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Supplemental Brief in Support of Petition for Certiorari (Georgia Sex Offender Registry)

by merlin on May 23rd, 2013
  • Sumo

As with all pleadings I do as a “stab in the dark”, when I am relatively unsure about something but comfortable with my reasoning, and it has been served and filed (and is therefore irrevocable), I post it to this site, among others, for the purpose of inviting commentary by any person with constructive criticism or any guidance to offer.  This will either be one step on a path to success, or a definite object to be avoided for persons faced with similar circumstances in the future.




“Justice delayed for even one day is justice denied.”  Adams v. Hebert, 279 Ga. App. 158, 159, 630 S.E.2d 652, 654 (2006).  XXXXX XXXXX has never confessed to any criminal act, and he has never been found guilty by a jury of his peers. and justice for him has been delayed since his guilty plea in 1997 to reduced charges.  His guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), resulted in his inclusion on the Georgia Sex Offender Registry; the wait has been exacerbated by the arbitrary decision of the Superior Court of XXXXX County to keep him on the Registry regardless of their factual findings that he posed no substantial likelihood of perpetrating an offense that justifies his continued registration.  The delay is only being aggravated by the inaction of the Georgia Supreme Court in ruling on his application for appeal, and this wait is inconsistent with American values and principles, and is inconsistent with the rules for legal practice in the State of Georgia.


Issues Presented

  • Can the Supreme Court of Georgia grant relief requested of it despite the absence of particularized enumerations of the relief requested?
  • Is the continued inaction of the Court on XXXXX XXXXX’ Application for the Writ of Certiorari in violation of his substantive due process rights?


Short Answer

  • The Georgia Supreme Court is vested by law with the power, ability, and mandate to correct the refusal of the trial court to release XXXXX XXXXX from the Georgia Sex Offender Registry, and its delay in deciding the issue despite his qualification for that release has needlessly prolonged punishment beyond the sentence he has legally served without proper legal justification in violation of the requirement that due process be meaningful.

Argument and Citation to Legal Authority

“[I]n Palko [v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 14982 L.Ed. 288 (1937)], the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.”  McDonald v. City of Chicago, Illinois, 130 S.Ct. 3020, 3032, 561 U.S. ___ (2010).  Though the statutory guidelines of Section 42-1-19 of the Official Code of Georgia may vest the trial judge with discretion to consider material evidence in granting or denying a Petition for removal from the registration and residency requirements of the Georgia Sex Offender Registry, provided the person meets certain minimum requirements, it is implied and understood that the discretion will be exercised in a logical manner, and arbitrary denial of relief without evident disqualification for that relief contravenes the idea of “the very essence of a scheme of ordered liberty”.  The rules of pleading in a civil proceeding merely require that the relief sought be stated plainly, and the Courts are vested in Georgia with the ability to ensure that such relief is granted, where appropriate; to do otherwise would be contrary to the dictates of substantive due process and the jurisprudence of the United States.


I.                  The delay of the Court in deciding to uphold or reverse the decision of the trial court to refuse XXXXX XXXXX’ release from the Sex Offender Registry despite the qualifications found by the Court unreasonably offends XXXXX XXXXX’ right to Substantive Due Process.

Section 9-2-3 of the Georgia Code states that “[f]or every right there shall be a remedy; every court having jurisdiction of the one may, if necessary, frame the other”.  XXXXX XXXXX has amply demonstrated, and the findings of the trial court reflect the presence of, his entitlement to relief as provided by law, but the actions of the trial court in the case now pending for appeal demonstrate that he has been denied the substantive due process to which the Georgia and United States Constitutions entitle him, in illogical opposition to legal principle.

 A.   The Georgia Constitution provides Substantive Due Process Protection.

The first Article, Section, and Paragraph of the Georgia Constitution states that “[n]o person shall be deprived of life, liberty, or property except by due process of law.”  This right embraces the idea that individual liberty is protected against “certain government actions regardless of the fairness of the procedures used to implement them.”  King v. Pioneer Regional Educational Service Agency, 688 S.E.2d 7, 13, 301 Ga.App. 547 (Ga. Ct. App. 2009)(quoting Davis v. Carter,  555 F.3d 979, 981(II) (11th Cir.2009)).  In the case now before the Court, these conditions are indisputably present – individual liberty is at stake through the requirement that an individual be a registrant on the Georgia Sex Offender Registry by virtue of his 1997 guilty plea to an alleged qualifying criminal act, and he now qualifies for removal from that Registry – and even though a hearing was had on the matter and findings tending to show the appropriateness of his relief were made, his liberty is still being deprived in violation of constraints on government overreaching.

