Georgia’s justices addressed a wide array of litigation during the year, occasionally offering advice to lawmakers, prosecutors and litigators and admitting that they themselves had gotten it wrong sometimes.
By Greg Land | Daily Report (REPRINTED WITH PERMISSION)
As it prepared to leave its marble home of more than 60 years for posh new digs, the Georgia Supreme Court was the source of several impactful decisions in 2019.
In addition to opinions that sometimes reversed years of their own precedent, the justices occasionally took the opportunity to offer suggestions to lawmakers and prosecutors.
1) IMPLIED CONSENT: A unanimous court shook up prosecutors and law enforcement agencies with a February opinion barring a drunken-driving defendant’s refusal to take a sobriety test from being used as evidence against her.
An assortment of amicus briefs filed by the Office of the Attorney General, Prosecuting Attorneys’ Council of Georgia and district attorneys from several counties urged the court to uphold lower court rulings allowing plaintiff Andrea Elliott’s refusal to be tested under Georgia’s implied consent law to be used against her, predicting dire consequences for officers trying to keep drunken drivers off the road.
But Justice Nels Peterson wrote that the doomsayers were overlooking the fact that an officer need only get a warrant to test a suspect for drugs or alcohol.
“Based on the well-established meaning given to the constitutional right against compelled self-incrimination … we concluded that a breath test is an act incriminating in nature” that the state cannot compel against one’s will. But, he noted, the General Assembly may want to “revise the provisions of the implied consent law, particularly the content of the implied consent notice.”
2) 911 TAX: Peterson also penned an opinion nixing several counties’ efforts to collect more than $100 million in “911 fees” from telephone companies Bellsouth, AT&T and Earthlink.
The unanimous opinion overturned a Court of Appeals ruling, stating that “the 911 charge is a tax as a matter of law, and the counties’ lawsuits thus are precluded,” killing not only lawsuits filed by Gwinnett and Cobb counties that were the subject of the appeal but also ending others pending around the state.
3) HOLT DEMANDS: In a decision delineating the requirements for plaintiffs to issue time-limited demands to insurers in personal injury cases, a unanimous court ruled that the lawyers for two plaintiffs who won a $5.3 million bad faith suit had not specifically set the deadline.
The ruling meant First Acceptance Insurance’s only exposure was for its $25,000 per person policy in the multi-person accident that left a 2-year-old severely injured.
The plaintiffs lawyers had sent the insurer two letters, one seeking payment and a settlement conference and a second asking for the at-fault driver’s insurance information within 30 days.
When there was no response in 41 days, plaintiffs Julie An and Jina Hong sued and turned down the insurer’s subsequent offers to settle for $50,000.
“First Acceptance’s failure to promptly accept An’s and Hong’s offer was reasonable, as an ordinarily prudent insurer could not be expected to anticipate that, having specified no deadline for the acceptance of their offer, An and Hong would abruptly withdraw their offer and refuse to participate in the settlement conference,” wrote Justice John Ellington.
4) SEX OFFENDER MONITOR: In March Chief Justice Harold Melton wrote for a unanimous court that the state could not force a convicted sex offender who has served his sentence to pay for electronic monitoring for the remainder of his life.
The requirement is essentially a lifelong search imposed after a person has completed the sentence and probation imposed, Melton said, and the enabling legislation “authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution.”
In a concurring opinion, Justice Keith Blackwell said the Legislature could still accomplish the same goal with a new statute.
“[N]othing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders,” Blackwell wrote, “and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.”
5) PIT BULLS: The full court reversed the Court of Appeals and reinstated a trial judge’s ruling dismissing claims against a landlord over injuries caused by his tenants’ pit bull terriers when they escaped through a gate with a broken latch.
The plaintiff was savagely mauled by the dogs, leaving her disfigured and incurring more than $140,000 in medical bills.
She first sued the dogs’ owners, then filed a complaint against the landlord, who lived several blocks away.
The unanimous opinion penned by Justice Sarah Warren said there was “no genuine issue of material fact” as to whether the landlord’s failure to repair the gate had caused the woman’s injuries, placing the blame on the dogs.
6) MISTRIAL: Peterson authored a unanimous opinion agreeing with a trial judge that a prosecutor intentionally caused a mistrial in a murder case as a tactical move, and that a retrial was barred by double jeopardy.
The case involved a trial in Albany in which the defendant was accused of robbing and killing a man.
In closing statements Dougherty County informaDistrict Attorney Greg Edwards ignored the judge’s instruction to limit references to an uncalled witness who had told police the defendant’s wife committed the murder.
