According to the legislative history from 2010 for OCGA Section 42-1-19, the bill went through the “Senate Judiciary Non-Civil Committee”. When I saw the name “Non-Civil”, I was deeply worried for the fate of my motion, because I was certain of the nature of the registration statute, and knew that it could not be criminal; therefore, I looked further into what this committee was tasked with doing.
The following is a preliminary assessment of this particular legislative history note:
The website for the Senate Judiciary Non-Civil Committee states that “[t]he Committee on Judiciary Non-Civil has general jurisdiction over Georgia’s criminal laws and procedure, drug enforcement, sentencing, parole and pardons. Any legislation that carries a possibility of criminal penalties can be referred to the committee, including criminal law related to juveniles.”
Specifically, there are criminal penalties that can and do arise related to the Registry, specifically with failing to register, or with providing incorrect information, but these are provided for by other sections. The question then arises: what committee was tasked with making initial Registry investigations, and did they simply entrust the same work to that committee, much as the Office of the District Attorney is the logical entity to investigate issues revolving around a person’s prior conviction of a sexual crime?
Having filed this, I have redacted it, deleted my heading and signature block, and am now posting it for your review.
Comments (and corrections) are welcome, since I have not done an interlocutory appeal before, and hope I am doing this correctly!
NOTICE OF APPEAL
Notice is hereby given that XXXXX XXXXX has appealed to the Court of Appeals of Georgia from the denial of his Motion to Apply Civil Practice Act, said denial having been recorded in the Clerk’s Office on XXXXX XX, 20XX.
Nothing in the trial court has been requested to be omitted from the record by the Clerk. All pleadings submitted in this case are requested to be included.
A transcript of the proceedings of a hearing held by this Court on XXXXX XX, 20XX, is requested to be filed for inclusion on the record on appeal.
Jurisdiction over this matter is vested in the Court of Appeals of Georgia and not the Supreme Court of Georgia under Section V, Paragraph III, of the Georgia Constitution, which states that the Court of Appeals shall exercise appellate and certiorari jurisdiction in all cases not reserved to the Supreme Court or conferred on other courts by law. This is not a case described in Section VI, Paragraphs II or III of the Georgia Constitution. The decision of the Court denying application of the Civil Practice Act and related provisions in this case ignores the non-punitive nature of the Registry by making actions regarding it subject to the criminal law, and by denying the Due Process rights of Petitioner.
Respectfully submitted this XXst day of XXXXX, 20XX.
As some of you know, I am currently involved in the first interlocutory appeal I have ever brought, having been granted the required Certificate of Immediate Review after a motion – whose topic changed the entire method of deciding the case – was denied.
Now, the appeal itself having been granted after the discretionary application process (just because the trial court is willing to grant a Certificate of Immediate Review doesn’t mean the appellate court is interested in discussing the issue), I have certain new deadlines for action ahead of me. I have already drafted a Notice of Appeal. For brevity’s sake, I have deleted subsections (a) through (f) from § 5-6-35.
The following statutes dictate the deadlines that now govern this action. I have also included Rule 23 of the Georgia Court of Appeals Rules which governs the deadline for the initial Appellant’s brief (20 days after the brief is docketed, which follows the filing of a Notice of Appeal in the trial court and the transmission of the record and transcript):
(g) Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, shall file a notice of appeal as provided by law. The procedure thereafter shall be the same as in other appeals.
(h) The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.
(i) This Code section shall not affect Code Section 9-14-52, relating to practice as to appeals in certain habeas corpus cases.
(j) When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permission to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. Thereafter the appeal shall proceed as provided in subsection (g) of this Code section.
(k) Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.
(a) A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion. In civil cases, the appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal. The notice of cross appeal shall set forth the title and docket number of the case, the name of the appellee, the name and address of his attorney, and a designation of any portions of the record or transcript designated for omission by the appellant and which the appellee desires included and shall state that the appellee takes a cross appeal. In all cases where the notice of appeal did not specify that a transcript of evidence and proceedings was to be transmitted as a part of the record on appeal, the notice of cross appeal shall state whether such transcript is to be filed for inclusion in the record on appeal. A copy of the notice of cross appeal shall be served on other parties of record in the manner prescribed by Code Section 5-6-32.
Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal. The notice shall set forth the title and docket number of the case; the name of the appellant and the name and address of his attorney; a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; the court appealed to; a designation of those portions of the record to be omitted from the record on appeal; a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court; and, if the appeal is from a judgment of conviction in a criminal case, a brief statement of the offense and the punishment prescribed. The appeal shall not be dismissed nor denied consideration because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court. In addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal. Approval by the court is not required as a condition to filing the notice. All parties to the proceedings in the lower court shall be parties on appeal and shall be served with a copy of the notice of appeal in the manner prescribed by Code Section 5-6-32.
