georgia are woefully insufficient to achieve the analysis the Courts need to properly evaluate Petitioner for the relief he requests.  Petitioner is not charged with any criminal offense at all, but instead seeks to establish his qualification to be free from the Sex Offender Registry.  The type of information that Petitioner requires from the State in this Discovery is described in the First Continuing Interrogatories, First Continuing Requests for Admission, and First Continuing Notice to Produce attached hereto and incorporated herein as Exhibits “A”, “B”, and “C”, respectively.  It is a blatant violation of his rights to Due Process under both the federal Constitution and the Constitution of the State of Georgia to refuse him the evidence he needs to establish a prima facie case for release from the Sex Offender Registry.

 Conclusion

            The Sex Offender Registry is civil in nature, and is not an action that is appropriately treated under criminal procedure, because it is expressly initiated by civil procedures, is concerned with civil prophylactic uses and not as a punishment, and requires the use of civil Discovery methods to obtain the information needed for a prima facie case for release.  Because the Registry itself if civil in nature, it can best be evaluated by use of the Civil Practice Act, and it cannot be properly evaluated by using the parallel criminal law provisions governing Discovery.  The petition of XXXXX XXXXX must be processed under the rules and provisions of the Civil Practice Act according to all applicable legal standards.

            WHEREFORE, Petitioner respectfully requests the following relief:

  1. That the Court issue an Order declaring this action to be governed by the provisions of the Civil Practice Act;
  2. That the Civil Law Discovery mechanisms and the relevant sections of the Official Code of Georgia governing their usage and administration be made available and exclusive for the use of the parties to this action; and
  3. For such other and further relief as the Court in its discretion deems fit to grant.
May 26 16

American Bar Association Continuing Legal Education Webinar Notes: Issues in Drunk Driving (Pretrial Sobriety Programs)

by merlin

American Bar Association Webinar Notes –

Issues in Drunk Driving: Pretrial Sobriety Programs

Thursday, May 26, 2016

Moderator:           Hon. Earl G. Penrod (IN)

Panelists:   Hon. John S. Kennedy

                       Hon. Lawrence E. Long

 

Hon. Lawrence Long (SD)

  • “South Dakota 24/7 Sobriety Project”
    • Drugs and alcohol felonies 1999-2012: 61.8% of all felonies
    • To implement the program, they imposed the no-consumption bond condition on anyone arrested where alcohol involved, and at least one alcohol-related conviction in past 10 years.
    • Condition: stay out of anyplace where alcohol can be purchased and consumed on premises
    • Breath test at 7 AM and 7 PM; skip or fail and go to jail immediately (24 hrs in jail and then released)
    • 2/1/05 – 1/1/16: tested in SD 39K+ participants (over 8 million tests): passing rate is 99.1%
      • Started using the SCRAMbracelet (a bracelet worn on leg that tests sweat for alcohol almost hourly; info is transmitted electronically)
      • Intoxalock – ignition interlock; uses GPS, notifies law enforcement, and is real-time; incorporates small camera in vehicle to verify who starts and operates car
    • Urinalysis used also to test for other substances used instead of alcohol; gave police authority to pull random people and suspects out of line to test
    • They use a drug/sweat patch, also (since 2005) – avoids problem of somebody else’s urine (this is for rural offices in which not enough personnel to supervise urine sample) – passing rate is 79.9%

Case Law:

St. v. Lemler, 774 NW2d 272, (S.D. 2009) – SCRAM Bracelet meets (DAUBERT) standard for presence of alcohol (not blood level amount, but PRESENCE) • St. v. Spady, 2015 MT 218, 354 P3rd 590 (2015) – Montana’s 24/7 Program survives facial 4th Amendment Constitutional Challenge • U.S. v. Redd, 318 f3d 778 (8th Cir. 2003) – “Sweat Patch” results are “reliable” in probation revocation hearing. – U.S. v. Drager, 2013 WL 139364 (2013)(same) – U.S. v. Rojos, 577 fed. Appx. 33 (2nd Cir. 2014)(same)

  • 2007 statutory changes: DOC uses 24/7 program as a condition to be imposed in probation instead of revocation; 24/7 made a condition for return of minor children, and 24/7 successful participation is a mandate for WORK PERMIT
  • This program (a factor) has NOTICABLY dropped the number of fatalities (alcohol-involved crashes) on the highway since the program went into effect
  • South Dakota: Cost almost nothing in tax dollars (offenders have to partially defray cost of program, though); they DO NOT have an indigency program, though (these bracelets cost about $1,400 apiece, plus daily monitoring cost, but they still only charge $5/day).

