Supreme Court of Georgia Upcoming Cases



Summaries of Facts and Issues


Please note: These summaries are prepared by the Office of Public Information to help news reporters determine if they want to cover the arguments and to inform the public of upcoming cases. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations. For additional information, we encourage you to review the case file available in the Supreme Court Clerk’s Office (404-656-3470), or to contact the attorneys involved in the case. Most cases are decided within six months of oral argument.


Monday, October 5, 2015


10:00 A.M. Session




            State government agencies that reduced funding for people with disabilities are appealing a Georgia Court of Appeals ruling that allows a lawsuit against them to go forward on the ground that they failed to let service providers know they were cutting their funding.

FACTS: Medicaid is a cooperative federal-state program through which the federal government furnishes financial assistance to states so they can provide medical, rehabilitation, and other services to low-income persons. With federal approval, states may enact “waiver programs” that exempt them from certain federal Medicaid requirements. In 2007, the federal government approved two such waiver programs in Georgia to enable organizations such as United Cerebral Palsy of Georgia, Inc. to deliver services for developmentally disabled citizens in their homes and in community-based settings rather than in institutions. Under the provisions of the waiver programs, Medicaid service providers are entitled to be paid certain rates for their services. According to United Cerebral Palsy of Georgia and other nonprofit service providers, beginning in 2008, the Georgia Department of Behavioral Health and Developmental Disabilities and the Georgia Department of Community Health unilaterally reduced the rates they paid to providers and limited the amount and types of services disabled citizens could receive, sometimes to below the amount that was medically necessary. The service providers alleged that the state agencies made these reductions without public notice and comment as required by federal and state law and without giving the providers or recipients proper notice in violation of their constitutional right to due process. They also claimed that the departments refused their informal inquiries about the changes and then omitted information they were required to give them in response to the Open Records Act inquiries regarding how the departments arrived at the new reimbursement rates.

In August 2013, the service providers filed a class action lawsuit in Fulton County Superior Court against the two state departments and their commissioners, alleging breach of contract, noncompliance with federal Medicaid statutes, violation of their constitutional rights, and other things. But the trial judge granted the departments’ motion asking the court to dismiss the lawsuit on the ground that the service providers failed to first seek an administrative review of their complaints by the departments before taking the matter to court. On appeal, however, the Georgia Court of Appeals reversed that decision, finding that because the departments failed to give written notice of the reductions, they were not entitled to dismiss the lawsuit based on the service providers’ failure to exhaust their administrative remedies. The agencies now appeal to the state Supreme Court which has agreed to review the case to determine whether exhaustion of all available administrative remedies is required when a state agency fails to give proper notice of its adverse decision.

ARGUMENTS: The Attorney General’s office argues for the state departments that the plaintiffs in this case are a group of Medicaid providers and beneficiaries who seek class action status for themselves and other providers and beneficiaries to challenge Georgia’s means of allocating Medicaid services and payments. “Class action status notwithstanding, Medicaid disputes of this nature are not unusual,” the state attorneys argue in briefs. “What is unusual, however, is Plaintiffs’ flawed strategic decision to leapfrog the mandatory statutory administrative review process and first raise their grievances in the Superior Court of Fulton County. The superior court recognized this error and properly dismissed Plaintiffs’ complaint for failure to exhaust administrative remedies.” The Court of Appeals has “wrongly concluded that an alleged procedural error by Appellants [i.e. the state departments] – failing to send formal, written notice that payment and service allocations were less than Plaintiffs anticipated – excused Plaintiffs’ decision to ignore their administrative remedies and file with the superior court a proposed class action to decide complex Medicaid reimbursement questions about which Appellants are statutorily empowered to exercise their expertise to resolve in the first instance.” The state Supreme Court ruled in 1999 in Cerulean Cos., Inc. v. Tiller that “Long-standing Georgia law requires that a party aggrieved by a state agency’s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency’s decision.” The Supreme Court is now asking “whether Plaintiffs’ allegations of a procedural error – the type of notice provided – excuses their strategic decision to bypass statutory and jurisdictional requirements to exhaust administrative remedies. Decades of Georgia law provide that the answer is a resounding ‘no,’” the State’s attorneys argue. The Georgia Legislature in 1977 enacted § 49-4-153 to provide a method to appeal disputes over Medicaid reimbursement and quantity of services. “Code Section 49-4-153 (b), which authorizes the administrative appeals process, does not require any kind of notice, formal or otherwise, to trigger an administrative appeal,” the attorneys contend. The Court of Appeals erroneously decided that the service providers 1) failed to receive proper notice of their alleged payment and service discrepancies; and 2) that the failure warranted a new exception to the requirement that parties exhaust administrative review,” the State attorneys argue. “Both conclusions warrant reversal, as the General Assembly empowered the executive branch with the exclusive jurisdiction to decide procedural and substantive questions first, and the jurisdiction of the judicial branch is established only after administrative review.”

Attorneys for the service providers argue the Court of Appeals correctly ruled that the failure to formally notify them of the rate changes excused them from the exhaustion requirement and allowed them to appeal to the courts. Here, the Departments have completely misstated the question posed by the state Supreme Court. “Ignoring the Court’s direction, the Departments substituted their own judgment about what the Court should have asked,” the attorneys argue in briefs. “This case is about the Departments’ secret and unlawful reduction of already allocated Medicaid funds, which stripped away money and services from intellectually and developmentally disabled Georgia citizens and their health care.” As the state Supreme Court has long held, the “right to due process is, at its core, the right of notice and the opportunity to be heard.” “The regulatory framework is clear: Before the Departments take any adverse action against the Participants, they must provide the ‘core’ of due process – notice of their proposed adverse action. This notice triggers the Departments’ administrative review process. Without notice, the Participants had no opportunity to be heard in an administrative review.” The Departments “misleadingly frame their complete failure to provide notice as an innocent ‘procedural error.’ Far from a mere ‘procedural error,’ however, the Departments deprived the Participants of any ‘procedure at all, and gutted the Participants’ due process rights. If successful, the Departments will have ensured their actions are entirely unreviewable, both administratively and judicially.” The Departments’ argument that the Departments’ regulations and policy manuals say nothing about any form of notice “is patently false,” the attorneys argue. As the Court of Appeals delineated in detail, state and federal regulations, and policy and procedure manuals specifically tie the administrative review process to formal notice. And so does state law. Georgia Code 49-4-153 (b) specifically states that the request for an administrative hearing “shall be filed no later than 15 business days after the provider of medical assistance receives the decision of the Department of Community Health which is the basis for the appeal.” The Medicaid manual dictates that such a hearing must be requested in writing and include “a copy of the adverse action letter.” “Thus, both the providers and the members are entitled to written notice of a proposed adverse decision, which triggers the administrative review process,” attorneys for the service providers argue. “Exhaustion of administrative remedies is not required when a state agency renders administrative remedies unavailable.” Finally, the Court of Appeals’ decision “reinforces – not undermines – the administrative review process,” the service providers argue.

Attorneys for Appellants (Departments): Samuel Olens, Attorney General, Dennis Dunn, Dep. A.G., Shalen Nelson, Sr. Asst. A.G., Jaime Theriot, Spc. Asst. A.G., Josh Belifante, Spec. Asst. A.G.

Attorneys for Appellees (Service Providers): Eric Taylor, Lawrence Bracken II, Jason Beach, Peter Busscher, Deepak Jeyaram



            An insurance company is appealing a Georgia Court of Appeals ruling that would require the company to cover claims by a woman who alleges her daughter suffered permanent injuries after ingesting lead-based paint in their rental house.

FACTS: Amy Smith sued her landlord, Bobby Chupp, in Newton County, alleging that her daughter, who was born in 2004, suffered brain damage from ingesting lead-based paint as a result of his failure to keep the premises in repair and to provide warnings about the risks of lead-based paint. Smith and her daughter had lived in Chupp’s rental house, beginning in 2004 when Smith’s daughter was a few months old. She alleged in her personal injury complaint that in 2007, a health department inspection revealed the house had been painted with lead-based paint; that the paint was cracking, chipping and peeling; that medical tests in 2007 revealed the child had lead in her bloodstream; and that the child’s exposure to the lead-based paint during her infancy resulted in debilitating, permanent disabilities.

Chupp had a commercial general liability insurance policy on the property with Georgia Farm Bureau Mutual Insurance Co. After Smith sued Chupp, the insurance company filed an action against both Smith and Chupp, asking the court to determine that it was not required to cover the child’s alleged injuries, nor was it required to defend Chupp in the personal injury action because the child’s alleged injuries came under the policy’s “pollution exclusion.”

The policy states: “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Under a section called “Exclusions,” the policy states: “This insurance does not apply to: ‘Bodily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants.’” The policy defines “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”

At dispute in this case is whether Smith’s lead-based paint claims are excluded from coverage under the insurance policy’s “pollution exclusion.”

The trial court ruled in favor of the insurance company, finding Smith’s claims were excluded under the policy. But on appeal, the Court of Appeals reversed that decision, ruling that the pollution exclusion did not encompass injuries caused by the ingestion of lead-based paint. It further held that if Georgia Farm Bureau Mutual “had intended to exclude injuries caused by lead-based paint from coverage in the policy at issue in this case, it was required, as the insurer that drafted the policy, to specifically exclude lead-based paint injuries from coverage.” Because the appellate court ruled the exclusion did not apply, it also ruled that the insurance company “had a duty to defend Chupp against Smith’s lawsuit.” The insurance company now appeals to the state Supreme Court.

ARGUMENTS: Attorneys for the insurance company argue that the Court of Appeals was wrong and its decision should be reversed. “The undisputed facts of this case show that [Smith’s] claims are excluded from coverage under the absolute pollution exclusion in the policy because (1) lead is a pollutant; and (2) ingestion of lead can only occur after a discharge, dispersal, seepage, migration, escape, or release of lead contained in lead paint,” the attorneys argue in briefs. At least 12 other states have found that similar pollution exclusion clauses encompass injuries arising from the ingestion of lead-based paint. With this ruling, the Court of Appeals “has departed from the clear law” of the Georgia Supreme Court’s 2008 decision in Reed v. Auto Owners Insurance Company, the attorneys contend. In that case, the issue was whether carbon monoxide was excluded under a pollution exclusion clause identical to the one here. In answering yes, the state Supreme Court reasoned that it “need not consult a plethora of dictionaries and statutes to conclude” what is and is not a pollutant. “But rather than follow Reed,  the Court of Appeals took a strained approach to reading the pollution exclusion clause in question – finding that injuries caused by lead-based paint are not excluded because lead-based paint is not specifically listed as a ‘pollutant’ in the policy. This was in error and contrary to Reed.” As Judge Carla Wong McMillian wrote in a special concurrence to the Court of Appeals majority decision, “it has never been the law in the state of Georgia that a pollution exclusion clause in an insurance contract must specifically list the exact pollutant in order for the clause to exclude coverage.” The Court of Appeals has misapplied Reed, and the Georgia Supreme Court’s “common sense approach to absolute pollution exclusion clauses mandates that lead paint poisoning due to ingestion falls within the pollution exclusion contained in the policy,” the insurance company’s lawyers argue.

