Atlanta's John Marshall Law Journal Volume II

JOHN MARSHALL LAW JOURNAL

Volume 2

2009

INTRODUCTORY ESSAY Pavesich, Property and Privacy: The Common Origins of Property Rights and Privacy Rights in Georgia M ichael B. Kent, Jr ......................................

I

ARTICLES Privacy and the Georgia Constitution: Protecting Information in the DNA Data Bank Larry Frankel ..............................................

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Protecting Private Property: An Analysis of Georgia's Response to Kelo v . City of New London Stephen D. M orrison, Jr ....................................

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The Gun Control Debate and the Power of the Georgia General Assembly: A Historical Perspective Kathleen M. Burch .........................................

93

COMMENTS Taking Away Local Control: The Risks of Regulating a Public Utility's Eminent Domain Authority Amanda R. Gaddis..........................................

153

Acknowledging A Georgia Farmer's Property Interest in Water Charles W. Snyder, III and Nicholas R. Utley .................

183

An Uncertain Future: Georgia's Policy on Restrictive Covenants in Employment Contracts Shogun J. Khadye ..........................................

208

Are Red Light Cameras in Georgia Overexposing the Public and Undermining Privacy Rights?

Randa Hafez ...............................................

245

Adoption: How Protecting Privacy is in the Best Interest of Georgia's Children Katie Andrews Smith ........................................

264

SELECTED LEGISLATIVE INITIATIVES WITH SPONSOR RATIONALE Georgia General Assembly 2008 Legislative Session: ............

House Bill 68: Exceptions to Georgia Coastal Protection Act ...................................................

House Bill 89: Business Security and Employee Privacy Act ...................................................

House Bill 1325: Domestic Relations and International M arriage Brokers ......................................

Senate Bill 1: Sexual Offenders ...........................

299

Georgia General Assembly 2009 Legislative Session: ............

House Resolution 5: Paramount Right to Life ..............

House Bill 10: Georgia Crime Information Center ..........

House Bill 16: Electronic Tracking Without Consent ........

House Bill 171: Public Record Disclosure ..................

House Bill 273: Georgia Prescription Monitoring ...........

House Bill 388: The Option of Adoption Act ...............

Senate Bill 64: HIV Testing of Incarcerated Individuals Prior to R elease .............................................

Senate Bill 124: New Exception to Open Records Act ......

331 331 341 347 353 356 362

Cite as John Marshall L.J.

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PAVESICH, PROPERTY AND PRIVACY: THE COMMON ORIGINS OF PROPERTY RIGHTS AND PRIVACY RIGHTS IN GEORGIA MICHAEL B. KENT, JR.*

I. INTRODUCTION

Many modem-day Americans often think about rights in a dualistic fashion. On one side of the divide is the body of law that protects, enforces, and expands "human" or "personal rights." Included here are venerable notions such as freedom of expression and equal protection under the law, as well as rules protecting an individual from personal injury and providing basic fairness in the litigation process. On the other side of the divide are so-called "property rights," consisting of those (often arcane) requirements that define and regulate landed interests, or whatever else an individual rightfully may call her own. In the minds of many, these two categories - "personal rights" and "property rights" - are separate and distinct. Indeed, some use language suggesting that they are fundamentally at odds with one another.'

For this reason, at first blush, it may seem a bit incongruous to treat in a single volume both the right to privacy and the right to property. After all, given our individualistic tendencies, the right to privacy - long characterized as the right "to be let alone ' 2 - perhaps qualifies as the archetypal "personal right" in * Assistant Professor of Law, John Marshall Law School. I would like to

thank the editors and staff of the John Marshall Law Journal, especially Amanda Gaddis and John Duncan, for their editorial and research assistance.

1. See, e.g., Constitution of the National Lawyers Guild, Preamble (expressing goal that "human rights shall be regarded as more sacred than property interests").

2. THOMAS M. COOLEY, A TREATISE ON THE LAW OF TORTS 29 (2d ed. 1888) (coining phrase in context of physical touching); Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REv. 193,

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modern American thinking. As one scholar has commented, "[p]rivacy is an abiding concern of the present age." 3 This concern has become a fixed part of our culture, gaining traction not only in the common law of tort, but also in public policy and constitutional thought as well. The desire "to be let alone" has found expression in outcries against governmental requests for Internet data, 4 federal regulations protecting "health privacy," 5 and court decisions endorsing "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."6 Joining these ideas together with issues about property may appear, if not inappropriate, then at least a bit odd and out of place.

A deeper look, however, reveals that the two topics have very much in common. Indeed, as the title to this essay suggests, privacy rights and property rights derive from similar historical and philosophical underpinnings. They share a common structure, providing rules by which the law recognizes certain interests as uniquely personal. Likewise, they share the common goal of protecting those interests against interference by others, including (to varying degrees) interference by the state itself.7 Moreover, in the words of one scholar, "they enjoy a mutually reinforcing relationship" 8 - i.e., the right of privacy originates in property-based ideas, whereas one of the functions of property law is to protect private interests. Thus, property and privacy should not be viewed as alien concepts; correctly understood, "the two rights are intimately intertwined." 9 195 (1890) (employing phrase to describe broader right to privacy).

3. William C. Heffernan, Fourth Amendment Privacy Interests, 92 J. CRIM.L. & CRIMINOLOGY 1, 10 (2002).

4. See, e.g., Saul Hansell, Online Trail Can Lead to Court, N.Y. TIMES, Feb. 4, 2006, at C 1.

5. See generally 45 C.F.R. pts. 160, 162 & 164 (promulgating "Privacy Rule" pursuant to Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (Aug. 21, 1996)).

6. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).

7. Radhika Rao, Property,Privacy, and the Human Body, 80 B.U. L. REV. 359, 418-28 (2000) (discussing substantive and structural similarities between constitutional property and privacy rights).

8. Sonia K. Katyal, The New Surveillance, 54 CASE W. RES. L. REV. 297, 302 (2003).

9. Rao, supra note 7, at 418. Indeed, some theorists, known as "reductionists," argue that the fight to privacy is in fact nothing more than a

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II.

PA VESICH V. NEW ENGLAND LIFE INSURANCE Co.

The interconnection between property and privacy is unmistakable when one considers how these rights have developed in Georgia. And Georgia law (regarding this subject, at any rate) is quite significant. In 1905, with the state Supreme Court's unanimous decision in Pavesich v. New England Life Insurance Co.,' 0 Georgia became the first jurisdiction to recognize privacy as a specific, remediable common-law right.

Pavesich arose when the defendant life insurance company published a photograph of artist Paolo Pavesich in a newspaper advertisement. The company had acquired the picture from an Atlanta photographer, who gave it to the insurance company without Pavesich's permission. In the advertisement, Pavesich was portrayed as a vigorous and responsible individual that had purchased life insurance from the company "in [the] healthy and productive period of life."'" By virtue of this apparently intelligent decision, the advertisement portrayed Pavesich as resting easy, not only because his family would be protected after his demise, but also because of the annual dividends he received from the policies during his lifetime. 2 Next to the picture of Pavesich, the advertisement contained the photograph of "an ill-dressed and sickly looking person," who purportedly did not have Pavesich's foresight and now, unable to secure insurance, realized his mistake.' 3 Of course, the portrayal of Pavesich was entirely fictitious, as he had neither purchased a life insurance policy from the company nor made the statements attributed to him. Thus, Pavesich complained that the advertisement was "peculiarly offensive to him" and had a tendency to "ridicule him before the world, and especially with his friends and acquaintances" who knew the substance of the 4 advertisement to be false.1 label attached to other rights - most notably those of property and contract and, therefore, "is superfluous" as a separate legal doctrine. See Amy Peikoff, No Corn on this Cobb: Why Reductionists Should be All Ears for Pavesich, 42 BRANDEIS L. J. 751, 751-52 (2004).

10. 50 S.E. 68 (Ga. 1905).

11. Id. at 69.

12. Id. 13. Id. at68-69.

14. Id. at 69.

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As a result, Pavesich filed suit against the company, its general agent, and the photographer. Although Pavesich accused the defendants of acting maliciously in a manner that adversely affected his reputation, he did not assert an explicit action for defamation. Rather, Pavesich claimed that the advertisement constituted a "trespass upon [his] right of privacy."' 5 The trial court rejected this claim, a result that, given the state of the legal landscape at the time, could not have been too surprising for Pavesich's lawyer. Although some courts previously had hinted that a right to privacy might exist, none had explicitly recognized such a right as an independent ground for legal action.

Indeed, the most prominent argument for an independent privacy right came not from the case law, but rather from an article by Samuel Warren and Louis Brandeis published more than a decade earlier in the Harvard Law Review.' 6 In their article, Warren and Brandeis had argued that "a general right to privacy"' 7 could be gleaned from existing cases - most notably, the common law's treatment of manuscripts, works of art, and other types of intellectual property. 8 At the time Pavesich was decided, however, no court of last resort had yet agreed.

In fact, the most famous court to have addressed the issue refused to recognize an independent right of privacy on very similar facts. In Roberson v. Rochester Folding Box Co., 9 the New York Court of Appeals rejected a privacy claim brought by a woman whose picture had been used, without her consent, on flyers advertising the defendant's flour.2 0 Even though the lower court had sustained her cause of action based on "the right to be let alone," the Court of Appeals balked due to the lack of legal precedent supporting such a right: Mention of such a right is not to be found in Blackstone, Kent, or any other of the great commentators upon the law; nor, so far as the learning of counsel or the courts in this case have been able to discover, does its existence seem to have been asserted prior to about the year 1890, when it was 15. Id. 16. See generally Warren & Brandeis, supra note 2, at 193-220.

17. Id. at 198.

18. Id. at 205.

19. 64 N.E. 442 (N.Y. 1902).

20. Id. at 442.

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presented with attractiveness, and no inconsiderable ability, 21 in the Harvard Law Review ....

Thus, the New York court insisted that the only authority for recognizing a right to privacy was that offered by Warren and Brandeis, and the precedents relied on by those authors admittedly did not recognize a right to privacy as such. Rather (as the Georgia Supreme Court would point out), all of the cases on which Warren and Brandeis could have relied were "based either upon the recognition of a right of property, or upon the fact that the publication would be a breach of contract, confidence, or trust.

' 22

By the time Paolo Pavesich's case

reached the Georgia high court, it faced a decidedly uphill battle. The question confronting the court - a question which no other court of last resort had answered affirmatively - was "whether an individual has a right of privacy which he can enforce, and which the court will protect against invasion."23 Answering that question in the affirmative, Justice Andrew J. Cobb, writing for a unanimous court, made history.

Unfortunately, Pavesich has not always received the attention it deserves. Many commentators have glossed over the decision as a mere endorsement of the arguments made by Warren and Brandeis, 24 arguments that some commentators have criticized as unpersuasive and unsupported.25 But Pavesich did more. As one scholar recently has posited, Pavesich "contributed something crucial"2 6 to the debate over privacy - a justification grounded not only in appeals to prior precedent or pragmatic policy concerns, but in political and moral philosophy as well.27 Included in the Pavesich opinion are allusions to natural law and social compact theory, references to Blackstone and his

21. Id. at 443.

22. Pavesich, 50 S.E. at 75.

23. Id. at 69.

24. See, e.g., William L. Prosser, Privacy, 48 CAL. L. REV. 383, 386 (1960) (suggesting that Pavesich "accepted the views of Warren and Brandeis"); see also Haeji Hong, Dismantlingthe PrivateEnforcement of the PrivacyAct of 1974: Doe v. Chao, 38 AKRON L. REV. 71, 75 (2005) (stating that Pavesich "embraced the right to privacy set forth by Warren and Brandeis").

25. See, e.g., Peikoff, supra note 9, at 773.

26. Id. at 755.

27. Id. at 783-91 (analyzing Pavesich decision).

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conception of absolute or fundamental rights, and the use of precedent and language littered with deep-rooted, propertybased associations. These various elements of the opinion supported legal recognition of a right to privacy in a manner that was different from (and, in my opinion, more persuasive than) what had come before.2 8 More importantly for present purposes, a careful evaluation of these different elements, in light of both prior and subsequent authority, demonstrates the close relationship between the rights of privacy and property.