Hon. John S. Kennedy (PA)

Arrests by police in 2007 – about 3 mos. before blood test results came back and charge could be filed (case that started interest involved a person with 3 DUIs before charges could even be filed in the first one).

  • Discovered that about 25% of all criminal cases were DUIs, and about 25% of all DUIs were repeat offenders.
  • Noticed that about 25% of DUIs would get a new DUI before they could get to court on the first one

Developed protocol for DUIs:

  • Have PD run criminal records check upon DUI arrest (is he/she a repeat offender?)
  • Victim/Witness advocates check for injuries/other parties, get release forms, etc.
  • DUI Court eligibility?
  • Place all arrestees on pretrial supervision
  • Executive ADA places DUI treatment Court recommendation in file for eligible cases
  • Tier 1 offenders (under .1): Changed sentence from 5 days mandatory jail time to 15 days alcohol monitoring and 5 days house arrest
  • Tier 2 (.1 – .159): before 30 days – 6 months jail; now 60 days alcohol monitoring and 30 days house arrest
  • Basically, changed from percentage-based to general impairment-based charge filed that night, and cut return of BAC down significantly so they can file percentage-based charges subsequently

Forced sobriety = sobriety, nonetheless (drop from 15-20% of DUI victims served by DA’s Office to 6-8% (2011- 2015).

Pennsylania: Privately paid for, and costs $12/day for monitoring (no indigency).

MADD and other advocacy groups: pushing for use of interlock devices over the abstinence program (might be there for other reasons than drunk driving, but are there for an alcohol problem).  However, the Courts that operate these programs try to get along with them.

 

May 24 16

A Reminder: Sex Offenders Cannot File Consecutive Petitions for Removal After Denial on the Merits

by merlin

I filed a case for removal from the Georgia Sex Offender Registry in the incorrect county.  This was done under an honest misimpression as to what the law held, but I was uncertain about the correctness of that particular action and, when confronted with the incorrectness, did not challenge it.  I had been given enough time to file the motions and briefs I felt were necessary, without being wrongly herded in a particular legal direction that I felt was improper, so I chose to transfer the case rather than dismissing it to refile.

This is, of course, the only action that should be taken when it comes to a petition for removal from the Sex Offender Registry, because subsection (b)(3) of the removal statute itself (Section 42-1-19) holds that “[i]f a petition for release is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.”  Of course, voluntary dismissal would not be a ruling on the merits, and legally a new petition could be filed, but it might be challenged improperly.  Choose your battles!

This issue has been adjudicated recently, in Hawkins v. State, 330 Ga.App. 541 (Ga. Ct. App. 2015).  In fact, voluntary dismissal by the petitioner was not an adjudication on the merits, but the long delay in the process, the tremendous expense for persons who probably do not have enough money to go around, and the excessive legal battles involved hardly seem worth it.  The case follows:

“Jess Brandel Johnson, Page Anthony Pate, Atlanta, for Appellant.

Paul L. Howard Jr., David K. Getachew–Smith, for Appellee.

DOYLE, Presiding Judge.

         Following the grant of his discretionary application, William Hawkins appeals from the trial court’s order denying his petition for removal from sex offender registration requirements. For the reasons set forth below, we vacate the trial court’s order and remand the case.

        The record shows that in September 1991, when Hawkins was 16 years old, he entered a nolo contendere plea to attempted sexual battery in Florida and was sentenced to two years of “community control” followed by ten years of probation. In October 2013, Hawkins filed a petition for removal from sex offender registration requirements. The trial court dismissed the petition for failure to file a civil initiation form pursuant to OCGA § 9–11–13(b), 1 and on December 31, 2013, it denied Hawkins’s subsequent motion to set aside the dismissal order.2

        On January 7, 2014, Hawkins filed a second petition for removal from sex offender registration requirements, with accompanying supporting exhibits. Without addressing the merits of the case, the trial court dismissed the petition pursuant to OCGA § 42–1–19(b)(3), which provides that “[i]f a petition for release is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.” Hawkins filed an application for discretionary appeal of this order, and we granted the application.

