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Sep 15 16

ProjectSouth Continuing Legal Education Notes (Representing Muslim Americans in Court Post-9/11)

by merlin

These notes do not present a complete picture, but are meant instead as a supplement to the incredible information presented.

ProjectSouth Continuing Legal Education: Representing Arabs and Muslim Americans Post 9/11

Wednesday, September 14, 2016

State Bar Headquarters

 

Moderator: Azadeh Shashahani

 

When the American Dream is Denied to Some

(Challenging naturalization and Green Card delays)

Dustin Baxter (Kuck Immigration Partners LLC)

Jama Ibrahim, (Ibrahim & Rao)

 

  • Generally speaking, applying for citizenship/Green Card requires application and fee, followed by biometric tests, etc. – generally 6 mo. process
  • Not so simple for Middle Eastern origin – CARRP program (Controlled Application Review and Resolution Program, policy memo from April 11, 2008): lawsuit to discover that program had been enacted and made it harder for people of Middle Eastern origin to immigrate based on name, etc. (flagged illegally); puts application for benefits on hold automatically for approx. 6 months
  • AMEMSA – these people get strict scrutiny for all applications (Asian, Middle Eastern, Muslim, South Asian)
  • Program flags common names.
  • They still use paper files. This complicates the heck out of things, too.

To find out these things, went online and service centers list average processing time; if long delay, they know something is unusual regarding the file

 

Must exhaust remedies (even if it is evident something is wrong).

 

Most cases: spouse applying for citizenship (residency) for non-citizen spuse, or business-owner applying for same….eventual solution is mandamus action (basically, a 4-page claim with history of case and coy of letter sent, etc.).

  1. It’s going to take at least one year without an interview for naturalization before you file (because then it is unusual);
  2. After one year, file aggressively (head of Homeland Security, ICE, FBI, etc.)

Can get attorney’s fees once you sue them (if it goes all the way, which NEVER happens if it is meritorious); request them in the Complaint for added pressure.

 

There is a pending class action lawsuit in Missouri on the CARRP program’s illegality.

When the FBI Comes Knocking

(Representing clients approached by law enforcement for questioning)

Jack Martin (Martin Brothers)

 Harris Ahmed: Georgia Tech student charged with aiding and abetting, etc.; FBI approached him and interviewed him.  Pakistani birth but raised in Dawsonville and radicalized by Internet.

  • Sought credibility with training camp by video of various national monuments in DC
  • If FBI wants to talk to your client, they have the info for a good case already (they are just trying to supplement their case further).

He talked to the FBI for 12 hours – it was an alleged non-custodial interview (so, no Miranda); test was the TOTALITY OF THE CIRCUMSTANCES (very high burden to prove that it was custodial).  It was found that the statements were VOLUNTARY in nature, and these were non-custodial interviews (Miranda unnecessary).

Liberty for All?

(What to do when public institutions engage in religious discrimination)

Daniel Mach (Director, ACLU Program on Freedom of Religion and Belief)

 

Legal Protections that are available to combat public institution discrimination:

  • restrictions on clothing and religious garb, checkpoints, required photo ID, denial of requests for religious accomodations
  • Title VI prohibits discrimination in public schools but NOT on the basis of religion!!!!
  • Establishment clause and Free Exercise clause (First Amendment) provide two main hooks for combatting efforts (ex. OK laws against “sharia” law).
  • RELUIPA (Religious Land Use and Institutionalized Persons Act) – strict scrutiny requirement on prison regulations that burden religious practices; government must show narrowly-tailored practice with neutral justification
  • Government needs CONCRETE EVIDENCE to justify its action
  • Must exhaust administrative remedies first
  • When a zoning decision substantially burdens exercise of religious faith, government must show use of LEAST RESTRICTIVE MEANS

Included within the definition of “religious discrimination” in Title VII is that an employer needs to make suitable “religious accommodation”; ex. Abercrombie & Fitch litigation (when Muslim woman was encouraged to apply for job but interviewer then sought to skip her for wearing a hijab; found in favor of her because she never requested religious accommodation but when she was encouraged to seek job they had assumed she would be seeking religious accommodation; must be undue hardship on employer to get over the requirement [simple customer preference is not enough]).

  • RFRA: Standard is substantial burden (similar to above)

 

Cracking Down on Dissent

(Representing clients subpoenaed by a Grand Jury)

Akil Secret (The Secret Firm, P.C.)

 

See San Diego Federal Defender’s Office book, “Defending a Federal Case”

 

Grand Jury subpoenas: You have no right to know the substance of the investigation; can ask if client is the target or subject of the investigation (2 different questions)

 

Rarely out of the blue – unless they are obtaining documents ONLY.

 

Will be a US Attorney in charge of the investigation

  • Is there an alternative to formal appearance (ex. proffer to US Attorney’s Office to show substance of testimony)
Sep 8 16

Appealing a Single Preliminary Issue

by merlin

When a particular issue is in dispute, is dispositive of the case being heard, and is raised immediately in a case, the trial judge has the power to grant what is known as a Certificate of Immediate Review.  This is provided for by Section 5-6-34(b) of the Official Code of Georgia, which reads as follows:

“Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant’s motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. The application shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein. The applicant may, at his or her election, include copies of such parts of the record as he or she deems appropriate, but no certification of such copies by the clerk of the trial court shall be necessary. The application shall be filed with the clerk of the Supreme Court or the Court of Appeals and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties in the case in the manner prescribed by Code Section 5-6-32, except that such service shall be perfected at or before the filing of the application. The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 45 days of the date on which the application was filed. Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in Code Section 5-6-37. The notice of appeal shall act as a supersedeas as provided in Code Section 5-6-46 and the procedure thereafter shall be the same as in an appeal from a final judgment.”

This application should not be taken lightly.  Note that it is a discretionary decision on the part of the Court it is appealed to.  The Court itself, if it decides to grant the properly-prepared application but is the incorrect court for such a matter to be appealed to, will transfer it and not dismiss it, as provided by law.

There are certain formalities that the statute requires be complied with.  The Order itself must be actually entered, of course.  The entry of an Order, according to the law, does not happen until the Order is filed.  At that point, the clock is running, and there are only ten days remaining to appeal.  The Certificate of Immediate Review, together with the application in the nature of a petition and such parts of the record as the appellant decides should be submitted (the record, remember, is the original papers and exhibits filed and the transcript of proceedings, speaking generally).  The transcript itself would be something important to submit, as would any pleadings in support of and/or opposition to the motion that was ruled on that led to the Certificate of Immediate Review.

Aug 31 16

ABOUT CONTACTING ME!!!!

by merlin

This site used to forward an e-mail to me if someone attempted to contact me via the site.  I have not received such an e-mail in several years.

HOWEVER – I located messages that people have sent me dating back to March 2012, which I had never known about at all.

To all of you who sent messages asking for assistance, I am deeply sorry that your pleas for assistance went unanswered.  I only take a handful of cases at any given time, and am consumed by the active cases I am working on right now, but I will review the messages that I have been sent and I will begin to make efforts to respond to them.  I hope that you found Justice.

Aug 18 16

Re-Post (7/28/12 on Mandamus)

by merlin

The statute has not changed since this was posted, and the issue has just become relevant.  Therefore, the following should be a good refresher:

This is a touchy and difficult subject, because it implicates two principles of legal practice in the State of Georgia that are of equal importance to attorneys: Legal propriety (doing what is technically right) and politics (doing what is popular or doesn’t clash with people’s principles).  When a public officer refuses to, or doesn’t, perform their duties the way they ought to be, a writ of mandamus is the evident answer for this problem. This is to be distinguished from a situation where the relief granted is not to the liking of the applicant; an action subject to judicial review for abuse of discretion, or otherwise, is still reviewable.  THIS extraordinary remedy lies only when there is nothing that would be subject to review.

The basic Georgia Code section addressing a petition for the writ is 9-6-20, which provides that [a]ll official duties should be faithfully performed, and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights.”  The section goes on to expressly state a caveat to when the writ can be sought by stating that “no writ of mandamus to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.”

As said, this writ is available to compel someone to take an action, and not available where the action taken isn’t to the liking of the person seeking the writ (in other words, it’s not a substitute for an appeal).  This doesn’t seem to be something folks necessarily understand, and as recent as 2012, the Supreme Court of Georgia heard Gilbert v. Pridgen, S12A0869:

Appellant appealed from an order denying a filing of a petition for writ of mandamus. Appellant sought to file a petition for mandamus to compel judges of the court to dismiss his citation for speeding, to recuse one of them for reviewing his pleading, and to “impeach” certain of them due to alleged misconduct. Because appellant failed to carry his burden and his petition showed on its face “such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading,” the court concluded that the trial court did not err by denying the petition.