(a) Within five days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee, as the case may be, it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, together with a copy of the notice of appeal and copy of any notice of cross appeal, with date of filing thereon, and transmit the same, together with the transcript of evidence and proceedings, to the appellate court, together with his certificate as to the correctness of the record. Where no transcript of evidence and proceedings is to be sent up, the clerk shall prepare and transmit the record within 20 days after the date of filing of the notice of appeal. If for any reason the clerk is unable to transmit the record and transcript within the time required in this subsection or when an extension of time was obtained under Code Section 5-6-39, he shall state in his certificate the cause of the delay and the appeal shall not be dismissed. The clerk need not recopy the transcript of evidence and proceedings to be sent up on appeal but shall send up the reporter’s original and retain the copy, as referred to in Code Section 5-6-41; and it shall not be necessary that the transcript be renumbered as a part of the record on appeal. The clerk shall retain an exact duplicate copy of all records and the transcript sent up, with the same pagination, in his office as a permanent record.
(b) Where the accused in a criminal case was convicted of a capital felony, the clerk shall likewise furnish, at no cost, the Attorney General with an exact copy of the record on appeal.
(c) Where a defendant in a criminal case is confined in jail pending appeal, it shall be the duty of the clerk to state that fact in his certificate; and it shall be the duty of the appellate court to expedite disposition of the case.
(d) Where a transcript of evidence and proceedings is already on file at the time the notice of appeal is filed, as where the transcript was previously filed in connection with a motion for new trial or for judgment notwithstanding the verdict, the clerk shall cause the record and transcript (where specified for inclusion) to be transmitted as provided in subsection (a) of this Code section within 20 days after the filing of the notice of appeal.
(a) In all civil cases where the party taking an appeal files an affidavit stating that because of his indigence he is unable to pay costs or to post a supersedeas bond, if any, as may be required by the trial judge as provided in Code Section 5-6-46, the notice of appeal and affidavit of indigence shall act as supersedeas.
(b) Any party at interest or his agent or attorney may contest the truth of the affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the trial court under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.
(a) Failure of any party to perfect service of any notice or other paper hereunder shall not work dismissal; but the trial and appellate courts shall at any stage of the proceeding require that parties be served in such manner as will permit a just and expeditious determination of the appeal and shall, when necessary, grant such continuance as may be required under the circumstances.
(b) No appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except:
(1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder;
(2) Where the decision or judgment is not then appealable; or
(3) Where the questions presented have become moot.
(c) No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. In like manner, the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays, and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail or statutory overnight delivery, of the amount of costs.
(d) At any stage of the proceedings, either before or after argument, the court shall by order, either with or without motion, provide for all necessary amendments, require the trial court to make corrections in the record or transcript or certify what transpired below which does not appear from the record on appeal, require that additional portions of the record or transcript of proceedings be sent up, or require that a complete transcript of evidence and proceedings be prepared and sent up, or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss it. If an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to judgment to perfect the appeal so that the appellate court can and will pass upon the appeal and not dismiss it.
(e) Dismissal of the appeal shall not affect the validity of the cross appeal where notice therefor has been filed within the time required for cross appeals and where the appellee would still stand to receive benefit or advantage by a decision of his cross appeal.
(f) Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed. An appeal shall not be dismissed nor consideration thereof refused because of failure of the court reporter to file the transcript of evidence and proceedings within the time allowed by law or order of court unless it affirmatively appears from the record that the failure was caused by the appellant.
Georgia Court of Appeals Rules
Rule 23. Time of Filing; Contempt; Dismissal. (a) Appellant’s brief, which shall contain as Part 2 an enumeration of errors, shall be filed within 20 days after the appeal is docketed. Failure to file within that time, unless extended upon motion for good cause shown, may result in the dismissal of the appeal, and may subject the offender to contempt. See Rule 7 and Rule 13. Appellant’s motion for extension of time to file brief and enumeration of errors must be filed prior to the date the documents are due or the Court may dismiss the appeal. (b) Appellee’s brief shall be filed within 40 days after the appeal is docketed or 20 days after the filing of appellant’s brief, whichever is later. Failure to timely file may -11- result in non-consideration of the brief and may subject counsel to contempt. See Rule 13. A brief shall be filed by the appellee in all criminal appeals when the State is the appellee; and upon failure to file such brief, the State’s representative may be subject to contempt. (c) Appellant may file a reply brief within 20 days from the date of filing of appellee’s brief. Appellee has no right to respond to appellant’s reply brief except as permitted under Rule 27.
The Georgia Sex Offender Registry is a relatively undefined creature, as much as has been written about it. Case in point, it is often viewed as an aggravating factor to a person’s accused criminal acts even after they finished their sentence, and it tends to be a damning factor weighing against mercy.
However, as the case presented below makes clear, it is not probation. Probation ends at a certain point, and it is arguably a life sentence. The case below is Ballenger v. State, 210 Ga.App. 627 (Ga. App. 1993), presented primarily for the careful legal arguments made by the dissent. Though the majority opinion acts to uphold the decision of the Court below requiring a DUI probationer to wear a fluorescent pink bracelet identifying him as such, and permits the punishment that is appealed on the basis of it having some kind of rehabilitative value (“[h]owever, “[t]he two essential purposes of probation in Georgia, as elsewhere are the rehabilitation of the probationer, and the protection of society.””), the dissent contains very valid legal points that need to be kept in mind concerning the essential nature of probation as rehabilitation. If the sentence given to a person by the State does not rehabilitate them, isn’t anything further that is done to them (like keeping them on a list) simply punishment without cause (“…a few courts have subscribed to the theory that measures such as wearing the “scarlet letter” or a sandwich board describing one’s transgressions promote rehabilitation by providing a constant reminder that past conduct was legally and socially wrong. In my view, humiliation is a form of punishment which is not authorized by statute.”)?