        On appeal, we apply a clearly erroneous standard to the trial court’s factual findings, and a de novo standard to its rulings on questions of law.3

        Hawkins argues that OCGA § 42–1–19(b)(3) does not apply in this case, and we agree. OCGA § 42–1–19(b)(3) bars a person on the sex offender registry from filing a second petition for release from registration requirements within two years from a final order on a previous petition, if the first petition for relief was denied.Hawkins’s first petition was not denied. Instead, the trial court apparently treated the disposition of that first petition as a voluntary dismissal or, alternatively, a dismissal for failure to prosecute, neither of which operated as an adjudication on the merits of the first petition.4 Denial and dismissal are distinct dispositions, and there is nothing in the text of OCGA § 42–1–19(b)(3) remotely suggesting that the bar contained in the statute applies to cases in which the first petition was voluntarily dismissed or dismissed without prejudice for failure to prosecute, as opposed to cases in which the first petition was denied on the merits. Thus, the trial court erred by dismissing Hawkins’s second petition for release from sex offender registration requirements, and we vacate the trial court’s order and remand the case for adjudication on the merits.5

        Judgment vacated and case remanded.

MILLER and DILLARD, JJ., concur.

——–

Notes:

        1. OCGA § 9–11–3(b) provides: “At the time of filing the complaint for a civil action in superior court or state court, the plaintiff shall file the appropriate civil case filing form with the clerk of the court. The form shall contain complete information and shall be substantially in the form prescribed in Code Section 9–11–133. The filing of the complaint shall not be delayed for the filing of the case filing form. If, after a civil action has been filed, the court presiding over the civil action decides that the civil case filing form has not been filed or has been filed incorrectly, the court shall require the plaintiff to file the civil case filing form or an amended form. In no case shall the failure to accurately complete the civil case filing form required by this Code section provide a basis to dismiss a civil action.” (emphasis supplied).

        2. Neither the dismissal order nor Hawkins’s motion to set aside the dismissal are contained in the appellate record. In the order denying Hawkins’s motion to set aside the dismissal, however, the trial court noted that: (1) on October 28, 2013, the clerk of court entered a notice of non-compliance advising Hawkins that he failed to file a case initiation form; (2) on November 13, 2013, the trial court entered a notice of requirement to file the form or explain his noncompliance, advising Hawkins that failure to do so would be considered an election to have the petition dismissed without prejudice; (3) on December 13, 2013, the trial court entered a final order dismissing the case; and (4) on December 19, 2013, Hawkins filed a case initiation form and a motion to set aside the dismissal, stating that he complied with OCGA § 9–11–3(b) and the court’s order and suggesting that the clerk of court lost the form. The trial court denied the motion to set aside the dismissal, concluding that Hawkins “failed to meet his burden of persuasion with respect to the statutory bases [under OCGA § 9–11–60(d) ] for setting aside the default judgment [sic]. In this regard, nothing in the record, save [Hawkins’s] self-serving motion, suggests [he] complied … or attempted to comply … with OCGA § 9–11–3(b) … prior to the entry of the [f]inal [dismissal o]rder. Rather, … the record clearly indicates that … only after the [f]inal [o]rder was entered, [Hawkins] complied with OCGA § 9–11–3(b).”

        3. See In re Baucom, 297 Ga.App. 661, 678 S.E.2d 118 (2009).

        4. See OCGA § 9–11–41(a)(3) & (b).

        5. The State implicitly concedes the trial court’s error, requesting that “[i]n light of the fact that [Hawkins’s] initial case was dismissed rather than denied, [this Court] … remand this case … for an order based on the merits rather than any procedural non-compliance.””

Something else about that case stands out, by the way; hint – take a look at what form the party had to file to initiate the case.  Specifically, OCGA § 9–11–3.