A. Natural Law and the Social Compact Because no precedent affirmatively supported an independent right of privacy, Justice Cobb and his colleagues on the Georgia court had to look elsewhere for the foundations of their argument. Importantly for our purposes, the first place they turned was to the branch of political philosophy characterized by social compact theory. "The individual," explained Justice Cobb, "surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society."2 9 Thus, at the outset, Justice Cobb grounded his analysis in the idea that individuals enjoy certain rights under natural law, regardless of any action or inaction by the state. Individuals agree to yield some of these natural rights in order to promote the soundness of the commonwealth (i.e., "as a member of society"), in exchange for which they gain greater protection for those rights retained by them. And Justice Cobb made clear that the individual keeps certain fundamental rights bestowed by natural law, even after having entered into political society: But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved, than he has to violate the valid regulations of the organized government under which he lives.3 ° For Justice Cobb, then, political society was founded upon an

28. Cf id. at 755 (noting that "it was not until after the Pavesich decision that the movement in favor of the fight [to privacy] gained

momentum").

29. Pavesich, 50

30. Id.

S.E. at 69.

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agreement whereby each individual freely limits certain natural rights (and concomitantly assents to the rules of the social order) in exchange for the government offering him better security for those rights that he continues to hold.

The question becomes, of course, whether the right to keep certain matters private is included in those rights provided by natural law and retained by the individual after entering the social compact. Justice Cobb viewed the answer to this question as obvious: The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private, and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature.3 1 For this reason, Justice Cobb understood the right of privacy to derive from natural law.32 For him, it existed as a first principle, and it was not surrendered (at least not entirely) by the social compact made between the individual and society as a whole.

When viewed in this light, the right to privacy bears obvious similarities to long-held notions about rights in property. As an initial matter, Justice Cobb's explanation of the social compact is virtually identical to the theories articulated more than two centuries earlier by English philosopher John Locke. According to Locke, all persons initially are in a state of nature, that is, they are lacking organized political society.33 In this natural state, people enjoy the freedom to decide for themselves how to arrange their affairs, including the use and disposition of their possessions and persons.3 4 So long as individuals remain in the state of nature, however, this freedom lacks stability because every individual enjoys the exact same freedom, with none having authority to settle disputes or regulate conduct for the 31. Id. at 69-70.

32. Id. at 70-80.

33. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT ยง 4, at 8 (C.B. Macpherson ed., Hackett Publishing Co. 1980) (1690).

34. Id.

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mutual benefit of all.35 Accordingly, the rights enjoyed in the state of nature are to some degree indefinite because they are "constantly exposed to the invasion of others."3 6 To obtain greater security for these rights, people unite together "for the mutual preservation of their lives, liberties and estates," which Locke calls "by the general name, propery.' 3 7 Thus, for Locke, the primary purpose for which individuals create and submit to formal government "is the preservationof their property."38 The parallels between Locke's theory and Justice Cobb's discussion in Pavesich are striking. For both, political society results from individual desire to better protect those rights (whether property or privacy) enjoyed by the laws of nature.

At the time Pavesich was written, these ideas enjoyed a long pedigree in American legal thought, especially as applied to property rights.3 9 Perhaps of primary importance were the Georgia decisions that presumably would have influenced Justice Cobb's thinking most directly. The law of eminent domain, for example, was often explained by reference to the social compact, pointing out that the individual tacitly agrees (when necessary for the common good) to release his property for public use, but only where the government upholds its tacit agreement to provide just compensation for the taking.40 "All property is a pledge to pay the necessary expenses of government," said one Georgia court, "but the burthen must be equally born."4 1 Thus, when the public good mandates the yielding of individual property interests, those interests 35. Id. ยง 4, at 8; see also id. ยง 123, at 66.

36. Id. ยง 123, at 66.

37. Id. (emphases in original).

38. Id. ยง 124, at 66 (emphasis in original).

39. See, e.g., Vanhome's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (C.C.D. Pa. 1795) (Paterson, Circuit Justice) (echoing Locke that "preservation of property... is a primary object of the social compact"); Crenshaw v. Slate River Co., 27 Va. (6 Rand.) 245, 276 (1828) (Green, J.) (stating that "security of private property... is one of the primary objects of Civil Government").

40. See, e.g., Parham v. Justices of Inferior Court, 9 Ga. 341, 344 (1851); see also Heard v. Callaway, 51 Ga. 314, 318 (1874) ("[I]t is contrary to reason and justice, and to the fundamental principles of the social compact, to take one man's property and give it to another without compensation.") (emphasis added).

41. Parham,9 Ga. at 352.

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nonetheless receive protection in the form of remuneration to the owner. This was so, said the Georgia courts, by virtue of the social compact itself, even where no piece of positive legislation expressly required it.42 As explained in another context, "independently of written constitutions, there are restrictions upon the legislative power, growing out of the nature of the civil compact and the natural rights of man."4 3 These brief examples demonstrate that, by 1905, social compact theory had long been associated with the law pertaining to an individual's rights in property. A leading reason for this association, as explained by an early Justice of the United States Supreme Court, was because "[n]o man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry."4 4 This idea, too,

was Lockean in nature. Just as Locke identified the social compact with the preservation of individual property interests, he identified property primarily with an individual's personhood and labor. Locke asserted that "every man has a property in his own person," which "no body has any right to but himself' and which includes "It]he labour of his body, and the works of his hands."45 Thus, by laboring, an individual extends the scope of his property beyond himself to reach the things he produces: "Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property."46 From the individual's vantage point, the social compact is designed primarily to safeguard both those interests he already has and those interests he might acquire, via his labor, in the future.47

A similar rationale is implicit in Justice Cobb's promotion of privacy rights. The notion that an individual possesses a property interest in her person and labor logically leads to the conclusion that she has some right to be protected from interference by others - that is, to be let alone. With regard to 42.

43.

44.

Pa. 1795) 45.

46.

47.

Id. at 344-345; Young v. McKenzie, 3 Ga. 31, 41-42 (1847).

Campbell v. State, 11 Ga. 353, 369 (1852).

Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (C.C.D. (Paterson, Circuit Justice).

LOCKE, supra note 33, § 27, at 19.

Id. (emphases in original).

Id. §§ 123-124, at 66.

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the person itself, Locke's ideas "are inextricably linked to the protection of privacy, because they suppose the ability to exclude others from bodily invasion, suggesting that protection of bodily privacy also involves a metaphor for ownership itself."4 8 Moreover, Locke's theory suggests that an individual might also possess some right in her own thoughts, affairs, and personal information. In fact, one scholar has described Locke's ideas as "the backbone of intellectual property law," which protects "the individual who mixes her unique personality with ideas, who most displays originality and novelty in her creations. 4 9 It was in this area of the law that Warren and Brandeis found their best analogy for a right to privacy." This makes sense when one thinks in Lockean terms: "[I]ntellectual property embodies Locke's idea that one gains a property right in something when it emanates from one's self."5 Thus understood, privacy (as an extension of one's personhood) plays a very similar (if not identical) role to that of property with regard to the nature of the social compact. Indeed, Pavesich implied as much when it equated encroachments upon an individual's privacy with the withdrawal of basic societal benefits - that is, those benefits that induce the individual to enter into the social compact in the first place. 2 If entering political society necessarily meant that each individual forfeited her right to keep certain matters private, Justice Cobb seemed to be suggesting that no one would do it.

Although Pavesich does not make it explicit, it seems that it is this similarity between property and privacy - the relative value of each vis-A-vis the reasons for becoming a party to the social compact - that (in the minds of Georgia jurists) linked them together as deserving of legal protection. In this line of thinking, individuals surrender certain rights (including in some instances aspects of their rights to property and privacy) in order to provide more stable and effective protection for their rights as a whole. Chief among the rights retained, and for which 48. Katyal, supra note 8, at 303.

49. Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1112 (2002).

50. Warren & Brandeis, supra note 2, at 205.

51. Solove, supra note 49, at 1112.

52. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 69-70 (Ga. 1905).

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protection is sought, are the bulk of each individual's property and privacy interests. Unless these interests receive protection, the social compact is violated and stands worthless to the individual. For this reason, at least in Georgia, both property and privacy were viewed early on as fundamental rights worthy of recognition by any civilized society.53 B. Blackstone and FundamentalRights For many Americans, the mention of fundamental rights immediately invokes notions about an individual's entitlement to "Life, Liberty, and the Pursuit of Happiness."54 For lawyers, however, at least those schooled in the eighteenth and nineteenth centuries, fundamental rights often invoked a similar, but slightly different, trinity - one penned not by Thomas Jefferson55 but, rather, by Sir William Blackstone. In his Commentaries on the Laws of England, which "grounded the legal education of Founding-era Americans and remained enormously important throughout the nineteenth century,"56 Blackstone identified three principal rights that belonged naturally to all mankind, and belonged "in a peculiar and emphatical manner" to the people of England.57 The first of these rights, that of "personal security," encompassed an individual's "legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation."58 The second right, of "personal liberty," concerned "the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without 53. Id. at 80 (explaining that protection of privacy rights is "thoroughly in accord.., with the principles of the law of every civilized nation"); In re Flournoy, 1 Ga. 606, 608 (1846) (declaring legal protections for vested property rights "to occupy a place in the estimation of civilized states, anterior to, and above, constitutions and laws").

54. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

55. Of course, Jefferson was greatly influenced by Locke, who (as demonstrated above) identified the purpose of the commonwealth with the protection of its citizens' "lives, liberties, and estates." See LOCKE, supra note 33, ยง 123, at 66.

56. Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REv. 559, 567 (2007).

57. 1 WILLIAM ENGLAND * 129.

58. Id.

BLACKSTONE,

COMMENTARIES

ON THE LAWS OF

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imprisonment or restraint, unless by due course of law."5 9 Finally, Blackstone listed "the right of private property," consisting of "the free use, enjoyment, and disposal of all [an individual's] acquisitions, without any control or diminution, save only by the laws of the land." 60 These three categories formed the core of an individual's private rights in eighteenthcentury English jurisprudence and, by extension, in the understanding of most American lawyers through the close of the nineteenth century.

Even a casual reading of Pavesich reveals that Justice Cobb and his colleagues on the Georgia court concurred in this understanding.

Immediately after discussing privacy's relationship to the social compact, Justice Cobb cited Blackstone as additional support for his argument, explicitly rooting the right of privacy in Blackstone's conceptions of personal security and personal liberty. 6' Although Justice Cobb conceded that Blackstone made no express reference to a right of privacy, he maintained that the principles elucidated by the great English jurist logically led to the discovery of such a right.

The idea of liberty, in particular, included sufficient room in which to ground legally cognizable privacy interests: "Liberty," in its broadest sense, as understood in this country, means the right not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity ....Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a 62 right to arbitrarily take away from him this liberty.

Here, suggested Justice Cobb, lay the essence of the individual's right to privacy.

At first blush, little about this analysis relates privacy to property. Inasmuch as Justice Cobb rooted the right of privacy 59. Id. at* 134.

60. Id. at *129, *138.

61. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 70 (Ga. 1905).

62. Id. (internal quotations and citations omitted).

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in notions of security and liberty, he equally failed to mention the third of Blackstone's fundamental rights - that of private property. Should we conclude, then, that this portion of Pavesich operates as a sort of breaking point, separating privacy rights and property rights into distinct legal camps? Some Georgia precedent, indeed, could be read to do just that, describing the right of privacy as "an incident of the person, and not of property."63 Such a separation, however, ignores the prior precedent with which the Pavesich court must have been familiar, as well as the examples utilized by Justice Cobb himself. Properly considered, both sources demonstrate a deep philosophical connection between privacy and property.

As an initial matter, Georgia courts had long embraced the Blackstonian trinity, and rights to property clearly were included alongside those of security and liberty. Indeed, early Georgia courts seemingly viewed the three categories as inseparable. In 1879, for example, the Georgia Supreme Court followed Blackstone by grouping the rights of personal security, personal liberty, and private property together as "the three inherent, absolute rights of all men in civilized society. ' 64 Three decades earlier, the court had approvingly quoted Justice Story's famous opinion for the United States Supreme Court in Wilkinson v. Leland, in which these rights again were considered together: "The fundamental maxims of free government seem to require, that the rights of personal security and private property should be held sacred."65 More to the point was the following passage from an 1851 opinion: The right of accumulating, holding and transmitting 63. Hudson v. Montcalm Publ'g. Corp., 379 S.E.2d 572, 576 (Ga. Ct. App. 1989) (quoting McQueen v. Wilson, 161 S.E.2d 63, 65 (Ga. Ct. App. 1968), rev'd 162 S.E.2d 313 (Ga. 1968), overruled by Austin v. Carter, 285 S.E.2d 542 (Ga. 1982)).

64. Selma, Rome & Dalton R.R. Co. v. Gammage, 63 Ga. 604, 609

(1879).