John R. Earl, Woodstock, for appellant.
Garry T. Moss, Dist. Atty., Gregory A. Hicks, Asst. Dist. Atty., for appellee.
Michael Scott Ballenger pled guilty to charges of interference with government property, obstruction of an officer, habitual violator, driving under the influence of alcohol and operating a vehicle with a foreign license. Numerous conditions were imposed on the probated portion of the five-year sentence Ballenger received, including a special condition requiring Ballenger to wear a fluorescent pink plastic bracelet imprinted with the words “D.U.I. CONVICT” until further order of the court. At the sentencing hearing, the court acknowledged that Ballenger had reserved the right to challenge that condition of probation on appeal.
1. In his first enumeration of error, Ballenger asserts that the trial court lacks authority to impose the wearing of the bracelet as a part of the sentence because it is not specifically authorized by an existing Georgia statute. This argument is without merit. Ballenger received a five-year sentence in accordance with OCGA § 40-5-58 (as in effect on the date of the offense) on the felony charges and 12 months, to be served concurrently on the misdemeanor charges. The trial judge is expressly authorized by OCGA § 17-10-1(a) to “suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper….” OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. Parkerson v. State, 156 Ga.App. 440, 274 S.E.2d 799 (1980). “A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citations and punctuation omitted.) Pitts v. State, 206 Ga.App. 635, 637(3), 426 S.E.2d 257 (1992). In affirming a trial court’s imposition of an unusual condition of probation in Mangiapane v. State, 178 Ga.App. 836, 344 S.E.2d 756 (1986), we found that requiring the appellant, convicted of driving under the influence of alcohol, to complete the written requirements for Boy Scout merit badges on the subjects of traffic safety, law and citizenship in the community had rehabilitative value and served a useful purpose. This is just one example of a condition which was tailored by a trial court, but was not expressly authorized by specific Georgia statute. Ballenger’s assertion that the conditions of probation must be expressly authorized by statute is incorrect.
2. Ballenger argues that requiring him to wear the bracelet violates his equal protection rights and constitutes cruel and unusual punishment. In support of these arguments he cites Covington v. State, 157 Ga.App. 371, 277 S.E.2d 744 (1981), in which we held: ” ‘A sentence is not unconstitutionally cruel and unusual if it is within the statutory limit.’ ” Arguing the reverse, he asserts that since the condition of probation is not specifically authorized by statute, it is not within statutory limits and is therefore cruel and unusual. For the reasons discussed in Division 1 above, this argument is without merit.
Ballenger also relies on Inman v. State, 124 Ga.App. 190, 183 S.E.2d 413 (1971), in which we held that a condition of probation requiring appellant to cut his hair during the term of his probation was unreasonable because it was not related to his rehabilitation and invaded his constitutionally protected right to self-expression. However, “[t]he two essential purposes of probation in Georgia, as elsewhere are the rehabilitation of the probationer, and the protection of society.” (Punctuation omitted.) Hancock v. State, 205 Ga.App. 890, 891, 424 S.E.2d 77 (1992), citing Owens v. Kelley, 681 F.2d 1362 (11th Cir.1982). Being jurists rather than psychologists, we cannot say that the stigmatizing effect of wearing the bracelet may not have a rehabilitative, deterrent effect on Ballenger. See Lindsay v. State, 606 So.2d 652, 657(5) (Fla.App.1992). Certainly the fines and/or incarceration this defendant received in connection with his numerous previous driving under the influence and habitual violator convictions did not succeed in rehabilitating him. It may also serve the second purpose, that of protecting society, in the event someone notices the bracelet and chooses not to ride with Ballenger or refuses to allow him to drive. Balancing the possible beneficial purpose of this condition of probation, we do not find as a matter of law that the possible embarrassment of being required to wear the bracelet constitutes an unreasonable infringement on Ballenger’s constitutional rights. Finally, we do not find the trial court’s assessment that this condition has rehabilitative value to be so totally without basis that we will interfere with its broad discretion in matters of conditions of probation.
3. In his last enumerated error, Ballenger argues that the condition which requires him to wear the bracelet until further order of the court violates the provisions of OCGA § 17-10-1(a) because it is indeterminate in duration. The conditions of probation cannot exceed the length of the sentence. It follows, therefore, that if the trial court has not entered an order permitting the removal of the bracelet prior to the expiration of the five-year sentence, the ability of the court to enforce the terms of the conditions of the probation would lapse at that point. Ballenger could then remove the bracelet without leave of court and would not be in violation of the conditions of his probation. It would have been clearer if the trial court framed this condition of probation differently, i.e., ordered Ballenger to wear the bracelet for the entire period of his probation, unless specifically permitted to remove it by order of the court. Nonetheless we do not find that the condition, as worded, is indeterminate in length or is so confusing so as to require a remand for clarification.