The Court of Appeals “correctly found that lead-based paint is not clearly a pollutant as defined by the policy,” Smith’s attorneys argue. The “overwhelming majority of courts” have held that lead-based paint is not a pollutant. “This issue is one of first impression before this Court in which it must balance the competing interests of a brain-damaged little girl and an insured landlord against the pecuniary interests of the insurance industry,” the attorneys argue in briefs. The primary issue is whether Georgia Farm Bureau Mutual, “which drafted and sold a liability policy for a rental home that was built prior to 1978, while knowing that lead paint was commonly used in most residential homes built prior to 1978, should bear the risk of loss rather than an innocent third-party child or the property owner who purchased a policy that did not clearly disclaim such losses.” The insurance company’s assertion that a majority of courts that have addressed the issue find that lead-based paint is a pollutant “is false,” Smith’s attorneys argue. “At least 17 of 23 sister states have already decided this issue in the same fashion as the Court of Appeals, so its decision is in accord with the vast majority of other jurisdictions that have addressed the question.” The reason for “buying a liability insurance policy was to provide cover for Chupp’s possible negligence arising from his business pursuit, and Georgia Farm Bureau Mutual’s reading of the pollution clause to exclude coverage for his negligent acts is beyond his reasonable expectations as an insured, particularly in light of the lack of clarity of that clause.” The insurance company’s assertion that injuries caused by lead-based paint are excluded from coverage “is not only contrary to Georgia law, but is also contrary to the public policy of the State of Georgia,” Smith’s attorneys argue. Excluding lead-based paint when neither “lead” nor “lead-based paint” is identified as an excludable pollutant “would be tantamount to granting insurers blanket immunity to exclude any potential contaminant not identified in their insurance policies.” As Chupp’s attorney argues, at best for the insurance company is that the policy it drafted and sold Chupp is ambiguous as applied to the ingestion of lead-based paint. However, under the law, if a provision of an insurance contract is susceptible to two or more constructions, and is ambiguous, “the contract will be strictly construed against the insurer/drafter and in favor of the insured,” attorneys for Smith and Chupp argue.

Attorneys for Appellant (Georgia Farm Bureau Mutual): Norman Fletcher, Duke Groover, Lee Gillis, Jr.

Attorneys for Appellees (Smith, Chupp): Jonathan Johnson, C. Andrew Childers, John Strauss


            A woman is appealing a Georgia Court of Appeals ruling that upheld her conviction in Wayne County for conspiracy to commit murder for her role in the shooting death of her husband.

FACTS: According to the facts, Patti Thornton, who was married to Richard “Shell” Thornton, III, began having an affair with Walter Booth, who was also married. She and Booth worked together driving dump trucks for a father-son trucking business. Witnesses testified that at work, Booth made statements that Shell Thornton mistreated Patti and he, Booth, would kill anyone who “messed” with her. He once asked a co-worker to deliver a note to Booth that said, “I love you,” and she sent him numerous emails expressing her love for Booth. She wrote frequently of her hatred for her husband, his mistreatment of her, and her desperate desire to have him “gone for good,” so she could spend more time with Booth. She regularly begged Booth to help get her out of “this hell-hole,” said she could not take it anymore, and in November 2007, reminded Booth that he had “promised it would be done before Thanksgiving.”

A few weeks later, on Dec. 14, 2007, a sheriff’s deputy was summoned to the Thornton house where he found Shell dead in the bedroom. Patti told investigators her daughter had called early that morning and asked Patti to bring her daughter’s driver’s license to her at work. Patti woke her two teenage sons so they could get ready for school and she also spoke to Shell, who asked her to make a bank deposit while she was out. Patti told investigators she then left the house to take her daughter’s license to her, make the deposit, and run some other errands. She told them she also stopped at her mother’s house nearby. When she eventually returned home, she told investigators she immediately noticed that a bowl of change had been knocked over and several guns were lying on the floor. The door to the bedroom she shared with Shell was open, yet it had been closed when she had left earlier that day. Fearing someone was in the house, Patti said she went back to her mother’s house and told her mother to call police. A sheriff’s deputy returned with Patti to the house, where he found Shell in the bedroom with several gunshot wounds to his head.

A GBI crime scene specialist testified there were no signs of forced entry and other than the carport door, all the doors and windows were locked. Investigators did find a computer in the back of Shell’s truck the morning of the crime. Patti told them Shell had put the computer in his truck the night before to take it in for repair. The monitor was still on, and upon later analyzing the computer, investigators discovered Patti’s emails to Booth. Both Patti and Booth denied having a romantic relationship and Booth denied ever being at her house on Dec. 14. He told officers he’d decided not to go to work that day and instead went to a convenience store for coffee then went and played video poker. The explanation of his whereabouts, however, did not check out.

As part of the investigation, Booth’s house was searched and police seized two bottles of Trazodone, which is sometimes used as a sleep aid. Shell’s blood was tested for a variety of substances and one test revealed he had Trazodone in his blood at the time of death. Shell’s physician testified he had never prescribed Trazodone for Shell.

Patti Thornton was charged with murder, conspiracy to commit murder, making false statements and tampering with evidence; Booth was charged with the same crimes except for tampering with evidence. Following a joint trial in 2009, the jury found Patti not guilty of murder but guilty of the remaining charges. The same jury found Booth guilty only of making false statements. He was acquitted of murder and conspiracy to commit murder. Patti appealed, arguing that the trial court should have thrown out her conviction for conspiracy because the jury’s verdict of guilty was inconsistent with its verdict acquitting Booth. The Court of Appeals disagreed, and affirmed her conviction. She now appeals to the Georgia Supreme Court.

ARGUMENTS: Patti Thornton’s attorney argues the Court of Appeals erred in upholding her conspiracy conviction. The trial court should have vacated the conviction because the verdict finding her guilty is inconsistent with the verdict acquitting Booth, her only alleged co-conspirator. With its decision, the appellate court has “ignored Georgia’s legal precedent, which recognized the offense of conspiracy as fundamentally different [from] other offenses because a necessary element of the crime is the culpability of the co-conspirator,” the attorney argues in briefs. Thornton’s case is even more unique as there was only one alleged co-conspirator with which she was jointly tried. Under Georgia Code § 16-4-8, “A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” “The crime itself requires ‘two or more persons’ for the crime to exist at all,” the attorney argues. “The sanctity of the jury’s verdict need not be invaded to make appellant’s [i.e. Thornton’s] verdict reconcile rationally, because legally by acquitting Booth, there can be no crime of conspiracy. An agreement between both appellant and Booth was necessary for a crime to have occurred. Booth’s acquittal made a conviction of appellant a legal impossibility.” In its 1982 decision in Smith v. State, the Georgia Supreme Court concluded that, “in a joint trial of co-conspirators, a failure of proof as to one conspirator would amount to a failure as to both.” In 2005, the Court of Appeals ruled in Hubbard v. State that, “Co-conspirators, alleged to be the only two parties to a conspiracy, may not receive different verdicts where they are tried together.” “Despite the Court of Appeals endorsement of the general rule for co-conspirators in 2005, the Court failed to follow the same rationale for appellant,” relying on the Georgia Supreme Court’s 1986 decision in Milam v. State, which was based on the U.S. Supreme Court’s 1984 decision in United States v. Powell. But neither case involved two co-conspirators tried before the same jury, the attorney argues. If the Georgia Supreme Court “simply follows Georgia precedent and rationale with regard to the limited situation of jointly tried co-conspirators, the answer is simple,” the attorney contends. Follow Smith and “Uphold that ‘in a joint trial of co-conspirators, a failure of proof as to one conspirator would amount to a failure as to both.”

The District Attorney argues for the State that the Court of Appeals did not err in upholding Thornton’s conviction for conspiracy to commit murder even though her sole co-conspirator was acquitted of the same offense. Both the trial court and the Court of Appeals properly followed the decisions of the Georgia Supreme Court in concluding that “the acquittal of one of two jointly-tried co-conspirators does not preclude the conviction of the other co-conspirator.” Under its 1982 decision in Smith, the state Supreme Court recognized that in a joint trial of two alleged conspirators, a verdict of acquittal for one and conviction of the other “are inconsistent because they reach different results regarding the existence of a conspiracy between these two parties based on exactly the same evidence.” But the inquiry doesn’t end there, the State argues. “Rather, the key question is whether this inconsistency in the verdicts required appellant to be acquitted of the conspiracy charge.” That question was answered in the Georgia Supreme Court’s 1986 decision in Milam, which was decided four years after Smith. In Milam, this Court abolished the inconsistent verdict rule in criminal cases and held that a defendant may not attack a conviction because it is inconsistent with the jury’s verdict of acquittal on another charge. In doing so, the Court adopted the rational enunciated by the U.S. Supreme Court in its 1984 Powell decision in which it ruled that inconsistent verdicts “need not be set aside but may instead be viewed as a demonstration of the jury’s leniency.” It went on to say that it was within the province of the jury to acquit or convict because it was possible that the jury, “through mistake, compromise, or lenity, arrived at an inconsistent conclusion.” Appellate courts have consistently applied Milam and adopted the federal court’s rationale, “explaining that appellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense,” the State argues. “The reason could be an error by the jury in its consideration or it could be mistake, compromise or lenity.” But any individualized assessment of the reason for the inconsistency “would be based on either pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.” “Accordingly, the Court of Appeals did not err in affirming Thornton’s conviction for conspiracy to commit murder on the basis that such verdict was inconsistent or irreconcilable with the acquittal of her co-conspirator,” the State contends.

Attorney for Appellant (Thornton): Sophia Butler

Attorneys for Appellee (State): Jackie Johnson, District Attorney, Andrew Ekonomou, Asst. D.A.




            Atlanta’s economic development agency is appealing a Fulton County court’s refusal to dismiss Clark Atlanta University’s claim that when Morris Brown College went into bankruptcy, ownership of three of its properties reverted to Clark based on a 1940 deed.

