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Jun 14 16

Proposed Civil Discovery Interrogatories (Georgia Sex Offender Registry Removal)

by merlin

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

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

________________________________________________________________

PETITIONER’S FIRST CONTINUING INTERROGATORIES

TO RESPONDENT

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

1.

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

2.

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

3.

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

4.

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

5.

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

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

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

6.

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

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

7.

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

 

Jun 13 16

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

by merlin

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

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

_________________________________________________________________

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

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

Relevant Factual Background

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

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

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

Issue Presented

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

Short Answer

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

 Argument and Citation to Legal Authority

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

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

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

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

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

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

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

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

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

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

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

 Conclusion

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

            WHEREFORE, Petitioner respectfully requests the following relief:

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

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

by merlin

American Bar Association Webinar Notes –

Issues in Drunk Driving: Pretrial Sobriety Programs

Thursday, May 26, 2016

Moderator:           Hon. Earl G. Penrod (IN)

Panelists:   Hon. John S. Kennedy

                       Hon. Lawrence E. Long

 

Hon. Lawrence Long (SD)

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

Case Law:

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

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

Hon. John S. Kennedy (PA)

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

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

Developed protocol for DUIs:

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

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

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

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

 

May 24 16

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

by merlin

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

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

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

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

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

DOYLE, Presiding Judge.

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

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

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

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

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

        Judgment vacated and case remanded.

MILLER and DILLARD, JJ., concur.

——–

Notes:

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

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

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

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

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

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

May 17 16

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

by merlin

American Bar Association Continuing Legal Education Webinar Notes

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

 

Speakers:

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

Thomas Harvey (It’s Not Just Ferguson)

Brendan Roediger (Municipal Courts and Road to Reform)

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

Howard Wasserman (uncertain hope of body cameras)

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

Prosecution, Grand Jury, and decision not to charge

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

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

THE GRAND JURY IGNORED RACE ENTIRELY.

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

It’s Not Just Ferguson

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

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

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

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

Municipal Courts and Road to Reform

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

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

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

Norwood (Washington University law professor)

From Brown to Brown

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

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

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

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

Wasserman (Professor – Florida International University College of Law)

Uncertain Hope of Body Cameras

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

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

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

Limits on video evidence:

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

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

Pending suits to challenge Constitutionality of existing municipal court system:

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

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

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

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

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

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

by merlin

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

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

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

Syllabus Opinion by the Court

        DEEN, Judge.

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

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

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

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

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

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

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

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

        Judgment reversed.

        QUILLIAN, J., concurs.

        BELL, C.J., concurs specially.

        BELL, Chief Judge (concurring specially).

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

Apr 24 16

John Breakfield for State Court Judge

by merlin

Although this site is largely informational by design, I ran into my friend, John Breakfield, yesterday afternoon, and wanted to say something on his behalf, as he is running for State Court Judge in Hall County, Georgia.  Based on my own experiences with him, I find him to have a strong sense of fairness and an agile mind, and I think he would make a good judge.  I seldom practice in that Court, but I would be comfortable that Justice was being administered there.

BreakfieldLogo

Apr 22 16

Heavily-Redacted Form Brief in Support of Motion for Default Judgment (Georgia Sex Offender Registry Removal)

by merlin

This is heavily redacted, and I have discovered a few grammatical errors.  I believe in the basic idea, though, and I encourage other attorneys to examine this route.

___________________________________________________________

BRIEF IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT

            COMES NOW Petitioner XXXX XXXXX, by and through undersigned counsel, and makes and files this, his Brief in Support of Motion for Default Judgment as a supplement to the Motion for Default Judgment filed concurrently with this, more particularly laying out the specific reasons why he is entitled to judgment by default in the case at bar, and in support thereof states the following:

Questions Presented

  • May default judgment be granted in response to a Petition for Removal from the Georgia Sex Offender Registry?
  • Is it appropriate to grant removal from the Georgia Sex Offender Registry by default judgment to XXXX XXXXX? 