THOMPSON, Justice.

This is an appeal from an order denying filing of a petition for writ of mandamus. For the reasons that follow, we affirm.

Appellant Elisha Gilbert sought to file a petition for mandamus in Dooly County Superior Court to compel appellees, judges of that court, to dismiss his citation for speeding, to recuse one of them from reviewing his pleading, and to “impeach” certain of them due to alleged misconduct.

Pursuant to OCGA § 9-6-20, a writ of mandamus “may issue to compel a due performance if there is no other specific legal remedy for the legal rights.” Extraordinary writs like the writ of mandamus, therefore, “are not the proper remedy to seek review of a ruling made by a trial court where there is a right of judicial review of the judge’s ruling, because the availability of judicial review is an adequate legal remedy that eliminates the availability of mandamus relief.” Ford Motor Co. v. Lawrence, 279 Ga. 284, 285 (612 SE2d 301) (2005). In the present case, the court entered its final judgment on the traffic citation charging appellant with speeding in violation of OCGA § 40-6-181 (b), and reversal of that adverse final judgment must be obtained by one of the available methods of obtaining appellate review and not by writ of mandamus. See id. (mandamus not a vehicle by which party may obtain review of judicial order which is subject to appellate review). See also Smith & Wesson v. City of Atlanta273 Ga. 431, 433 (543 SE2d 16) (2001); Hayes v. Brown, 205 Ga. 234, 237 (52 SE2d 862) (1949). Similarly, writs of mandamus are not the proper remedy to seek recusal of a judge where, as in this case, no motion to recuse has been filed or impeachment of a judicial officer. See OCGA § 9-6-20 (“no writ of mandamus to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available”); Ga. Const. Art. III, Sec. VII, Par. I (House of Representatives shall have sole power to vote impeachment charges against judicial officers of this state).

“Mandamus is an extraordinary remedy” which is available only if the petitioner can show a clear legal right to the relief sought. Mid-Ga. Envtl. Mgmt. Group v. Meriwether County, 277 Ga. 670, 672-673 (2) (594 SE2d 344) (2004). Because appellant failed to carry his burden and his petition shows on its face “such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading,” we conclude the trial court did not error by denying filing of the petition. OCGA § 9-15-2 (d).

Judgment affirmed. All the Justices concur.

Note that the case was heard by the Supreme Court of Georgia.  This is because appeals concerning extraordinary remedies are exclusively within the Court’s jurisdiction.  However, the proper Court for appeal is actually spelled out by statute, at 9-6-28.  That section states as follows:

a) Upon refusal of the court to grant the mandamus nisi, the applicant may appeal to the Supreme Court, as in other cases. Either party dissatisfied with the judgment on the hearing of the answer to the mandamus nisi may likewise appeal.

(b) Mandamus cases shall be heard in the Supreme Court under the same laws and rules as apply to injunction cases.

The writ isn’t available just because a party wants to get its justice faster.  Section 9-6-26 states that “[m]andamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless, nor will it be granted on a mere suspicion or fear, before a refusal to act or the doing of a wrongful act.”  Again, these are matters subject to review.

Section 9-6-21(a) should be noted, as well, because that section implicates the rule regarding judicial review, as well:

“Mandamus shall not lie as a private remedy between individuals to enforce private rights nor to a public officer who has an absolute discretion to act or not to act unless there is a gross abuse of such discretion. However, mandamus shall not be confined to the enforcement of mere ministerial duties.” (emphasis supplied).

Considerations to keep in mind!

Aug 12 16

Update to Georgia Petition for Risk Assessment (Sex Offender Registry)

by merlin

As of July 2016, the State of Georgia has heavily revised its statutory scheme regarding many aspects of the Sex Offender Registry.  The forms which I have put forward must be revised accordingly, and this process is under way.  However, I wanted to put the correct statute for proceeding with a Petition for Risk Assessment on this site, in case anybody else is using my work as a guide for their own efforts.

This is the current (newly-enacted) version of Section 42-1-14 (the correct section under which an action for Risk Assessment should be brought, it appears):

(a) (1) The board shall determine the likelihood that a sexual offender will engage in another crime against a victim who is a minor or a dangerous sexual offense. The board shall make such determination for any sexual offender convicted on or after July 1, 2006, of a criminal offense against a victim who is a minor or a dangerous sexual offense and for any sexual offender incarcerated on July 1, 2006, but convicted prior to July 1, 2006, of a criminal offense against a victim who is a minor. Any sexual offender who changes residence from another state or territory of the United States or any other place to this state and who is not already designated under Georgia law as a sexually dangerous predator, sexual predator, or sexually violent predator shall have his or her required registration information forwarded by the sheriff of his or her county of registration to the board for the purpose of risk assessment classification. The board shall also make such determination upon the request of a superior court judge for purposes of considering a petition to be released from registration restrictions or residency or employment restrictions as provided for in Code Section 42-1-19.

(2) A sexual offender shall be placed into Level I risk assessment classification, Level II risk assessment classification, or sexually dangerous predator classification based upon the board’s assessment criteria and information obtained and reviewed by the board. The sexual offender may provide the board with information, including, but not limited to, psychological evaluations, sexual history polygraph information, treatment history, and personal, social, educational, and work history, and may agree to submit to a psychosexual evaluation or sexual history polygraph conducted by the board. If the sexual offender has undergone treatment or supervision through the Department of Corrections or the Department of Community Supervision, such treatment records shall also be submitted to the board for evaluation. The prosecuting attorney shall provide the board with any information available to assist the board in rendering an opinion, including, but not limited to, criminal history and records related to previous criminal history. The board shall utilize the Georgia Bureau of Investigation to assist it in obtaining information relative to its evaluation of sexual offenders and the Georgia Bureau of Investigation shall provide the board with information as requested by the board. The board shall be authorized to obtain information from supervision records of the State Board of Pardons and Paroles regarding such sexual offender, but such records shall remain confidential state secrets in accordance with Code Section 42-9-53 and shall not be made available to any other person or entity or be subject to subpoena unless declassified by the State Board of Pardons and Paroles. The clerk of court shall send a copy of the sexual offender’s conviction to the board and notify the board that a sexual offender’s evaluation will need to be performed. The board shall render its recommendation for risk assessment classification within:

(A) Sixty days of receipt of a request for an evaluation if the sexual offender is being sentenced pursuant to subsection (c) of Code Section 17-10-6.2;

(B) Six months prior to the sexual offender’s proposed release from confinement if the offender is incarcerated;

(C) Sixty days of receipt of the required registration information from the sheriff when the sexual offender changes residence from another state or territory of the United States or any other place to this state and is not already classified;

(D) Sixty days if the sexual offender is sentenced to a probated or suspended sentence; and

(E) Ninety days if such classification is requested by the court pursuant to a petition filed under Code Section 42-1-19.

(3) The board shall notify the sexual offender by first-class mail of its determination of risk assessment classification and shall send a copy of such classification to the Georgia Bureau of Investigation, the Department of Corrections, the Department of Community Supervision, the sheriff of the county where the sexual offender is registered, and the sentencing court, if applicable.

(b) If the board determines that a sexual offender should be classified as a Level II risk assessment classification or as a sexually dangerous predator, the sexual offender may petition the board to reevaluate his or her classification. To file a petition for reevaluation, the sexual offender shall be required to submit his or her written petition for reevaluation to the board within 30 days from the date of the letter notifying the sexual offender of his or her classification. The sexual offender shall have 60 days from the date of the notification letter to submit information as provided in subsection (a) of this Code section in support of the sexual offender’s petition for reevaluation. If the sexual offender fails to submit the petition or supporting documents within the time limits provided, the classification shall be final. The board shall notify the sexual offender by first-class mail of its decision on the petition for reevaluation of risk assessment classification and shall send a copy of such notification to the Georgia Bureau of Investigation, the Department of Corrections, the Department of Community Supervision, the sheriff of the county where the sexual offender is registered, and the sentencing court, if applicable.