FACTS: In 1940, Clark Atlanta University transferred three parcels of property to Morris Brown College. At the time, the historically black college was in financial trouble and at risk of losing its campus due to foreclosure. In a deed, Clark conveyed the three parcels of land, consisting of about 13 acres, for $1 as a charitable gift. At issue in this case is language in the deed which states: “The above property is conveyed subject to the condition that Morris Brown College shall use the same for educational purposes….If at any time the said Morris Brown College shall cease to use said property for the particular educational purposes above set forth, the title to said property shall revert to and become vested in the Grantor or its successors.” This “use restriction” included as educational purposes undergraduate work in Arts and Sciences, as well as “graduate course [sic] in Theology, if it chooses to do so.” Recently, in the aftermath of severe financial trouble, a dwindling student body and loss of accreditation, Morris Brown filed for Chapter 11 Bankruptcy. Through the bankruptcy proceedings, Morris Brown sold the three properties, along with others, to the Atlanta Development Authority, which is today known as “Invest Atlanta.” In September 2014, Clark Atlanta sued, seeking a declaration by the court that as a result of Morris Brown’s sale of the three properties and its consequent failure to use the properties for educational purposes, the property automatically reverted to Clark Atlanta. The next month, Invest Atlanta filed a motion asking the court to dismiss the case, challenging the scope of the use restriction and arguing the property did not revert to Clark Atlanta. The trial court ruled against Invest Atlanta and denied its motion to dismiss the case, finding that the use restriction in the 1940 deed was a valid restriction, that it fell within the “charitable purposes” exception to the general rule against putting restraints on the use of property, and that the restriction applies to all three parcels of one’s property, requiring Morris Brown to “possess and occupy” the properties. Invest Atlanta now appeals to the Georgia Supreme Court.

ARGUMENTS: Attorneys for Invest Atlanta argue the trial court’s order is erroneous for several reasons. The sale of the three properties did not violate the “use” restriction as a matter of law. For one thing, the attorneys argue, the restriction only applies to the third property described in the 1940 deed, not all of them. “However, even if that restriction applied to all three properties – as Clark Atlanta University contends – the trial court improperly construed the restriction in a manner that violated multiple rules of construction, a fundamental error,” the attorneys contend. For one thing, the trial court failed to consider the “broad and liberal” definition of “use” under Georgia law. Real property may be “used” in many ways, the attorneys argue. “It may be occupied or possessed, but it may also be mortgaged to secure a loan, leased for rental income, or exchanged for like-kind property.” “There is no dispute that the sale of the properties not only fostered Morris Brown’s educational mission, but was necessary for Morris Brown to have an opportunity to emerge from bankruptcy and regain its accreditation….” The trial court impermissibly re-wrote the 1940 deed by adding the more restrictive terms requiring Morris Brown to “possess and occupy” the properties. “Essentially the trial court, by not applying established legal standards and by adopting a construction most favorable to the grantor in a manner contrary to Georgia law, re-wrote the 1940 deed for the benefit of Clark Atlanta.” The trial court also erred in ruling that the use restriction did not violate Georgia’s well-established policy against restraints on the use of property by those who own it. The state Supreme Court “has stressed the need to make every effort to uphold charitable gifts to avoid forfeitures, such as the forfeiture now advocated by Clark Atlanta University,” Invest Atlanta’s attorneys argue.

Attorneys for Clark Atlanta University argue that the trial court properly recognized that the language of the 1940 deed is “plain and unambiguous” and the sale of the three properties does not constitute a “use” of the property for educational purposes by Morris Brown. The trial court properly construed the word “use” in accordance with prior state Supreme Court decisions, while Invest Atlanta has relied on cases that don’t apply. In a 2011 Memorandum of Understanding signed by the chairman of Morris Brown’s board of trustees, Morris Brown acknowledged that Clark Atlanta University’s reversionary rights to the properties would be triggered if Morris Brown “attempts to transfer ownership of the properties to another person or entity without Clark Atlanta University’s prior written consent” or “the properties cease to be used for the purposes or uses reflected in the reversionary clauses.” Additionally, in its bankruptcy documents, Morris Brown stated that if it should “(i) cease operations, or (ii) cease utilizing the real property for educational purposes, much of the Morris Brown College campus would become property of Clark Atlanta University.” Significantly, “at one point in this litigation even Invest Atlanta agreed that the sale of the reversionary property would trigger Clark Atlanta University’s reversionary interest,” the attorneys point out. The trial court also correctly concluded that the use restriction applies to all three parcels conveyed by the 1940 deed. “The intention of the parties to the 1940 deed as ascertained by the plain meaning of the deed’s unambiguous language necessitates the conclusion that the ‘use’ restriction applies to all three parcels,” the attorneys argue. Finally, Invest Atlanta’s contention that the “use” restriction is void because it constitutes a restraint on the use of property “ignores longstanding Georgia authority that undermines its argument – namely, the ‘charitable purposes’ exception.” The Georgia Supreme Court has ruled that Georgia recognizes an exception to the general rule, “where property is transferred to a charitable group for charitable purposes.” “Here, Clark Atlanta University provided the reversionary property to Morris Brown as a charitable gift ‘for educational purposes’ – an act that clearly brings the 1940 deed within the charitable purpose exception,” Clark Atlanta’s attorneys contend.

Attorneys for Appellant (Invest Atlanta): John Watkins, Roy Hadley, Jr., J. Christopher Fox, II, Garrett Nail

Attorneys for Appellee (Clark): Bernard Taylor, Derin Dickerson



2:00 P.M. Session



            A Telfair County man is appealing his malice murder conviction and life prison sentence for shooting and killing a man.

FACTS: The night of Aug. 18, 2004, Officer Kary Benton Sumate was outside the McRae City Police Station when he heard gunshots. Heading in their direction, Shumate saw a gold Jeep Cherokee stopped in the middle of the road with three men standing around it talking to the driver. As Shumate approached, the car sped off. It was later stopped by another officer. The driver was Eugene McDuffie. Soon after, officers found the body of Jurrell “Fat Man” Clark lying in the yard of the Gregg Apartment Complex near the apartment of George “Tony” Harris. According to several witnesses, earlier McDuffie had walked up to Harris’ porch where Harris and another man were sitting. The witnesses said Clark began yelling at McDuffie, claiming McDuffie’s father had stolen his “merchandise,” which is street slang for crack cocaine, from his backyard. While McDuffie admitted his father had taken the drugs, he said he wasn’t responsible for his father’s actions. McDuffie and Clark continued to argue until Clark threatened he was going to get his gun. As Clark turned to walk back toward his car, witnesses testified McDuffie remarked that Clark wasn’t the only person with a gun. While Clark’s back was to him, McDuffie pulled out his gun and fired two to three shots, hitting Clark in the back of his head and the top of his leg. McDuffie later tried to drag Clark’s body around to the back of the apartment complex, but it was too heavy.

In May 2006, a Telfair County jury convicted McDuffie of malice murder, and he was sentenced to life in prison. He now appeals to the state Supreme Court.

ARGUMENTS: McDuffie’s attorney argues that his constitutional rights were violated because his trial attorney provided ineffective assistance of counsel in several ways, and because McDuffie was denied his due process of law when the prosecutor made racist remarks during her closing argument. McDuffie must be given a new trial because his trial attorney failed to “properly challenge the State’s case against him, failed to present evidence to support his sole defense, and failed to adequately consult and advise him,” the attorney argues in briefs. “In this case, trial counsel’s deficiencies undermined the defendant’s opportunity for a fundamentally fair trial with an effective defense. Trial counsel failed to impeach testimony given by the State’s witnesses, failed to require an eyewitness to testify about evidence supporting the defendant’s sole defense, and failed to adequately consult the defendant about calling witnesses and his right to testify.” “Trial counsel’s failure to impeach the State’s witnesses was unreasonable in light of the defense’s case theory that the defendant was not the shooter,” McDuffie’s attorney argues. The attorney also contends that under the state Supreme Court’s 1943 decision in Hicks v. State, in closing, the prosecutor made a statement that was “so inflammatory and prejudicial that its injurious effect cannot be eradicated from the minds of the jurors by instruction from the court to disregard it.” Specifically the prosecutor said: “I’m sure you realized while the trial was going on that these witnesses, these young men, live by a different code and set of rules than the rest of us….They value things like having nifty rides painted up with the rims, diamond earrings, gold teeth. These are things they value in their community, in their culture.” McDuffie’s attorney argues that, “While the prosecutor did not use a racial epithet, this allusion is clearly one that calls for ‘us v. them.’ And the ‘them’ are people like Eugene McDuffie, a black man. It is troubling too since the jury was made up of all white citizens.” The attorney argues that the prohibitions in the Hicks decision apply in this case because “there was no evidence regarding cars or physical appearances or even jewelry during the trial.” “So in a case where the jury did not reflect the full makeup of the community, an argument about rims, diamond earrings and gold teeth was a highly probable influence on the jury,” the attorney argues. “As such, Mr. McDuffie didn’t receive a fair trial.”

The State argues McDuffie was not denied his constitutional rights, and he received effective assistance of counsel. McDuffie claimed it was error for his attorney to fail to call GBI Agent Spencer Barron to testify for the purpose of showing the witnesses against McDuffie lacked credibility and were not to be believed. But McDuffie’s trial attorney later testified that she believed Barron’s testimony would have done more harm than good to her client. “The general rule in this regard is that whether or not to call a witness is within the province of trial counsel after consultation with their client,” the State argues in briefs. “If those decisions are reasonable, they do not constitute ineffective assistance of counsel.” Similarly, the trial attorney made a “strategic decision not to compel” the testimony of a woman who “was screaming and incoherent and refused to testify during the trial” out of fear. The trial attorney said the woman’s testimony at that point would have been unpredictable, and even if the woman testified that McDuffie was not the shooter, the attorney worried her testimony could have been seriously challenged during cross-examination. Finally, while every defendant has a right to testify in his own defense, “There is no right to be continuously informed of one’s right to testify, either by the court or by counsel,” the State contends. As to the prosecutor’s closing argument, “Under most circumstances, the statements complained of are those that are referring to or otherwise characterizing the defendant. Here, however, the complained of statement is in reference to the State’s witnesses.” The defense attorney argued in her closing argument that the “heart” of the State’s case was the four witnesses who testified at trial that McDuffie was the shooter, but their testimony was not credible, either because they had given different statements earlier or because they had denied knowing about the shooting. The State prosecutor’s statement was an attempt to describe to the jury why these witnesses may not immediately have reported their knowledge of the crime, the State argues. “Even assuming the statement was improperly prejudicial, it is a far cry to say it prejudiced the defendant when [it was] in reference to the State’s witnesses and not the defendant.”