Short Answers

            There are no procedural bars provided by the statutory or case law preventing a grant of default judgment in favor of a person seeking removal from the requirements of the Georgia Sex Offender Registry (hereinafter referred to as “the Registry”), and this method is appropriate in the case of XXXX XXXXX; no defensive pleadings of any kind were made by the State of Georgia to his Petition in the case at bar, and he has met the conditions placed on his release from the Registry by the Superior Court.

Relevant Procedural History

            On XXXXX XX, 20XX, XXXX XXXXX filed and served his Petition for Removal From the Sex Offender Registry.  This petition was served pursuant to Section 42-1-19(b)(2) of the Official Code of Georgia, which reads as follows: “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. Service on the district attorney and sheriff may be had by mailing a copy of the petition with a proper certificate of service.”  There have been absolutely no responsive pleadings made by any other person or entity since the date of filing and service.

Argument and Citation to Legal Authority

I.   DEFAULT JUDGMENT IS THE PROPER PROCEDURAL VEHICLE FOR THE RELIEF SOUGHT.

       “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).  Section 9-11-1 of the Official Code of Georgia states that “[t]his chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81.”  Section 9-11-81 does not exclude this procedural mechanism from those actions that are governed by the Civil Practice Act.  Default Judgment is a procedural mechanism embraced by Section 9-11-55 of the Official Code of Georgia, and therefore falls under the provisions of the Civil Practice Act.

       According to Section 9-11-55(a), “[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default”.  That section further states that “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence…”  This statement leaves little room for interpretation.

      There are exceptions to default judgment built into the statute itself, such as a statutory time period involved, a “grace period” prior to which a default judgment may be opened for good cause, or evidence that places damages in issue.  However, “[t]he plain language of that Code section “entitles” a plaintiff to default judgment where, as here, a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.”  SRM Realty Services Group, LLC v. Capital Flooring Enterprises, Inc., 274 Ga.App. 595, 604 (Ga.App. 2005).  In the case at bar, damages have never been requested or considered; Petitioner’s only request has been removal from the Registry.

II.  THE PURPOSES OF BOTH OCGA §§ 9-11-55 AND 42-1-19 ARE SERVED BY RELEASE OF PETITIONER FROM THE REGISTRY.

       Section 42-1-19(c)(2)(B) of the Official Code of Georgia requires that a person be given a Risk Assessment Classification by the Sexual Offender Registration and Review Board prior to any consideration of release from the Registry.  Section 42-1-14(a)(1) states that “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.”  OCGA Section 42-1-12(a)(12) defines a Level I Risk Assessment Classification as meaning “a low sex offense risk and low recidivism risk for future sexual offenses.”

    Section 9-11-54(c)(1) reads as follows, and it indicates that default judgment is exactly appropriate in this circumstance:

“A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of the relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.”

            Default Judgment as a procedural mechanism should serve its purpose now.

Conclusion

       Though the area of law which releases from the Georgia Sex Offender Registry occupy is uncertain and fraught with obstacles and complications, it is certainly civil in nature.  Taylor, 304 Ga. App. at 883.  As such, it is susceptible to civil law methodology.  The complete lack of any response or acknowledgment of any kind by the Office of the District Attorney or the State of Georgia to the request of XXXX XXXXX for removal from the registration, employment, and residency restrictions arising from his inclusion on the Georgia Sex Offender Registry entitle him under the provisions of the Civil Practice Act to default judgment on the issue and closure of this chapter of his life.

This XXst day of XXXXX, 20XX.

Apr 21 16

Heavily-Redacted Form Motion for Default Judgment (Georgia Sex Offender Registry)

by merlin

I had an idea about the Georgia Sex Offender Registry, and today I took a step toward realizing the idea.  I simply have not seen it done blatantly elsewhere.  In many places, I see the burden of civil law cases – a preponderance of the evidence – discussed, and the cases tend to recognize that the Sex Offender Registry is a civil penalty, and not a criminal penalty.  However, it occurred to me that it should logically be subject to the civil remedy of default judgment.  Today, after considerable research into the possible impediments to that, I made and filed a motion for default judgment and a supporting brief on behalf of a qualified client.