(c) A sexual offender who is classified by the board as a Level II risk assessment classification or as a sexually dangerous predator may file a petition for judicial review of his or her classification within 30 days of the date of the notification letter or, if the sexual offender has requested reevaluation pursuant to subsection (b) of this Code section, within 30 days of the date of the letter denying the petition for reevaluation. The petition for judicial review shall name the board as defendant, and the petition shall be filed in the superior court of the county where the offices of the board are located. Within 30 days after service of the appeal on the board, the board shall submit a summary of its findings to the court and mail a copy, by first-class mail, to the sexual offender. The findings of the board shall be considered prima-facie evidence of the classification. The court shall also consider any relevant evidence submitted, and such evidence and documentation shall be mailed to the parties as well as submitted to the court. The court may hold a hearing to determine the issue of classification. The court may uphold the classification of the board, or, if the court finds by a preponderance of the evidence that the sexual offender is not placed in the appropriate classification level, the court shall place the sexual offender in the appropriate risk assessment classification. The court’s determination shall be forwarded by the clerk of the court to the board, the sexual offender, the Georgia Bureau of Investigation, and the sheriff of the county where the sexual offender is registered.

(d) Any individual who was classified as a sexually violent predator prior to July 1, 2006, shall be classified as a sexually dangerous predator on and after July 1, 2006.

(e) Any sexually dangerous predator shall be required to wear an electronic monitoring system that shall have, at a minimum:

(1) The capacity to locate and record the location of a sexually dangerous predator by a link to a global positioning satellite system;

(2) The capacity to timely report or record a sexually dangerous predator’s presence near or within a crime scene or in a prohibited area or the sexually dangerous predator’s departure from specific geographic locations; and

(3) An alarm that is automatically activated and broadcasts the sexually dangerous predator’s location if the global positioning satellite monitor is removed or tampered with by anyone other than a law enforcement official designated to maintain and remove or replace the equipment.

Such electronic monitoring system shall be worn by a sexually dangerous predator for the remainder of his or her natural life. The sexually dangerous predator shall pay the cost of such system to the Department of Community Service if the sexually dangerous predator is under probation or parole supervision and to the sheriff after the sexually dangerous predator completes his or her term of probation and parole or if the sexually dangerous predator has moved to this state from another state, territory, or country. The electronic monitoring system shall be placed upon the sexually dangerous predator prior to his or her release from confinement. If the sexual offender is not in custody, within 72 hours of the decision classifying the sexual offender as a sexually dangerous predator in accordance with subsection (b) of this Code section, the sexually dangerous predator shall report to the sheriff of the county of his or her residence for purposes of having the electronic monitoring system placed on the sexually dangerous predator.

(f) In addition to the requirements of registration for all sexual offenders, a sexually dangerous predator shall report to the sheriff of the county where such predator resides six months following his or her birth month and update or verify his or her required registration information.

HISTORY: Code 1981, § 42-1-14, enacted by Ga. L. 2006, p. 379, § 24/HB 1059; Ga. L. 2010, p. 168, § 12/HB 571; Ga. L. 2010, p. 878, § 42/HB 1387; Ga. L. 2011, p. 752, § 42/HB 142; Ga. L. 2012, p. 985, § 3/HB 895; Ga. L. 2013, p. 1056, § 1/HB 122; Ga. L. 2015, p. 422, § 5-66/HB 310.

Aug 9 16

Basic Rationale for Application of Title 9 to Sex Offender Registry

by merlin

Preparing for a serious legal argument, and I wanted to provide the following layout of my thoughts on this issue.  I encourage you to provide argument with this should you disagree with any of these points.

____________________________________________________________

Legal Argument (CLOSING STATEMENT)

From the Motion, Brief, and Supplemental Brief AND from known and published legal info:

Cases

SCOTUS:

  • 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”; “[b]y contemplating distinctly civil procedures, the legislature indicated clearly that it intended a civil, not a criminal, sanction.” Smith v. Doe, 538 U.S. 84, 86 (2003) (quoting United States v. Ursery, 518 U. S. 267, 289 (1996)))
  • United States v. Kebodeaux, 133 S.Ct. 2496, 2503 (2013)(specifying that registration is civil, not a separate offense but instead a consequence of offense and conviction

GEORGIA:

  • “[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)
  • 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).

Statutes

  • 1-3-1

The courts must look to the legislative intent of the general assembly and to the plain and ordinary meaning of the word(s).

  • Basic fact that DA’s Office must respond to it (logical) but it uses expressly civil terms to address removal – 42-1-19((b)(2) “Such petition shall be served on the district attorney of the jurisdiction where the petition is filed, the sheriff of the county where the petition is filed, and the sheriff of the county where the individual resides.”

It uses CIVIL terms:

  • 42-1-19 (f) “The 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.”

  • 9-2-1

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

Alred v. Celanese Corp. of America, 54 S.E.2d 240 (1949) [explored basic distinction between criminal and civil contempt, and this is not forcing compliance to any Court order, nor does it pertain to any crime or offense, but is instead a Due Process issue (making its violation a tort)]

VERSUS

  • 16-2-1

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.

“Criminal negligence” is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.

These BOTH concern issues of extremes, rather than degrees of rehabilitation.

  • 9-11-1

“This 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”

  • 24-1-1

“object of all legal investigation is the discovery of truth.”

Discovery:

  • Requires a 9-11-16 pretrial conference

Look at what Civil Discovery tools are available versus what criminal Discovery tools are available (remembering basic goal of § 42-1-19):

Interrogatories, Requests to Admit, Notices to Produce

VERSUS

written or recorded statements, GCIC, photos and tangible things that pertain to GUILT or INNOCENCE

 

Possible ramifications of Applying Title 9:

  • Allows for § 9-11-55 default judgment (State has done absolutely nothing to respond to this in any way, and has actively misled Petitioner once, setting action back months and turning simple litigation matter into something unduly complex by NOT RESPONDING AT ALL)
  • Allows for § 9-15-14 attorney’s fees and expenses of litigation for unjustifiably litigious conduct

Remember: These are BOTH designed to punish and deter the SAME KIND OF BEHAVIOR as the State has engaged in here.

Aug 3 16

Violation of Due Process is a Civil Tort

by merlin
Note: I have KeyCited this case and it is still good law, according to the authorities, but it is cited over the past century exclusively for the points it makes regarding the nature of contempt. I believe that is “missing the forest for the trees”, but the fact remains that it is still good law a century later.

Section 9-2-3 of the Official Code of Georgia contains the definition used by the law for a “civil action”.  It is not part of the Civil Practice Act, but it does define what the Act covers.  It holds 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. ”

The Civil Practice Act, according to Section 9-11-1, “governs the procedure to be used in all actions of a civil nature in all courts of record in this state, whether cognizable at law or in equity” and goes on to say that “This chapter shall be construed to secure the just, speedy, and inexpensive determination of every action”.

By its own terms, therefore, the Act can only apply to an action that is “founded on private rights, arising either from contract or tort” (emphasis supplied).

Whether a particular procedure is governed by civil law principles or by criminal procedures is a matter of what set of rules are used to govern the matter, or what process is due – the Due Process.

According to the case of Alred v. Celanese Corporation of America, 205 Ga. 371, 54 S.E.2d 240 (Ga. 1949), the denial of Due Process is a constitutional tort committed by the State against a private individual.  It is, therefore, properly heard under the “procedure to be used in all actions of a civil nature in all courts of record in this state”.  The Sex Offender Registry must be heard under the terms of the Civil Practice Act, because the fundamental issue is one of Constitutional Due Process, and its denial is a tort by the State, the redress of which involves a civil action.

The case is below:

        Rehearing Denied June 15, 1949.

Syllabus by the Court.

  1. Under the facts of the instant case, the contempts with which the plaintiffs in error were charged, in alleged violation of a temporary restraining order, and for which on conviction they were punished only as provided in Code § 24-2515(5), were criminal or quasi-criminal contempts as distinguished from civil contempts; and such being their character, they were not satisfied or extinguished by a subsequent agreement between the parties settling the main suit in equity.
  2. Nor were the proceedings for contempt, though initiated by the plaintiff in the main case, of such private and civil character that they would not support the judgments for criminal contempt as rendered by the court; nor were such proceedings themselves subject to private agreement and settlement between the parties so as to affect such judgments.

        (a) The court did not err in denying the petition for a permanent stay of the judgments for contempt based on the ground that the main suit had been settled.

        Error from Superior Court, Floyd County, H. E. Nichols, Judge.

        Suit by the Celanese Corporation of America against J. D. Pedigo and others to restrain mass picketing, etc, wherein a judgment was rendered restraining mass picketing, etc. Thereafter J. D. Pedigo and others, S. T. Aired and others, and Lowell E. Womack and others were adjudged guilty of contempt for violating the injunction order. To review judgments refusing to terminate and stay the contempt judgments, S. T. Aired and others, J. D. Pedigo and others, and Lowell E. Womack bring error.

        Judgments affirmed.