Attorney for Appellant (McDuffie): R. Gary Spencer

Attorneys for Appellee (State): Timothy Vaughn, District Attorney, Joshua Powell, Asst. D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Mary Greaber, Asst. A.G.



            A man who claims a Georgia probation supervisor ripped up a judge’s order releasing him from probation is appealing a Fulton County judge’s dismissal of his case. John T. Walker, Jr. filed a petition asking the court to declare that an insurance policy the Department of Corrections must maintain for its probation supervisors is a bond to which he may be entitled.

FACTS: According to briefs filed by Walker’s attorney, in February 2011, Walker was sentenced to five years of probation under the Georgia First Offender Act. Neither Walker’s brief nor the State’s says what he did to earn a probation sentence. In September 2013, the Morrow probation office submitted a petition for his early discharge from probation. A probation officer, Andrew Scott, testified that after the petition was signed by Judge Matthew O. Simmons, Scott delivered it back to the probation office. Almost a year later, in August 2014, Scott wrote a letter to a Department of Corrections regional manager reporting that Walker’s probation discharge order had been destroyed. According to Walker’s brief, that led to a Department of Corrections internal investigation which unveiled irregularities in the Clayton Judicial Circuit, including that at least in Morrow, after probation office personnel retrieved orders from a judge’s chambers, sometimes the chief probation officer, Chiquiti Dean, immediately filed the order with the Clerk of the Superior Court of Clayton County, as required, and sometimes she did not. In testimony, Dean later said she had destroyed the proposed early termination petition for Walker’s discharge, but that she had “intercepted and voided” it before it went to the judge for signature because there were errors in the document. The judge later determined he had signed the order and put it in the hands of the Morrow probation office for filing with the court clerk but it had never been filed. In May 2014, Judge Simmons issued a probation revocation warrant for Walker, not realizing he had terminated Walker’s probation the year before. The warrant was prepared by the Morrow probation office, according to Walker’s attorney. Again, neither party’s brief discloses why there was a warrant to revoke Walker’s probation. In June 2014, Walker was arrested on that warrant and spent 21 days in jail. The petition to revoke his probation remained pending until Jan. 30, 2015 when it was ultimately denied based on probation officer Scott’s “whistleblowing revelations” that the judge had signed an order terminating Walker’s probation in September 2013 and there was no probation to revoke.

In March 2014, Walker filed a “Petition for Declaratory Judgment or in the Alternative for Writ of Mandamus” against Brian Owens, Commissioner of the Department of Corrections, Chiquiti Dean, chief probation officer in Morrow, and Sid Johnson, Commissioner of the Georgia Department of Administrative Services. In his petition, Walker sought a declaration by the Fulton County court that an insurance policy obtained by the Georgia Department of Administrative Services for probation officers should be read as a statutory bond for employees of the State of Georgia. Georgia Code § 42-8-26 (d) states that each probation officer “shall give bond…for the use of the person or persons damaged by his or her misfeasance or malfeasance….” As an alternative, Walker sought a ruling requiring the State to obtain a statutory bond for probation officers. Walker argued that for eight months, he lived under threat of having his probation revoked and being sent to prison – not knowing that he’d already been released from probation. The defendants – Owens, Dean and Johnson – filed a motion to dismiss the case, arguing Walker’s petition was barred by sovereign immunity. Following a hearing, the trial court ruled in favor of the state officials, although not on the basis of sovereign immunity. Rather the trial court dismissed the case on the grounds that Walker’s “petition for declaratory relief was premature prior to his filing a lawsuit making a claim on the bond.” Walker now appeals to the state Supreme Court.

ARGUMENTS: Walker’s attorney argues the trial court erred in dismissing his case. “The trial court’s ruling that the petition is insufficient due to the lack of the petitioner having made a prior claim on the bond in the form of a lawsuit against the insured or the surety is simply not sufficient grounds to dismiss a declaratory judgment action,” the attorney argues in briefs. Georgia Code § 9-4-2 states that, “In cases of actual controversy, the respective superior court of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed….Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.” “The object of declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated,” Walker’s attorney contends. “A party seeking such a judgment ‘must establish that it is necessary to relieve himself of the risk of taking some future action that, without direction, would jeopardize his interests.’” Here, Walker sought from the court a declaration of his rights regarding the insurance policy. “According to him there existed an actual controversy and uncertainty as to whether the Great American policy was in fact a statutory bond and whether it should be declared as such….” The judge incorrectly reasoned that until a lawsuit was filed on the underlying claim against the chief probation officer, there was no actual controversy. But the “filing of a lawsuit is not a prerequisite to obtaining a declaratory judgment,” Walker’s attorney argues.

The Attorney General argues for the state officials that first, this appeal does not belong in the state Supreme Court, which lacks jurisdiction because the case does not involve “equity” or an “extraordinary remedy.” Second, the superior court correctly dismissed Walker’s petition and ruled that Walker was not entitled to declaratory relief because he did not face any uncertainty or insecurity as to his future conduct. “Instead, the superior court found that appellant [i.e. Walker] merely requests the court to interpret an insurance policy obtained by the Georgia Department of Administrative Services and to declare whether or not the insurance policy is a bond,” the State argues in briefs. “Here not only did appellant fail to show any insecurity or uncertainty as to his future conduct, but an actual controversy does not exist between the parties.” Walker is simply looking for “a possible theory of recovery and the appropriate parties to name in a possible or potential future suit.” Third, while the superior court did not make a ruling on the issue of sovereign immunity, Walker’s claim for relief is barred by sovereign immunity. “The Georgia Constitution extends sovereign immunity to the State and all of its departments and agencies” and can only be waived by an act of the General Assembly, attorneys for the state officials contend. Here, sovereign immunity has not been waived and Walker has failed to cite any basis for a waiver of the state officials’ sovereign immunity to permit his claims. The State asks that the Supreme Court transfer the case to the Georgia Court of Appeals or uphold the trial court’s ruling.

Attorney for Appellant (Walker): Wayne Kendall

Attorneys for Appellees (Owens): Samuel Olens, Attorney General, W. Wright Banks, Jr., Julie Jacobs



A man is challenging as unconstitutional the Georgia statute that has allowed him to be classified a “sexually violent predator” who must wear an electronic monitor for the rest of his life. He claims a Fulton County judge’s denial to grant him a court hearing where he could challenge the classification violated his constitutional right to due process.

FACTS: Scott Gregory was convicted of exposing himself and masturbating via webcam to a person he believed was a 14-year-old girl in an internet chat room. He pleaded guilty under the First Offender Act of violating the “Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007.” According to state prosecutors, Gregory admitted to having been a sexual exhibitioner for more than 20 years. He was sentenced to 10 years on probation with conditions that included the requirement he get sex offender treatment, abstain from alcohol and drugs, and not commit any new offenses. In August 2012, the Forsyth County Superior Court revoked Gregory’s First Offender probation after he was arrested for indecent exposure at a public pool while intoxicated. He admitted to the offense and was sentenced to 10 years, with two in custody, part of which would be suspended upon completion of in-patient treatment. He would serve the remaining eight years on probation. Gregory is currently on probation and subject to specialized sex offender conditions, including restrictions against frequenting areas where children congregate.

In September 2013, based on Georgia Code § 42-1-14, the state Sexual Offender Registration Review Board designated Gregory as a “Sexually Dangerous Predator,” which denotes the highest risk. The Board, which is made up of law enforcement representatives, as well as professionals licensed in the treatment of sex offenders, employs clinical evaluators who evaluate sex offenders and recommend their risk classifications to the Board. The Board uses actuarial risk assessment instruments to determine the likelihood that a sexual offender will commit another dangerous sexual offense or another crime against a victim who is a minor.

On Sept. 16, 2013, Gregory received a letter from the Board informing him of his initial risk classification. The letter informed him of his right to request a reevaluation and to submit additional evidence, including psychological evaluations, treatment and work history, and any sexual history polygraph information. Gregory requested a reevaluation and submitted almost 400 pages of additional documentation, including treatment notes and reports, and letters from the community. According to state prosecutors, a different evaluator then completed a reevaluation of Gregory, after reviewing the new information. The second evaluator noted “robust indicators of sexual recidivism,” illustrated even in the documentation Gregory provided, and did not recommend lowering Gregory’s risk level. The Board again designated Gregory as a Sexually Dangerous Predator and notified him of that in a Jan. 13, 2014 letter. According to Gregory’s attorney, the Board denied Gregory’s petition for reevaluation on Jan. 13, 2014.

Gregory then filed a petition for judicial review in Fulton County court, requesting a hearing. In his petition, he challenged the accuracy of his classification and alleged that the classification process was unconstitutional. Georgia Code § 42-1-14 states, “The court may hold a hearing to determine the issue of classification.” The statute also says, “The court may uphold the Board’s classification,” or the court may change it if it finds the evidence shows the offender was not placed in the right risk assessment classification. The court “shall” consider “any relevant evidence submitted,” the statute says. In July 2014, the trial court denied Gregory’s request for a hearing but instructed him to submit any additional evidence in writing for the court’s review. Gregory submitted additional evidence and a brief. In August 2014, the trial court upheld his classification as a Sexually Dangerous Predator and found that the statute is constitutional. Gregory now appeals to the state Supreme Court, which has agreed to review the case to determine whether the trial court erred in finding that the statute did not violate his constitutional due process rights.

ARGUMENTS: Gregory’s attorney argues that the trial court erred and he asks the state’s highest court to rule that § 42-1-14 is unconstitutional. The most important fact in this case is that “the Sexual Offender Registration Review Board has made a decision requiring that he wear a GPS tracking device on his body, and the Fulton County Superior Court has affirmed that decision without either entity ever hearing from a witness,” the attorney argues in briefs. “And both entities have ordered that Mr. Gregory will wear the monitor in spite of never hearing from Mr. Gregory or allowing him to cross examine any of the people who prepared documents upon which the Board relied.” The Board did not notify him, in advance of its decision, that it was working on his file. “And he had no opportunity to review the documents, cross-examine witnesses, or present his own witnesses to the Board before it reached its decision,” the attorney contends. The denial of a full hearing before the trial court and the unavailability of a hearing before the Board “violates Mr. Gregory’s procedural due process rights under the Fourteenth Amendment of the United States Constitution.” To be entitled to due process protection, a petitioner must demonstrate he has a liberty interest at stake. “In this case, the Board has done two things to restrain Mr. Gregory’s liberty,” the attorney argues. “It has deemed him publicly a ‘sexually dangerous predator,’ and its assessment will mean that he is required to wear a GPS tracking device for the remainder of his life.” In its 1999 decision in Ruby-Collins v. Cobb County, the Georgia Court of Appeals ruled that, “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and the opportunity to be heard are essential.” “Not only is the state of Georgia officially labeling Mr. Gregory a sexually dangerous predator and requiring him to wear a GPS monitor, the State’s action has a substantial impact on Mr. Gregory’s family, who will also bear the stigma of living with a person so labeled,” Gregory’s attorney argues.