May 17 16

American Bar Association Webinar Notes – “Ferguson’s Fault Lines: The Race Quake That Rockedthe Nation”

by merlin

American Bar Association Continuing Legal Education Webinar Notes

Ferguson’s Fault Lines: The Race Quake That Rocked the Nation

 

Speakers:

Katherine Goldwasser (Prosecution, Grand Jury, and decision not to charge)

Thomas Harvey (It’s Not Just Ferguson)

Brendan Roediger (Municipal Courts and Road to Reform)

Kimberly Norwood (from Brown v. Board of Eduation to Michael Brown)

Howard Wasserman (uncertain hope of body cameras)

Goldwasser (Washington University School of Law – Professor, Retired; Former Federal Prosecutor)

Prosecution, Grand Jury, and decision not to charge

  • Timeline given of events (from shooting by Darren Wilson, shot-by-shot, to decision by Ferguson PD to let St. Louis County PD handle case, to evidence presented by DAs Office to Grand Jury [all witnesses were associated with law enforcement, and none of them except Darren Wilson were there for the shooting])
  • How were THESE Grand Jury proceedings different from usual Grand Jury proceedings?
    • bare bones proceedings
    • takes 24 hours or less (this was over 72 hours, over the course of weeks)
    • No opening statement is given usually (this one involved an opening statement of how case was different at the outset)
    • Prosecution did no culling of evidence, and presented long-since unconstitutional law or what possible charges could be brought in the case
    • Strong anti-Indictment bias in case

Wilson’s testimony was given; his account was very different from the one he gave right after the shooting and was not challenged by the prosecution.

THE GRAND JURY IGNORED RACE ENTIRELY.

Harvey (executive director, ARC City Defenders – provide representation to homeless persons)

It’s Not Just Ferguson

In 2013, Ferguson Court issued 32,000+ arrest warrants, mostly for failure to pay fines.

The problem of arrest warrants for failure to pay is pervasive.

700,000 active warrants for arrest for reasons stemming from poverty and race.

Roediger (Professor, St. Louis University School of Law)

Municipal Courts and Road to Reform

Judges are generally practicing attorneys in family law, defense, etc.; often prosecutors in one court and judge in another

  • Officers are being told by mayors that they need to make more arrests to make more money (not enforce the law but rather get money)
  • Majority of police stops in St. Louis County don’t have probable cause

It’s not about abolishing law enforcement, but rather about enforcing DUE PROCESS (because otherwise, profession is a JOKE)

Norwood (Washington University law professor)

From Brown to Brown

From 1865 until 1954 (Brown v. Board of Education) – illegal to educate formerly-enslaved blacks except in limited fashion

  • Schools often didn’t have books, structural flaws in buildings, etc.
  • Brown said separate but equal was inherently flawed, and struck it down
  • In 1970s, Rodriguez, found no federal right to education; created downward trajectory
  • Supreme Court severely limited use of race to desegregate schools; created the kind of problem in Ferguson
  • Michael Brown went to public schools in Normandy, MO, but white flight had taken resources, etc., from the school district (it was not accredited for any of the years he went to school there)
  • District not declared “unaccredited” until Brown was a junior, which provides remedies; it qualified as unaccredited (should have been already declared) before he was born.

Staying in one school meant inadequate environment in every way, but transfer meant about a two-hour per day bus ride (and an incredibly hostile environment in the new school) – ACEs (Adverse Childhood Experiences) prevalent in home environment PLUS school environment

Need to focus on new hires/diversity, re-hires/further training, ending “zero tolerance” policies

Wasserman (Professor – Florida International University College of Law)

Uncertain Hope of Body Cameras

Everyone (different races and political orientations) seem to think body cameras and dashboard cameras are a good idea

  • Only group not on board really is police unions and rank-and-file officers
  1. Good for objective depiction of encounter
  2. Good for deterrence
  3. Good for appropriate resolution of disputes

It is more complicated and uncertain than the rhetoric makes it; see study from 2013 by Reedy and Young (50 officers; led to significantly fewer incidents stop-and-frisks, etc.)

Limits on video evidence:

  • Video does not necessarily speak for itself;
  • What video depicts depends on audience (what they see is based in large part on preexisting prejudices);

Nonetheless, video evidence appears to spur settlement of disputes in favor of wrongful victims.

Pending suits to challenge Constitutionality of existing municipal court system:

  • Equal Protection argument; if the money was there, they would not be locked up (so it is EVIL and wrong that the jail exists to lock up people for the sole act of owing money)

Apart from body cameras and municipal court reform, other acts that reform:

  • Problem of too many police for the town size
  • Police officers do not get properly certified (police academy, etc.)
  • Policing is more oriented toward revenue collection and not toward crime reduction

What about idea that Brown committed a crime beforehand that eliminated any possible profiling, etc.?