65. In re Flournoy, 1 Ga. 606, 608 (1846) (quoting Wilkinson v.

Leland, 27 U.S. (2 Pet.) 627, 657 (1829)). The Georgia court actually misquoted Wilkinson, which reads: "The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred." See Wilkinson, 27 U.S. (2 Pet.) at 657 (emphasis added). That the Georgia court could so easily substitute "personal security" for "personal liberty" adds credence to the idea that these rights were viewed as part and parcel one with another.

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property, lies at the foundation of civil liberty. Without it, man nowhere rises to the dignity of a freeman. It is the incentive to industry, and the means of independent action. It is in vain that life and liberty are protected - that we are entitled to trial by Jury, and the freedom of the press, and the writ of habeas corpus - that we have unfettered entails, and have abolished primogeniture - that suffrage is free, and that all men stand equal under the law, if property be held at the 66 will of the Legislature.

Thus, for Georgia jurists, as for the early American legal culture in general,6 7 the rights of security, liberty, and property were inextricably linked. 68 The mention of one, to some degree, necessarily involved aspects of the others.

This interconnectedness is also seen prominently in two of the examples utilized by Justice Cobb in Pavesich itself - the right to choose one's calling and the right to live a life of publicity. Although Justice Cobb classified these examples as components of an individual's liberty, Georgia cases both before and after Pavesich make clear that these rights have connections to property as well. Only three years prior to Pavesich, for example, the Georgia court explicitly linked an individual's right to pursue a calling to both liberty and property: "This right to choose one's calling is an essential part of that liberty which it is the object of the government to protect, and a calling, when chosen, is a man's property and right."6 9 These ideas appear to have been nothing new to 66. Parham v. Justices of Inferior Court, 9 Ga. 341, 355 (1851).

67. See James W. Ely, Jr., "To Pursue Any Lawful Trade or Avocation": The Evolution of Unenumerated Economic Rights in the Nineteenth Century, 8 U. PA. J.CONST. L. 917, 917 (2006) ("There may have been no eighteenth-century educated American who did not associate defense of liberty with defense of property.") (quoting JOHN PHILLIP REID, CONSTITUTIONAL

HISTORY

OF

THE

AMERICAN

REVOLUTION:

THE

AUTHORITY OF RIGHTS 27 (1986)); Stephen A. Siegel, Lochner-Era Jurisprudenceand the American ConstitutionalTradition,70 N.C. L. REV. 1,

33 n.154 (1991) ("[I]n nineteenth-century America, property was considered among the most important civil liberties.").

68. See also Walker v. City Council of Dawson, 66 S.E. 984, 986 (Ga. Ct. App. 1910) (describing "personal liberty, personal security, and private property" as "fundamental rights of the individual," which are "entirely

consistent and interdependent").

69. Brown v. Jacobs Pharm. Co., 41 S.E. 553, 560 (Ga. 1902) (quoting Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116 (1872) (Bradley,

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American thought on the subject. As early as 1792, James Madison associated property rights with the freedom to choose an occupation, explaining that such choices "not only constitute [an individual's] property in the general sense of the word; but are the means of acquiring property strictly so called."70 Thus, an individual's right to choose his own lawful means of earning a living was the product of both his right to liberty and his right of property.

The same can be said for an individual's right of publicity.

For the Pavesich court, this right (and the correlative right of privacy) resulted directly from the liberty "to live as one will."7 1 Subsequent Georgia decisions, however, demonstrate that publicity rights are equally associated with property. In 1966, for example, the Court of Appeals (following Dean Prosser) 2 explained that the right to privacy in reality encompasses four separate causes of action: (1) intrusion upon the plaintiff's seclusion or solicitude; (2) public disclosure of embarrassing facts about the plaintiff; (3) public statements or depictions that place the plaintiff in a false light; and (4) appropriation of the plaintiff's name or likeness for the defendant's advantage.7 3 According to the court, this last cause of action (which, incidentally, is the category in which the court would have placed the claim of Paolo Pavesich) raised issues concerning an individual's right of publicity.74 This right, said the court, is not primarily about the personal feelings or sensibilities of the plaintiff; rather, a cause of action based on publicity concerns ''an appropriation of rights in the nature of property rights for commercial exploitation." 75 In a subsequent decision, the Georgia Supreme Court tacitly agreed with this characterization,

J., dissenting)).

70. JAMES MADISON, PROPERTY (1792), reprinted in 1 THE FOUNDERS' CONSTITuTION 598 (Philip B. Kurland & Ralph Lerner eds.,

1987). For a thorough discussion of the association between property rights and legal protections for occupational freedom, see generally Ely, supra note 67, at 921-49.

71. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 70 (Ga. 1905).

72. Prosser, supra note 24, at 389.

73. Cabaniss v. Hipsley, 151 S.E.2d 496, 499-500 (Ga. Ct. App.

1966).

74. Id. at 503-04.

75. Id. at 504.

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describing the right of publicity in terms markedly similar to those used in describing property rights: "The right of publicity may be defined as a celebrity's right to the exclusive use of his or her name and likeness."76 Thus, in addition to its connection with liberty, the right of publicity-which Justice Cobb understood as being the flip-side of the right of privacy-has a proprietary dimension as well.

As with its tacit references to Locke and the social compact, Pavesich's appeal to Blackstone's formulation of fundamental rights shows that the right to privacy bears an inherent similarity to longstanding notions about property. By grounding the right to privacy in an individual's right of personal liberty, Justice Cobb necessarily (if not overtly) connected privacy rights with rights in property, since liberty and property were "interdependent concepts."7 7 The United States Supreme Court

endorsed this same understanding of the Blackstonian trinity in its famous opinion in Griswold v. Connecticut, where it referred to the "indefeasible right [singular] of personal security, personal liberty and private property" as the source of the privacy rights guaranteed by the Fourth and Fifth Amendments to the United States Constitution." Finally, the specific examples of liberty interests utilized by Pavesich to support a right of privacy - the right to pursue a calling and the right of publicity - have been characterized by other Georgia courts in terms generally associated with property interests, reinforcing the conclusion that privacy and property have similar characteristics and derive from similar ideas.

C. "The Bundle of Sticks" and "The Right to be Let Alone" This similarity between privacy and property finds equal support in the final thread of Pavesich's reasoning. After connecting privacy to Blackstone's conception of fundamental rights, Justice Cobb focused his attention on providing common law support for "a legal right to be let alone."7 9 Although a 76. Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc., 296 S.E.2d 697, 700 (Ga. 1982) (emphasis added).

77. Ely, supra note 67, at 917.

78. 381 U.S. 479, 484 note (1965) (emphasis added; quoting Boyd v.

United States, 116 U.S. 616, 630 (1886)).

79. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 71 (Ga. 1905) (internal quotations omitted).

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surface reading of this portion of Pavesich might suggest that property and privacy share little in common, a closer review demonstrates that, in fact, Justice Cobb's argument in support of a privacy right overflows with themes and language familiar to the law of property.

Justice Cobb relied primarily on three common law examples in support of the "right to be let alone." The first and second both were found in the common law of nuisance-specifically, the enjoining of noises under the law relating to private nuisance and the punishment of a common scold, which the common law treated as a public nuisance. For Justice Cobb, the enjoining of noises (even those associated with lawful occupations) that interfere with an individual's enjoyment of his home presented "a conspicuous instance" of the law's protection of privacy.8 0 With regard to such interferences, Justice Cobb indicated that "there is really no injury to the property, and the gist of the wrong is that the individual is disturbed in his right to have quiet."8 1 So, too, the case of the common scold or gossip. "[T]he reason for the punishment of such a character," wrote Justice Cobb, "was not the protection of any property right of her neighbors, but the fact that her conduct was a disturbance of their right to quiet and repose... *"82 As his third example, Justice Cobb pointed to the common law right of persons to be secure from unreasonable searches and seizures, in which he found implicit recognition for privacy rights: "[T]he law on the subject.., cannot be based upon any other principle than the right of a person to be secure from invasion by the public into matters of a private nature, which can only be properly termed his right of privacy." 83 As indicated above, Justice Cobb's analysis, at first blush, does not seem to support the thesis proffered in this essay - that privacy and property share similar underpinnings. After all, Justice Cobb seemed to go out of his way to show that the referenced doctrines in reality implicated no property right at all, thus bolstering his implication that the law must be protecting something else (in a word, privacy). But Justice Cobb's description of these cases as not involving property 80.

81.

82.

83.

Id. Id. Id. Id. at 71-72.

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seems more polemical than doctrinal.

It is difficult to believe, for example, that Justice Cobb and his colleagues really could not find "any other principle" than privacy on which to base the law's prohibition against unreasonable searches and seizures. In the analogous context of the Fourth Amendment, the United States Supreme Court has recognized that constitutional protection against unreasonable searches and seizures extends to both privacy and property interests.84 Moreover, just five years after Pavesich, the Georgia Court of Appeals connected the law of search and seizure directly with the "proud boast of the Anglo-Saxon that a man's home is his castle," such that the government officials who invaded the defendant's home "committed a double trespass - a trespass against [the defendant's] personal security, and a trespass against his private property." 85 Additionally, the nuisances referenced by Justice Cobb implicate property rights, despite his objections to the contrary.

With regard to either nuisance, be it a bothersome noise or a common scold, the law's primary concern seems to be the promotion of quiet enjoyment, a notion usually associated with property rights.8 6 In the first case, the law seeks to protect from the bothersome noise an adjacent landowner's right to use, control, and enjoy his neighboring parcel, as well as to maintain the value of that parcel in the event of transfer. 87 Although not as easily seen, comparable interests are at issue in the case of the common scold. There, the public at large exercises 84. See, e.g., Sodal v. Cook County, 506 U.S. 56, 62-63 (1992).

85. Walker v. City Council of Dawson, 66 S.E. 984, 986-87 (Ga. Ct. App. 1910).

86. See, e.g., Thumbley v. Hightower, 184 S.E. 331, 332 (Ga. Ct. App. 1936) ("The right to enjoyment of private property is an absolute right of

every citizen, and every act of another which unlawfully interferes with such enjoyment gives rise to a cause of action. Any act which deprives the owner of personal property of the peaceful and quiet possession of such property is a tort for which the injured party may maintain an action.").

87. See, e.g., Virginian Ry. Co. v. London, 76 S.E. 306, 308 (Va. 1912) ("A private nuisance is the using or authorizing the use of one's property, or of anything under one's control, so as to injuriously affect an owner or occupier of property (1) by diminishing the value of that property; (2) by continuously interfering with his power of control or enjoyment of that property; (3) by causing material disturbance or annoyance to him in his use or occupation of that property.").

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dominion and control over individuals who interfere with the quiet enjoyment of general society, so as to preserve the social order against habitual disturbances of the peace.88 In other words, in punishing the common scold, the law protects the right of each member of society to use, occupy, and enjoy the general functioning of that society in a quiet and peaceable manner, free from persistent interference with or disturbance of that right. When framed in this way, these nuisances appear to have been protecting interests similar to those associated with the well-worn metaphor of property as a "bundle of sticks" i.e., an aggregation of component rights relating primarily to the possession, use, and disposition of the thing at issue, as well as the exclusion of others from exercising similar rights.89 And this understanding of property as the rights of the owner in relation to a thing, rather than simply the thing itself, was already established at the time Justice Cobb penned Pavesich. In 1866, for example, the United States District Court for the Southern District of Georgia declared: Property is the right of any person to possess, use, enjoy, and dispose of a thing. The term, although frequently applied to the thing itself, in strictness means only the rights in relation to it. And, indeed, after a most careful examination of all the authorities within my reach, I have failed to discover a definition of "property" stripped of the attributes of enjoyment and alienation .... The exclusive right of using and transferring property follows as a natural consequence from the perception and admission of the right itself.90 Twelve years after Pavesich, this view was explicitly endorsed by the Georgia Supreme Court, which cited the abovereferenced passage for the following proposition: "The term

88. See, e.g., State v. Paledrano, 293 A.2d 747, 748 (N.J. Super. Ct. Law Div. 1972) ("A common scold is a troublesome and angry woman, who, by brawling and wrangling among her neighbors, breaks the public peace, increases discord, and becomes a nuisance to the neighborhood."); Commonwealth v. Barrett, 47 Pa. D. & C.2d 462, 463 (Pa. Ct. C.P., Bucks

County 1969) (same).

89. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982); Rabun County v. Mountain Creek Estates LLC, 632 S.E.2d 140, 143 (Ga. 2006).