The Attorney General’s office argues for the Sexual Offender Registration Review Board that the trial court properly found that Georgia Code § 42-1-14 did not violate Gregory’s due process rights because Gregory received notice of the Board’s action, exercised his right to request a reevaluation, exercised his right to petition for judicial review, and had the opportunity to submit additional evidence. The right Gregory claims is not one that is protected by the due process clause of the Constitution, the State contends. “Neither the Constitution nor the challenged statute grants convicted sexual offenders a right to avoid being classified based on their risk to reoffend,” the State argues in briefs. Even assuming convicted sex offenders had a “liberty interest” in not being classified based on their risk, § 42-1-14 provides due process. “Opportunity to submit written evidence constitutes due process when the evidence is capable of being presented as effectively in writing as orally and the value of cross examining witnesses is limited,” the State argues. “Written submissions provide Appellant [i.e. Gregory] and other sexual offenders an adequate opportunity to be heard.” The trial court’s order affirming the Board’s classification of Gregory as a Sexually Dangerous Predator and its finding that § 42-1-14 is constitutional should be upheld, the State contends.

Attorneys for Appellant (Gregory): J. Scott Key, Robert Rubin

Attorneys for Appellee (Board): Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Joseph Drolet, Sr. Asst. A.G., Hye Min Park, Asst. A.G.



Summaries of Facts and Issues


Please note: These summaries are prepared by the Office of Public Information to help news reporters determine if they want to cover the arguments and to inform the public of upcoming cases. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations. For additional information, we encourage you to review the case file available in the Supreme Court Clerk’s Office (404-656-3470), or to contact the attorneys involved in the case. Most cases are decided within six months of oral argument.


Tuesday, October 6, 2015


10:00 A.M. Session



            The appeal in this case raises again the question of whether a trial judge may alter the prison sentence recommended by State prosecutors after the judge has accepted a plea bargain agreement. In this Fulton County case, the District Attorney, representing the State, is appealing a decision by the Georgia Court of Appeals, which concluded the judge had the authority to reduce a man’s sentence to below what the District Attorney recommended.

FACTS: Terry Kelley and three others were indicted in Fulton County in 2012 and charged with felony murder, burglary and other crimes for his alleged participation in an armed robbery attempt that resulted in the death of a fifth participant. In October 2012, Kelley and State prosecutors told the trial court that rather than go to trial, they had negotiated a plea agreement in which the State agreed to reduce Kelley’s felony murder charge to the “lesser-included” (less serious) charge of voluntary manslaughter and to recommend to the court a prison sentence of 20 years. All the other charges would be “nolle prossed” or dismissed in exchange for Kelley’s guilty plea to voluntary manslaughter and his truthful testimony at the trials of his co-defendants. The trial judge accepted Kelley’s plea to the reduced charge as having been “knowingly, freely and intelligently” entered. However, the judge determined the sentence recommended by the State was too high, stating after hearing from witnesses that “there’s a substantial factual basis for mitigation in this particular case,” including the facts of the case, Kelley’s admission of his involvement and remorse, his lack of any criminal history and his willingness to provide truthful testimony about his co-defendants. Instead, the judge sentenced Kelly to 10 years, with the first five to be spent in prison followed by five on probation. The State immediately objected and asked to withdraw Kelley’s plea and proceed to trial. The judge orally refused and upheld the sentence. The State then filed a written “Motion to Set Aside an Illegal Judgment,” alleging that the trial court lacked the authority to impose a sentence different from the negotiated and recommended sentence. In doing so, the State claimed the trial court was improperly participating in the plea negotiation process by accepting a “non-negotiated” plea to an offense that was not included in the formal indictment. And in a non-negotiated plea, the defendant may only plea to charges in the indictment, and the trial court has no authority to reduce the charges. In November 2012, the trial court granted the State’s motion, agreeing with the State that it had no authority to sentence Kelley to a lesser offense not charged in the indictment. In May 2013, the trial court resentenced Kelley to 20 years as originally recommended by the State. When Kelley appealed, however, the Georgia Court of Appeals reversed the ruling, finding that the trial court had accepted the plea agreement in large part and only rejected the sentence recommended by the State. And while “the crime with which to charge a defendant is within the exclusive purview of the State,” “the sentence to be imposed with regard to a charge is within the exclusive province of the trial court unless that discretion has been removed by statute,” the appellate court said. It further ruled that the trial court’s rejection of the State’s recommended sentence did not give the State the right to withdraw from the plea agreement. The State now appeals to the Georgia Supreme Court.

ARGUMENTS: The District Attorney’s office argues for the State that the Court of Appeals erred in allowing the trial court to reject the negotiated sentence but still purport to accept a plea to the reduced offense, over the State’s objection. It further erred in ruling that the State had no right to withdraw its consent to reduced charges upon rejection of the negotiated sentence. “A trial court is not authorized to undercut the negotiated sentence of a proposed plea to reduced charges yet simultaneously accept that guilty plea over the State’s objection,” the State argues in briefs. “Although in Georgia the Uniform Superior Court Rules make a negotiated sentence only a recommendation to the presiding judge, still, the authority to withhold approval of a negotiated plea does not permit the court to engage in plea bargaining by changing terms (sentence) or to reduce charges without the consent of the prosecutor.” Once the State and defendant finalize a plea agreement, the trial court is limited to accepting the plea or rejecting it. “This is an ‘up-or-down/yes-or-no’ proposition,” the State contends. “Unilateral modification of the negotiated agreement by the court is not an option.” The State in this case agreed to reduce the indicted offense from felony murder to voluntary manslaughter only in exchange for Kelley’s guilty plea, the negotiated sentence of 20 years and Kelley’s truthful testimony at trial. “If words are to have any meaning, the trial court’s rejection of a material term, such as the negotiated sentence, is a rejection of the entire plea bargain, such that defendant’s proffer becomes a non-negotiated guilty plea, and the court cannot reduce charges over the State’s objection. To do so is impermissible plea bargaining by the court.” Finally, the State argues, “It is not a slavish adherence to contract principles to recognize that the State as well as the defendant has the right to withdraw from the agreement if the trial court will not follow the negotiated outcome involving charge reduction. If the public – via the State – is deprived of the benefit of its bargain, the plea necessarily becomes non-negotiated. In that case, the trial court is not authorized to accept reduced charges over the State’s objection.”

Kelley’s attorneys argue the Court of Appeals ruled correctly. “It is well settled law in the state of Georgia that a trial court has no authority, absent the consent of the State, to accept a plea, enter judgment and impose sentence for an uncharged lesser included offense upon the plea of guilty of such an offense,” the attorneys write in briefs. “However, a trial court has the authority to accept a negotiated plea to a reduced uncharged offense tendered to the trial court by the State upon a finding (a) that the plea is voluntary, (b) that the plea is knowingly entered into by the accused, and (c) that the plea has a factual basis.” In this case, after the acceptance of the plea, the trial court had the “absolute authority to impose any legal sentence upon the accused without the consent of the State and notwithstanding the terms of the negotiated sentence.” Under Uniform Superior Court Rule 33.5 (C), a trial court “should give the agreement due consideration, but notwithstanding its existence, must reach an independent decision on whether to grant charge or sentence leniency.” Contrary to the State’s arguments, here “the trial court took no unilateral action. The trial court did not [on its own] reduce Kelley’s murder charges to voluntary manslaughter. Nor did the trial court allow Kelley to unilaterally enter a plea to a reduced offense that was not included in the indictment without the State’s consent and approval to do so.” Rather, the State presented the negotiated plea to a reduced charge of voluntary manslaughter, the trial court accepted the felony plea agreed upon by the State and Kelley, but then chose not to follow the State’s recommendation of a sentence, “as was well within its authority,” Kelley’s attorneys argue. Finally, “There is no legal authority in Georgia statutes or case law affording the State the right to withdraw its consent to a negotiated plea tendered to the trial court under the context presented in the instant case. To the contrary, the Uniform Superior Court Rules contemplate that the right to withdraw from a negotiated plea is a right only afforded to the accused.” While the State argues it was entitled to be informed by the trial judge of the intent to reject its recommended sentence so it had the opportunity to withdraw from the negotiated agreement, the State “makes this declaration without citing to any legal authority,” Kelley’s attorneys argue. It does so “because no such legal authority exists.”

Attorneys for Appellant (State): Paul Howard, Jr., District Attorney, Paige Whitaker, Dep. D.A., Marc Mallon, Sr. Asst. D.A.

Attorneys for Appellee (Kelley): Curtis Hubbard, Jr., Todd Barbee



            A citizen of Gambia, who is seeking asylum in the United States, is appealing a Georgia Court of Appeals decision. The appellate court ruled that the man failed to appeal the denial of the reinstatement of his driver’s license within the time period required under state law.

FACTS: Abdou Barrow has been in the United States for 23 years since he arrived from Gambia in 1992 and filed an application for asylum in 1997. In 1999, his asylum application was denied and he was ordered removed from this country. Although Barrow had been issued a driver’s license, in 2001 it was cancelled after he pleaded guilty to a number of traffic offenses in Georgia, including hit and run. He was issued a new driver’s license in February 2009, but in April 2010, the Georgia Department of Driver Services revoked Barrow’s license for “fraud or fictitious use of license.” Barrow immediately applied to reinstate the license. At the time, however, federal Immigration and Customs Enforcement (ICE) records showed that Barrow had a “warrant of removal” pending against him. In June 2010, the Department of Driver Services notified Barrow that it could not reinstate his license because his legal presence in the United States could not be verified. In the same notification, the department instructed Barrow to come into the department with “all your official documents, including all valid immigration documents,” by July 13, 2010. Barrow did not do so, nor did he appeal the April 2010 revocation of his license or the June 2010 denial of his application for reinstatement.

Almost three years later, in April 2013, Barrow learned that the Immigration Court in San Antonio, Texas, had re-opened the federal removal proceedings against him and his asylum application had been revived. In August 2013, Barrow was arrested for driving with a cancelled license. He then applied in November 2013 at the Snellville, GA office of the Department of Driver Services to have his license reinstated. But on Nov. 25, 2013, the Department of Driver Services sent emails to Barrow’s lawyer saying it would not reinstate the license due to his immigration status.