  • Darren Wilson certainly at some point said to Grand Jury that he saw the two guys who had committed a strong-arm robbery earlier; THIS IS NOT WHAT HE TOLD HIS SUPERVISORS IMMEDIATELY AFTER THE SHOOTING!!!!
  • Proper question: was use of deadly force warranted under circumstances of encounter?
May 15 16

The Title of a Pleading Is Less Important Than the Substance of a Pleading

by merlin

Sometimes, I am talked down to by opposing counsel or by people in authority because a point that I raise seems unorthodox, and I have surprised them by making an argument that they do not feel has any merit.  I am left astonished by their surprise about my argument, because I actually carefully wrote a fairly thorough brief addressing the point to avoid any surprise.  It is far too easy to get into the habit of reading the title of a pleading and assuming that it is valid or invalid without considering its substance, and the law in Georgia is designed to avoid this.  In fact, a case decided in 1973 by the Court of Appeals indirectly addressed this very issue.  It was concerned with the idea of jurisdiction versus venue, but the analogy is easy to make, and it touches directly on whether the substance of a pleading or merely its title matters more (hint: it’s the former).  In other words, to avoid being surprised by a statement or an argument made in Court, read the arguments made in a pleading and a brief, because they often set out the argument plainly.  The following case was decided under the old Code, but it is still valid on this point of law.  It is Holloway v. Frey, 130 Ga.App. 224, 202 S.E.2d 845 (Ga. Ct. App. 1973):

        Long & Pierce, Nick Long, Jr., Atlanta, for appellant.

        McCurdy, Candler & Harris, George H. Carley, Decatur, for appellee.

Syllabus Opinion by the Court

        DEEN, Judge.

  1. ‘The judge of a court having (no) jurisdiction of the person . . . is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.’ Code § 110-709. ‘To bind a party by the judgment, . . . it must appear that he has been served with process directed to him, or else that he has, by some express or implied waiver, dispensed with the necessity of process.’ Frank Adam Electric Co. v. Witman, 16 Ga.App. 574(2), 85 S.E. 819. ‘A judgment against a party where there has been no valid service upon him, and no waiver of service, is void.’ Foster v. Foster, 207 Ga. 519(3), 63 S.E.2d 318.

        In the present case filed in the Superior Court of DeKalb County the plaintiff Frey sued on Farmer, an alleged resident of Cobb County, and the appellant Holloway, allegedly residing at 3409 Regalwoods Dr., DeKalb County, seeking judgment of more than $15,000. A return of service dated August 17, 1970 signed by a deputy sheriff states: ‘I have this day served the defendant Jack B. Hollaway by serving daughter Jackie by leaving a copy of the within writ and process at his most notorious place of abode in this courty.’ The return fails to specify where this was done. During the periods of time in question Holloway did not live at Regalwoods Drive, the address shown in the petition. His minor daughter Jackie lived with her mother, on Valley Bluff Drive, the parents being separated, and it was here that the deputy sheriff delivered the suit papers, although the defendant had never lived at the address and the daughter gave an affidavit that she had so informed the officer. Holloway in fact lived at an address on Buford Highway, also in DeKalb County, and worked at an address in Cobb County. The attorney for the plaintiff, learning of the manner in which service had been attempted, thereafter sent an office employee to Cobb County who personally delivered a copy of the action to the defendant, but who had no authorization from any source to serve suit papers.

        It follows that the Superior Court of DeKalb County had no jurisdiction of the person of the defendant Holloway which would authorize the taking of a default judgment against him. The service was not made either by personal delivery to the defendant by a person authorized to serve suit papers under Code Ann. § 81A-104(c) or ‘by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein’ or delivering it to an agent, as required by Code Ann. § 81A-104(d, 7). The service was thus completely nugatory. Boyer v. King, 129 Ga.App. 690, 200 S.E.2d 906.

  1. A default judgment was entered against Holloway on November 9, 1971. Immediately on being apprised of its existence, he procured counsel who filed a motion attempting to have it vacated. The court hearing this issue held that the default judgment was valid because (a) the motion was not based on a ‘nonamendable defect appearing on the face of the record’ and (b) the defendant had actual notice (through the unofficial delivery of copy papers to him in Cobb County by an employee of the plaintiff’s attorney) that a suit had been filed, and his failure to take action thereon prior to judgment amounted to a waiver of his rights.

