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Jul 22 16

Origins of the “Civil Action”; The Sex Offender Registry is Definitely Civil

by merlin

Section 9-2-3 of the Official Code of Georgia is a basic definitional section.  It reads as follows:

“As used in this title, the term:

(1) “Action” means the judicial means of enforcing a right.

(2) “Civil action” means an action founded on private rights, arising either from contract or tort.

(3) “Penal action” means an action allowed in pursuance of public justice under particular laws. ”
Because there are no particular laws specifically setting out the manner that a petition for removal from the Sex Offender Registry should be decided (there is, of course, a section clearly placing the responsibility for responding to such an action with the Office of the District Attorney, and the section itself is found under the Code Title dealing with Penal Institutions, but neither of these are decisive, and the cases that have addressed the issue have uniformly stated that “[t]he sex offender registry itself is civil in nature”.  Taylor v. State, 304 Ga.App. 878, 884 (Ga. Ct. App. 2010)), the question arises as to whether it should be decided under criminal law procedural rules, in which the burden is “beyond a reasonable doubt”, or under civil law provisions, in which the burden is “the preponderance of the evidence”, which is a far lower bar to meet and acknowledges the complex realities of human nature, as well.

Section 16-2-1(a) of the Official Code of Georgia is the parallel criminal law procedural statute to the Civil Practice Act definitions set out above:

“(a) A “crime” is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.”

This does not leave much room for deciding the degrees of rehabilitation that someone placed on the Sex Offender Registry has undergone.  It only allows for a “yes” or “no” decision – either these two things existed, or they didn’t.  As a consequence, it is ill-fitted for this task.

However, though the cases insist that the Sex Offender Registry is civil in nature, they don’t really talk about just how that is, and the Office of the District Attorney insists otherwise.  The only way that civil law procedural rules can govern, as provided for by Section 9-11-1 of the Official Code (“This chapter governs the procedure in all courts of record in this State in all actions of a civil nature, whether cognizable as cases at law or in equity…”) is if it as action “founded on private rights, arising either from contract or tort”, as described above.

Being on the Registry is a consequence of a violation of the social contract, in that a person has been found guilty of committing an offense of a sexual nature.  The governing principle underlying criminal justice in the United States, that unites Americans as a society, is that there are certain rules we agree upon and their violation has agreed-upon consequences.  This implied social contract is a concept that arises first with the philosophical principles of Thomas Hobbes, who wrote the classic work, Leviathan, in which he postulated that man outside of society lived a life that was “nasty, brutish, and short”.  Social interaction, therefore, is a necessity prompted by self-interest.  Subsequently, the work Second Treatise of Government by John Locke expanded on this theme, declaring that “[m]en being, as has been said, by nature, all free, equal and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.”  This is the essence of the implied social contract that the Sex Offender Registry represents.

It is inherently a right arising from contract, meaning that it is “civil in nature”, according to the law.  It is subject, therefore, to the Civil Practice Act, by statute.

 

Jul 13 16

“Civil Case” Defined in Georgia Law by Defining a “Criminal Case”

by merlin

A situation coming to a head in the sex offender cases that have been the primary topic of this legal blog lately is the proper area for such a case to be heard.  I maintain that the law indicates that such a case is innately civil in nature, though the party responsible for answering a petition for removal from the Georgia Sex Offender Registry is the Office of the District Attorney, and the State seems to insist that this is criminal in nature (since inclusion on the Registry is a collateral consequence of a finding of guilt to a sexual offense).  I previously believed that such a matter had not been dealt with in Georgia law, but I have recently discovered a precedent for the idea that a matter arising under the criminal law may be civil, nonetheless, and is properly dealt with in civil law terms, accordingly.

The following case is Wilburn v. State, 140 Ga. 138, 78 S.E. 819 (Ga. 1913).  It defines a motion to change venue in a murder trial not in terms of “civil law” defined, but by defining “criminal law” and applying that definition to the motion itself, finding that it does not fit (and is, therefore, civil in nature, even though it arises in a criminal context).

______________________________________________________________

        Error from Superior Court, Jones County; James B. Park, Judge.

        Nick Wilburn was indicted for murder, and from an order denying his motion for a change of venue, he brings error. Affirmed.

        Nick Wilburn, under indictment for the offense of murder, which crime was alleged to have been committed in the county of Jones, at the April term, 1913, of the superior court of that county presented a petition to the judge of that court, alleging that at the time of presenting the petition he was detained in the jail of an adjoining county, and that if he should be carried back to Jones county there was danger of his being visited with mob violence and of his being lynched, and that a fair and impartial jury could not be obtained in Jones county for the trial of the case against him. The petition was filed under the provisions of the act approved August 21, 1911 (Laws 1911, p. 74), relating to the change of venue in criminal cases. A rule nisi was issued, calling upon the solicitor general to show cause why the prayer for a change of venue should not be granted. The state resisted the motion to change the venue, and evidence was submitted both by the petitioner and by the state. After hearing evidence the court denied the motion. The petitioner sued out his writ of error to this court under the provisions of the act referred to.

        John R. Cooper, of Macon, for plaintiff in error.

  1. H. Johnson and J. B. Jackson, both of Gray, Jos. E. Pottle, Sol. Gen., of Milledgeville, and T. S. Felder, Atty. Gen., for the State.