Within 30 days, on Dec. 2, 2013, his lawyer filed an appeal in the Fulton County Superior Court. In response, the State filed a motion to dismiss the appeal, arguing that Barrow had failed to file the appeal within 30 days of an “appealable decision” under Georgia Code § 40-5-66. The Georgia statute says that an aggrieved person “shall have the right to enter an appeal” of “any decision rendered by the [Department of Driver Services]” and that such an appeal “must be filed within 30 days from the date the department enters its decision or order.” At issue in this case is which of the decisions started the clock ticking, beginning with the original revocation of his license in April 2010. The trial court agreed with the State and granted its motion to dismiss Barrow’s case. Barrow then appealed to the Georgia Court of Appeals, which upheld the Fulton court’s ruling. In his appeal, Barrow argued that the revival of his application for asylum in 2013 gave him the right both to apply for reinstatement of his license and to appeal the denial of the reinstatement, which he did within 30 days. But the Court of Appeals disagreed. It acknowledged that the language in the statute giving the right to appeal “any decision” of the Department of Driver Services is “very broad.” However, the appellate court said that under the state Supreme Court’s 1987 decision in Earp v. Lynch, “a driver who had failed to request reinstatement until approximately a year after the original revocation had waived his right to an appeal because ‘§ 40-5-66 requires appeals to be made within 30 days of the revocation decision by the Department.’” “Although we recognize that Barrow did not have any grounds for appealing the initial revocation decision in 2010, we are constrained to affirm the trial court’s denial of his 2013 appeal (based on a change to his immigration status) as untimely under the rational of [Earp] which binds this court,” the Court of Appeals decision says. Barrow now appeals to the state Supreme Court.

ARGUMENTS: Barrow’s attorneys argue the trial court and Court of Appeals erred in dismissing the appeal of the department’s denial of his application for reinstatement of his driver’s license, which he sought after the renewal of his petition for asylum. Barrow met the statute’s time requirement because he filed the 2013 appeal within 30 days of the denial to reinstate his license. When the immigration court reopened Barrow’s removal proceedings and his asylum application was revived, “he was lawfully present and eligible for a driver’s license,” his attorneys argue in briefs. “These changed facts and circumstances of the Appellant’s lawful presence status per his revived asylum application presented a new ‘decision’ for the Department of Driver Services to make.” The statute gives the aggrieved person the right to appeal “any decision rendered by the department.” If the Supreme Court upholds the trial court’s ruling that Barrow’s failure to appeal the department’s cancellation of his license more than six years ago, “the result will be he is forever barred from seeking judicial review of any subsequent applications no matter what his status,” the attorneys argue. Even if Barrow is eventually granted asylum and becomes a naturalized U.S. citizen, under the superior court’s logic, “he would still be barred forever from receiving a driver’s license – an absurd result.” Under the statute, any adverse action taken by the department “should be appealable, so long as it can be classified as a ‘decision,’ an ‘order,’ an ‘act,’ a ‘suspension,’ or a revocation.’” Furthermore, there is no language in the statute that distinguishes between decisions that are “appealable” or “not appealable,” the attorneys contend. A prior decision by the department to cancel a license does not prohibit subsequent applications for a license. The department’s own rules state that the “cancellation of a license is without prejudice, and application for a new license may be made at any time after such cancellation.

The Attorney General’s office, representing Robert Mikell, Commissioner of the Department of Driver Services, argues that the trial court property applied § 40-5-66 in dismissing Barrow’s appeal because it was not filed on time. Barrow argues that “every single action taken by the Department of Driver Services should constitute a ‘final decision’ which can then be appealed,” the State argues in briefs. Barrow’s license was revoked for lack of proof of lawful status on April 9, 2010. He then applied for reinstatement of that license on April 27, 2010. “His time to appeal either decision of the department – his cancellation or his reinstatement – has long since passed,” the State argues. If the state Supreme Court now rules “that every subsequent denial of reinstatement at a department office is a ‘final decision’ and appealable, then a licensee could go daily, weekly, or monthly to the local Department of Driver Services office, apply for reinstatement, and thus restart the appeals clock regarding the decision and vitiate the holding in Earp…,” the State contends. Barrow “is not barred from obtaining a driver’s license in the future should he be able to present the proper and necessary documentation to the department to obtain a license,” the State argues. “He is merely prevented from appealing the denial to superior court.” Barrow is not without recourse, and he can apply for reinstatement of his license at any time. If he is indeed eligible to get his license back but still denied reinstatement, he can file in court a petition for a “writ of mandamus,” which is done to compel government officials to perform their public duties. “The 30-day time limit for appeals merely bars the appeal, not every avenue available to an eligible person to receive back their license,” the State argues.

Attorneys for Appellant (Barrow): Justin Chaney, S. Anne Thompson

Attorneys for Appellee (Mikell): Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Joseph Drolet, Sr. Asst. A.G., Amy Radley, Asst. A.G.



            In the appeal of this contentious divorce, a woman claims a Fulton County court “grossly abused” its discretion by requiring her to pay nearly a quarter of a million dollars to cover her ex-husband’s legal expenses.

FACTS: In November 2009, Brett W. Beveridge filed for divorce from Vivian D. Hoard. The parties, both tax attorneys, have one child, a daughter born in 1999. To assist the parties and trial court in determining custody of the daughter, in February 2010, the court appointed Dr. Carol Webb, a psychologist, as a “custody evaluator.” In September 2010, Webb recommended in her “Child Custody Evaluation” joint physical custody on an alternating week basis. The evaluation included psychological profiles of the parties. At a temporary hearing, Webb testified Beveridge’s psychological profile was normal but Hoard’s was less so. Webb testified that the effect of Hoard’s profile on her ability to co-parent was that “she will relentlessly pursue getting her own way and to her advantage, and sometimes even not to her advantage.” Hoard claimed Webb was biased against her and subsequently filed motions to have her disqualified from the case, all of which the trial court denied. Beveridge offered three times to settle the case but Hoard rejected his offers. The final trial began in December 2011 and lasted 10 days. In October 2012, the trial court issued its Final Judgment and Divorce Decree. The judge ordered that the parties share joint physical custody of their daughter, and Hoard was ordered to pay Beveridge $70,000 in property division and some of his other expenses. The judge stated he did not rely on Webb’s evaluation in deciding custody, but that her evaluation “was not inconsistent with the other evidence presented in this case.” Both parties then filed motions asking the court to require the other party to pay legal fees. Hoard requested $431,411.25 in fees; Beveridge requested $400,974.90 in attorney’s fees and expenses. The original judge recused himself from the attorney’s fees argument, and the case was transferred to Judge Bensonetta Tipton Lane. Hoard then requested that Lane recuse herself, arguing that her staff attorney had made a derogatory comment about the case that indicated both the judge and the staff attorney were predisposed toward the father’s attorney and Webb. After denying Hoard’s motion to recuse, the judge issued a Fees Order in October 2014, requiring Hoard to pay Beveridge $232,114 in attorney’s fees and expenses. The order stated that Hoard’s numerous attempts to disqualify and discredit Webb had “unnecessarily expanded this litigation.” The order also mentioned that Beveridge had made several attempts to settle the case to no avail and that Hoard had a “superior ability to pay the attorney’s fees.” Georgia Code § 19-6-2 requires the court to “consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party.” The judge determined that while the parties earned similar salaries with Beveridge earning $19,000 a month and Hoard earning $20,000 a month, he paid for their child’s private school tuition and had far less equity in his home than she had in hers. Hoard now appeals the Fees Order to the state Supreme Court.

ARGUMENTS: Hoard’s attorneys, who include former Attorney General Michael J. Bowers, argue that the “egregious order which walloped Appellant [i.e. Hoard] with nearly a quarter of a million dollars in fees is infected with legal error and must be overturned.” The trial court improperly awarded fees under § 19-6-2, which requires consideration of the parties’ income. In this case, the parties have “nearly identical monthly incomes” and it was error not to apportion the award of fees, the attorneys argue. “Further, the trial court’s order is infected with error because it relied on out-of-date financial information.” Under another statute, § 9-15-14, the trial court’s award of fees was also error “because it failed to make the requisite findings of fact to substantiate the award,” the attorneys argue. “Finally, the award of fees and expenses – in the jaw-dropping amount of $232,114 – is itself an abuse of discretion because it requires periodic payments equal to Ms. Hoard’s entire gross monthly income, and the total award exceeds the equity in her home. Although Ms. Hoard now has primary custody of their minor child, the trial court is effectively forcing Ms. Hoard to sell her home to pay her ex-husband’s legal fees.” (The daughter elected to live with her mother when she turned 14.) The court also erred in finding that Hoard “unnecessarily expanded” the proceedings by attempting to have Webb disqualified. Although she had initially agreed to the appointment of Webb, she did not know at the time that Webb had asked Beveridge’s attorney, Elizabeth Lindsey, to ask her husband, then-state Rep. Edward Lindsey, for a recommendation requesting Webb’s reappointment to the Georgia Board of Examiners of Psychologists. Under deposition, Edward Lindsey said his wife had asked him via email for the recommendation, that he had made the recommendation to then-Gov. Sonny Perdue, and that Perdue had subsequently reappointed Webb. Only when Hoard became aware of the “political patronage between Rep. Lindsey and Dr. Webb” did she by necessity file a motion to disqualify Webb. “The failure to disclose the fact Dr. Webb obtained valuable political favors from the Lindseys constitutes constructive fraud under Georgia law,” Hoard’s attorneys argue. Webb had “an undisclosed conflict of interest,” yet when Hoard tried to do something about it, “the trial court severely punished her.” Hoard never would have agreed to the consent order appointing Webb as custody evaluator if “either Ms. Lindsey or Dr. Webb had come clean about the full extent of their relationship.” Hoard should have been awarded attorney’s fees because under the law, Beveridge and his attorney “unnecessarily expanded the proceedings by duping her into agreeing to a consent order that appointed Ms. Lindsey’s crony as the ‘independent’ custody evaluator,” the attorneys contend.