Edwards suggested that the witness would have only testified that she’d helped clean up the murder scene, which the trial judge deemed “misleading.”
In granting the defense motion for a mistrial, the judge “clearly found that the DA made the offending comments in hopes that they would result in a mistrial,” Peterson wrote, because he realized “the evidence was not overwhelming.’”
7) LET JUSTICE BE DONE: In allowing a convicted murderer’s habeas petition to go forward,Melton and Presiding Justice David Nahmias took the unusual step of issuing concurring opinions urging Attorney General Chris Carr to stop fighting the man’s efforts to win a new trial based on DNA evidence.
The case of Devonia Inman “is the one that causes me the most concern that an innocent person remains convicted and sentenced to serve the rest of his life in prison,” wrote Nahmias, noting that he has reviewed more than 1,500 murder cases in his decade on the court.
“The Attorney General should decide whether it is really in the interest of justice for the State of Georgia to continue fighting to block discovery regarding Inman’s claims and asserting procedural defenses to prevent a hearing on the merits of those claims—and indeed whether the State should continue resisting
Inman’s efforts to obtain a new trial,” Nahmias wrote.
Melton wrote that he shared Nahmias’ concerns.
“Based on the unique procedural hurdles that are currently present in this case, the Attorney General is now in a better position than this Court to re-examine this case to ensure that the actual ends of justice are being met,” he said.
8) TANGLED MESS: The justices were unanimous in agreeing that for decades they have been following the wrong standards for determining when a criminal defendant who took a plea deal can raise claims of ineffective assistance of counsel, but they split on what to do about it.
The majority decision overruling 89 cases the justices have decided over a period of 24 years, written by Ellington, said defendants no longer have to prove they would prevail in such claims to have a trial judge review appeals of their guilty pleas.
A Southwestern Circuit prosecutor had asked the court to restrict ineffective assistance motions to a four-year limit because older cases would be difficult to prosecute.
Ellington wrote for the majority, including Melton and Nahmias, Warren and Justice Robert Benham, that the state could raise the defense of “prejudicial delay” to belated plea deal appeals.
A special concurrence authored by Peterson and joined by Blackwell and Justices Michael Boggs and Charles Bethel lamented what it termed a “mess” of appellate precedent but said the majority approach was not the way to go.
“We have created out of whole cloth what appellate judges of this state have recognized for nearly 20 years is a tangled mess of post-conviction jurisprudence,” Peterson wrote. “We never should have started making things up, and we ought to stop now.”
The majority opinion is “well-intentioned,” he said.
“But I fear that our mess has become so large that the effort to untangle it in a single case could be overreaching and unduly disruptive to the system that has built up around it. We may need the General Assembly to save us from ourselves,” the opinion states.
9) VOTE: A unanimous court rejected a challenge to the validity of the 2018 race for lieutenant governor won by Republican Geoff Duncan over Democratic candidate Sarah Riggs Amico.
Lawyers challenging the election pointed to significant anomalies in the results from electronic voting machines when compared to others on the ballot, including the governor’s race and down-ballot contests.
Lawyers for the plaintiffs argued that the under-vote rate in Amico’s race was 6.5 times greater than in the governor’s race, and that it appeared to impact Democratic-leaning counties more heavily than Republican-leaning counties.
The opinion authored by Warren said the challengers were unable to point to “a sufficient number of specific irregular or invalid votes to change or place in doubt” the results or establish “sufficient irregularities in the election process to cast doubt” on them.
10) 13TH JUROR: In a decision that sparked a spat with Fulton County District Attorney Paul Howard over the authority of a trial judge to act as the “13th juror,” the unanimous court upheld a judge’s decision to overturn a murder conviction after deciding the state’s case was “weak” and full of “conflicting evidence and credibility concerns.” In writing for the full court, Warren said the state’s argument that the guilty verdict was demanded by the “great physical laws of the universe” was “bizarre.”
Nahmias, joined by Warren and five other justices, wrote separately to advise prosecutors’ appeals of judges’ “13th juror” decisions based on the credibility issues having “no realistic chance to prevail.”
Nahmias said prosecutors should “think hard” before wasting time and resources on appeals that will likely fail.
Howard responded with a press release blasting the trial judge’s actions as “bizarre” and accusing the justices of “ridicul[ing] prosecutors for filing an objection to an outrageous process. Such action by the Court, in my humble opinion, with all due respect—is ‘bizarre.’”
Howard also fired off a letter to Gov. Brian Kemp asking that he push for legislation limiting the ability of judges to act as 13th jurors.