The form for a Motion for Default Judgment which I set out below is heavily redacted, but I encourage others to pursue this line of thought.  I intend to post the redacted form supporting brief tomorrow.  I am afraid that, while redacting this to post it, I discovered so many spelling and grammatical errors in the motion I submitted today that I would rather take them in two steps.  However, the thought that underlies it is valid, as far as I can tell.   Please make good use of this!

IN THE SUPERIOR COURT OF XXXXX COUNTY

STATE OF GEORGIA

XXXXX XXXXX,                                       §

                   Petitioner,                                 §        CIVIL ACTION

            v.                                                           §        CASE NO. XXXX CV XXXX

STATE OF GEORGIA,                                §

                   Respondent.                               §

 

MOTION FOR DEFAULT JUDGMENT

 

         COMES NOW Petitioner XXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion for Default Judgment, again respectfully petitioning this honorable Court to release him from the registration, employment, and residency restrictions of the Georgia Sex Offender, and having waited the requisite forty-five days after service to make said motion and seeking relief as provided for by the Civil Practice Act and the Official Code of Georgia, in support thereof states the following:

1.

            The standards for granting a default judgment are laid out in Section 9-11-55(a) of the Official Code of Georgia.  According to that Code section, “[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default”.  That section further states that “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury”.

2.

            The only conditions made on said judgment by the law is a time limit standard.  An answer must be made within the time provided by law for said answer – thirty (30) days – and fifteen (15) days remain after that limit before a judgment can automatically be granted by default.   Petitioner initially filed his Petition for Removal from the Sex Offender Registry on XXXXX XX, 20XX.  54 (Fifty-Four) days have passed since the document was filed.  There has been no dispute regarding whether it was properly served and filed; in fact, there has been no defensive pleading filed by the State even acknowledging this action.

3.

            Petitioner is entitled to judgment by default under the express provisions of the Civil Practice Act, and specifically under the terms of Section 9-11-55(a) of the Official Code of Georgia, “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence”.

            WHEREFORE, Petitioner requests the following relief:

(a)     That he be found by a preponderance of the evidence to not pose a substantial risk of perpetrating any future dangerous sexual offense;

(b)       That an Order be issued removing him from registration and registry requirements from the Sex Offender Registry maintained by the State, and any equivalents thereto, including federal equivalents;

(c)       That a copy of said Order releasing Petitioner from any requirements or restrictions be given to the Sheriff of XXXXX County, Georgia, to the Department of Corrections, and to the Georgia Bureau of Investigation;

(d)     That the Court expressly rule on the Constitutionality of Petitioner’s continued inclusion on the Georgia Sex Offender Registry as a merited and proportionally appropriate condition of the guilty plea entered by him; and

(e)       For such other and further relief as the Court in its discretion deems fit to grant.

 

Apr 20 16

Default Judgments in Georgia (In General)

by merlin

The mechanism for the grant of a judgment by default in Georgia is laid out in Section 9-11-55 of the Official Code of Georgia:

(a) When case in default; opening as matter of right; judgment. If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages. An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.

(b) Opening default. At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

The procedural circumstances surrounding a judgment by default come with a few formalities, including the inclusion of what is called a Certificate of Default.  Its contents are governed in Georgia by Uniform Superior Court Rule 15.  That Court Rule reads as follows:

“The party seeking entry of a default judgment in any action shall certify to the court the following: the date and type of service effected; that proof of service was filed with the court within 5 business days of the service date, or, if not filed within 5 business days of the service date, the date on which proof of service was filed; that no defensive pleading has been filed by the defendant as shown by court records; and the defendant’s military status, if required. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.”