POPE, C.J., McMURRAY and BIRDSONG, P.JJ., and ANDREWS and SMITH, JJ., concur.
BEASLEY, P.J., concurs specially.
BLACKBURN and COOPER, JJ., dissent.
BEASLEY, Presiding Judge, concurring specially.
In addition to protecting society by alerting its members of defendant’s dangerous propensity to drink and drive, the wearing of the bracelet serves as a constant visual reminder to defendant himself of the consequences of driving while intoxicated. Thus it would also have at least a deterrent, if not a rehabilitative, effect. Even if he hides it under his sleeve, he will know it is there.
BLACKBURN, Judge, dissenting.
I must respectfully dissent, because I do not agree that requiring a DUI convict to wear a fluorescent pink identification bracelet identifying him as such, as a condition of probation, serves any legitimate purpose of probation.
OCGA § 42-8-35 sets forth 12 acceptable conditions that may be imposed on probation. As noted by the majority opinion, however, that list is not exclusive. Parkerson v. State, 156 Ga.App. 440, 274 S.E.2d 799 (1980). “The probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement. [Cits.]” State v. Collett, 232 Ga. 668, 670, 208 S.E.2d 472 (1974). (Emphasis supplied.)
In Georgia, the two essential purposes of probation are the rehabilitation of the probationer and the protection of society. Hancock v. State, 205 Ga.App. 890, 424 S.E.2d 77 (1992). Although conditions of probation have been imposed for economically punitive purposes, even then, such conditions must not exceed the statutory limits and must also be reasonably calculated to serve one of the legitimate purposes of probation, else they are invalid. Grant v. State, 176 Ga.App. 460, 336 S.E.2d 354 (1985).
In the instant case, the clear purpose of requiring Ballenger to wear a fluorescent pink bracelet proclaiming him to be a DUI convict was simply to punish him by humiliation. As noted in Lindsay v. State, 606 So.2d 652(5) (Fla.App.1992), cited by the majority opinion, a few courts have subscribed to the theory that measures such as wearing the “scarlet letter” or a sandwich board describing one’s transgressions promote rehabilitation by providing a constant reminder that past conduct was legally and socially wrong. In my view, humiliation is a form of punishment which is not authorized by statute.
While the trial judge is to be commended for seeking innovative ways of dealing with a serious social problem, it is clear under Georgia law that the role of prescribing punishment for criminal acts lies with the legislature and a rationale of rehabilitation may not be used to vest such authority in the judiciary. While it may well be argued that the identifying of those who have been convicted of a crime serves to protect the public, such debate should occur in the legislature and not be unilaterally determined to be an implied power of the judiciary. If it were otherwise, one might well ask why this measure has not been employed in cases involving other offenses besides DUI. If wearing a fluorescent pink bracelet rehabilitates a probationer or protects society to any appreciable degree, should not child molesters, rapists, armed robbers, or murderers be required to wear such a badge of dishonor? Compared to the imposition of the subject condition on those convicted of DUI such a practice certainly would be more reasonable with regard to satisfying the rehabilitation purpose, and would be far more protective of society.
In its brief, the State points out that this condition of probation actually was not negotiated by the State and Ballenger or requested by the State. Rather, the trial court imposed the condition at the time it accepted Ballenger’s guilty plea and pronounced the sentence.
In Inman v. State, 124 Ga.App. 190, 183 S.E.2d 413 (1971), this court struck down a condition of probation requiring the probationer to get a short haircut, as representing no more than the trial judge’s taste in personal appearance. In doing so, we emphasized: “Society has not authorized its courts to make such conditions for probationers. Some other judge could well decide that they ought to wear striped uniforms and have shaven heads.” Id. at 194, 183 S.E.2d 413. We further observed in Inman that imposition of unreasonable conditions of probation may instill a sense of disrespect for the criminal justice system. That same reasoning and concern is applicable in this case and for the same reason changes of the type herein involved must be authorized by the legislature.
We should once again remind ourselves, ” ‘Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.’ ” Grant v. State, supra at 461, 336 S.E.2d 354. As the subject condition does not legitimately serve either of the essential purposes of probation required under Georgia law, it should be rejected by this court.
I am authorized to state that Judge COOPER joins in this dissent.
This concerns something I learned firsthand, and want to pass on to anybody else who ever finds themselves in this situation.
For unrepresented parties still and for attorneys before the advent of electronic filing, when pleadings and other documents had to be filed with the Court of Appeals, it was a pretty straightforward process, and was actually a little easier and less expensive, in many situations, than similar processes in the trial court. However, with the creation and ongoing (welcome) mandate of electronic filing, attorneys must use this method for all filing, regardless of whether another method is available (such as bringing the document into the office itself). When the Court Orders an attorney to file a document “physically”, the attorney is still bound by this standard, and must file the document electronically (the language on the Orders has not been updated, but the parties are still bound by the rules).
The rule that addresses this is Rule 46:
“Counsel is required to use the Court’s electronic filing system and to follow the policies and procedures governing electronic filing as set forth in the Court’s electronic-filing instructions. The Clerk of Court may grant a request for exemption from mandatory electronic filing for good cause shown. An adverse decision by the Clerk of Court may be appealed by motion to the Court via a paper filing” (emphasis supplied).