When a specific statute grants a right to relief, it is not appropriate to analyze it in terms of substantive due process.  See generally Albright v. Oliver, 510 U.S. 266 (1994).  However, this case does not involve a direct statutory guideline for the method that a judicial official should use to exercise his discretion; instead, it provides only required conditions for release from the Georgia Sex Offender Registry, and an implication that the conditions will lead to a logical exercise of discretion by the presiding trial court judge.  O.C.G.A. § 42-1-19.  It couches the relief in terms of permissive grants of release from registration, rather than explicitly setting forth a mandate on the Court.  Therefore, there is no specific grant of statutory relief, and only substantive due process evaluation is appropriate for such a situation.  It has been said that “[o]fficials acting under the color of state law violate substantive due process when their conduct is arbitrary, or conscience shocking, in a constitutional sense.”  D.D., ex rel. Davis v. Chilton County Board of Education, 701 F.Supp.2d 1236, 1240 (M.D. Alabama 2010)(quoting Peterson v. Baker, 504 F.3d 1331, 1337 (11th Cir.2007)).  There is no question that the findings of the trial court in terms of fact and its conclusions of law therefrom meet this requirement of “arbitrary, or conscience-shocking” determination based on a plain reading of the ruling of the trial court itself.  Therefore, the fairness evaluation of the substantive due process clause of the United States and Georgia Constitutions is the only appropriate manner of evaluation, and the Court has more than enough evidence before it to make this determination in terms of granting or denying this application for the petition of certiorari.


B.   the Official Code of Georgia provides for relief under the law for Petitioners in every level of trial or Appellate Court who ask for and are entitled to its assistance.

Section 9-11-8(a)(2) of the Official Code of Georgia requires only that “[a]n original complaint shall contain facts upon which the court’s venue depends; and any pleading which sets forth a claim for relief, whether an original claim, counterclaim, a cross-claim, or a third-party claim, shall contain…[a] short and plain statement of the claims showing that the pleader is entitled to relief; and…[a] demand for judgment for the relief to which the pleader deems himself entitled”.  There is no requirement of “magic language” to gain the relief provided for by law for persons entitled to the State’s assistance, and the State is therefore empowered with sufficient means to grant the assistance requested of it.  Indeed, “pleadings are judged by their function and not the name given by a party.”  Manning v. Robinson, 223 Ga.App. 139, 476 S.E.2d 889 (Ga. Ct. App. 1997)(quoting Holloway v. Frey, 130 Ga.App. 224, 202 S.E.2d 845).  The same case reiterated the idea that pleadings are controlled by their substance, and not their mere nomenclature.  The case at bar presents a further abstraction of that same principle, but its extension is logical.  What is asked is for release from the requirements of the Sex Offender Registry because conditions have been met and affirmed by the trial court, and the denial is therefore arbitrary and appears to be based on no more than the explicit statutory grant of discretion to deny relief; no basis for the denial of relief and every basis for its grant was presented by the Order on Defendant’s Petition for Removal from the Sex Offender Registry of the court itself.  Substantive due process analysis is therefore the only avenue available to XXXXX XXXXX to seek relief in this situation.

 II.               The dispute before the Court involves only the findings of fact and conclusions of law contained in the Order on Defendant’s Petition for Removal from the Sex Offender Registry of the trial court, and substantive due process evaluation on those express pronouncements demonstrate their absurdity.