        See also Ga.Sup, 54 S.E.2d 252.

        Seven writs of error, all growing out of the same general controversy, are presently before this court for determination. In four of them, to-wit: numbers 16581, Pedigo v. Celanese Corp. of America, 54 S.E.2d 252, 16582, Carroll v. Celanese Corp. of America, 54 S.E.2d 221, 16583, Aired v. Celanese Corp. of America, 54 S.E.2d 225, and 16584, Womack v. Celanese Corp. of America, 54 S.E.2d 235, the plaintiffs in error complain of judgments finding them guilty of contempt of court and imposing penalties therefor. In the other three, numbers 16596, 16597, and 16598, error is assigned on the denial of petitions seeking to have such contempt judgments “permanently terminated and stayed, ” on the alleged ground that the basic controversy was thereafter settled by agreement between the parties. These three cases may be considered and disposed of in one opinion, since they involve identical questions, although brought to this court by different parties plaintiff in error and being different also to some extent on their facts. They will also be considered first, for if the settlement had the effect of terminating the contempt judgments, as contended, such a conclusion would have an important bearing on the disposition that should be made of the other four cases. There are in all, however, 21 plaintiffs in error in each of the two classes of cases, and since there are many facts that are common to all of the 7 cases, this statement is intended to apply in part to each of them.

        On October 25, 1948, Celanese Corporation of America, a manufacturing concern employing a large number of persons in Floyd County, filed in the superior court of that county an equitable petition, praying that named defendants, including J. D. Pedigo, C. L. Ross, A. C. Carroll, and H. D. Dodd, individually and as representatives of the Textile Workers Union of America, an unincorporated voluntary association, be temporarily restrained and permanently enjoined from obstructing the road to the plaintiff’s manufacturing plant, from mass picketing, from any acts of intimidation or threats, from following any of the plaintiff’s employees, and from doing other like acts. (The name of A. C. Carroll does not appear in the transcript of the original petition as sent to this court, but the briefs filed for the plaintiffs in error indicate that he was among the defendants sued, and he is so dealt with in such briefs. See Rules 14, 15, Code, §§ 24-4515, 24-4516. There also appears an entry of service as to him.)

        The petition contained among others the following allegations:

        On August 14, 1948, said unions (referring to the national union named above, and to a local union in Floyd County alleged to have been chartered thereby) and the members thereof went on strike at the plaintiff’s plant, and ever since have continued on strike because of failure to agree on the terms of a renewal contract between the plaintiff and said union. Ever since that time said union has maintained picket lines at said plant, consisting of its various members, including the named defendants, or a large number of them, as well as sympathizers and confederates.

        The plaintiff during said period of time has not undertaken to operate its plant or plants. Its various salaried employees have, however, come to work, they not being represented by said unions.

        Said unions have supported, maintained, and encouraged said strike. On October 20, 1948, the plaintiff sent a written notice to the employees who are on strike or who have ceased to work on account of the strike, advising them that the plant will open for work on October 26, 1948, beginning with certain departments, and that any employees on strike who wish to return to work on terms of the company’s last offer would please sign an enclosed card for registration purposes and return it to the company promptly. A self-addressed envelope was enclosed. The written notice further stated that the company will consider itself free to fill the jobs of those who do not indicate a desire to work, and enclosed a summary of a recent National Labor Relations Board decision. When such notice, which was mailed to all employees, was received, the union, through its officers and agents, made an active canvass to get said employees to surrender to it said notices for the purpose of burning or destroying the same. Nevertheless, the plaintiff has received a substantial number of replies indicating a desire of the employees so replying to return to work.

        In a radio address to the public and to-the employees, made on Sunday, October 24, by J. D. Pedigo, alleged officer of the national association, he exhorted and encouraged said employees not to return to work, and called on union members among the employees to report for picket duty at 5:30 a. m. Tuesday, October 26, 1948. Said Pedigo urged such employees to take this obligation and its responsibility seriously, and even though some of them had found employment during the last few weeks, it was stated by the said Pedigo to be a necessity, in view of the company’s announced intention, that all workers report to their picket captains at the picket line at the plaintiff’s plant in said county.

        The plaintiff’s plant is reached by a road that passes in front of said plant and through the property of the plaintiff. The striking employees would aggregate the number 1200 or 1500 or more, and the intent of said defendant Pedigo, or the necessary effect of his language, is to organize and effectuate mass picketing at the entrance of said plant, and at approaches thereto, thereby obstructing said road and obstructing access to the plant by hourly paid employees or others who might wish to return to work or otherwise desire to enter said plant. Mass picketing is specifically prohibited by the laws of the State of Georgia. The means of gaining access to said plant for hourly paid employees is through one single gate on said road. Even a few picketers would constitute mass picketing, which would likely prevent persons from going into said plant for the purpose of accepting employment. Such mass picketing is highly provocative and will necessarily result in intimidation and coercion, and is likely to result in violence and possible bloodshed.

        In the radio address referred to, said Pedigo made references, more or less veiled, to possible changes in the peaceful character of the strike to date, and referring to the offer of the company to give employment as being inciting and provocative moves.

        Any of the plaintiff’s employees who desire to go to work in response to its notice as aforesaid are entitled to go to work without restraint or coercion, such as would be the necessary effect of such mass picketing; and such mass picketing violates not only the laws of the State of Georgia but the laws of the United States as well. Such employees are also entitled to go to work, and the plaintiff is entitled to have them work for it, if they wish, without threats or intimidation.

        The plaintiff has no adequate remedy at law, and this suit, by joining the various defendants, will prevent a multiplicity of actions.

        The prayers of the petition, indicated above only in general terms, included the following:

        (b) That in the meantime and until the further order of the court a temporary restraining order issue, restraining the defendants individually and the members of the union, their allies and confederates as a class, from obstructing the said road or any approaches to the said road so as to prevent the free and complete use thereof by any and all persons; that they likewise be restrained from any mass picketing of any kind; that they be restrained from any and all picketing except by persons moving on said road who shall not be nearer than 20 feet to each other; that defendants, including their allies and confederates, be enjoined and restrained from interfering in any manner whatever with access to said plant by any persons; that they be further restrained from any acts of coercion, intimidation, or from any threats in any way; that they be further restrained from following any of the plaintiff’s employees and from intimidation or acts of coercion at any time or any place; that said defendants, including allies and confederates, be restrained as prayed, from having more than two pickets at any place at or about the said plant, or in or near the road, or the approaches to the said road aforesaid.

        (c) That the defendants show cause before the court at the time and place specified in the said rule nisi why they, their allies and confederates, should not be temporarily restrained and enjoined as prayed.

        (d) That a permanent injunction issue, as herein set out, in due course.

        (e) For general relief.

        (f) For process.

        The restraining order which was granted on presentation of the petition and was later alleged to have been violated, was as follows:

        “Rome, Georgia, October 25, 1948 “Read and considered. Let the petition be filed and with process attached, served on the defendants as soon as may be.

        “Let the defendants show cause before me in the Superior Court Room in the Floyd County Court House at 10 o’clock a. m. on the 30th day of October, 1948, why the prayers of the petition should not be granted.

        “In the meantime and until further order of the court, the defendants and each of them, their allies and confederates, be and they are hereby restrained as prayed for in the petition. They are specifically restrained from using and from attempting to use violence for the purpose of preventing any person or vehicle from entering or leaving the premises of the plaintiff; from blocking any entrance of the plaintiff and from maintaining any mass picketing at any entrance of the plaintiff; from loitering or being unnecessarily in the vicinity of the points of ingress and egress of the premises; from having in front of or in proximity to the entrance of petitioner’s premises any mass of pickets; that such pickets as shall be maintained shall be in motion and spaced not less than twenty (20) feet apart in a single line so as not to block any of said entrances for ingress and egress on foot or by vehicle of any person or persons desiring to enter or leave petitioner’s premises or to deliver goods thereto or dispatch goods therefrom or from going to work or returning from work. They are further restrained from maintaining any picket line or picketing on the property of the plaintiff, and that all picketing shall take place only on the public highway adjacent from the property and at no other place or places. They are furthermore restrained from using abusive or intimidating language to any person or persons voluntarily entering petitioner’s premises. They are furthermore restrained from, at any time or place, maintaining any pickets more than two (2) in number. They are restrained from following any of plaintiff’s employees to or from work or to or from the homes of such employees and from engaging in any acts of intimidation or coercion at any time or at any place. The defendants, including their allies or confederates are restrained as prayed for in paragraph (b) of plaintiff’s petition as well as specifically stated in this order.