I have never done one of these before, and I can only hope I am doing it right, but my rule is that I will post a redacted copy of a pleading once I submit it, in the hopes that it gives assistance to others seeking legal remedy. I am also posting this because I would earnestly ask for your comments about my argument in this case.
APPLICATION FOR LEAVE TO APPEAL
COMES NOW Applicant XXXXX XXXXX, by and through counsel Merlinus Monroe, and respectfully makes and files this Application for Leave to Appeal, the Trial Court having issued a Certificate of Immediate Review pursuant to Section 5-6-34(b) of the Official Code of Georgia that the interlocutory order at issue is of such importance to the case that immediate review should be had. Applicant submits that this Application should be granted because all three of the grounds provided by Court of Appeals Rule 30 for such an appeal to be granted are present in this case: the issue to be decided appears dispositive of the case, the decision itself appears erroneous and will both cause a substantial error at trial and will irreparably jeopardize the rights of the Applicant until entry of a final judgment and appeal of the case, and the establishment of a precedent is not only desirable; it is necessary.
This Application for Leave to Appeal is timely because it is brought within ten (10) days of the granting of the Certificate of Immediate Review by the trial court as required by OCGA § 5-6-34(b).
Jurisdiction lies in this Court and not the Supreme Court under Section V, Paragraph III, of the Georgia Constitution, which states that the Court of Appeals shall exercise appellate and certiorari jurisdiction in all cases not reserved to the Supreme Court or conferred on other courts by law. This is not a case described in Section VI, Paragraphs II or III of the Georgia Constitution.
Order Appealed and Date of Entry
The Order appealed is the Denial of Petitioner’s Motion to Apply Civil Practice Act Provisions entered on XXXXX XX, 20XX. The Certificate of Immediate Review in this matter was signed by the Court on XXXXX XX, 20XX, and this Application is dated XXXXX XX, 20XX.
Statement of Facts
On XXXXX XX, 20XX, XXXXX XXXXX filed and served his Second Petition for Removal From the Sexual Offender Registry, a copy of which is included in the record below. Previously, his original petition was denied by the Superior Court of XXXXX County on XXXXX XX, 20XX, in which Judge XXXXX XXXXX, acting for and on behalf of Judge XXXX XXXX, specifically noted that Petitioner was not a risk for committing a future violent sexual act, but that he did not feel that Petitioner should be released from the Registry at that point, and used his discretion under the statute to deny release (hearing tr., p. 5, 10-12, XXXXX XX, 20XX). No further termination date for the indefinite extension of the economic sentence that Petitioner has served following his sentence of incarceration and probation was specified by the Trial Court, and Petitioner believes that the court should now be lenient and merciful now that six more years have passed since the filing of the initial Petition with no incident of any kind, undisputed by the State and by the Courts. However, he is unable to discover under his own power what grounds the State has keeping him on the Registry, and why they continue to oppose his release, nor will criminal law Discovery rules used in his prior action provide him with any enlightening information on this issue. He has moved the Court to apply the principles of civil law to the proceeding, and the State has opposed his motion, arguing that § 42-1-19 is a complete procedure and should be governed by principles of criminal law.
Enumeration of Errors
- The Trial Court erred by denying Applicant’s request for the application of the Civil Practice Act in general, and civil law principles in specific, to his petition for removal from the Georgia Sex Offender Registry.
- The Trial Court erred by ruling that Section 42-1-19 of the Official Code of Georgia contains a complete process for the evaluation of any request for removal from the Georgia Sex Offender Registry.
- The Trial Court erred by declaring that the criminal law Discovery rules provided all information needed by the Court to make a determination for fitness for removal from the Georgia Sex Offender Registry.
Standard of Review
Every point raised above involves an erroneous decision by the trial court on a point of law, so the review is de novo or independent review, and no deference is owed to the trial court’s ruling. Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543S.E.2d 733 (Ga. Ct. App. 2000).
- The Trial Court erred by denying Applicant’s request for the application of the Civil Practice Act in general, and civil law principles in specific, to his petition for removal from the Georgia Sex Offender Registry.
Section 9-11-1 of the Official Code of Georgia says that the Civil Practice Act “governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity”. The Sex Offender Registry fits squarely within this definition, by any metric, because it is not a form of punishment, it is not an enhanced punishment, and it is not concerned with guilt or innocence unless a new crime is involved. The position taken by the advocates of the State on this issue, regardless of the presence of a law that provides for relief from punishment, is clear: “[h]e should, in my world, register until the day he dies” (Hearing tr., p. 11, 14-15, XXXXX XX, 20XX). Fortunately for the concept of Justice, the action itself is concerned with degrees of rehabilitation, and not with inflexible, unending punishment.
“The sex offender registry requirement is regulatory and not punitive in nature. See Smith v. Doe, 538 U.S. 84, 99 (II)(B), 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Rainer v. State of Ga., 286 Ga. 675, 676, 690 S.E.2d 827 (2010) (“the [sex offender] registration requirements themselves do not constitute punishment….”).” Wiggins v. State, 288 Ga. 169, 172 (2010). In fact, the Sex Offender Registry itself is civil in nature. Taylor v. State, 304 Ga. App. 878, 883 (Ga. Ct. App. 2010).
