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Redacted Application for Interlocutory Appeal (Civil Practice Act to Georgia Sex Offender Registry)

by merlin on September 24th, 2016
  • Sumo

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).

Jurisdictional Statement

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

  1. 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.
  2. 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.
  3. 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).

 

Argument

  1. 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.

  1. 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.

  1. 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.

Conclusion

          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.

 

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