        “H. E. Nichols, Judge Superior Court.

        “Floyd County, Ga.”

        Two amendments to the petition were filed and allowed, one on November 23 and one on November 24, 1948. So far as appears in any of the records in these cases no demurrer was filed to the original petition or to the petition as amended.

        On October 26, 1948, the plaintiff corporation filed a petition alleging that on that same day the foregoing restraining order had been violated by J. D. Pedigo, C. L. Ross, and various other named defendants, including A. C. Carroll and H. D. Dodd, and praying that citation issue requiring the said respondents to show cause why they “should not be adjudged in contempt of the orders and processes of this court and be punished accordingly.” Such petition for citation, which sounded in the same cause as the original petition for injunction but was docketed in the superior court as a motion, contained the following allegations:

        With knowledge of said restraining order, the said Pedigo and Ross wilfully violated the same, in that said Pedigo arranged with a radio station in the City of Rome for said Ross to make an address to the general public, including strikers and members of the union described in said proceeding. In this address, which was made after the filing of such proceeding at about 9:20 p. m. October 25, the said Ross said in part: “You may have heard that we have been enjoined against mass picketing. We have talked to our attorneys * * * and they tell us that such an injunction against mass picketing before there has been mass picketing is without precedent and absolutely illegal. Let’s all be on the line at 5:30 in the morning”–meaning by this to meet at the plaintiff’s plant at 5:30 the next morning and engage in mass picketing regardless of the restraining order and injunction. In this way, the said Pedigo and Ross collaborated together to induce strikers and union members to violate the terms of said order, and to show and exhibit contempt of this court and of its process.

        More than 500 of such strikers, their confederates and allies, followed such instructions, the said Pedigo being present, directing and advising them in mass picketing and in other respects violative of said injunction. A number of other persons, including the said Carroll and Dodd, in addition to said Pedigo and Ross, were alleged to have been present and were named as respondents.

        In direct violation of the restraining order and injunction granted in such proceedings, and the persons named in the preceding paragraph, along with others who are at this time to the plaintiff unknown, denied access to said plant to persons who attempted to enter and had a right to enter. Among such persons attempting to enter were the crews of two trucks of Associated Transport, Inc., which attempted to enter the plant for the purpose of receiving shipments of yarn to be carried in interstate commerce. The passenger buses of Georgia Power Company, which regularly run on schedule to said plant, were obstructed by mass picketing in the road to such an extent that they could not get through to go to the place where they regularly discharge passengers for the plant, but had to be diverted around a block of houses by a side street. The plaintiff is unable to say at this time how many other persons who desired to enter said plant were denied entrance thereto by such illegal conduct on the part of the respondents herein named, their allies and confederates. In addition to this, the union picket lines were maintained at the south gate in the fence surrounding plaintiff’s plants, said picket lines being maintained on the property of the plaintiff in violation of the express terms of said restraining order; and picket lines were also maintained adjacent to the east gate in the fence surrounding the plaintiff’s plants, and at the wood shop in violation of the express terms of said restraining order, both of such places being on the plaintiff’s property. Eight or more pickets were at the said south gate, and seven or more pickets were at the other gates.

        Two demurrers were filed to this petition for citation, by J. D. Pedigo and C. L. Ross, and one by all other “defendants named therein who have been legally served.”

        The demurrer filed by Pedigo and Ross to such petition for citation presented the contentions: That the “citation of contempt in so far as these defendants are concerned charges no violation of said injunction for the reason that it shows that they are exercising their right of freedom of speech, freedom of press, and freedom of peaceful assembly; and that any restraint thereof would be in violation of” the due-process clause of the Constitution of the State of Georgia, art. 1, § 1, par. 3, quoting it as in Code Ann. § 2-103, and “of the first and fourteenth amendments to the Constitution of the United States, which provide as follows, ” quoting both of these amendments. Code, §§ 1-801, 1-815. The demurrers filed by the other respondents presented the same contentions.

        Both demurrers were overruled, and errors are assigned upon these rulings. J. D. Pedigo and C. L. Ross were tried separately from others on the foregoing contempt citation. The trial began on October 30, 1948. On November 17, the following judgment was entered: “Upon hearing evidence and argument of counsel, the defendants, J. D. Pedigo and C. L. Ross, are each severally found guilty of contempt of the order of this court as alleged in the within petition for citation. Whereupon the court orders and adjudges that each of said respondents pay to the proper officer of this court a fine of $200, and they each be confined in the jail of said county for 20 days. The sheriff of this county shall take this as his warrant, and as a commitment.”

        To this judgment the respondents named therein excepted by bill of exceptions number 16581. This bill of exceptions was presented on December 7, and was certified on December 30, 1948.

  1. C. Carroll and H. D. Dodd were tried on the same citation, and were convicted of contempt on November 18, 1948. They in like manner sued out a direct bill of exceptions, complaining of the overruling of the second demurrer referred to above, and also assigning error upon the judgment so finding them guilty of contempt and imposing penalties therefor; the date of presentation and certification of this bill of exceptions (case No. 16582) being the same as in case No. 16581, supra.
  2. T. Aired and eleven others, who were on December 6, 1948, adjudged guilty of contempt upon a later citation issued November 18, 1948, sued out a similar writ of error, as did Lowell E. Womack and four others, who were adjudged guilty on the same date, but on another citation issued November 18, 1948. Bills of exceptions in those two cases were presented on December 24, 1948, and certified on January 8, 1949 (Cases Nos. 16583, 16584).

        On December 31, 1948, J. D. Pedigo, C. L. Ross, A. C. Carroll, and H. D. Dodd (the two last named, as stated above, having been found guilty of contempt on November 18, 1948, on the same citation) jointly filed a petition praying that the judgments that had been rendered against them for alleged contempt be permanently terminated and stayed, alleging as cause therefor the following: The restraining order of October 25, 1948, was entered upon the application and petition of Celanese Corporation of America for the purpose of protecting the right of said corporation to be free from alleged unlawful acts on the part of the respondents therein toward its property and employees, and was calculated to prevent any such acts on the part of respondents in pursuance of their strike, and, accordingly, the aforesaid proceedings in contempt were for alleged civil contempt, being for the benefit of the petitioner for injunction.

        Thereafter, on December 8, 1948, Celanese Corporation and Textile Workers Union, the parties to the labor dispute giving rise to the strike which in turn gave rise to the temporary restraining order and the aforesaid convictions for contempt, entered a settlement argeement terminating the strike, paragraphs 7 and of said agreement being as follows: “7. The company will ask that the petition for injunction and all citations for contempt of court filed in the superior court of said county not yet heard by the court will be dismissed with one half the costs in such petitions and citations taxed to each the plaintiff and the defendants thereto, and the Union agrees to promptly pay off half of all of such costs not to exceed $3,000. 8. The Company will neither oppose or propose modification, withdrawal, or stay of sentence on those already adjudged in contempt of court, but if the judge of the superior court refuses to modify, withdraw or stay such sentences the Company will file briefs in support of its original contentions in such cases. Court costs in such cases shall be determined by the court.”

        Pursuant to said agreement, the strike was terminated and all activities in pursuance of the strike were likewise terminated. Thereupon the court on December 17, 1948, entered the following order:

        “Order of Dismissal in Celanese Strike Case. “The within case is hereby dismissed together with all citations for contempt of court not yet tried, except that the same is not dismissed, and the court hereby expressly retains jurisdiction of said cause in so far as it pertains to citations for contempt of court docketed as numbers 3232, 3249, and 3258, and to those respondents in said citations who have been adjudged guilty of contempt of court and on whom sentence has been passed, to wit, Joe D. Pedigo, C. L. Ross, A. C. Carroll, H. D. Dodd” and seventeen other persons named, being in all the twenty-one plaintiffs in error referred to above.

        The petition as above mentioned for stay further alleged: The settlement and termination of said strike terminated as a matter of law all civil contempt proceedings instituted for the purpose of enforcing compliance with the temporary restraining order, including the cases of the petitioners herein. By reason of the foregoing facts, the orders and judgments finding the petitioners herein guilty of contempt and fixing punishments are moot and of no further force and effect.