Beveridge’s attorney argues that the trial court was correct in awarding attorney’s fees in a case in which Hoard chose “to litigate not over custody or the best interests of the child, but instead chose to use the litigation as a personal vendetta against the custody evaluator.” The state Supreme Court should affirm the trial court’s award of attorney’s fees to Beveridge for at least four reasons: the trial court correctly considered his attempts to settle the case and the financial circumstances of the parties; Hoard asserted a position that was completely contrary to both the law and facts; she unnecessarily expanded the litigation; and the award can be sustained under both § 9-15-14 and § 19-6-2. Among his three settlement offers, Beveridge offered Hoard better custody arrangements and more favorable finances than she actually received in the final decree. Hoard also prolonged the litigation through her relentless attacks on Webb when neither the law nor the facts supported having her disqualified. “The purpose of awards under § 9-15-14 is not only to punish abusive litigation behavior, but also to compensate parties ‘who are forced to expend their resources in contending with [abusive litigation],’” the attorney argues. Many of Hoard’s allegations of bias or conflict of interest “were based on exaggerated and misleading facts, if not pure fabrication.” Contrary to Hoard’s assertion, for instance, Beveridge’s attorney was not Webb’s “best friend.” Webb testified that at the time she made her custody evaluation in this case, she did not know whether the husband of Beveredge’s attorney had written a recommendation for her or not, and she said she did not even remember asking him to do so. “Appellant’s abusive tactics included questioning the ethics and professionalism of anyone who disagreed with her,” the attorney argues. She threatened to report Dr. Webb to her licensing agency, to report [Beveridge’s] counsel to the State Bar, and even to place the judge under the ‘same scrutiny.’”

Attorneys for Appellant (Hoard): Michael Bowers, Joshua Moore

Attorney for Appellee (Beveridge): Elizabeth Lindsey




            A probate court judge who sued the Chatham County Board of Commissioners for paying magistrate judges more than he earns, is appealing a local court’s ruling against him.

FACTS: In 2013, the Board of Commissioners gave two 5 percent increases to judges of the Magistrate Court and Recorder’s Court. The supplements, which the County called “longevity increases,” were based on the number of four-year terms completed by the various Magistrate and Recorder’s Court judges and were made retroactive to January 2008. However, the County did not give the same raise to Probate Court Judge Harris Lewis. Lewis then sued the County and Commissioners, claiming that the 2007 local legislation, which the County claimed was the basis for the longevity increases, applied equally to him. Specifically, he sought a declaration from the trial court that the County’s failure to give him the same increase in compensation that it gave Magistrate Court and Recorder’s Court judges violated the equal protection clause of the Georgia Constitution. He also asked the trial court to order the County to pay him the increase and make it retroactive to Jan. 1, 2008. On March 23, 2015, the trial court entered an order denying both his requests. Lewis now appeals to the state Supreme Court.

ARGUMENTS: As background, attorneys for Lewis argue that judges of Georgia’s various courts are paid based on either state statute or local legislation, which sets compensation for a particular county. Under state statutes, minimum salaries are set for all judges of the Superior, Probate, Magistrate and Juvenile Courts in Georgia. State law, however also allows a judge’s compensation to be set instead by local law. Under Georgia Code § 15-10-23 and § 15-9-63, the minimum salary for both magistrates and probate judges in a county with a population of 250,000-299,000, such as Chatham, is the same: $91,682.66. State statutes also provide for longevity increases for judges who complete more than one four-year term of service. Lewis’ attorneys argue that under the state statutes, judges are not entitled to the longevity increases if their salaries under local legislation exceed what is provided under the state system. According to Lewis, in 2007, after determining that judges’ salaries were inconsistent and “all over the board,” the County got the Georgia General Assembly to pass local legislation that set the salaries for Chatham’s magistrates and probate judge at 80 percent of the annual salary paid to Superior Court judges. In addition, they would receive 80 percent of any supplement given to a Superior Court judge. In other words, Lewis argues, “just like the statewide compensation statutes, the 2007 legislation set equal salaries for the judges of the probate and magistrate courts.” But the Magistrate Court and Recorder’s Court judges wanted more, Lewis claims, and they asked the County for 90 percent of a Superior Court judge’s pay. So in 2013, the County gave just the magistrates and Recorder’s Court judges two 5 percent increases. But they were not applied to the state minimum salaries for Magistrate Court judges ($91,682.22) “as would be appropriate if providing a longevity increase under state law; rather the 5 percent increases were calculated upon the compensation set for the Magistrate Court judges under local law – 80 percent of the Superior Court judge pay or $149,069,” Lewis’ attorneys argue. “Further, while state law longevity increases are always calculated upon, and tied back to, the base statutory minimum, the Chatham County increases were compounded; that is, the second 5 percent increase was applied upon the salary as increased by the first 5 percent raise. The result was that the base compensation for a Chatham County Magistrate Court judge was increased to $164,254 – nearly the 90 percent of the total Superior Court pay initially requested by the Magistrate Court judges.” In addition, each magistrate was awarded about $31,900 in back pay longevity increases. In 2015, after the judge sued, the local delegation got the legislature to approve new local legislation to replace the 2007 legislation, the judge contends. Under the new law, while the Probate Court judge’s salary remains at 80 percent of Superior Court judges’ pay with an annual longevity increase of $800, Magistrate Court judges’ pay has moved up to 85 percent plus a longevity increase of $850.The new legislation includes a provision that allows the Magistrate Court judges to retain their two earlier longevity pay increases so their pay under the new law wasn’t reduced. The history of the 2007 legislation shows that the legislature intended to replace the “piece-meal legislation” that sets judges’ salaries to achieve uniformity and avoid inequity, the judge’s attorneys argue. With all of that as background, Lewis’ attorneys argue that the trial court erred in ruling against Lewis’ petition asking the court to rule that the granting of the local longevity supplement to the Magistrate Court judges but not to Lewis violated the equal protection clause of the state Constitution. “Appellant [i.e. Lewis] and the Magistrate Court judges were ‘similarly situated’ under the express language and purpose of the 2007 legislation,” they argue. Furthermore, “both in statewide and local legislation, the value of the services provided by the Probate and Magistrate judges was determined to be equal.” “There is no ‘rational basis’ for the disparate treatment which reasonably relates to the objective of the 2007 legislation.” The County’s actions “turned the 2007 legislation on its head by 1) destroying the previously existing uniformity as to how compensation is calculated for the inferior court judges of Chatham County, and 2) creating the very inequities it was designed to eliminate,” the judge’s attorneys argue. The trial court also erred in denying the judge’s petition for a writ of mandamus to force the County to pay him the same supplements as it awarded to the Magistrate and Recorder’s Court judges. The trial court reasoned that neither state law nor the 2007 local legislation provided for local longevity pay to Lewis. However, Lewis’ “clear legal right” springs not from legislation but “from the equal protection clause of the Georgia Constitution as a result of the County’s arbitrary and inequitable actions in 2013,” the attorneys contend. “The County’s actions in this matter were not the product of a mistake but rather were deliberate and implemented as a ‘means to an end’ – to provide increases in compensation to certain judges that requested them, regardless of the local legislation and resulting inequity.”

            Attorneys for the County argue that Lewis has “no clear legal right” to longevity pay under the Georgia Code “because it is clear from the plain language of the Code that it does not apply to a probate judge as highly compensated as Chatham County’s.” Georgia Code § 15-9-65, which deals with longevity increases for Probate Court judges, is the only law that provides these judges a longevity supplement, but it carves out this exception: “This Code section shall not be construed to affect any local legislation except where the local legislation provides for a salary lower than the salary provided in” § 15-9-63, which is the state statute that sets minimum salaries for probate judges. At the same time, however, § 15-10-23, which sets the magistrate judges’ minimum salaries, includes the 5 percent longevity supplement, but without the exception that applies to probate judges. Lewis also has no right to the longevity pay based on the local act, which is controlling and which does not provide for longevity pay for the probate judge. And he has no legal right based on the Association County Commissioners of Georgia Manual, the lawyers contend. The probate judge quotes no general law that equates a magistrate judge to that of a probate judge. “Further, if the Legislature intended these two different courts to be treated the same, it would not have two separate pay schemes in two different” Georgia Code sections. Lewis “has no clear right to equal protection under the law,” the County’s attorneys contend.

Attorneys for Appellant (Lewis): Owen Murphy, Noble Boykin, Jr.

Attorneys for Appellee (County): R. Jonathan Hart, Jennifer Burns



2:00 P.M. Session



            The Clayton County Solicitor General is appealing a Superior Court ruling that granted a woman’s request to expunge from public view records of her 1996 arrest for simple assault.

FACTS: In February 1996, Belinda Lowe was arrested by the Clayton County Sheriff’s Office and charged with simple assault after the alleged victim, a woman, filled out and signed an Application for Criminal Arrest Warrant. But at trial, the alleged victim, who was the prosecution’s only witness, failed to appear. On May 28, 1996, the State Court granted the prosecution’s motion to dismiss or “Nolle Prosse” the charge because the witness had “failed to appear.” In August 2014, Lowe submitted an application to the Clayton County Sheriff’s Office seeking to restrict her arrest record under the state’s record restriction statute, Georgia Code § 35-3-37. The Clayton County Solicitor General’s Office denied Lowe’s restriction request, stating the denial was based in part “upon the subsequent arrests in 1997 and 2009 for violent offenses.” On Nov. 13, 2014, Lowe petitioned the Clayton County Superior Court asking the court to review the denial of her restriction request, as authorized under § 35-3-37. Mosley and Sheriff Victor Hill opposed restricting her arrest records, arguing that while a 2013 amended version of the law expanded the grounds for restricting criminal history record information, it did not apply retroactively to Lowe. And under the statute that applied to her, they had no option other than to deny her application. However, the trial court disagreed and ruled in Lowe’s favor, finding that the legislature did intend that the record restriction statute, as amended, “should apply to arrests occurring before July 1, 2013, and did not express any intention to restrict the review of such a request to the substantive law relative to expungement and record restriction that was in effect at the time of the arrest.” The trial court stated that the amended statute “is predominantly procedural, as it sets forth the method that one uses to obtain record restriction and the guidelines that should apply to such a request.” Therefore, because the amended statute was “procedural” as opposed to “substantive,” the trial court found it constitutionally could be applied retroactively to Lowe’s 1996 arrest records, and the court ordered the record restricted. The Solicitor General and Sheriff now appeal to the state Supreme Court.