90. Ex parte Law, 15 F. Cas. 3, 7 (S.D. Ga. 1866) (internal quotations and citations omitted).

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'property' is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership, and that which is subject to be owned and enjoyed."9 When "property" is viewed in these terms, it is difficult to uphold Justice Cobb's statements in Pavesich that the referenced nuisances affect no property rights at all.

Indeed, a closer look at Pavesich reveals that privacy's "right to be let alone" shares much in common with the figurative "bundle of sticks" that characterizes our concept of property.

Although in places, Pavesich appeared to reject the idea that property theory provides a basis for the right of privacy, other portions of the opinion clearly suggested otherwise. Perhaps the most striking example occurred in connection with Justice Cobb's discussion of the New York case of Roberson v.

Rochester Folding Box Co. After criticizing the majority's failure to recognize a right of privacy in that case, Justice Cobb quoted extensively from the dissenting opinion in Roberson, which itself was rife with property-based language.9 2 First, the Roberson dissent rooted the right of privacy in an individual's entitlement "to be protected in the exclusive use and enjoyment of that which is his own," 93 language that has obvious similarities to the conception of property as an amalgam of rights relating to one's exclusive use and possession of a particular thing. Second, the Roberson dissent repeatedly noted the commercial context of that case, which (like Pavesich) arose from the defendant's unauthorized use of the plaintiff's likeness in advertisements for the defendant's product.94 Implicit in this discussion was the idea that the plaintiff (and she only) had the ability to profit from her likeness, suggesting that she also possessed the exclusive right to alienate or otherwise transfer that ability. Finally, and most obviously, the Roberson dissent directly equated property and privacy as flowing from analogous ideas: 91. Wayne v. Hartridge, 92 S.E. 937, 939 (Ga. 1917).

92. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 78-79 (Ga. 1905).

93. Roberson v. Rochester Folding Box Co., 64 N.E. 442, 561 (N.Y. 1902) (Gray, J., dissenting). This portion of Judge Gray's dissent was quoted in Pavesich, 50 S.E. at 78.

94. Roberson, 64 N.E. at 563-64, 566 (Gray, J., dissenting). These portions of Judge Gray's dissent were quoted in Pavesich, 50 S.E. at 78-79.

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Property is not, necessarily, the thing itself which is owned; it is the right of the owner in relation to it. The right to be protected in one's possession of a thing or in one's privileges, belonging to him as an individual, or secured to him as a member of the commonwealth, is property, and as such entitled to the protection of the law .... It seems to me that the principle which is applicable is analogous to that upon which courts of equity have interfered to protect the right of privacy in cases of private writings, or of other unpublished products of the mind.95 Not only did Pavesich quote all of these statements, what's more, it explicitly adopted the reasoning of the Roberson dissent as its own.96

For this reason, despite its own suggestions to the contrary, Pavesich once again demonstrates that property and privacy share similar underpinnings. Just as property demarcates an individual's rights in the exclusive use, possession, and disposition of a thing, the right of privacy concerns an individual's rights to the exclusive use, possession, and disposition of her uniquely personal attributes. Put differently, both property rights and privacy rights are concerned primarily with the concept of sovereignty - that is, who has authority to decide whether, how and when to utilize some distinctive thing, feature, idea, characteristic, or piece of information. Just as the right to exclude others is essential to the concept of property, 97 so, too, is it essential to the concept of privacy. In either case, the ability to prohibit others from engaging in certain behavior vis-a-vis some interest declared to be personal to the holder is largely what defines the right itself. As one scholar has explained: "The core of both "privacy' and 'property' involves the same abstract right: the right to exclude unwanted interference by third parties."9 95. Roberson, 64 N.E. at 564 (Gray, J.,dissenting). This portion of Judge Gray's was quoted in Pavesich, 50 S.E. at 78-79.

96. Pavesich, 50 S.E. at 79.

97. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (calling right to exclude "one of the most essential sticks in the bundle of rights commonly characterized as property"); Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 730 (1998) (calling right to exclude "the sine qua non" of property).

98. Bruce Ackerman, LiberatingAbstraction, 59 U. CHi. L. REV. 317, 347 (1992). Not surprisingly, in the Fourth Amendment context, the United

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III. CONCLUSION Pavesich and its progeny demonstrate that privacy rights and property rights are similar creatures with similar philosophical and historical origins. As traditionally understood, an individual's right to either property or privacy derives from natural law, and it is the procuring of protection for these rights that induce the individual to enter the social compact and form political society with others. Moreover, both property and privacy are rooted in those fundamental rights that have formed the core of Anglo-American legal thought since the time of Blackstone. Finally, despite its disjointed protestations to the contrary, Pavesich demonstrates that privacy and property operate in similar fashion to protect an individual's exclusive right to control interests deemed by the law to be his own.

Therefore, it is not at all peculiar to conceive of privacy and property as interconnected; as stated above, "the two rights are intimately intertwined." 99 Indeed, the more peculiar thinking may be that mentioned at the outset of this essay - viewing personal rights and property rights as distinct (and perhaps conflicting) interests. A careful look at the Pavesich opinion and the similarities it reveals between privacy and property, however, should diminish (if not dispel) such dualistic notions.

As the United States Supreme Court has instructed: "[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights."1 " In the comparable origins, structures and purposes of privacy rights and property rights, this statement finds one of its clearest expressions.

States Supreme Court has directly associated the right to exclude with an individual's legitimate expectation of privacy. See, e.g., Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978).

99. Rao, supra note 7, at 418.

100. Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972).

PRIVACY AND THE GEORGIA CONSTITUTION: PROTECTING INFORMATION IN THE DNA DATA BANK LARRY FRANKEL*

I. Introduction .......................................................................

II. Legislative History of the Recently Enacted Georgia Law Governing DNA Collection and Analysis .................

III. DNA Samples Distinguished from DNA Profiles and Differentiated from Fingerprints ................................

IV . Privacy Concerns ............................................................

V. Constitutionality of DNA Statutes ...................................

A. Constitutionality under the Fourth Amendment ........

B. Constitutionality in Light of Georgia's Fundamental Right to Privacy ..................................................

VI. Other State's Approaches ...............................................

VII. Recom mendation .........................................................

23 24 28 34 36 36 40 42 47

I. INTRODUCTION

On May 6, 2008, Georgia Governor Sonny Perdue signed Act 451 into law.' That law expands the ability of law enforcement personnel in Georgia to gain access to DNA information contained in the state's DNA data bank.2 The enactment of this new law and the implementation of it raise privacy concerns under the United States and Georgia Constitutions.3 While Act 451 is not facially unconstitutional, the implementation of it will raise questions touching on the * State Legislative Counsel, American Civil Liberties Union, Washington Legislative Office. B.A. 1977, University of California, Berkeley; J.D. 1981, Boalt Hall, University of California, Berkeley, School of Law. 1. 2008 GA. LAWS, Act 451, ยง 1 (codified as amended at O.C.G.A. ยง24-4-

63(b) (2008)).

2. Id. 3. Id.

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privacy interests of all Georgians. In Georgia, the right to privacy is fundamental and court decisions that have given meaning to that right provide clear guidance. When addressing questions related to the collection and analysis of DNA, the fundamental right to privacy can be best protected if Georgia's courts continue to apply strict scrutiny when considering issues under the new law.

Part I of this article reviews the recently enacted law and the changes it makes to the existing Georgia law governing collection and analysis of DNA samples. Part II explains the distinction between DNA samples and DNA profiles as well as the difference between the collection of fingerprints and the collection of DNA samples. Part III discusses the implications of the growing use of DNA on privacy concerns by exploring issues that will inevitably be confronted by Georgia Courts as they implement this new law. Part IV summarizes the case law regarding the constitutionality of DNA collection statutes. Part V places this new law in the context of the nationwide debate over the constitutionality of collecting DNA from arrestees and other critical public policy issues related to the level of privacy protection that will be accorded DNA information.

II. LEGISLATIVE HISTORY OF THE RECENTLY ENACTED GEORGIA LAW GOVERNING DNA COLLECTION AND ANALYSIS

Senate Bill 430, which ultimately became Act 451, was introduced in the Georgia Senate on February 21, 2008. 4 The bill proposed an amendment to the statute governing the dissemination of DNA information in the Georgia DNA databank by adding language to make it clear that law enforcement officials could request a comparison of a DNA sample collected from a suspect to DNA profiles already in the data bank. While the bill was modified during the legislative process, the substance of it remained the same.

The final version of the bill, which was signed by Governor Perdue, added this subparagraph to Section 24-4-63 of the Official Code of Georgia Annotated (hereinafter O.C.G.A.) : 4. The legislative history of Senate Bill 430 of the 2007-08 session of the found at: can be Georgia General Assembly http://www.legis.ga.gov/legis/2007_08/sum/sb430.htm 5. O.C.G.A. ยง 24-4-63.

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(b) Upon request from a prosecutor or law enforcement agency, the bureau may compare a DNA profile from an analysis of a sample from a suspect in a criminal investigation where the sample was obtained through a search warrant, consent of the suspect, court order, or other lawful means to DNA profiles lawfully collected and maintained by the bureau. The bureau shall not add a DNA profile of any such suspect to any DNA data bank except upon conviction as provided in this article.6 Georgia, like every other state and the federal government, collects DNA samples from persons convicted of specified crimes. Those samples are analyzed to create a genetic profile, and the DNA profile created during that analysis is placed in the DNA data bank. O.C.G..A. ยง 24-4-63 governs the dissemination of information in the Georgia DNA data bank.7 That section authorizes access to the data bank by federal, state and local law enforcement officers when they are engaged in an official investigation of any criminal offense.8 Georgia enacted its first DNA collection law in 1992. 9 At that time, collection of DNA was limited to people convicted of serious criminal offenses.1" In 2000, the Georgia General Assembly amended O.C.G.A. ยง 24-4-60 to expand the class of individuals from whom DNA must be collected."I As a result of the 2000 amendment, DNA samples were required from all persons convicted of a felony and incarcerated on or after July 12 1, 2000 as well as all felons incarcerated as of that date.

Profiles generated through analysis of these samples are stored and maintained by the Georgia Bureau of Investigation in a DNA data bank. 13 6. Id. 7. Id. 8. Id. 9. 1992 GA. LAws 2034.

10. O.C.G.A. ยง 24-4-60 (1992).

11. O.C.G.A. ยง 24- 4-60 (2000).

12. Id. 13. O.C.G.A. ยง 24-4-60 reads: Requirement for DNA analysis of blood of persons convicted of certain sex offenses or convicted of a felony and incarcerated in a state correctional facility; storage of profile in data bank (a) As used in subsection (b) of this Code section, the term "state correctional facility" means a penal institution under the jurisdiction of the

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Department of Corrections, including inmate work camps and inmate boot camps; provided, however, that such term shall not include a probation detention center, probation diversion center, or probation boot camp under the jurisdiction of the Department of Corrections. (b) Any person convicted of [rape, sodomy or aggravated sodomy, statutory rape, child molestation or aggravated child molestation, enticing a child for indecent purposes, sexual assault against persons in custody, in a hospital or other institution, bestiality, necrophilia and incest] shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. In addition, on and after July 1, 2000, any person convicted of a felony and incarcerated in a state correctional facility shall at the time of entering the prison system have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2000, and who currently is incarcerated in a state correctional facility in this state for such offense. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony in this state on or after July 1, 2000, and who is incarcerated in a private correctional facility in this state for such offense pursuant to a contract with the Department of Corrections upon entering the facility, and for any person convicted of a felony prior to July 1, 2000, and who is incarcerated in a private correctional facility in this state pursuant to contract with the Department of Corrections. The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation, The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. (c) (1) On and after July 1, 2007, any person who is placed on probation shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person if such person is convicted of a felony violation of any of the following: [crimes against persons; rape; sodomy or aggravated sodomy; statutory rape; child molestation or aggravated child molestation; enticing a child for indecent purposes; sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; bestiality; necrophilia; incest; burglary; robbery; armed robbery; impersonating an officer; obstruction of an officer; dangerous instrumentalities and practices; and controlled substances.].

(2) The analysis shall be performed by the Division of Forensic Sciences of

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Act 451 makes it clear that Georgia law enforcement officials may compare a DNA profile generated from a DNA sample obtained through a search warrant, consent, or other lawful means to profiles contained in the DNA data bank.14 It does not expand the class of persons from whom a DNA sample can be collected. 5 It does not permit the collection of a DNA sample from someone just because he or she is arrested.1 6 A DNA profile of a suspect can be added to the DNA data bank only if there has been an actual conviction. 7 In implementing this new law, Georgia's courts and lawyers will confront a pair of critical issues. The first is determining whether a suspect has actually consented to the collection of his or her DNA. The legislation does not indicate the manner in which consent can be given or what a suspect must be told prior to giving consent. The courts will surely have to address those questions. Second, the legislation leaves unanswered the question of whether the surreptitious collection of DNA samples from cigarette butts, coffee cups or postage stamps is a lawful means of obtaining a DNA sample. The courts will have to determine if DNA samples collected without the knowledge and consent of a suspect can be analyzed under this new law. Both of these concerns raise significant questions affecting the privacy interests of Georgians. Those issues, as well as the privacy questions raised by proposals to collect DNA samples from arrestees, will be discussed later in this article.