        Execution of said orders and judgments should be permanently stayed for the further reason that during the trial of the instant cases, the court recognized the civil nature of the proceedings in ruling upon the admissibility of various evidence. Unless said orders and judgments be permanently stayed and all further proceedings thereunder terminated, the petitioners will be deprived of due process of law in violation of the fourteenth amendment to the Constitution of the United States and the due-process clause of the Constitution of Georgia, for that the decision of the court was predicated upon preponderance of evidence as in a civil case, instead of beyond a reasonable doubt, as would have been the rule had these proceedings been criminal in nature; and further, because in such event the petitioners will be denied liberty without due process of law by being punished as if convicted for an act criminal in nature rather than for an act civil in nature, after having been tried as if such act were civil only. By an amendment, the petitioners further alleged: The enforcement of such orders and judgments for contempt would deny to the petitioners due process of law, in violation of both the aforesaid designated constitutional provisions (State and Federal), in that such execution and enforcement would constitute imprisonment and payment of fines growing out of proceedings and process now moot and no longer in existence.

        The petition for stay as amended, after consideration and argument of counsel, was denied, and to this judgment the petitioners Pedigo, Ross, Carroll, and Dodd excepted by bill of exceptions No. 16597, on the ground that said order was contrary to law and equity, and for other reasons specifically set forth, being in the main an enumeration of the contentions made in such-petition as amended. The other persons, who were also adjudged in contempt (but for different acts, on later and different citations) filed similar petitions for stay, and excepted to the denial of such petitions, the cases thus presented being 16596 and 16598.

        Poole, Pearce & Hall and Warren E.. Hall, Jr., all of Atlanta; Wright & Scoggin, M. G. Hicks, and C. T. Culbert, all of Rome; Isadore Katz and David Jaffe, both of New York City, for plaintiffs in error.

        Jack Rogers and Wright, Rogers, Magruder & Hoyt, all of Rome, for defendant in error.

        BELL, Justice.

        We shall deal with cases numbers 16596, 16597, and 16598 in one opinion, since they all involve the same questions. It will also be sufficient here to mention by name only one of these cases, to wit, 16597, in which J. D. Pedigo, C. L. Ross, A. C. Carroll, and H. D. Dodd jointly assigned error on the denial of their petition for a permanent stay of the contempt judgments that had been rendered against them. We are considering these three cases first, for, if it should be held that the court erred in refusing the petitions for stay, it would seem that the other four cases mentioned in the statement, based on direct exceptions to the contempt judgments themselves, should then be treated as moot. Counsel for the plaintiffs in error concede that they should be so treated in that event.

  1. It is contended in case No. 16597 that the contempts charged and adjudged were civil contempts, as distinguished from criminal contempts, and that such being their character, the alleged contempts together with the judgments thereon were extinguished by the agreement between the parties settling the basic controversy. Though citing many authorities from other jurisdictions, including decisions of the United States Supreme Court, the plaintiffs in error rely mainly upon Wagner v. Commercial Printers, 203 Ga. 1, 45 S.E.2d 205; referring, however, to some additional Georgia cases as tending to support their contention.

        We may state at this point, that, after a careful consideration of the subject, we “have reached the conclusion that the decision in the Wagner case was an incorrect pronouncement in so far as it held that the contempt there under consideration was a civil contempt. The author of the opinion in that case, the present Chief Justice, indicated to counsel during the argument of the instant case that he was doubtful as to the soundness of that decision, and supplemental briefs were later invited with respect to that question, and also as to the reasonable-doubt rule, which will be dealt with in Pedigo v. Celanese Corporation, 16581, Ga. Sup, 54 S.E.2d 252.

         We are of the opinion that the contempts here in question can not properly be classed as civil contempts, but that they are criminal contempts, or quasi-criminal, according to the classifications generally made by the courts, including several decisions by this court. Be it understood, however, that we are not in such classification referring to these alleged contempts as crimes. As to the definition of crime, see Code, § 26-201. Nor do we mean that a citation or rule for contempt in such case and a trial thereon would amount to a criminal prosecution. We say this, notwithstanding the fact that some if not all of the acts charged in the instant petition for citation for contempt might amount to misdemeanor crimes under the act approved March 27, 1947. Ga.L.1947, p. 620. The plaintiffs in error were not prosecuted for a violation of that statute, but were merely cited to show cause why they should not be adjudged guilty of contempt in violating an injunctive order, the maximum punishment for which would be far less than the maximum prescribed by law for a misdemeanor, Code, §§ 24-2615(5), 27-2506. For these and other reasons which will later appear in this opinion, it would seem that such contempt in disobeying the injunction would be only quasi-criminal, and, correctly speaking, should be so designated, although it is often referred to simply as criminal. We are here referring, of course, only to the general words of description as we think they should be understood under the laws of this State. See Hayden v. Phinizy, 67 Ga. 758; Tomlin v. Rome Stove & Range Co, 183 Ga. 183; 187 S.E. 879. Plunkett v. Hamilton, 136 Ga. 72, 77, 70 S.E. 781, 35 L.R.A, N.S, 583, Ann.Cas.l912B, 1259. It has been stated by the United States Supreme Court, that a court when enforcing obedience to its orders by proceedings for contempt is not executing the criminal laws of the land. In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092; Myers v. United States, 264 U.S. 95, 44 S.Ct. 272, 68 L.Ed. 577. But for statements apparently contra, see Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162, 35 A.L.R. 451; Ex Parte Grosman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527, 38 A.L.R. 131; United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862. See also, in this connection, 12 Am.Jur. 435, § 67; 17 C.J.S, Contempt, § 62, page 72.

        We are not in this case concerned with such contempts as disorder in the courtroom, an attempt to bribe or otherwise improperly influence a jury, improper conduct or language of an attorney, and similar instances of misconduct not referable to any order, judgment, or process of the court in a pending case; for the alleged contempts here under consideration were the doing of acts that had been forbidden by a restraining order granted in an equity or civil case, where no money or other property was sued for, but in which the sole and only relief sought was an injunction against the doing of such acts.

        Now as to the bases of classification: The Constitution provides: “The power of the courts to punish for contempt shall be limited by legislative acts.” Const, art. 1, § 1, par. 20, Code, § 2-120. It is declared in the Code: “Every court has power * * * 3. To compel obedience to its judgments, orders, and process, and to orders of a judge out of court, in an action or proceeding therein.” Section 24-104. “The powers of the several courts to issue attachments and inflict summary punishment for contempt of court shall extend only to cases of misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any officer of said court, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts: * * *.” Section 24-105. “All orders and decrees of the court may be enforced by attachment against the person; decrees for money may be enforced by execution against the property.” Section 37-123. “Every decree or order of a superior court in equitable proceedings may be enforced by attachment against the person for contempt; and if a decree shall be partly for money and partly for the performance of a duty the former may be enforced by execution, and the latter by attachment or other process.” Section 37-1208. “Injunction * * * may be enforced also by attachment.” Section 37-1210. “The superior courts have authority * * * 5. To punish contempt by fines not exceeding $200, and by imprisonment not exceeding 20 days.” Section 24-2615.

        All of the foregoing provisions were contained in the same or substantially the same language in the Code of 1863, and in each of the subsequent Codes. See Code of 1863, §§ 4902, 200, 4593, 4125, 4127, 242(5).

        In Cobb v. Black, 34 Ga. 162, decided in 1855, the court had for consideration the nature of an order requiring the defendant in an equity case to turn over certain property to a receiver. The defendant had been attached for contempt for disobeying the order. The sheriff was commanded to keep him in jail until he should deliver the property as the order required. He applied for the writ of habeas corpus, which the judge refused, and he excepted. This court, after quoting from the Code of 1863 what is now § 24-104(3), supra, proceeded to distinguish between punitive and remedial contempts in the following language:

        “It is attempted to prove that the judge exceeded his power in prolonging the imprisonment beyond twenty days, by reference to sections 4902, 4593, and 242 (specification 5). Those provisions of law refer to attachments for contempt which are simply punitive. They apply where an act has been done which has disturbed the regular proceedings of the court, or resisted its authority, or reflected contempt upon it. To prevent a repetition of the offense, and to deter others from its commission in future, the power of inflicting summary punishment is given to courts. The act has been done, and when the punishment shall have been inflicted, the whole matter is at an end. These are the cases in which the power of finding [fining] is limited to two hundred dollars, and of imprisoning to twenty days. But there are cases, and such is the present, wherein the process of attachment is remedial. The court orders or decrees that a party, regularly before it, do a certain act necessary to the administration, according to law, and the party refuses to do it. As the only means of compelling obedience and furthering the administration of justice, Courts, in such cases, have power to imprison the refractory party until he shall obey the precept.” While the contempt there involved was held to be remedial or civil in character, the distinction made was necessary to the conclusion reached, and is pertinent here.