The importance of this Certificate is not supreme, however, and its limits have been explored in the caselaw.  Williams v. Contemporary Services Corp. et al., A13A1464, heard by the Court of Appeals of Georgia on November 13, 2013, holds generally that this Certificate of Default specified by USCR 15 is not a matter of life or death, so long as the information it contains appears on the record, and that in such a case, the failure to include it does not constitute such a nonamendable defect as would entitle a party to reopen a default judgment.  The case is as follow:

        FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and BRANCH, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.

        Branch, Judge.

        Nora Williams appeals the trial court’s decisions to set aside a default judgment and to open default in favor of Contemporary Services Corporation (“Contemporary”). For the reasons stated below, we reverse.

        The record shows that Williams filed her complaint for damages on March 3, 2010; that Williams caused Contemporary’s registered agent in Georgia to be served on March 11, 2010; that on June 3, 2010, Williams filed proof of service of process; and that as of June 30, 2010, Contemporary had failed to answer. On June 30, 2010, the trial court issued a rule nisi for a hearing to be held on August 13, 2010, and on that day the trial court held a hearing and a bench trial on damages, following which it entered a  judgment by default in the amount of $85,000 plus interest.1

        On October 20, 2010, Contemporary filed a motion to set aside the judgment and to open default, as well as a certificate of counsel, supporting affidavits, and a proposed answer. Eight months later, on June 21, 2011, the trial court granted Contemporary’s motion, set aside default judgment, and opened default. On June 27, 2011, Contemporary filed its answer and paid the costs to open default. Williams thereafter moved for reconsideration, but the court denied the motion.

        The case proceeded to a bench trial. Following opening arguments, Williams rested her case without introducing evidence. Contemporary moved for a judgment on the grounds that Williams failed to introduce any evidence and failed to prosecute the case. The trial court directed a verdict in favor of Contemporary and subsequently entered a final judgment in favor of Contemporary on August 22, 2012. Williams filed a notice of appeal from this judgment on August 30, 2012.

  1. Williams contends the trial court erred by setting aside the default judgment. “A trial court’s decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion.” (Citation omitted.)Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 566 (2) (504 SE2d 710) (1998).

        Outside of the term of court in which a judgment has been entered,2 it may be set aside only for one of three reasons:

(1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings.

OCGA § 9-11-60 (d); The Pantry v. Harris, 271 Ga. App. 346, 347 (2) (609 SE2d 692) (2005) (“the first and essential step against any final  judgment, including a default judgment, is a motion to set aside the  judgment under OCGA § 9-11-60 (d)”). In this case, the trial court set aside the default judgment on the ground that a nonamendable defect appeared on the face of the record in that “[h]aving reviewed the record, it appears that no Certificate of Default was ever filed by Plaintiff” in compliance with Uniform Superior Court Rule (“USCR”) 15.3 Williams contends this ruling was error. We agree.4

        In attempting to secure a default judgment, Williams was required by USCR 15 to “certify to the court” in writing two items of information: the date and type of service effected on Contemporary and that the court records show no defensive pleading had been filed. The rule provides that the certificate “must be attached to the proposed default judgment when presented to the judge for signature.” The plain terms of the rule show that the certificate is intended to assure the judge who has received a proposed default judgment that the defendant was in fact served and in fact failed to answer, information already available in the record.5 In fact, in the Rule Nisi issued by the trial court, the judge “noted” that service had been perfected but that no answer had been filed. Based on the apparent purpose of Rule 15 and the fact that the same information required in the Rule 15 certificate can be found in the record, we conclude that the failure to file a Rule 15 certificate is not a nonamendable defect in the record sufficient to authorize the trial court to set aside a default judgment under OCGA § 9-11-60 (d).6 Cf. Hardeman, 214 Ga. App. at 485 (failure to notify trial court pursuant to USCR 4.8 that action was a renewed action was not a nonamendable defect appearing on the face of the record under OCGA § 9-11-60 (d) (3)) (physical precedent only). Compare SRM Realty Servs. Group v. Capital Flooring Enterprises, 274 Ga. App. 595, 604-605 (3) (617 SE2d 581) (2005) (holding that Rule 15 certificate at issue satisfied the requirements of that rule but not addressing whether a complete failure to file a Rule 15 certificate constitutes a nonamendable defect in the record).