III. DNA SAMPLES DISTINGUISHED FROM DNA PROFILES AND DIFFERENTIATED FROM FINGERPRINTS

In order to properly assess the privacy issues raised by the

the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-463.... The Department of Corrections shall be responsible for collecting such sample.

14. O.C.G.A. ยง 24-4-63.

15. Id. 16. Id. 17. Id.

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collection and use of DNA evidence, it is important to understand the distinction between a DNA sample and the profile that is generated from an analysis of that sample. It is even more important to understand how taking a DNA sample and creating a profile from it reveals information that is quite different from the information obtained through fingerprint analysis.

A DNA sample is the actual biological material taken from an individual.' 8 The most common means for obtaining DNA samples are through the use of buccal swabs. 9 DNA samples can also be obtained through blood extractions."z DNA can even be found in semen, skin cells, tissue, organs, teeth, hair, saliva, and fingernails.2 ' DNA samples have been collected from discarded cigarette butts, used coffee cups, soda straws and even licked envelopes. 2 Courts have been reluctant to suppress DNA evidence obtained unknowingly from individuals through surreptitious or deceitful police tactics. 23 After a DNA sample is collected it is submitted for analysis by a crime laboratory.2 4 A DNA profile (in some states the term "DNA record" is used) is the information gathered from the analysis of the DNA sample.2 The DNA profile or record becomes part of the state DNA databank. 6 Although Georgia does not, by statute, define the terms DNA 18. See, NAT'L INSTITUTE OF JUSTICE, U.S. DEPARTMENT DEP'T OF JUSTICE, WHAT EVERY LAW ENFORCEMENT OFFICER SHOULD KNOW ABOUT DNA EVIDENCE (1999), available at http://www.ncjrs.gov/pdffiles l/nij/ bcOO0614.pdf.

19. Id.

20. Id. 21. Id. 22. See Elizabeth E. Joh, Reclaiming "Abandoned" DNA: The Fourth Amendment and Genetic Privacy, 100 NW. U. L. REV. 857, 857-62 (2006).

23. See, e.g., State v. Athan, 158 P.3d 27, 35 (Wa. 2007) (Seattle police

wrote a letter that purported to be from a law firm inviting defendant to join a class action lawsuit. The letter was mailed to the defendant and included an envelope for the defendant to use to send in his response. The defendant licked the envelope and returned it. The police submitted the envelope for DNA testing and the results were used to prosecute the defendant for a twenty year-old murder).

24. O.C.G.A. ยง 24-4-60(b).

25. Id. 26. O.C.G.A. ยง 24-4-63(a).

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sample or DNA profile (or DNA record), the language of O.C.G.A. § 24-4-60 is consistent with the distinctions described above.27 [A]ny person convicted of a felony and incarcerated in a state correctional facility shall at the time of entering the prison system have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person... The

identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank.28 Other states have enacted definitions that make clear the distinction between a DNA sample and a DNA record or DNA profile.29 Those definitions consistently distinguish between biological material and the identification information obtained through crime laboratory analysis.30 Another crucial distinction is that between traditional fingerprints and a DNA sample. Unfortunately, too many commentators and policy makers appear not to appreciate the significant difference between the two, and they have inaccurately called DNA the fingerprint of the 20s century.3 The link between fingerprinting and DNA is of course the ability to establish the identity of a person. However, a fingerprint is limited to establishing identity,32 whereas a DNA 27. O.C.G.A. § 24-4-60(b).

28. Id. 29. See e.g., ALA. CODE § 36-18-21 (1975); IDAHO CODE ANN § 19-5502; IOWA CODE ANN. § 81.1; MD. CODE ANN., PUB. SAFETY § 2-501, MASS. GEN. LAWS. ANN. ch. 22E § 1; N.J. STAT. ANN. § 53:1-20.19; and S. D. CODIFIED LAWS § 23-5A-1.

30. Id. 31. See, e.g., Yvonne Wenger, S.C. House overrides DNA veto, POST AND COURIER, Oct. 22, 2008, at B2 (quoting South Carolina House Speaker Bobby Harrell "DNA is the fingerprint of the 21st century"); Richard Willig, White House Seeks to Expand DNA Database, USA TODAY, Apr. 16, 2003, at 13A (quoting assistant U.S. Attorney General Deborah Daniels "DNA is to the 21s century what fingerprinting was to the 20th").

32. See Christopher H. Asplen, From Crime Scene to Courtroom: IntegratingDNA Technology into the CriminalJustice System, 83 Judicature 144, 146 (1999), availableat http://www.ornl.gov/sci/techresources/HumanGenome/publicat/judicature/r

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sample has the potential to provide information about a person's genetic makeup, family relationships, and predisposition for certain diseases and medical conditions.3 3 A DNA sample, and the tests that can be conducted using it, can reveal a range of private information that many reasonable people would consider, and want to keep, confidential.34 Fingerprint analysis is not used to learn such personal information.3 5 Some courts have discussed this distinction. Judge Gould, in his concurring opinion in United States v. Kincade, specifically 36 noted this difference: [U]nlike fingerprints, DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time. Like DNA, a fingerprint identifies a person, but unlike DNA, a fingerprint says nothing about the person's health, their propensity for particular disease, their race and gender characteristics, and perhaps even their 37 propensity for certain conduct.

Judge Gould's articulation of the difference between fingerprints and DNA was not the first time a federal appellate judge noted this distinction. In his dissenting opinion in Rise v.

State of Oregon, Judge Nelson noted that "DNA information is much more than merely an identifying marker. '38 He specifically criticized those who claim that DNA is just like fingerprinting when he disparaged "the glib linguistic ease with which various commentators categorize DNA genetic pattern analysis as a kind of genetic 'fingerprinting.' "I' Judge Nelson also wrote: "DNA genetic pattern analysis catalogs uniquely private genetic facts about the individual that should be subject

ticle9.html.

33. Id. 34. Id. 35. Id. 36. United States v. Kincade, 379 F.3d 813, 842 (9th Cir. 2004) (en banc), cert. denied, 544 U.S. 924 (2005).

37. Kincade, 379 F. 3d at 842 (Gould J. concurring).

38. Rise v. Oregon, 59 F.3d 1556, 1569 (9th Cir. 1995) (Nelson, J. dissenting) (abrogated on other grounds in Vore v. United States Department of Justice, 281 F. Supp. 2d 1129, 1134 (D. Ariz. 2003).

39. Rise, 59 F.3d at 1569 (Nelson, J., dissenting) (emphasis in original).

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to rigorous confidentiality requirements. 4 ° Other recent appellate decisions have also intimated that, because the unique nature of DNA information is so different from a traditional fingerprint, there are privacy interests that must be considered when evaluating the collection of DNA from criminal offenders.4 ' In United States v. Weikert, the court found that the collection of a DNA sample from a convicted individual on supervised release did not violate the Fourth Amendment.42 The court, however, did note the defendant's privacy was "implicated not only by the blood draw, but also by the creation of his DNA profile and the entry of the profile into a databank. 43 That same court also stated DNA profiles possess unique characteristics that distinguish them from other kinds of records, such as fingerprints." The court concluded that it would reserve judgment on the question of whether the DNA profile could be retained after the completion of supervised release, acknowledging that this question raised distinct privacy issues.45

Although, the Second Circuit upheld New York's law providing for collection of DNA from a convicted felon in Nicholas v. Goord, it recognized that the statute raised privacy concerns when an offender's DNA sample was subjected to analysis and when the DNA information was maintained in a data bank.4 6 Regarding the second event, the court wrote: It is potentially a far greater intrusion than the initial extraction of DNA, since the state analyzes DNA for information and maintains DNA records indefinitely. It is this intrusion that has caused the greatest concern among those of our colleagues who would strike down DNAindexing statutes as unconstitutional.47 This court also found that fingerprinting and DNA profiling are 40. Id. 41. See United States v. Weikert, 504 F.3d 1 (1st Cir. 2007); Nicholas v.

Goord, 430 F.3d 652 (2d Cir. 2005); see also Patterson v. State, 742 N.Ed.2d 4 (Ind.Ct. App. 2000).

42. Weikert, 504 F.3d at 18.

43. Id.at 12.

44. Id.at 16.

45. Id.at 17.

46. Nicholas, 430 F.3d at 670.

47. Id.

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dissimilar for purposes of determining whether the Fourth Amendment is implicated.48 Similarly, the Court of Appeals of Indiana rejected equating DNA analysis to traditional fingerprinting: We recognize the growing privacy concerns surrounding the use and access to information retrieved from an individual's DNA by government entities and third parties. The view that DNA analysis is no different than traditional fingerprinting is becoming less palatable. DNA analysis provides unprecedented access into an individual's future physical and psychological health, the health of close relatives, and insight into paternity issues.4 9

Law enforcement officials are beginning to engage in a process known as "familial searching" which relies on information taken from DNA samples rather than fingerprints. 0 Because of the genetic similarity of close relatives, law enforcement is collecting DNA from family members to track down a perpetrator whose DNA was found at the scene of a crime.5 This process involves looking for a "partial match" between crime scene evidence and DNA profiles.52 Close relatives of persons identified by those matches are contacted and asked to voluntarily provide a DNA sample for purposes of developing a DNA profile.53 They are not asked to supply fingerprints.54 48. Id. at 658.

49. Patterson,742 N.E.2d at 10.

50. See, Joel Rubin & Maura Dolan, DNA Search Fails to FindRelatives of Unknown Serial Killer, L. A. TIMES, Dec. 3, 2008, at B.1, available at http://articles.latimes.com/2008/dec/03/local/me-serial3 (last visited Mar. 19, 2009); Maura Dolan & Jason Felch, Using State DNA Databasesfor Family Matches, Los

ANGELES

TIMES,

Nov. 28, 2008.

51. Ellen Nakashima, From DNA of Family, a Tool to Make Arrests: Privacy Advocates Say the Emerging Practice Turns Relatives Into Genetic Informants, WASHINGTON POST, Apr. 21, 2008, at Al(criticizing how

familial searching leads to the inclusion of DNA profiles of innocent people in DNA data banks because their relation to a suspect); Jennifer Mnookin, Devil in the DNA Database,L.A. TIMES, Apr. 5, 2007, A-23 (exploring the constitutionality of familial searching and the privacy issues raised by it are beyond the scope of this article).

52. Id. 53. Id. 54. Id.

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Scientific research is underway to determine whether information found in DNA samples can be used to predict physical, behavioral or medical conditions.5 DNA samples, unlike fingerprints, are seen as a basis for scientific inquiry into whether there is a genetic basis for aggression, substance addiction, criminal tendencies and/or sexual orientation.5 6 In addition to scientific developments, other legal developments further demonstrate why it is fundamentally unsound to equate the collection of DNA with the collection of fingerprints. In 2008 Congress passed, and President Bush signed into law, the Genetic Information Nondiscrimination Act of 2008.17 This law was passed to prevent the misuse of genetic information.5 8 It provides a framework for protecting information obtained through DNA testing. 9 In the Act itself, Congress stated that many states have a history of misusing genetic information when they passed "laws that provided for sterilization of persons having presumed genetic 'defects' such as mental retardation, mental disease, epilepsy, blindness and hearing loss among other conditions. ' ' 60 There is no similar statutory protection when it comes to fingerprints.

The federal government is not the only jurisdiction that has acted to protect against the misuse of information contained in DNA; other protections are provided under various state laws.

In 2008, the Illinois legislature passed legislation updating the Genetic Information Privacy Act of 1988. 6 1 A majority of states have enacted laws that prohibit the use of genetic information by health insurers. 62 Even Georgia has a law that specifically declares that genetic information is the property of the 55. Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. MED. & ETHIcs 153,

158 (2006).

56. Id. 57. Genetic Information Nondiscrimination Act of 2008, 122 Stat. 881 (PUB. L. No. 110-233) (2008) [hereinafter GINA].