The difficulty that arises from placing the responsibility for responding to petitions for release from Registry requirements with the Office of the District Attorney is that the terms used by the statute become meaningless when everything the representatives of the State aim for and argue for are couched instead in terms and concepts of eternal punishment and retribution beyond the sentence already served. “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.” Wilburn v. State, 140 Ga. 138, 78 S.E. 819, 819-21 (1913).
Though it speaks of using stronger standards in juvenile court deprivation hearings, the statement made in In re Winship is instructive in this situation. “We made clear … that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for ‘(a) proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.’” 397 U.S. 358, 365-366, 90 S. Ct. 1068, 1069-84, 25 L. Ed. 2d 368 (1970)(using an inaccurate burden of proof to evaluate a defendant was a violation of their right to Due Process). The burden of proof that should be required in the instant case is the preponderance of the evidence standard described in the statute, and not the absolutism of the criminal standards that are actually being applied without exception by the State.
“Indeed, the trial judge’s action evidences the accuracy of the observation of commentators that ‘the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.’” Id. at 367-368. This is exactly the situation in the case at bar, because the preponderance standard is actively being misinterpreted by making it a higher standard, rather than applying it to look at quantum of evidence required in this situation. The statute itself provides the relevant analysis to be made, and demonstrates its inadequacy for this task. While subsection (c) mandates that a person who meets the section’s requirements be considered for release, it does not set any conditions on what qualifies an individual for a determination of release eligibility, no matter how readily they can meet the conditions of subsection (a). See generally OCGA § 42-1-19(c).
The text of subsection (c) is below:
“(c)(1) An individual who meets the requirements of paragraph (1), (2), or (3) of subsection (a) of this Code section shall be considered for release from registration requirements and from residency or employment restrictions.
(2) An individual who meets the requirements of paragraph (4) of subsection (a) of this Code section may be considered for release from registration requirements and from residency or employment restrictions only if:
(A) Ten years have elapsed since the individual completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12, or
(B) The individual has been classified by the board as a Level I risk assessment classification, provided that if the board has not done a risk assessment classification for such individual, the court shall order such classification to be completed prior to considering the petition for release.” See OCGA Section 42-1-19(c).
The problem with the application of strictly criminal law procedural rules to a petition for release from the registration requirement of the Registry is that the criminal law Discovery tools do not concern themselves with discovering the degree of rehabilitation or the nature of efforts made by any person to qualify for removal from the Registry, nor do they look to potential interference from human factors or prejudice in the parties involved that might cause potential interference with an objective assessment of rehabilitation; rather, the criminal law concerns itself only with a strict “yes” or “no” inquiry and ignores the concepts of rehabilitation that are necessary to decide the issue. The danger of applying the burden of establishing criminal guilt by a preponderance of the evidence without adequate protection for the rights of the accused is present in the probation context, where cases such as Johnson v. Boyington, 273 Ga. 420, 420-23, 541 S.E.2d 355, 355-57 (2001) illustrate the harm to the Due Process rights of the accused when a judge is left to decide whether a person is guilty or innocent without quantifying their reasons for reaching a decision. The same kind of danger is presented by deciding the Applicant’s situation under the rules of criminal law, rather than deciding the case through the filter of civil law procedural guidelines, as OCGA Section 9-11-1 commands.
The question then arises what the nature of the Due Process interest implicated by the use of a criminal procedural mechanism, as opposed to a civil procedural mechanism, might be. “To decide what process is due, we apply the familiar three-factor test that the United States Supreme Court identified in Mathews, 424 U.S. at 335(III)(A), 96 S.Ct. 893, weighing “(1) the private interest affected; (2) the possibility of erroneous deprivation using the established procedure and the probable value of additional procedural safeguards; and (3) the government’s interest in the procedure or the burden of providing greater procedural protections.”” – Gregory v. Sexual Offender Registration Review Bd., No. S15A1718, 2016 WL 1085357, at *1-9, 6 (Ga. Mar. 21, 2016) The Georgia Supreme Court was referring to the 1976 case of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, whose test for Due Process interests has since been disapproved of by the courts of New Mexico, but which is still a valid test in Georgia.
- The Trial Court erred by ruling that Section 42-1-19 of the Official Code of Georgia contains a complete process for the evaluation of any request for removal from the Georgia Sex Offender Registry.
The trial court implied by its statements that it agrees with the State’s position that the evidence necessary to make a decision on the petition of Applicant for removal from the Georgia Sex Offender Registry already exists and is in the possession of Applicant, and that any response that the evidence that would be requested from the State for determining this issue that is not in their possession is an admission that such evidence does not exist. See hearing tr., p. 6, 6-23, XXXXX XX, 20XX. However, the evidence that is needed from the State is more than simple matters of guilt or innocence concerning the commission of a qualifying crime, because that is not at issue in this kind of case; rather, what is needed for the determination of this kind of case is information oriented toward the presence and nature of any prejudices borne against Applicant by the individual or individuals making the evaluations, the nature and results of any rehabilitation that the State has provided to him or sentenced him to complete, and the general statistics and standards used by their office to approve or oppose requests for release from the Registry (See Supplemental Brief Illustrating Application of Civil Practice Act to Sex Offender Registry, Ex. A, proposed Interrogatories, generally). This is a matter of simple logic.