        Moreover, the Civil Practice Act provides that when the defendant has not filed a timely answer, “the case shall automatically become in default ” and if the case is still in default after the expiration of the statutory period of 15 days for opening default as a matter of right, “the plaintiff at any time thereafter shall be entitled to verdict and  judgment by default, in open court or in chambers . . . unless the action is one ex delicto or involves unliquidated damages.” OCGA § 9-11-55 (a) (emphasis supplied). See, e.g., H. N. Real Estate Group v. Dixon, 298 Ga. App. 124, 126 (679 SE2d 130) (2009) (where defendant did not answer and did not move to open the default within the statutory time period, plaintiff “was entitled to verdict and  judgment it its favor”) (citation omitted); Lewis v. Waller, 282 Ga. App. 8, 11 (1) (a) (637 SE2d 505) (2006) (trial court erred in failing to grant default judgment where defendant failed to answer or open default within 15 days thereafter). As stated by this Court,

The plain language of [OCGA § 9-11-55] “entitles” a plaintiff default judgment where, as here, a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.

SRM Realty, 274 Ga. App. at 604 (2).

        And when court rules conflict with statutory law or case law, the court rules must yield to substantive law. See USCR, Preamble (“It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.”). See also Russell v. Russell, 257 Ga. 177 (356 SE2d 884) (1987) (case law precedent controlled over provisions of USCR 24.6 (D)); Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (1) (374 SE2d 785) (1988) (provisions of USCR 6.2 must yield to provisions of OCGA § 9-11-56 (c)).

        Because Contemporary failed to establish the presence of a nonamendable defect on the face of the record, the trial court abused its discretion by granting Contemporary’s motion to set aside the default judgment, and we therefore reverse. See, e.g., H. N. Real Estate, 298 Ga. App. at 126. Because the trial court erred by setting aside the default judgment, we need not reach Williams’s remaining enumerations of error, including that the trial court erred by opening default for Contemporary under OCGA § 9-11-55.

        Judgment reversed. Phipps, C. J., and Ellington, P. J., concur.

Notes:

  1. The judgment explains that at the hearing, the court heard evidence regarding Williams’s unliquidated damages.
  2. See Bridgestone/Firestone North American Tire v. Jenkins, 261 Ga. App. 20, 21 (2) (582 SE2d 9) (2003) (“[A] court may exercise its discretion for meritorious reasons to set aside a  judgment within the same term of court. . . . Once that term of court has ended, however, a  judgment may only be set aside under the procedures in OCGA § 9-11-60 (d).”) (citations omitted). Here, Contemporary filed its motion to set aside the  judgment outside of the term in which the default judgment was entered.
  3. The party seeking entry of a default judgment in any action shall certify to the court the date and type of service effected and that no defensive pleading has been filed by the defendant as shown by court records. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.      Uniform Superior Court Rule 15.
  4. In the trial court, Contemporary moved to set aside the judgment on the second and third bases of OCGA § 9-11-60 (d): fraud/accident/mistake; and nonamendable defect in the record. Contemporary never argued that the trial court lacked jurisdiction over Contemporary. On appeal, Contemporary has abandoned its argument based on OCGA § 9-11-60 (d) (2) (fraud/accident/mistake). Thus the only issue on appeal regarding the trial court’s decision to set aside the default judgment is whether there was a nonamendable defect in the record. And “[t]he alleged nonamendable defect must be apparent from the face of the record in the absence of the additional evidence.” (Citation omitted.) Hardeman v. Roberts, 214 Ga. App. 484, 485 (448 SE2d 254) (1994).
  5. See OCGA § 9-11-4 (h) (“The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date.”).
  6. By our holding, we do not mean to suggest that Rule 15 should be ignored; rather, parties and their counsel should abide by its terms. We hold only that where the information required by Rule 15 is found in the record, the failure to provide a Rule 15 certificate in connection with a proposed default judgment does not constitute a non-amendable defect in the record.