        Dealing with these legal conclusions in reverse order, we find the second one unacceptable because it requires a party to litigation to make a defense although he has not been served in the case. If this were the law, of course, there would be no such thing as service of process, but all that would be necessary to obtain judgment and levy on a man’s property and possessions would be to inform him by whatsoever means that there was in fact a suit pending against him, and throw the burden on him of checking out the rumor, a situation that would indeed lead to the nightmare situations envisioned by Kafka in The Trial.

        The other objection stated by the trial judge for not vacating the judgment is that the defect does not appear on the face of the record. The return of service is in fact defective in that it does not show the place of service and does not state that the service was ‘at the defendant’s dwelling-house or usual place of abode’ as required by Code Ann. § 81A-104(d, 7). If we are correct in holding there was no jurisdiction over the person of this defendant in the absence of service of process at a place where the defendant had lived, or by a person authorized to serve him, then it follows that the judgment is void and for this reason the restrictions on the use of motions to set aside set out in Code Ann. § 81A-160(d) on motions to set aside and applied in Aiken v. Bynum, 128 Ga.App. 212, 196 S.E.2d 180, cannot apply here. If lack of jurisdiction of the person could not be raised after judgment even though it rendered the judgment void, and even though a defendant was without knowledge of the filing, courts would be faced with an impossible situation. Further, Code Ann. § 81A-160(f) provides: ‘A judgment void because of lack of jurisdiction of the person . . . may be attacked at any time.’ As stated in DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625 (4), 193 S.E.2d 852, Code Ann. § 81A-104 ‘provides explicit rules for service of process. In the absence of service in conformity with such rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void.’

        It is contended that this case must be affirmed under the authority of Aiken, supra. In that case the service was actually made at the house at which the defendant resided by leaving a copy of the suit with a relative who was present. The difficulty in Aiken is that, as frequently happens where a part of the city lies in Fulton and a part in DeKalb Counties, the actual location of the house was over the DeKalb County line into Fulton County (probably unknown to the sheriff) and therefore, as the case is careful to point out, the question was venue of the action, not jurisdiction of the person. The defendant was actually served in a proper manner at his most notorious place of abode, so far as process is concerned. If he was in fact being sued in the wrong county this was something the defendant had to do something about or else it was waived. On the other hand, in DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852, where a default judgment was entered against the defendant corporation, based on constructive service of process on the president of the corporation by leaving the papers at his residence with his wife, this was not legal service upon the corporation, and the knowledge of the president by receiving suit papers in this fashion did not constitute a waiver. As stated in headnote 2: ‘Where there has been no legal service on the defendant and no waiver of service, the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction.’ See also Reynolds v. Reynolds, 231 Ga. 178, 200 S.E.2d 766.

  1. But it is urged that such a judgment can be set aside only by a petition in equity, since under Code Ann. § 81A-160(d) a motion to set aside must be predicated upon some extrinsic defect which does not appear upon the face of the record or pleadings. It is true that this pleading has been denominated a motion to set aside. However, we have said times without number that there is no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name. Cf. Wells v. Stynchcombe, 231 Ga. 199, 200 S.E.2d 745. This pleading sets out, in the same manner as would a petition in equity, a complete statement of the facts of the case leading up to the judgment. It prays for process and that plaintiff’s counsel be served with a copy, that a day certain be set for hearing, and further prays ‘based on the strength of this verified petition, together with the supporting affidavits, and based on the urgency of matters contained herein, and based on the principles of equity and justice, . . . that this honorable court according to law and equity consider this motion and grant the defendant’s prayer’ to set aside the judgment and give the defendant his day in court. The pleading thus in fact serves every function of an original petition in equity, and it will not be dismissed simply because it is styled a motion.

        Judgment reversed.

        QUILLIAN, J., concurs.

        BELL, C.J., concurs specially.

        BELL, Chief Judge (concurring specially).

        I agree with Judge Deen that there was no jurisdiction over the person of the defendant in the trial court and for this reason the default judgment was void. Everything occurring in the proceeding thereafter was ipso facto void and nugatory. A reversal is demanded.