In this case, an analysis of the kind of determination that the Court is called upon to make in comparison with the kind of information that is provided using only the provisions of OCGA Section 42-1-19 as a guide shows how little the statute allows for a successfully completed sentence to matter in making the determination.
Subsection (a) asks the following information to establish eligibility for relief:
“(1) Has completed all prison, parole, supervised release, and probation for the offense which required registration…” and is confined to a care facility, is disabled, or otherwise seriously incapacitated,
“(2) Was sentenced for a crime that became punishable as a misdemeanor…” and is otherwise qualified for consideration for release,
“(3) Is required to register solely because he or she was convicted of kidnapping or false imprisonment involving a minor and such offense did not involve a sexual offense against such minor or an attempt to commit a sexual offense against such minor…; or”
“(4) Has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12…” and meets certain other criteria. See generally OCGA § 42-1-19(a).
Unfortunately, these are merely positive qualification matters for consideration that, once answered affirmatively, the trial judge is free to disregard if he or she should so desire. Civil Discovery means, such as those submitted to the Court as Exhibit B of Supplemental Brief Illustrating Application of Civil Practice Act to Sex Offender Registry, included as a necessary part of this Application pursuant to Rule 30(d) of the Rules of the Court of Appeals of Georgia, can address these same questions but can also establish greater dimensions to the potential responses and can present information relating to their quality and the degree they have been satisfied by placing the circumstances that surround them before the Court for full assessment of the manner in which they were satisfied. They can also help to guide the Court to make the substantive inquiries that may be needed and to direct the Court’s inquiries toward relevant avenues of rehabilitation, of manner and methodology and sufficiency of therapy, and of performance in the community at large, which would otherwise require experts and information not necessarily in the reach of a person convicted of a sex crime, therefore subject to extensive and punishing restrictions on their employment and residency in Georgia. These issues of rehabilitation and reintegration into society are exactly the reason for a determinate sentence following conviction and a method of release from the Sex Offender Registry.
The information that the Court uses for the actual evaluation of the applicant seems broad in its scope, as it is listed in subsection (d) and supplemented by the hearing available on request in subsection (e), but nothing in the Code section talks about what weight the Court should give to the evidence introduced by either the person petitioning for release or by the State, nor about the quantum of evidence necessary for the petition to be either granted or denied. See generally OCGA § 42-1-19(d)-(e). If there are other factors aside from the simple determination of criminal history present in an individual offender’s case, there will be no evidence that the person can generally present without having sufficient means for inquiry beyond their criminal history to establish this. The statute itself only talks about what the court “may consider”, and it does not direct that there be any inquiry made as to potential aggravating circumstances or mitigating factors, or even a requirement that the court actually make note of evidence of those factors that the petitioning party present. It is not conducive to a qualitative determination.
The text of subsections (d) and (e) is below:
“(d) In considering a petition pursuant to this Code section, the court may consider:
- Any evidence introduced by the petitioner;
- Any evidence introduced by the district attorney or sheriff; and
- Any other relevant evidence.
(e) The court shall hold a hearing on the petition if requested by the petitioner.”
OCGA § 42-1-19(d)-(e).
The Code section as written allows for any and all such petitions to be denied as long as they have been “considered”. The Code section appears to permit a wide range of potential evidence to be introduced, but the pessimistic attitude of the State regarding the efficacy of any rehabilitation that it made a part of the sentence of a person petitioning for release from the Sex Offender Registry is well-demonstrated by its opposition to any and all petitions for release, as they firmly stated in the court below. See hearing tr., p. 12, 18-20, XXXXX XX, 20XX.
More tellingly, this Code section is incomplete for purposes of evaluating a request to be released from the registration requirements of the Georgia Sex Offender Registry because it both makes no mention of the kinds of Discovery methods that are to be used to unveil the material the Court should use to make a considered decision or of the basic mechanical methods of service beyond the initial petition for removal under the statute. The State is under no obligation to provide any meaningful evaluations or behavioral assessment and rehabilitation to persons on the Registry, thus providing them with no incentive to remove persons from the Registry at all, and the State is dealing with people who have a known economic disadvantage and so cannot avail themselves of anything except the criminal process, even though the civil process is more appropriate for this evaluation. As concerns service methods of all pleadings beyond the initial request for removal from the Sex Offender Registry, the only provision concerning this is found at subsection (b)(2), which directs mailing and proper certification for a petition. If the statute were criminal in nature, as the State contends verbally in this case, service is provided for by statute and only involves the postal service. However, this statute is, as established above and by all the law prior to this matter, civil in nature, and service without any Entry of Appearance by qualified counsel is more complex than merely making use of the postal service. The transcript quoted above shows the position of the State on the issue of Discovery precisely, and proves the truth of this statement about the position of the State on these issues, but it also demonstrates their callous disregard for the difficulties of impoverished former criminal defendants to seek help being released from the Registry or even to serve pleadings that might help them prove their rehabilitation in the first place if they do not have a poverty waiver or other similar service cost arrangement in place. See hearing tr., p. 14, 16-25, XXXXX XX, 20XX.