ARGUMENTS: Attorneys for the prosecutor argue the trial court erred in applying the current amended version of § 35-3-37 retroactively and granting Lowe’s application for record restriction. The amendments created additional “substantive” rights, duties and obligations. It is not merely a “procedural” law, and the Georgia Constitution prohibits the passage of “retroactive laws” unless the statute is merely procedural. Instead, “legislation which affects substantive rights may operate prospectively only,” the attorneys write in briefs. “Substantive law creates rights, duties and obligations, whereas procedural law prescribes the methods of enforcement of rights, duties and obligations.” Here, the amendments have “created additional rights for individuals to have their criminal record restricted,” the attorneys argue. Prior to the recent amendments, Lowe would not have been eligible for record restriction, they contend. “Therefore, the amended, current statute clearly provides Lowe with a substantive right that she did not have prior to its enactment.” The amended law also created new obligations for the prosecuting attorney who must now take steps to restrict criminal history record information she was not required to restrict before. “It is evident that this provision does not merely prescribe the methods of enforcing rights and obligations, but creates them,” they argue. “The creation of these rights and obligations makes amended § 35-3-37 substantive in nature, and a retroactive application would be unconstitutional.” Under the statute that applied at the time of Lowe’s alleged offense, the restriction application had to be denied if the charge was dismissed. Specifically, the earlier statute stated that, “After the filing of an indictment or accusation, a record shall not be expunged if the prosecuting attorney shows that the charges were nolle prossed, dead docketed, or otherwise dismissed because:…(C) A material witness refused to testify or was unavailable to testify….”  Even if the trial court properly applied the amended statute retroactively, Lowe failed to meet her burden of proving that the harm to her outweighed any public interest. The amended statute says a decision by the prosecuting attorney to decline a request to restrict access to a criminal history shall be upheld “unless the individual demonstrates by clear and convincing evidence” that “the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.” “Nowhere in the record is there any evidence that Lowe suffered harm to her privacy.” Lowe’s references to various studies “hardly constitutes evidence of any actual harm,” Mosley’s attorneys argue. “What the record reveals, however, is that Lowe had subsequent arrests in 1997, 2000, and 2004, which she does not seek to have restricted.” A background check would to prospective employers reveal not only her 1996 arrest but all the others as well.

Lawyers with the Georgia Justice Project who are representing Lowe argue the trial court made the right ruling. “By its clear language, the amended Restriction Statute applies to all arrests, including those that occurred prior to July 1, 2013,” which is the state the amended statute took effect. The statute specifically says: “…as to arrests occurring before July 1, 2013, an individual may, in writing, request the arresting law enforcement agency to restrict the criminal history record of information of an arrest…, and “the prosecuting attorney shall review the request to determine if the request meets the criteria set forth in subsection (h) of this Code section for record restriction….” Subsection (h) states that access to the record will be restricted if “all charges were dismissed or nolle prossed.” The amended law was part of the recent comprehensive reform of Georgia’s criminal justice system in an effort to reduce recidivism. “An important component of these reform efforts was and continues to be increasing access to housing, education and employment for people who have been involved in the criminal justice system in Georgia,” the attorneys argue. “Revisions to Georgia’s record restriction law address reform goals directly because the record of an arrest, even when it did not lead to conviction, can limit an individual’s ability to find work, housing or get educational grants.” The trial court correctly held that the amended statute is primarily procedural in nature and therefore it is not unconstitutional to apply it retroactively to Lowe’s 1996 arrest. Even if the Supreme Court were to decide that the former statute, rather than the amended one, applied, Lowe’s arrest still would be subject to record restriction. “On appeal, Solicitor Mosley and Sheriff Hill rely solely on the provision in the prior version that provides that a record may not be restricted if a ‘material witness refused to testify or was unavailable to testify…” But there was no evidence that the witness was either, only that she didn’t show up for court. “In this case, Appellants [i.e. Mosley and Hill] have presented no evidence that they made reasonable efforts to locate the complaining witness and secure her presence at the hearing,” the attorneys argue. “Given the paucity of evidence on this issue, the complaining witness cannot be found to have been ‘unavailable to testify’ under Georgia law, and there is no basis for denying Ms. Lowe’s restriction request on this basis.”

Attorneys for Appellants (Mosley): Jack Hancock, A. Ali Sabzevari

Attorneys for Appellee (Lowe): Brenda Smeeton, Michele Young


TYE v. THE STATE (S15A1522)

            In this Fulton County case, a young man who was 17 years old when he was convicted of murder is appealing his conviction and sentence to life in prison for causing the death of a man while stealing his car.

FACTS: On Nov. 18, 2006, Vernon Rouse was attacked at a Citgo gas station off Campbellton Road in Atlanta. It was late at night, and Rouse had stopped at the gas station after leaving his second job. According to prosecutors, Cortez Tye and Kenyatta “Big Boy” Calhoun approached Rouse while he was in the parking lot intending to steal his 2006 silver Chevrolet Equinox car. A struggle ensued as Tye tried to get the keys to Rouse’s car, and Tye knocked Rouse to the ground, causing him to hit the back of his head. Tye and Calhoun then got into Rouse’s car and drove away. Sometime after, an Atlanta Police Department officer responded to a call regarding an injured man lying in the parking lot and arrived on the scene in time to speak with the victim. Rouse was unable to move, but could communicate with the officer and said he had been hit in the back of the head by an unknown object by a young African American male and that his car had been stolen. An ambulance transported Rouse to Atlanta Medical Center, where he was unable to move his extremities upon arrival, suffering from symptoms consistent with blunt force trauma.

Four nights later, a different Atlanta police officer patrolling Campbellton Road attempted to pull over a 2006 silver Chevrolet Equinox because the driver was not wearing a seatbelt. When the officer turned his car around to investigate the seatbelt infraction, the driver sped off and turned down a side street. Once the car reached a parking lot of a nearby apartment complex, all six people in the car took off running. The Officer pursued the driver, Tye, on foot and eventually found him hiding in a closet of one of the vacant apartments. Tye was arrested for not having his lights on and for obstruction, but it had not yet been reported that the car was stolen. Darrian Dupree, one of the passengers who was also arrested that night, provided police with a statement that Tye told him he had stolen the car from a man at the gas station off Campbellton Road. In the course of their investigation, law enforcement officers learned that Tye and the others had been involved in a string of carjackings at the same gas station. Two separate victims of carjackings from the Citgo station identified Tye and the men as part of the group that had stolen their cars.

At the time of the attack, Rouse was an end-stage renal patient who had been on dialysis for over 20 years. His condition rapidly worsened after the trauma, requiring a respirator, resulting in a loss of speech, and requiring medication to breathe. He passed away Dec. 8, 2006 – less than a month after the attack. The cause of death was an infection in his lungs from the pneumonia he developed in the hospital as a result of his injuries. Tye was arrested and formally charged with two counts of felony murder (in the commission of robbery and aggravated assault), one count of robbery by force, and one count of aggravated assault.

Shortly before trial, Tye’s trial attorney filed a “special plea of incompetency” and a request for a competency examination as provided under Georgia Code § 17-7-130, which the trial court denied. In 2008, a jury convicted him on all counts, and he was sentenced to life in prison. Four to five years later, another attorney for Tye filed a motion for new trial based on the denial of the pretrial competency hearing. That attorney arranged for a comprehensive mental competency examination of Tye. The trial court held a hearing where Tye’s expert testified that Tye was presently incompetent and would have been less competent at the time of trial. She also testified that state-administered “competency-restoration” programs could improve Tye’s understanding of the criminal trial process so that he would be able to assist his attorney and participate in his own defense. However, the State offered a different expert who testified that Tye was, in fact, competent to stand trial and would have been competent in 2008. In 2013, the trial court denied Tye’s motion for a new trial, concluding that his competency to stand trial could be determined retroactively and concluding that Tye had been competent in March 2008 at the time of his trial. Tye now appeals to the state Supreme Court.

            ARGUMENTS: Tye’s main arguments revolve around the trial court’s initial denial of his request for a competency examination and its subsequent denial of his motion for new trial.  Tye maintains that he was and is incompetent to stand trial, and the trial court erred in ruling that Tye’s competency at trial could be retroactively determined five years after his trial. The denial of Tye’s pre-trial request for a psychological competency examination “was flatly contrary to Georgia law as embodied in § 17-7-130,” Tye’s attorney argues in briefs. Given proper assistance from the State, Tye could be restored to competency for a re-trial, but that did not happen when he was tried in 2008. Tests showed that Tye scored in the lowest 6th percentile for working memory and IQ, and the lowest 4th percentile for verbal comprehension. His trial attorney, who was assigned to the case only shortly before trial, explained that Tye did not seem to understand the proceeding and could communicate “little, if none.” As a result, Tye’s lack of competency interfered with his right to effective assistance of counsel. The “only appropriate remedy for the trial court’s erroneous denial of the requested pretrial competency evaluation – the only remedy calculated to protect the critically important constitutional interests implicated in the circumstances of this case – is to order Mr. Tye to be enrolled in the State’s competency-enhancement program, and then (upon his completion of that program and certification, by State-engaged officials, as competent to stand trial) the granting of a new trial to him, then so ‘restored,’” Tye’s attorney contends.

            The State, however, argues that the trial court correctly denied the motion for new trial and correctly found that Tye was competent to stand trial in 2008. The State’s expert, a forensic psychiatrist, testified contrary to Tye’s expert that Tye “demonstrated an ability to understand his legal situation and meaningfully discuss plea options and their possible consequences as they pertained to his specific case.” She testified that she did not think that Tye’s borderline intellectual functioning, as found by the defense’s expert rendered him incompetent. Neither of Tye’s first two trial attorneys even raised any concern with his competency. Only the third questioned Tye’s competency to stand trial, saying Tye was having a “great deal of confusion about the charges against him and his circumstances regarding the charges.” Georgia Code § 17-7-130 states that, “If the accused files a special plea alleging that the accused is mentally incompetent to stand trial, it shall be the duty of the court to have a bench trial, unless the state or the accused demands a special jury trial, to determine the accused’s competency to stand trial.” While the State conceded that the trial court’s initial denial of a pretrial competency hearing was likely error, the trial court properly conducted a post-trial competency hearing in accord with the procedure established by the Georgia Supreme Court in its 1982 decision, Baker v. State. In Baker, this Court specifically set up the procedure that should be followed in cases where a “special plea of incompetency” is filed prior to trial, the trial court denies the request, and the case proceeds to trial. “In such a case, the matter should be remanded to the trial court for a determination of the defendant’s competence at the time of trial through a post-conviction hearing,” the State writes in its brief. That is precisely the procedure that was followed here with the August 2013 competency hearing. There was ample evidence, both at the competency hearing and at trial, to show that Tye was competent at the time of trial, the State contends. The trial court was well within its discretion to deny the motion for new trial, and Tye failed to meet the standard of proof for incompetency. Therefore, Tye’s arguments do not have merit, and this court should affirm the trial court’s denial of the motion for new trial, the State contends.

Attorney for Appellant (Tye): Roger Wilson

Attorneys for Appellee (The State): Paul Howard, Jr., District Attorney, Paige Whitaker, Dep. D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Matthew Crowder, Asst. A.G.








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