        In Howard v. Durand, 36 Ga. 346, it was said: “In this case, the defendant was enjoined from using or selling the property in litigation. This injunction, the plaintiff alleges, has been violated by the defendant. Suppose the court had ‘committed defendant for said contempt, ‘ would this afford any remedy to Howard? Would it restore the property sold? Do not the facts show that the only effect of the punishment would be to vindicate the authority of the court, and not to furnish any remedy for the plaintiff? We think so. Hence the question was one for the discretion of the court below. If this were a remedial proceeding, to which the plaintiff is entitled for the enforcement of his rights, then we would control the discretion of the court below, and award to the party that relief to which, under the facts and the law, he would be entitled.” The court thus considered the violation of the injunction in that case as being a criminal contempt.

        In Carson v. Ennis, 146 Ga. 726, 92 S.E. 221, 222, L.R.A.1917E, 650, it appeared that Carson was adjudged in contempt of court and a penalty was imposed upon him, for aiding and procuring the violation of an injunctive order issued in a case in which no other relief except injunction was sought. This court said: “It is apparent that the relator is not seeking to enforce any order made for the protection or enforcement of any private right, but to punish for alleged contumacious and disrespectful conduct towards the court in willfully disobeying the court’s order”; and the alleged contempt was considered and dealt with as a criminal contempt.

        The foregoing statements as to the distinction between civil and criminal contempts accord in a general way with formulas usually found in decisions and texts. Gompers v. Buck’s Store & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A, N.S., 874; Lewis v. United States, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; Walling v. Crane, 5 Cir., 158 F.2d 80; Smith v. Clothier, 113 Kan. 47, 51, 52, 213 P. 1071; 17 CJ.S. Contempt, § 62, b, pages 74-79; 12 Am.Jur. 433, 435, §§ 66, 67.

        As many courts have further said, however, it may not always be easy to classify a particular act as belonging to either one of the two classes, for it may partake of the characteristics of both. In the Gompers case it was stated: “It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand ccmmitted unless and until he performs the affirmative act required by the court’s order. * * * The distinction between refusing to do an act commanded (remedied by imprisonment until the party performs the required act), and doing an act forbidden (punished by imprisonment for a definite term), is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment.”

        As further illustrating civil contempt, see Beavers v. Beavers, 148 Ga. 506, 97 S.E. 65, where the defendant failed to pay alimony in compliance with the judgment of the court; Swanson v. Douglas, 150 Ga. 650, 105 S.E. 161, where the defendant failed and refused to execute a deed in conformity with a decree of specific performance.

        In the instant case, the plaintiff did not seek enforcement of any affirmative right as against any one of the defendants, but merely sought an injunction to prevent interference with the plaintiff and its employees in the conduct of its business; and in the contempt proceedings the defendants were simply charged with doing acts that had been forbidden by a restraining order.

        In the Wagner case, 203 Ga. 1, 45 S.E. 2d 205, supra, the general rule for distinguishing between a civil and a criminal contempt was correctly stated, but we overlooked the fact that the plaintiff in that case (as in the case now before us) was not seeking to enforce any affirmative right which it had against the defendant, and that the order alleged to have been violated, was merely negative in character, restraining the defendants from doing stated acts. We thus inadvertently fell into error in classifying the violation of the order as a civil rather than a criminal contempt. The decision was not concurred in by all the Justices, one being absent. It is therefore not absolutely binding upon this court as a precedent, and, in view of what has been said, it will not be followed in the instant case in so far as it held that the particular act there under consideration was a civil contempt. Compare Code, § 6-1611. This is not to say, however, that the judgment rendered in that case affirming the judgment of the trial court was incorrect under the pleadings and the evidence. Compare Pedigo v. Celanese Corporation of America, 16581, Ga.Sup, 54 S.E.2d 252.

        The alleged contempts having been committed solely in violation of an injunctive order issued by the court as an institution of government, and punishment having been meted only as provided in Code, § 24-2615(5), such contempts were matters affecting the public interest, and, being thus quasi-criminal in nature, they could not be extinguished or rendered moot by any settlement between the parties. § 102-106. Nor could their essential nature as public wrongs be changed, either by the fact that the petition for citation was brought by the plaintiff in the main case, or by any conception that the trial judge himself may have had regarding its character. While the nature of a proceeding under which one is required to answer for an alleged contempt may sometimes be an important matter for consideration, mere matters of procedure are not controlling in determining the character of the contempt itself as being either civil or criminal. See Gompers v. Buck’s Stove & Range Co, 221 U.S. 418, at page 446, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A, N.S, 874, supra, last two paragraphs of the decision.

  1. But it is further contended that the contempt proceedings here were, as a matter of fact, “civil contempt proceedings, ” and were so recognized by the judge, both in ruling upon the admissibility of evidence and in basing his decision upon the preponderance-of-evidence rule; and that, in these circumstances, unless the contempt orders and judgments are permanently stayed, the plaintiffs in error will be denied liberty without due process of law by being convicted of an act criminal in nature rather than for an act civil in nature, after having been tried as if the acts were civil only. (See allegations in the petition for stay.)

        The gist of this contention, as we understand it, is that, since the proceedings themselves were (as insisted) “civil contempt proceedings, ” they would as such necessarily fall as a result of the settlement; and that, unless the contempt judgments should be ordered to fall with them, the plaintiffs in error would be denied due process of law by being punished as for criminal contempts after being convicted solely upon civil contempt proceedings. We shall not pass upon this contention in toto, for in our view of the case it will be sufficient to show, as we think is true, that the contempt proceedings were not civil proceedings in the sense that they would not support the judgments for criminal contempt as rendered, or be subject to private agreement and settlement between the parties so as to affect such judgments.

        It should be borne in mind that the allegations as to how the judge regarded the case, both in ruling upon evidence and in making up his decision, are contained in a mere petition for stay, and are not set forth as assignments of error upon the contempt orders themselves, or other judgment. Seemingly, they were made simply to reinforce the contention that the proceedings were civil contempt proceedings, but, in any view, the real character of the proceedings could not be altered by any allegations in the petition for stay as to how the trial judge may have regarded them.

        Counsel further say in effect, however, that these proceedings were civil in character, because the petition for citation or rule nisi was brought by the plaintiff in the original equity case, acting for its own private benefit, and was entitled and tried as a part of the main case; whereas proceedings for criminal contempt, they insist, should be instituted as a separate and independent case in the name of the State or in its behalf by its prosecuting attorney, and would constitute an action at law rather a suit in equity.

        The Gompers case, on which the plaintiffs in error apparently rely most strongly in this connection, originated in a trial court in the District of Columbia. After being there convicted for violation of an injunction, the respondents carried the case on direct exceptions first to the Circuit Court of Appeals and then to the United States Supreme Court. It was held by the latter court that the proceedings in which the respondents were convicted were civil in character, subject to settlement by the parties. In the first place, we do not think that the decision in the Gompers case involved any Federal question that would make it binding as a precedent on the question we are now discussing; but it may be said in addition that the Gompers case is clearly distinguished by its facts from the present case as related to the nature of the contempt proceedings. Without enumerating the many points of difference, we merely call attention to the conduct of the parties in the various courts as outlined in that decision, and the prayers of the petition for citation in that case as compared with the prayer in the instant case.

        In the present case, the only prayer in the petition for citation was that the respondents show cause why they “should not be adjudged in contempt of the orders and process of this court and be punished accordingly.” This prayer did not indicate that the plaintiff was asking that the respondent be punished as for a civil contempt. While, as we have said, the petition for citation was filed by the plaintiff and was entitled in the main cause, there are no other facts or circumstances shown in the petition for stay (which is the only matter here for consideration) which would even tend to indicate that either the plaintiff or its attorneys regarded the alleged contempt as civil rather than criminal. Nor does it appear that they made any effort whatever to mislead either the court or the respondents.

        Moreover, regardless of what may be the law in other jurisdictions, we are of the opinion that the procedure adopted in this case was a proper method under the law of Georgia for requiring respondents to answer for alleged criminal contempt. A petition for rule nisi or citation brought by the original plaintiff, entitled in the main cause, has long been recognized in this State as a proper method of procedure, even though it may appear that the alleged contempt arose in violation of an injunction and was criminal or quasi-criminal in nature. See in this connection: Howard v. Durand, 36 Ga. 346, 91 Am. Dec. 767; Williams v. Lampkin & Co, S3 Ga. 200; Thweatt v. Gammell, 56 Ga. 98; Hayden v. Phinizy, 67 Ga. 758; Warner v. Martin, 124 Ga. 387, 52 S.E. 446, 4 Ann. Cas. 180; Tomlin v. Rome Stove & Range Co, 183 Ga. 183,187 S.E. 879.