        BECK, J. (after stating the facts as above). [1] 1. The first question that arises in this case is whether this court has jurisdiction to entertain the writ of error bringing the refusal of the lower court to grant a change of venue here for review. If the petition addressed to the judge of the court below and the resistance by the state of the motion contained in that petition constituted a criminal case, then this court is without jurisdiction to review the ruling of the judge on appeal. For, by article 6, § 2, par. 5, of the Constitution of this state (Civil Code, § 6502), it is declared in reference to criminal cases that the Supreme Court shall be a court for the correction of errors “in all cases of conviction of a capital felony.” And so far as relates to criminal cases, this court has no jurisdiction except that which arises in cases where there has been a conviction of a capital felony. There has been no trial nor conviction in the case of the state against this plaintiff in error; and, if his petition for a change of venue and the issue joined upon that, and the evidence heard upon that issue made a criminal case, this court is clearly without jurisdiction to review the judgment rendered by the court below disposing of the motion of the petitioner for a change of venue. But after a careful consideration of the question we are of the opinion that the presentation of a petition for a change of venue, and the hearing thereon by the judge below, is not necessarily to be classed as a criminal case.

         A criminal case is essentially one in which is involved an alleged injury done to the state by the violation of some law, for the punishment of which the offender is prosecuted by the state in order that punishment for the offense may be meted out to said person after conviction. Grimball v. Ross, T. U. P. Charlt. 175; Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482; and cases cited in 2 Words and Phrases Judicially Defined, under the definition of “criminal action” and “criminal case.” A criminal case necessarily involves the question of guilt or innocence of the party accused. But in the proceedings which we are asked to review here, and which reached a finality before the commencement of the trial under the indictment, neither the question of the guilt or innocence of the prisoner was involved, nor what punishment should be meted out to him. Of course it would be competent for the Legislature, in providing for a hearing upon the question as to whether the venue in criminal cases should be changed or not, to provide that the hearing of that question should take place at the trial, and under those circumstances the hearing of that question might become a part of a criminal case, and be reviewable here in case of conviction, as other questions arising upon the trial are reviewed, just as is done in passing upon the question as to whether it was error or not to refuse a continuance of the case upon motion made by the defendant at the trial. But a motion like that which we have under consideration is not so intimately or essentially connected with the criminal case which we have under consideration as to make it a criminal case or a part of a criminal case. It is provided, in the act under which these proceedings to review were instituted, that the judge might hear the petition of the accused at chambers with or without the presence of the accused, and at any time and place in the state that he might direct. Taking these provisions of the statute under consideration, as well as the fact that the question of the guilt or innocence of the prisoner is not involved; that no punishment or discharge of the prisoner follows the judgment of the court below, rendered upon this proceeding, whether it be in favor of or adverse to the prisoner—we are convinced that the procedure for the determination of the question as to whether a change of venue should be granted to the prisoner or not is one of a civil nature, and does not fall within the category of criminal cases. While the pendency of a criminal case or action against the prisoner must exist before the right to address a petition to the court upon the subject of changing the venue shall arise, and to that extent it might be said that the right to make the petition and the right to a hearing thereon spring from a criminal case, the real source of the right to a hearing is in the existence, or the claim thereof, of the danger of violence being visited upon the prisoner, or the existence of such feeling in the county where the crime is alleged to have been committed that it is impossible for a fair and impartial jury to be obtained there for the trial of the criminal case against him. Hence we think it was competent for the Legislature to treat this matter of making a petition for a change of venue as a thing apart from the criminal case, and that, severance having been effected by legislative enactment, the case falls in the category of civil cases. And to the judgment of the court below determining the issue in that case a writ of error will not lie to this court.

  1. While the act of the Legislature, referred to above, relative to the change of venue has enlarged the class of cases in which it is proper for the judge the grant a change of venue, and it is provided that if the evidence submitted shall show “that there is probability or danger of lynching, or other violence, then it shall be mandatory on said judge to change the venue to such county in the state as in his judgment will avoid such lynching, ” we are of the opinion that where the evidence is conflicting upon the issue as to whether or not under the petition such a case is made as requires the judge to grant the motion, the judge hearing the same passes upon the issues that are to be determined upon evidence, and that his finding and judgment upon the same is final and controlling, unless manifestly erroneous. In the present case the evidence was conflicting upon the material issues, and it cannot be said that it was manifestly erroneous to refuse to grant a change of venue.
  1. It requires no argument to demonstrate that it was proper for the court to exclude from the evidence a letter which was addressed, not to the accused, but to a third party, threatening the addressee of the letter with violence in case he should furnish money for the purpose of assisting the accused in making his defense; no evidence being offered to show the authorship of the letter.

        Judgment affirmed. All the Justices concur.

——–

Notes:

        *.For other cases see same topic and section NUMBER in Dec. Dig. Am. Dig. Key-No. Series & Rep’r Indexes

Jul 4 16

Happy Independence Day from Merlinus Goodman Monroe, LLC!

by merlin

Independence Day greetings from Merlinus Goodman Monroe, LLC.  While occupied with traditional American Independence Day celebratory activities (read: grilling, homebrewed beer, and patriotic movies), I am also trying to wrap my head around the basic Constitutional Law principle of Procedural Due Process.  The Fifth Amendment of the United States Constitution puts forth the idea that the government may not deprive someone of life, liberty, or property without “Due Process of Law”, and this was made applicable to the States by the Fourteenth Amendment.  In fact, it is such an important part of American heritage that it is embodied in the 1st Article, 1st Paragraph, and 1st Section of the Georgia Constitution of 1983.  However, in terms of the existing scheme for analyzing persons on the Sex Offender Registry who request to be released from its registration, residency, and employment restrictions, a fundamentally civil determination of degrees of rehabilitation and not the initial criminal questions of guilt versus innocence and length and manner of sentence, the procedure does not permit Due Process guidelines to be followed.

A 2006 article in The Yale Law and Policy Review, entitled “Civil Due Process, Criminal Due Process”, has been helpful to my understanding on this complex issue.

 

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.