The simple statements of fact found by the court below showing that XXXXX XXXXX met all of the preconditions necessary to grant him relief under the law, followed by the illogical legal conclusion in the Order on Defendant’s Petition for Removal from the Sex Offender Registry that he “had not served long enough” is enough for the Court to evaluate the fairness of the decision of the trial court.  This is not an evaluation of whether the individual steps taken for the judgment of XXXXX XXXXX were proper or necessary under Georgia law for the rendering of the requested relief; the trial court expressly found that the conditions needed for the relief requested were amply present, but its Order then denied that relief based on the idea that “he had not served long enough”.  Though this ignores the repeated statements of every legal authority in Georgia that registration on the Georgia Sex Offender Registry is not a criminal sanction – the judgment of the Court recasts the release from the Registry as akin to parole and continued registration as akin to criminal sanction – it is not a question of providing a fair opportunity to a hearing, but rather the fairness of the conclusions drawn from that hearing itself, which by their own terms defy logic.  “What the Constitution does require is ‘an opportunity * * * granted at [a] meaningful time and in a meaningful manner.”  Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780 (1971)(quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)).  There is no argument that this was given; however, even a grant of a meaningful opportunity and a meaningful manner for a request to vindicate the rights of a person whose rights are deprived will not ensure that they receive meaningful consideration of those rights.  XXXXX XXXXX met the qualifications established by § 42-1-19(a) of the Official Code of Georgia to petition for release from the registration and employment requirements of the Georgia Sex Offender Registry and petitioned for that release, specifically identifying his entitlement to his relief; he demonstrated these factors to the satisfaction of the court, by a preponderance of the evidence, and the court expressly found there was no substantial danger of him committing another sex crime at any point.  Therefore, in the absence of any factors found against him there was no basis for the government action taken.  This is exactly the type of arbitrary and dangerous government behavior that is embodied in the First Article, First Section, and First Paragraph of the Georgia Constitution’s protection of individual liberty.

This situation does not involve the potential expansion of substantive due process rights to abstract or uncertain situations, which would violate the idea of the narrow construction the courts have traditionally given to substantive due process claims in American jurisprudence.  See generally Peterson v. Florida Bar, 720 F.Supp.2d 1351 (M.D. Florida 2010).  Instead, this case involves a challenge to the restraint of the Georgia Sex Offender Registry’s liberty restraints specifically as applied to XXXXX XXXXX.  This is not a challenge to the statute, in general, but rather a challenge to its application in an unreasonable and unanticipated manner to this particular individual.  In this particular situation, the findings made by the trial court and enumerated in its Order do not need to be evaluated because the findings are enumerated in the Order and are not disputed by XXXXX XXXXX; however, they are blatantly at odds with the ruling that it made immediately following those undisputed findings of fact, and the conclusion drawn by the trial court is plainly at odds with both its findings concerning the potential future conduct of XXXXX XXXXX and its findings concerning his past behavior.  This is not a question of factual evaluation, but instead is a question of legal principle and the fairness of conclusions of criminal service based upon simple analysis of the findings of fact made.  The findings indicated that XXXXX XXXXX met the preconditions necessary for his application for release from registration, indicating that over ten years had elapsed since his completion of all terms of criminal sentence for the offense that required his initial registration, pursuant to Section 42-1-19(c)(2)(a) of the Official Code of Georgia.   Further, the Court expressly found as a matter of law that XXXXX XXXXX had proven by a preponderance of the evidence that he posed no substantial likelihood of ever perpetrating a future dangerous sexual offense.  Still, though, the trial court decided that even though he had completed the rehabilitation and punishment deemed appropriate by the State over ten years prior, he “just shouldn’t be released at this point”.  The evaluation of this conclusion is a purely legal and cognitive issue, and it is at odds with every finding made on the issue of the relationship between the Sex Offender Registry’s purpose as criminal punishment or civil protection, representing a wrong this Court is empowered to correct.



There is no logical basis under law for XXXXX XXXXX to remain a registrant on the Georgia Sex Offender Registry, and an evaluation of either Georgia Constitutional protections against deprivation of substantive due process rights to citizens and litigants or the United States Constitution’s parallel provisions for the same rights demonstrates the improper nature of the express legal findings of the trial court.  The law provides that the Sex Offender Registry is a prophylactic civil remedy, and the ruling of the Court expressly found that, despite qualification for the remedy requested by XXXXX XXXXX and his evident entitlement to it, indicating that he had served the required time provided by statute for criminal punishment to endure, his criminal punishment must continue for no apparent or stated reason or justification.  This is a blatant denial of his rights to substantive due process and ignores the mandate on Georgia courts that “[f]or every right there shall be a remedy”.  This error can and must be corrected and his sentence reversed by this Court.

Respectfully submitted this, the 23rd day of May, 2013.

/s/ Merlinus Monroe_____________

Merlinus Goodman Monroe, LLC       Georgia Bar No. 516401

Attorney At-Law                                       Counsel for Applicant

Post Office Box 2686                                 Telephone:        (678) 450-9743

117½ Bradford Street, Suite 9             Facsimile:          (678) 828-5789

Gainesville, Georgia 30503         

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