In fact, the only part of OCGA 42-1-19 that seems to allow for the Court to exercise qualitative discretion, as opposed to the simple “yes” or “no” quantitative ruling on the petition, in addition to the implied discretion present in what evidence the court “may consider” (or may ignore, depending on the agenda of the court with regard to the petitioner or the type of case itself) presented by subsection (d), is subsection (f)’s allowance for a Court to take a position of caution by issuing a limited Order granting a restrictive level of freedom to an offender, since they have sought no evidence under the statute regarding the rehabilitation of the offender and the State has not been compelled to present any. Under subsection (f), the court is permitted to “issue and order releasing the individual from the registration requirements or residency or employment restrictions, in whole or in 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. The court may release an individual from such requirements or restrictions for a specific period of time.”
There are no provisions for Discovery of pertinent information for the inquiry that Section 42-1-19 calls for from the court, rendering the provisions of subsection (d) that permit a petitioner to present evidence meaningless, even if the court decides that it will choose to consider the information presented. The lack of any provisions for service beyond the initial pleading and the lack of any provisions for the Discovery of relevant information render OCGA Section 42-1-19 an incomplete remedy, and it must be supplemented by the provisions of the Civil Practice Act to properly vindicate the relief sought by a petitioner for release.
- The Trial Court erred by declaring that the criminal law Discovery rules provided all information needed by the Court to make a determination for fitness for removal from the Georgia Sex Offender Registry.
The mission of Discovery laws in Georgia is given in plain language not capable of confusion in OCGA Section 24-1-1. That section states that “[t]he object of all legal investigation is the Discovery of truth.” This search is hindered when criminal Discovery rules are relied upon to learn matters such as degrees of rehabilitation that they are not designed to uncover. The criminal Discovery rules are oriented toward uncovering evidence that pertains to whether a crime has been proven sufficiently by the State, but there is no crime involved in determining whether a person can be released from the Sex Offender Registry if they qualify for release. The civil Discovery rules are instead concerned with the circumstances that have arisen in a person’s life since the time they were convicted of a qualifying act. This distinction is readily apparent when these contrasting schools of thought are analyzed.
The right to Discovery under the criminal laws of this State, and what that right specifically entails, is set out in detail in the Georgia Constitution at Article 1, § 1, ¶ XIV:
Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel; shall be furnished with a copy of the accusation or indictment and, on demand, with a list of the witnesses on whose testimony such charge is founded; shall have compulsory process to obtain the testimony of that person’s own witnesses; and shall be confronted with the witnesses testifying against such person.
The Court can stop reading that provision when it specifically refers to a person “charged with an offense against the laws of this state”, because there is no offense before the trial court, even though the State still uses the initial conviction of the Applicant opportunistically to tie him to a crime he was found guilty of over a decade ago and has already served the sentence for. The criminal Discovery provisions provide no means for a person to establish that he is rehabilitated from his acts to a sufficient degree that he should be released from the registry of similar offenders that continue to represent potential danger. Nothing this power of criminal Discovery includes, other than the right to counsel, is relevant to the proceeding that the Applicant is undergoing once the initial fact of his prior conviction has been established.
Contrast this with the right to civil Discovery which was created by the statutory laws of Georgia, and addresses the claims and concerns of parties, and not the issue of guilt or innocence of the accused – an issue long-since settled in this case. According to Section 9-11-26(b)(1), “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence”.
In evaluating a claim for release from the Georgia Sex Offender Registry, the Court is being called upon to make a very substantive determination, which goes far beyond the sordid details of the crime that first required their registration. The crime they were convicted of is not in doubt, and the only relevance it should bear to their current request is the fact of its occurrence. This is evident in the nature of the relief the person is seeking; they do not want to be forgiven some past wrong, but only to be released from the requirements, restrictions, and unpleasant notoriety that comes with registering as a threat to the public on the Sex Offender Registry. The criminal law Discovery provisions do not provide any evidence that contributes in any way toward this determination, and they should not apply to an action of this nature.
It is necessary that the Civil Practice Act govern an action brought for removal from the Georgia Sex Offender Registry because the action itself is regulatory in nature and not punitive or criminal, and as such is governed by the provisions of that Code section. It is necessary that the Civil Practice Act govern the action brought because the provisions of OCGA 42-1-19 do not provide a complete method for evaluating a request for removal from the Sex Offender Registry nor do they provide a complete method of Discovery or of service of initial pleadings. Lastly, it is certain that criminal law Discovery rules fail to provide the truth needed by the court to make a determination about rehabilitation, and instead act to restrict the information available to the court in making its evaluation. Applicant confidently requests this Court grant his Application for Leave to Appeal the trial court’s order of XXXXX XX, 20XX, having been granted a Certificate of Immediate Review for the Order on XXXXX XX, 20XX.
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.).
- It’s going to take at least one year without an interview for naturalization before you file (because then it is unusual);
- 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)
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.
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.
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.
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 Atlanta, 273 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!