58. Id. ยง 2.

59. Id. 60. Id. 61. 2008 Ill. Legis. Serv. 95-927.

62. See National Conference of State Legislatures, Genetics and Life, Disability and Long-term Care Insurance, http://www.ncsl.org/programs/health/genetics/ndislife.htm (last visited Mar. 12, 2009).

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individuals. 63 Enacted in 1955 to protect individual privacy, O.C.G..A. §33-54-1(1), states, "Genetic information is the unique property of the individual tested."' Several other states have similar provisions including Colorado, Florida, Louisiana, and Oregon.65 Perhaps most significant is the fact that law enforcement itself treats fingerprints differently from DNA profiles. Over the last several years, there have been numerous "John Doe" warrants issued that describe the defendant by reference to his DNA profile only.6 6 There is no evidence, however, that "John Doe" warrants have ever been issued on the basis of conventional fingerprints alone.67 Asserting that collecting DNA is just like collecting fingerprints reflects a flawed understanding of the unique character of DNA and trivializes the privacy concerns. Without an accurate understanding and appreciation of the highly sensitive and personal information that DNA can and does reveal, it is impossible for policy makers to accurately weigh the privacy interests at stake for purposes of constitutional analysis.

IV. PRIVACY CONCERNS RAISED BY ACT 451 Pursuant to Act 451, a prosecutor or law enforcement agency may request the Georgia Bureau of Investigation compare the DNA profile by analyzing a sample obtained from a suspect with the consent of the suspect to the DNA profiles already in the Georgia DNA data bank. 68 The Act does not spell out what constitutes consent. 69 Thus, it is inevitable that questions will 63. O.C.G.A. § 33-54-1(1).

64. Id. 65. COLO. REV.STAT. ANN. § 10-3-1104.7(1); FLA. STAT. § 760.40(2)(2); L.A. REV. STAT. ANN. § 22:213.7(e); and OR. REV. STAT.§ 192.537(10).

66. See Veronica Valdivesio, DNA Warrants: A Panaceafor Old, Cold Rape Cases?, 90 GEO. L.J. 1009, 1010 (2002); Andrew C. Bernasconi, Beyond Fingerprinting: Indicting DNA Threatens Criminal Defendants' Constitutional and Statutory Rights, 50 AM. U.L. REV. 979. 999-1001 (2001).

67. See BERNASCONI, supra note 65, at 1014-16.

68. O.C.G.A. § 24-4-63(b).

69. Id.

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arise regarding whether consent has been given.

Will consent be deemed valid if a suspect has not been given notice as to what will be done with the sample? What action by the suspect will be considered as proof of consent? Since the statute does not address the issue of destruction of the sample, must a suspect be advised as to how long the DNA sample will be stored? Should a suspect be able to ask for the sample to be destroyed if his or her DNA profile does not match any DNA profiles contained in the DNA data bank?

While there is relatively little law in this area to look to for guidance on these questions, cases concerning DNA dragnets or sweeps offer some insight into how courts might approach these questions. A DNA dragnet occurs when "all 'likely suspects' in a wide geographical area around a crime are asked to provide a DNA sample in order to exclude them as suspects."7 These kinds of sweeps have already raised questions about whether individuals have actually consented to providing DNA and whether refusing to voluntarily provide a DNA sample is an appropriate basis for being served with a search warrant and treated as a suspect. 7 1 In some cases, individuals who have been cleared of the crime have had to go to court to have their DNA sample returned to them.72 Georgia's courts will inevitably be called upon to answer the questions posed above. In doing so, they should consider the privacy implications associated with the collection of DNA and the potential uses for information contained in those samples.

Given the threat to personal privacy posed by the negligent or intentional disclosure of such information, courts should require a high level of informed and knowing consent from any individual who voluntarily provides a DNA sample. Such consent should be based on proof that the individual knows what the sample will be used for and what kinds of personal information could be disclosed as a result of providing the 70. Troy Duster, Explaining Differential Trust of DNA Forensic Technology: Grounded Assessment or Inexplicable Paranoia?34 J.L. MED

& ETHIcs 293, 296 (2006).

71. Yuval Levin, DNA Dragnets, 8 THE NEW ATLANTIS 104 (2005), availableat http://www.thenewatlantis.com/publications/dna-dragnets.

72. See Shelton v. Ann Arbor Police Dep't, 568 N.W.2d 87 (Mich. 1997); Complaint filed in Amato v.

Okeefe, available at http://www.aclum.org/legal/amato v-okeefe/complaint.pdf.

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sample.

The issue of consent also arises with respect to DNA collected from discarded cigarette butts, coffee cups or any other object on which DNA can be found. Georgia courts will have to determine whether DNA evidence collected in a surreptitious manner is deemed to be a lawful means for purposes of O.C.G.A. ยง 24-4-63. Should Georgia Courts permit law enforcement to use surreptitiously collected DNA, they will essentially be eviscerating the requirement that there be a search warrant, consent of the suspect or a court order. This would leave virtually every Georgian's DNA available for comparison under the statute.

Because privacy is a fundamental right under the Georgia Constitution, Georgia courts should apply strict scrutiny when considering the issues of consent and surreptitious collection of DNA material.73 Such a level of scrutiny is consistent with the longstanding recognition of the right to privacy under the Georgia Constitution and recognition of privacy concerns in so many contexts by Georgia's courts. A deep appreciation of the importance of privacy to Georgia's citizens should guide the consideration of the questions raised in this part. The citizens of Georgia can have their privacy interests protected by the Georgia courts if those courts require informed and knowing consent for the collection and use of DNA samples provided voluntarily. Furthermore, the privacy rights of Georgians will be better protected if the Georgia courts do not condone the surreptitious collection of DNA as a lawful means of obtaining DNA.

V. CONSTITUTIONALITY OF

DNA STATUTES

A. Constitutionalityunder the FourthAmendment The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their 73. GA. CONST. art. I,

ยง I, 13.

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persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated."74 The United States Supreme Court has made it clear that the taking and analyzing of biological samples constitutes a search under the Fourth Amendment.5 The United States Supreme Court has also made it clear in Flippo v. West Virginia that the Fourth Amendment bars warrantless searches by the police unless they fall "within one of the narrow and well-delineated exceptions to the warrant requirement. '"76 Thus, it is not surprising that lower courts have consistently found that the government's forcible taking of DNA from an individual constitutes a search subject to the Fourth Amendment. In one of the first cases to consider this issue, the Fourth Circuit Court of Appeals denied a constitutional challenge to a Virginia law mandating the taking of DNA samples from convicted felons.77 The court held that the bodily intrusion that results from the taking of the blood sample constituted a search within the scope of the Fourth Amendment. s The Ninth Circuit has found that a blood extraction for purposes of DNA testing is a search, although the court deemed the exaction to be minimally intrusive. 9 In two other recent federal appellate court decisions, the courts noted that the government even conceded that the extraction of blood

74. U.S. CONST. amend. IV. 75. Vernonia Sch. Dist. 47J v.Action, 515 U.S. 646, 652 (1995) (The Supreme Court upheld a high school policy of random urine analysis of athlete, holding that the urine analysis is a search within the Fourth Amendment. However because of the schools legitimate interest in protecting students and students reduced expectations of privacy the search was not unconstitutional); Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617 (1989) (The Supreme Court upheld policy mandating random blood and urine analysis of federal rail road employees reaffirming that blood and urine analysis is a search within Fourth Amendment); Schmerber v.

California, 384 U.S. 757, 767 (1966) (Supreme Court held that taking blood

for analysis of person arrested for DUI is a search).

76. Flippo v. West Virginia, 528 U.S. 11, 13 (1999).

77. Jones v. Murray, 962 F.2d 302, 313 (4th Cir. 1992) (prisoners challenged state statute mandating the taking of DNA samples from convicted felons); See infra Part VI.

78. Id. 79. United States v. Kincade, 379 F.3d 813, 813 (9th Cir. 2004) (en banc), cert. denied, 544 U.S. 924 (2005).

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or saliva to obtain a DNA sample constituted a search within the meaning of the Fourth Amendment.8" Courts have upheld statutes that provide for the collection of DNA samples from convicted felons who are incarcerated or on probation or parole.8 In doing so, they have relied on the United States Supreme Court decision, United States v. Knights, which held that persons already under the supervision of the criminal

justice system as a result of a conviction have reduced expectations of privacy,82 a position reaffirmed by the Supreme 8 3 Because Court in the 2006 decision Samson v. California. convicted felons have a reduced expectation of privacy, their interest in keeping their DNA information confidential is deemed to be outweighed by the state's interest in collecting DNA samples.84 Courts have accepted the government's proffered interest in the proper functioning of the criminal justice system. The effective prevention of crime85 and a prisoner's status as a convicted felon justify the collection of DNA samples from criminals.8 6 Other appellate courts have 80. United States v. Sczubelek, 402 F.3d 175, 184-87 (3d Cir. 2005) cert denied, 548 U.S. 919 (2006); Padgett v. Donald, 401 F.3d 1273, 1282 (11th Cir. 2005).

81. Jones, 962 F.2d at 315; Kincade, 379 F.3d at 838.

82. See United States v. Knights, 534 U.S. 112, 119-20 (2001) (explaining how the court specifically addressed the reduced expectation of privacy that correlates with probation as necessitated by the functioning of the criminal justice system).

83. Samson v. California, 547 U.S. 843, 856 (2006).

84. See United States v. Kreisel, 508 F.3d 941 (9th Cir. 2007) (government revoked conditional release of convicted felon for refusing to submit a DNA sample. Supreme Court upheld DNA statute authorizing taking of DNA samples from supervised paroled felons); Landry v. Att'y General, 709 N.E. 2d 1085 (Mass. 1999) ( prisoner challenged state DNA stuate mandating the taking of DNA samples from convicted felons); Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), cert. denied, 119 S.Ct. 520 (1998) (same); People v. Wealer, 636 N.E. 2d 1129 (Ill. App. Ct. 1994) (same); Jones, 962 F. 2d at 308 (same).

85. See Knights, 354 U.S. at 119 (explaining how the Supreme Court places greater weight on the side of the government rather than the individual when weighing a probationer's expectation of privacy compared to the governments' interest in crime prevention).

86. Id; see also, Samson, 547 U.S. at 853 (noting that the "[s]tate's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy

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reached a similar result, but they have justified the warrantless collection of DNA samples from convicted persons on the grounds that the government has a "special need" for those samples beyond normal law enforcement purposes.87 In Padgett v. Donald, the Eleventh Circuit Court of Appeals held that the Georgia statute requiring the collection of DNA samples from all convicted, incarcerated felons was constitutional.8 8 The court analyzed that statute under the Fourth Amendment in the United States Constitution as well as under Article I, Section 1, Paragraph 13 of the Georgia Constitution: Searches, seizures, and warrants. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.8 9 As the Eleventh Circuit did in Padgett,90 courts routinely focus on the status of the person from whom DNA is to be collected in upholding DNA collection statutes. 91 Convicted criminals have reduced expectations of privacy in their identity.9 2 It is the identity function of DNA collection to which the government's recognized interests are tied. Therefore, courts have had little trouble dismissing convicted criminals' challenges based on violations of the Fourth Amendment. 93 intrusions that would not otherwise be tolerated under the Fourth Amendment).

87. Green v. Berge, 354 F.3d 675, 677 (7th Cir 2004); Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir. 1999); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1997); State v. Olivas, 856 P.2d 1076, 1082 (Wash. 1993).

88. Padgett v. Donald, 401 F.3d 1273, 1282 (11th Cir. 2005), cert. denied, 546 U.S. 820 (2006).

89. GA. CONST. ART. I, ยง I, 13.

90. Padgett,401 F.3d at 1280.

91. Courts reach this conclusion irrespective of whether the courts apply the reasonable expectation of privacy analysis or focus on the government's "special need" for DNA samples. See, e.g., United States v. Weikert, 504 F.3d 1 (1st Cir. 2007) ("special needs" exception); Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) ("special needs" exception); Landry v. Att'y General, 709 N.E. 2d 1085 (Mass. 1999) (expectation of privacy analysis).

92. Id. 93. See, e.g., Groceman v. United States, 354 F.3d 411 (5th Cir. 2004)

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There is, however, tension between a State's proffered interest in the functioning of its criminal justice system and the collection of DNA samples from private citizens that the Fourth Amendment is not suited to address. DNA profiles are capable of revealing much more than a person's identity. 94 In order to protect the privacy of persons who have not been convicted of criminal activity, the focus should not be on the identity function of DNA. Rather, the focus should be on what can be revealed by the genetic information contained in a DNA sample.