        Under the law of Georgia, no particular form of procedure is necessary or required. The matters of real importance are that respondents be given notice, with sufficient specification as to charges, and opportunity to be heard. We need not determine here whether such a petition by the original plaintiff is the only permissible practice. There are instances where proceedings for criminal contempt were instituted by solicitors-general. See Bradley v. State, 111 Ga; 168, 36 S.E. 630, 50 L.R.A. 691, 78 Am. St.Rep. 157; Carson v. Ennis, 146 Ga. 726, 92 S.E. 221, L.R.A. 1917E, 650; Jones v. State, 166 Ga. 553, 144 S.E. 106.

         In further reference to the procedure adopted in the instant case, let it be remembered that the Code, §§ 37-123, 37-1208, and 37-1210, regarding attachment for contempt, are found in the title on equity, and they have occupied the same relative position since adoption of the Code of 1863. Was it ever contemplated by the law of Georgia that all suits for injunction may ultimately have to be policed by the State through its prosecuting attorneys? Shall a party who is about to institute a suit for injunction also bear in mind that he may later have to request some prosecuting attorney to take over, in case an injunction is granted and is violated? We do not think that our law would absolutely require such multiplicity or circuity of proceedings in a matter of this character. If a party has sufficient interest in a matter or controversy to justify him in asking for an injunction, then it seems that he would in like manner have sufficient interest to maintain a petition for a rule nisi for contempt in the event the injunction should be violated–especially as punishment would tend to prevent or deter a repetition of the forbidden interference.

        It may be that a proceeding for criminal contempt is in one sense an additional case to the main suit in equity, in that it will require new pleadings, separate trial, and a separate judgment. But, after all, it stems from the same equity case, and it certainly cannot be considered as an independent case; and where a proper citation for contempt is brought by the plaintiff in the original equity suit, it may be considered as a branch of the equity case and tried accordingly. See Hayden v. Phinizy, 67 Ga. 758; Tomlin v. Rome Stove & Range Co., 183 Ga. 183, 187 S.E. 879; Warner v. Martin, 124 Ga. 387, 52 S.E. 446, 4 Ann. Cas. 180, supra. Auto Highball Co. v. Sibbett, 11 Ga.App. 618, 75 S.E. 914, was not a suit in equity, and may perhaps be otherwise distinguished by its facts from the instant case, but in so far as that decision may be contrary to the views herein expressed, it will not be followed.

        It would too greatly prolong this opinion to cite and discuss all of the cases relied on by counsel for the plaintiffs in error, but what has been said above will, as we believe, cover in a general way the several contentions made. It is our opinion that the contempt proceedings were not civil proceedings in the sense that they would not support the judgments for criminal contempt as rendered by the trial court; nor were they subject to private agreement and settlement between the parties so as to affect such judgments. It follows from what has been said that the court did not err in denying the petitions for stay.

        In the view which we have taken of the other questions, it is unnecessary to pass on the contention of the defendant in error that paragraph 8 of the settlement agreement had the effect of excluding therefrom the contempt cases wherein the respondents had already been tried and convicted.

        Judgments affirmed in Cases 16596, 16597, 16598.

        All the Justices concur.

Aug 1 16

Proper Geographic Location for Petition for Removal from the Sex Offender Registry

by merlin

Not long ago, I tried to do something “clever” that backfired.  I thought that a if the same persons are judges for a Circuit, then they are necessarily judges for each individual county and therefore “jurisdiction” constitutes each county in that Circuit.  This is incorrect (sometimes, hoping for a result is not enough, because even though something is factually true does not make it suffice for legal purposes).  The case that controls this issue is Jefferson v. State, 308 Ga.App. 549, 707 S.E.2d 496 (Ga. App. 2011).  In that case, a person was convicted in Dekalb County but never required to register.  The way the statute was written at the time required the person to petition for removal in the Superior Court of the county where they lived, but he had since moved to Louisiana.  The statute changed, in the meantime, to require him to file in the jurisdiction where he was convicted.  This case clarifies that issue, a little:

Eric Jefferson, pro se.

Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

ADAMS, Judge.

        On September 30, 1993, following a trial in the Superior Court of DeKalb County but before the jury reached a verdict, Eric Jefferson pleaded guilty to aggravated assault with intent to rape an adult female; the incident had occurred on July 9, 1992. He was sentenced to five years to serve with credit for time served. He was not required to register in Georgia as a sex offender at the time. In fact, the sex offender registration statute did not become law until 1996. See Ga. L. 1996, p. 1520, § 1. When passed, it required prisoners who had previously been convicted of a “sexually violent offense” or “an offense that has as its element engaging in physical contact with another person with intent to commit such an offense,” who were released from prison on or after July 1, 1996, to register. Id. Jefferson was released from prison in 1997 but did not register. He asserts that he was never told to do so until recently, when the State took out a warrant for his arrest for failing to register. He now resides in Louisiana.

        On April 20, 2010, Jefferson petitioned the Superior Court of DeKalb County to be relieved of the requirements of OCGA § 42–1–12 et seq. on the ground that aggravated assault with intent to rape was not listed in the statute as a “sexually violent offense” until 2005. See Ga. L. 2005, p. 453, § 1. See also OCGA § 42–1–12(a)(10)(A)(i). Jefferson also asserted that he is not a “sexual predator” as defined in the statute and that the evidence presented at trial did not show that he had been physically violent with the victim.

        On May 11, 2010, the superior court denied the petition. The court construed Jefferson’s petition as “a motion for determination of whether he must register as a sex offender,” and it reasoned that whether a person is required to register is controlled by OCGA § 42–1–12, not by the sentencing court. The court also reasoned that registration as a sex offender is controlled by the state of residence, not the convicting court. The court cited OCGA § 42–1–12(g) for the proposition that Jefferson should petition the court in the county in which he resides.

         Jefferson contends the trial court erred by concluding that it lacked jurisdiction to hear his petition. He relies on former OCGA § 42–1–12(g)(1) (2009), which, as of the date of Jefferson’s petition and the trial court’s order, provided that a sexual offender could petition the court for release from the registration requirements and that the petition may be filed in the “jurisdiction in which the sexual offender is registered”:

        Any sexual offender required to register under this Code section who meets the criteria set forth in paragraph (2) of this subsection may petition the superior court of the jurisdiction in which the sexual offender is registered to be released from the registration requirements of this Code section.

        OCGA § 42–1–12(g)(1) (2009).

        But according to the plain words of the statute then in effect, Jefferson was not authorized to file in the Superior Court of DeKalb County because he was not registered there. “Where statutory language is plain and unequivocal and leads to no absurd or impracticable consequence, the court has no authority to place a different construction upon it.” (Citation and punctuation omitted.) Frazier v. State, 284 Ga. 638, 641(2), 668 S.E.2d 646 (2008).

         Meanwhile, the relevant statute was revised shortly after the trial court’s order. And “[a]n appellate court must apply the law as [308 Ga.App. 551] it exists at the time of its judgment and may, therefore, even reverse a judgment that was correct at the time it was rendered, where, as here, the law has changed in the meantime and no vested rights are impaired. [Cits.]” Outdoor Systems v. Cobb County, 274 Ga. 606, 608(1), 555 S.E.2d 689 (2001). Cf. Fowler Properties v. Dowland, 282 Ga. 76, 78(1), 646 S.E.2d 197 (2007) (mere procedural changes in the law may operate retrospectively).

        As of May 20, 2010, subsection (g) now provides:

        A sexual offender required to register under this Code section may petition to be released from the registration requirements and from the residency or employment restrictions of this Code section in accordance with the provisions of Code Section 42–1–19.

        OCGA § 42–1–12(g); see also Ga. L. 2010, p. 168, § 9. And OCGA § 42–1–19 provides that “[a] petition for release pursuant to this Code section shall be filed in the superior court of the jurisdiction in which the individual was convicted.” OCGA § 42–1–19(b)(1); see also Ga. L. 2010, p. 168, § 15. Although under these changes a person “required to register” may file suit in the jurisdiction where he was convicted, Jefferson contends he was never required to register. Again, we find no authority for Jefferson’s approach.

        Jefferson appears to have at least three options: register and then file a motion under OCGA § 42–1–12(g) in the Superior Court of DeKalb County; raise the need to register as a defense to the charge of failure to register, Thomas v. Warren, 284 Ga. 788, 789–790, 671 S.E.2d 837 (2009); or file a motion to vacate an illegal sentence. See, e.g., Jackson v. State, 299 Ga.App. 356, 683 S.E.2d 60 (2009).

        Judgment affirmed.

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