The Fourth Amendment is implicated when the government intrudes upon a person's expectation of privacy in his genetic material for identification purposes. Because the collection of DNA samples and the creation of DNA profiles can lead to governmental intrusion into a person's privacy beyond any identification purpose, Georgia's constitutional right to privacy is implicated. 95 B. Constitutionalityin Light of Georgia'sFundamentalRight to Privacy Georgia courts were among the first to recognize a constitutional right to privacy even where such right was not specifically articulated in the state constitution. 96 The Georgia Supreme Court first recognized the right to privacy in Pavesich v. New England Life Ins. Co., where the Georgia Supreme Court held that Georgia citizens have a "liberty of privacy" that derives from both "natural law" and "Roman law." 97

Subsequent Georgia cases have extended the reasoning in (relying on Kinghts to uphold the DNA Act); See also United States v.

Sczubelek, 402 F.3d 175, 184 (3rd Cir. 2005).

94. See supra Part III. 95. See Padgett, 401 F.3d at 1281-82 (illustrating how the collection of DNA from prison inmates raises questions about an individual's right to privacy under both the United States and Georgia Constitutions). The fact that the Eleventh Circuit in Padgett addressed the inmates' privacy concerns under both the Fourth Amendment and Georgia's constitutional right to privacy illustrates that the collection of DNA raises questions under both the United States and Georgia Constitutions.

96. Pavesich v. New England Life. Ins. Co., 50 S.E. 68, 81 (Ga. 1905) (holding that a person, whose picture was used is advertisement without authorization, has a right to keep himself removed from the public eye if doing so does not violate the rights of others).

97. Id. at 70.

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Pavesich98 to protect a person's privacy interest in her medical information,99 such as health condition and AIDS status.im Thus, Georgia has already recognized that a person has a constitutionally protected privacy interest in the kinds of information that are discoverable through DNA collection and analysis. DNA profiling provides "unprecedented access into an individual's future physical and psychological health, the health of close relatives, and insight into paternity issues."''0 Such private genetic information is simply outside the scope of law enforcement purposes. DNA samples and profiles provide the State with access to information that is otherwise protected 02 under the Georgia Constitution.

The Eleventh Circuit, in Padgett, held that because of an incarcerated prisoner's status, the collection of DNA samples from such person does not violate the inmate's right to privacy under the Georgia Constitution.0 3 However, to evaluate the reasonableness of the collection of DNA samples from incarcerated felons under the Georgia Constitution, the court employed the same analysis that was used in its Fourth Amendment analysis. °4 Although the Court found that Georgia considers privacy to be a fundamental right, it did not find the required collection of DNA samples from incarcerated felons (a group the court described as a "limited population") was a violation of the inmates' rights to privacy under the Georgia Constitution.0 5 The Court did not dismiss the argument that the convicted inmates' liberty-based constitutional right to privacy was implicated; it only held that the State's intrusion was

98. Id. at 68.

99. See King v. State, 535 S.E.2d 492, 495 (Ga. 2000) (recognizing that an individual's interest in medical information is a privacy interest protected under the fundamental right to privacy).

100. Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491, 493-94 (Ga. App. 1994) (recognizing that a person has a privacy interest in DNA which

includes one's AIDS status).

101. Patterson v. State, 742 N.E.2d 4, 10 (Ind.Ct. App. 2000).

102. For instance medical information is protected under the Georgia Constitution yet DNA samples can easily yield medical information. See King, 535 S.E.2d at 492 (protecting personal medical records).

103. See Padgett,401 F.3d at 1282.

104. Id. at 1280.

105. Id. at 1282.

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justified. 106 The court's focus on the inmates' status as convicted felons coupled with State's interest in collecting DNA samples from such persons highlights the significant difference between preconviction suspects and/or arrestees and convicted felons. The status of the latter, according to the court, justifies intrusion into constitutionally protected privacy. 0 7 Suspects and/or arrestees are still private citizens. They are presumed innocent until proven guilty, and as such have not lost their constitutionally protected right to privacy.

Because Act 451 does not, in and of itself, expand the ability of law enforcement to involuntarily collect DNA samples, it is likely that in the event of a facial challenge to the new law, Georgia's courts will probably dismiss such a challenge relying on the reasoning in Padgett v. Donald that collecting DNA samples from incarcerated felons does not violate inmates' right to privacy.1°8 While privacy is a fundamental right under the Georgia Constitution and Georgia's courts engage in a strict scrutiny level of analysis when privacy interests are raised in litigation, there is nothing in the case law to suggest that the additional authority granted law enforcement by Act 451 necessarily violates that fundamental right.

There is one way to truly protect Georgia citizens' right to privacy in regard to DNA samples. The courts can and should apply strict scrutiny when considering the issues of consent and law enforcement's surreptitious collection of DNA material.10 9 Such a level of scrutiny is consistent with the long standing recognition of the right to privacy under the Georgia Constitution and recognition of privacy concerns in so many contexts by Georgia's courts.

VII. OTHER STATES APPROACHES

The issue of collecting DNA samples from arrestees gained prominence with the December 4, 2008 decision of the European Court of Human Rights which found that the retention 106. See 107. See 108. See denied, 126 109. GA

id. id.

Padgett v. Donald, 401 F.3d 1273, 1282 (11th Cir. 2005), cert.

S. Ct. 352 (2005).

Const. art. 1, § 1, 1 XIH.

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of DNA samples and profiles of persons not convicted violated the Convention for the Protection of Human Rights and Fundamental Freedoms. 10 This, coupled with the subsequent December 10, 2008 issuance by the United States Department of Justice directing federal agencies to collect DNA samples from arrested individuals and from non-U.S. persons who are detained under the authority of the United States,"' has only increased the controversial nature of DNA sample collection.

Because the debate over expanding the collection of DNA to include collecting it from arrestees is likely to come to Georgia, it is appropriate to consider the implications of such an expansion for the privacy rights of Georgians.

Act 451 does not expand Georgia law to require the collection of DNA from individuals who are arrested." 2 Thus, while Georgia courts have not yet faced this question, other courts have. The Minnesota Court of Appeals held that collecting DNA from persons who have not been convicted violates the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution." 3 In re Welfare of C.T.L., the court specifically held: "that the privacy interest of a person who has been charged but has not been convicted is not outweighed by the state's interest in collecting and analyzing a DNA sample." 1 4 In its opinion, the court pointed out that under the Minnesota statute, there was no requirement that the biological sample taken from the defendant be related in any way to the alleged criminal activity.' 5 The court also relied on one of the fundamental principles of American jurisprudence - a person who has been charged is presumed innocent until he or she is

110. S. and Marper v. The United Kingdom, 30562/04 and 30566/04 Eur.

Ct. H.R. (The European Court of Human Rights held that in the case of individuals who had not been convicted the retention of DNA samples and profiles violated Article 8, Section 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 provides for the right to respect for private and family life).

111. 73 Fed. Reg. 74932-01 (Dec. 10, 2008) (federal regulations allowing the collection of DNA samples from persons arrested for federal crimes).

112. O.C.G.A. ยง 24-4-60.

113. In re Welfare of C.T.L.,722 N.W.2d 484 (Minn. Ct. App. 2006).

114. Id. at 492.

115. Id.

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16

proven guilty.1 In late October 2008, the South Carolina legislature overrode Governor Mark Sanford's July 2, 2008 veto of S. 429, a bill authorizing the collection of DNA from arrestees. 1 7 Even though a super-majority of the legislature did not agree with the Governor, his letter to the South Carolina Senate, dated July 2, 2008, demonstrates an understanding of the Fourth Amendment principles at stake: The Fourth Amendment to the Constitution guarantees that all people shall be 'secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'

The Fourth Amendment is intended to establish a perimeter of personal integrity into which the government cannot intrude without compelling reason. Currently, the State allows collection of DNA samples from arrestees after a search warrant is granted by a judge based on probable cause. This practice is consistent with the Fourth Amendment because it ensures that an arrestee is afforded due process as would be expected under the Constitution.

This bill abolishes that right and requires collection of DNA automatically upon arrest without any showing that the DNA is needed as evidence of the crime for which the individual was arrested. Accordingly, we believe that this bill circumvents the probable cause requirement for a search 18 warrant and is, therefore, unconstitutional.'

The courts that have reviewed the statutes providing for collection of DNA from convicted felons have drawn a line between the rights of an individual pre-conviction and postconviction, and several of these decisions contain language that

116. Id. 117. The legislative history of Senate Bill 429 of the 2007-08 session of the South Carolina Legislature can be found at: http://www.scstatehouse.gov/cgi-bin/web-bhlO.exe.

118. A copy of Governor Sanford's letter to the South Carolina Senate, dated July 2, 2008, in which he explains why he vetoed S. 429, is on file with the author of this article. Letter from Mark Sanford, Governor of South Carolina, to Andre Bauer, President of the South Carolina Senate, and members of the South Carolina Senate (July 8, 2008) (on file with the Office of the Governor of South Carolina) available at http://www.scgovernor.com/NR/rdonlyres/D 1D25900-9547-4A97-A4FE2D43BOBE38EE/0/S429DNASampling.pdf., citing State v. Adolphe, 314 S.C. 89, 92, 441 S.E.2d 832 (S.C. App. 1994).

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strongly suggests that those courts would not support the taking of DNA from an individual prior to conviction.' 9 For instance, one of the first cases that examined a DNA collection statute was Jones v. Murray. Petitioners challenged Virginia's collection statute. 120 Virginia's statute was limited to collection of DNA from persons convicted of felonies.2" In rejecting the arguments of those challenging the statute, the court emphasized the fact that the challengers were convicted felons in the custody of the Commonwealth of Virginia.'22 Relying on similar analysis, the Ninth Circuit Court of Appeals, in United States v. Kincade, upheld the taking of DNA from an individual who had been conditionally released.' 23 The fact that the person had already been convicted of a federal crime was critical to the that the collection of DNA was court's determination 24 constitutional. 1 As previously discussed, the Georgia DNA collection statute, O.C.G.A. ยง 24-4-60 was found to be constitutional in Padgett v.

Donald. 25 That statute only applies to convicted, incarcerated felons. 126 The court made it clear that its conclusion as to constitutionality was based in part on the status of the persons to whom the statute applies: Because we believe that Georgia's legitimate interest in creating a permanent identification record of convicted felons for law enforcement purposes outweighs the minor intrusion involved in taking prisoners' saliva samples and storing their DNA profiles, given prisoners' reduced expectation of privacy in their identities, we adopt the reasoning in Jones and hold 27 that the statute does not violate the Fourth Amendment.'

119. See Jones v. Murray, 962 F.2d 302 (4th Cir. 1992); United States v.

Kincade, 379 F.3d 813, 813 (9th Cir. 2004) (en banc), cert. denied, 544 U.S. 924 (2005); Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), cert. denied, 126 S. Ct. 352 (2005).

120. Jones, 962 F. 2d at 302.

121. Id. at 308.

122.

123.

124.

125.

126.

127.

Id.at 310.

Kincade, 379 F.3d at 813.

Id. Padgett, 401 F.3d at 1282.

O.C.G.A. ยง 24-4-60.

Padgett, 401 F.3d at 1280.

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In upholding a statute involving the collection of DNA, the Supreme Judicial Court of Massachusetts emphasized that it was considering a statute requiring involuntary collection of DNA from convicted individuals.' 2 8 Similarly, in Nicholas v.

Goord, the court made it clear that one of the key factors it considered was that the statute applied to convicted felonsprison inmates who had diminished expectations of privacy. 12 9 Further evidence of judicial skepticism of collecting DNA 130 prior to a conviction can be found in United States v. Weikert.

In expressing its concern about the retention of DNA information from convicted individuals who have completed their sentences, the court noted the distinction in privacy expectations between people who are still on supervised release and those who are no longer under supervision. 3 ' The court wrote: We emphasize another important limitation on our holding.

This case presents a challenge to the practice of collecting DNA of an individual currently on supervised release. Thus, we express no opinion on the constitutionality of the retention and searching by the government of the DNA profiles of individuals who have completed their terms of conditional release, which is its standard practice.

The court then stated: The argument for a continued expectation of privacy despite the legality of an initial search is particularly deserving of separate consideration given the wealth of information that DNA has the potential to reveal, as well as the fact that science is continually uncovering new information that is contained in our DNA. We are hesitant to say that an individual has no continued expectation of privacy in a DNA profile when our understanding of the information that such a profile contains is incomplete. 132 This court indicated that the privacy considerations are more complex when the state claims an interest in collecting DNA

128. Landry v. Att'y General, 709 N.E. 2d 1085, 1096 (Mass. 1999).

129. Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005).

130. United States v. Weikert, 504 F.3d 1 (1 st Cir. 2007).

131. Id. at 11-12.

132. Id. at 15-17.

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from an ever expanding class of persons.' 33 One appellate court has, however, minimized the privacy interests of arrestees. In Anderson v. Commonwealth, the Court of Appeals of Virginia found that the taking of a DNA sample from the defendant upon his arrest was not an unlawful search under the Fourth Amendment.' 34 That court did not discuss the privacy implications of taking DNA from a person who had not yet been convicted.'3 5 Rather, it based its decision on its belief that the taking6 of a DNA sample is analogous to the taking of 13 fingerprints.

Apart from the constitutional questions, expanding the collection of DNA samples to include persons who are arrested undermines other important goals of the criminal justice system.

For example, there exists an enormous backlog of crime scene evidence, particularly rape kits, from which DNA samples should be extracted and processed. Further expansion of the pool of persons from whom DNA must be collected threatens to divert important resources away from resolving that backlog.

The use of technicians and police laboratories to further DNA collection will likely come at the expense of analyzing rape kits and other crime scene evidence.' 37

VII. RECOMMENDATION As a result of the enactment of Act 451, Georgia policy makers and courts will have to consider how vigorously they will protect the privacy interests of all Georgians. DNA evidence has proven to be a useful tool for exonerating the wrongfully convicted and helping to identify suspects.

133. Id. 134. See Anderson v. Commonwealth, 650 S.E.2d 702, 706 (Va. 2007) ( "the taking of a DNA sample is permissible as a part of routine booking

procedures [and] as such, no additional finding of individualized suspicion much less probable cause, must be established before the sample may be obtained").

135. Id. 136. Id. 137. See, Sarah Tofte, A Test of Justice for Rape Victims, Washington

Post, July 22, 2008 at A21; Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. MED. & ETHCS 153, 154 (2006).

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Significant privacy issues associated with the collection of DNA and retention of genetic information remain with the potential to affect all Georgia citizens. It will be up to the Georgia legislature and courts to make sure those privacy interests are fully protected.

Georgia's policy makers should follow the lead of Nebraska.

In 2005, the Nebraska Legislature enacted a statue that sensibly addresses the limits that should be placed on the government's collection of DNA samples. 13 Georgia should enact a similar statue, and the author recommends that the Georgia legislature enact the following: 139

Limitations on Obtaining,Using and Keeping Samples.

Notwithstanding any other provision of law: (1) No DNA sample shall be obtained from any person in

138. NEB. REV. STAT. ยง 29-4126 (2006).

139. The recommended statute is based on NEB. REV. STAT. ยง 29-4126 which reads substantially the same as above, except the following provisions are present in Nebraska's statute following subsections three and four above: "(4) A person shall be notified in writing by the law enforcement agency immediately upon the determination that he or she has not been implicated by his or her DNA sample in the commission of the particular crime in connection with which the DNA sample was obtained; (5) Except as authorized in subdivision (7) of this section, such sample and all identifying information pertaining to the person shall be delivered to the person within ten days after the notification required by subdivision (4) of this section with a written explanation that the materials are being turned over in compliance with this section; (6) Except as authorized in subdivision (7) of this section, the law enforcement agency shall purge all records and identifiable information pertaining to the person specified in subdivisions (4) and (5) of this section; (7) An accredited laboratory authorized to perform DNA testing under section 29-4105 shall be allowed to maintain the minimum records and supporting documentation of DNA tests that it has performed as needed for the sole purpose of complying with the laboratory accreditation standards as set forth by a national accrediting body or public agency; (8) No record authorized for retention under subdivision (7) of this section shall be transferred, shared, or otherwise provided to any national, state, county, or local law enforcement agency unless such person has been implicated in the case by his or her DNA sample."

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connection with an investigation of a crime without probable cause, a court order, or voluntary consent as described in subdivision (2) of this section; (2) In the absence of probable cause, if any person is requested by a law enforcement person or agency to consent to the taking of a DNA sample in connection with an investigation of a particular crime, such consent shall be deemed voluntary only if: (a) The sample is knowingly and voluntarily given in connection with the investigation of a particular crime; (b) The person was informed for what purpose the sample was to be used; (c) The person was informed in writing that the request may be refused and that such refusal does not provide probable cause or reasonable suspicion to believe that the person has committed a crime, and the person has signed the written notification; and (d) No threat, pressure, duress, or coercion of any kind was employed, whether (i) direct or indirect, (ii) express or implied, or (iii) physical or psychological; (3) Any DNA sample obtained in violation of this section is not admissible in any proceeding for any purpose whatsoever; (4) If a law enforcement person or agency determines that the DNA sample does not implicate the person in the commission of the particular crime then the sample and all identifying information related to that sample shall be immediately destroyed.

(5) A person shall be notified in writing by the law enforcement agency immediately upon the determination that he or she has not been implicated by his or her DNA sample in the commission of the particular crime in connection with which the DNA sample was obtained and that the sample and all identifying information have been destroyed; (6) Any aggrieved person may file an action against any person, including any law enforcement agency, to enjoin such person or law enforcement agency from violating this section; and (7) Any person aggrieved by a knowing violation of this section may bring an action for damages. A person found by the court to be aggrieved by a violation of this section shall receive damages of not less than one thousand dollars and may recover reasonable costs and attorney's fees.

50

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PROTECTING PRIVATE PROPERTY: AN ANALYSIS OF GEORGIA'S RESPONSE TO KELO V. CITY OF NEW LONDON STEPHEN D. MORRISON, JR.*

I. Introduction .......................................................................

52 II. The Kelo Decision-Federal Impetus for Eminent Domain Reform .......................................................................

54 A. Factual and Procedural Background of the Kelo D ecision .............................................................

54 B. The Supreme Court Holds Economic Development Equates with "Public Use" Under the Fifth Am endment ...............................................................

57 C. Supreme Court's Invitation to the States to Provide Greater Protections Against Eminent D om ain ......................................................................

59 D. The Dissent in Kelo ........................................... .60 III. City of Stockbridge v. Meeks: Georgia's Homegrown V ersion of Kelo .........................................................

62 A. Factual Background ..............................................

62 B. The State Court Litigation- City of Stockbridge v.

M eeks ...................................................................

66 1. Special Master and Trial Court Proceedings ....... 66 2. Appeal to the Georgia Court of Appeals .......

67 C. The Federal Court Litigation- Meeks v. City of Stockbridge ..........................................................

68 IV. Georgia's Legislative Response to the Injustice of Kelo and the Abuse in City of Stockbridge: House Bill 1313 and a Constitutional Amendment .......................................

70 A. The Constitutional Amendment ............................ 70 B. House Bill 1313: Salient Provisions ....................... 71 V. Evaluation of the Legislative Response .......................... 78 A. Absence of Litigation Since 2006 Enactment of

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Eminent Domain Reform Legislation ................. 78 B. Comparison with Post-Kelo Reform in Other Jurisdictions .........................................................

80 VI. Additional Protections Are Warranted for Property Owners in G eorgia ..................................................................

82 A. The Definition of 'Public Use" Should be Incorporated into the Constitution ....................... 83 B. The Definition of "Blight" Should Be Tightened or the "Remedy of Blight" Should Be Removed as a "Public U se". ....................................................................

84 C. Adopt the Florida Approach- Prohibition of "Blight" as a Basis for Eminent Domain ............................ 86 D. Blight Should Be Addressed Through Appropriate Means, Not Eminent Domain .............................. 88 V II. C onclusion ....................................................................

91 I. INTRODUCTION

National attention was focused on the important issue of government taking of private property under eminent domain power in the seminal case of Kelo v. City of New London, Connecticut.1 The strong negative reaction to the Court's decision flowed from the affirmative response to the issue of "whether a city's decision to take property for the purpose of economic development satisfies the 'public use' requirement of

* Senior Counsel for the Southeastern Legal Foundation, an Atlanta-based constitutional public interest law firm and policy center founded in 1976.

Steve joined the Southeastern Legal Foundation from the Cobb County, Georgia Attorney's Office, where he was responsible for litigation involving constitutional civil rights defense and general employment matters. He advised the county's governing Board of Commissioners and departments on general legal topics, including legislation. As an attorney in private practice, he managed constitutional civil rights defense cases. Since 2003, Steve has been an instructor at Georgia State University, where he teaches Introduction to American Law. A cum laude graduate of Georgia State University, Steve received a J.D. from the University of Georgia School of Law. Thank you to Shannon L. Goessling, Executive Director & Chief Legal Counsel for SLF and Todd G. Young, Policy Director for SLF for their assistance in the editing and preparation of this manuscript.

1. Kelo v. City of New London, 545 U.S. 469 (2005).

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the Fifth Amendment." 2 Much to the horror of the public, private property advocates, politicians and commentators spanning the political spectrum, the 5-4 majority concluded that taking of non-blighted property for economic development met the Fifth Amendment's requirement of "public use."3

Around the same time Kelo was making its way to the highest Court in the land, a similar eminent domain dispute was brewing in Georgia. This dispute ultimately spawned litigation in both state and federal courts attacking the City of Stockbridge's misuse of its eminent domain powers. 4 These cases touched off a firestorm of public and legislative reaction demanding reform of eminent domain law in Georgia and ultimately resulting in Georgia's 2006 revision of its eminent domain laws. The question remains however, even in light of the recent reforms, whether the current legislative scheme provides sufficient protection to owners' of private property in Georgia from government takings.

This article proposes that in the critical and somewhat controversial areas of "public use" and "blight", further efforts are warranted to truly provide adequate protection to property owners in Georgia. This article starts with a summary of the Kelo decision and Georgia's counterpart litigation, City of Stockbridge v. Meeks. Next, the article discusses the enactment and content of Georgia's legislation designed to neutralize the effects of the Kelo decision and comments on the legislation's effects and whether it favorably compares with legislation in other jurisdictions. After offering a critical analysis of whether the 2006 legislation goes far enough to protect private property rights, the article concludes with proposed legislative enhancements that would provide sufficient protection from "economic development" with respect to the interpretation of "blight" and its relationship with "public use."

2. Id. at 477.

3. Id. at 475, 483, 489-90; see also U.S. CONST. amend. V. 4. Kelo, 545 U.S. at 469; see City of Stockbridge v. Meeks, 641 S.E.2d 584 (Ga. App. 2007) (opposing City's condemnation of the Meeks' property on state law grounds); Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed September 16, 2005) (attacking Georgia eminent domain statutes used in this case as unconstitutional under the Fifth and Fourteenth Amendments of the United States Constitution).

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II. THE KELO DECISION - FEDERAL IMPETUS FOR EMINENT DOMAIN REFORM

A. Factualand ProceduralBackgroundof the Kelo Decision New

London,

Connecticut experienced

great economic

decline from the 1970's through the 1990's. 5 Located on the Thames River at its confluence with the Long Island Sound, the state of Connecticut designated New London a "distressed municipality" in 1990.6 The economic decline continued after 1990, implicating the Fort Trumbull area of New London, where the United States Navy historically had maintained a presence. 7 The Fort Trumbull area contained neighborhoods, the historic fort area, and the Naval Undersea Warfare Center, which closed in 1996 and had previously employed as many as 1,500 people. 8 With the unemployment rate in New London nearly double that of Connecticut overall, by 1998, New London's population had dropped to just under 24,000 residents, its lowest level since 1930. 9 In January 1998, these economic conditions prompted Connecticut and the City of New London to target the area, including its waterfront, for redevelopment.' 0 The New London Development Corporation ("NLDC"), a local non-profit group, was activated to plan for the redevelopment, and the State authorized a bond issue to underwrite its planning activities." In February 1998, Pfizer, a major pharmaceutical firm, announced its intention to open a $300 million research facility adjacent to the Fort Trumbull area.' 2 This announcement fueled the City's desire to redevelop and economically revitalize the area, resulting in an "integrated development plan focused on ninety

5. Brief of Respondents at 1, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108 Aug. 18, 2004), 2004 WL 1877787.

6. Id. 7. Id. 8. Id.

9. Id. 10. Kelo v. City of New London, 545 U.S. 469, 473 (2005).

11. Id. 12. Id.

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acres of the Fort Trumbull area."13 Several state agencies reviewed the plan and commented on its intended effects and concluded that the plan comported with "state and municipal development policies."14 The practical effect of the project was to "capitalize" on Pfizer's presence, increase jobs, the tax base and to use the revitalization of the Fort Trumbull area as a catalyst for growth across the New London area."5 The City approved NLDC's plan in January 2000, and named NLDC as its agent for acquiring property within the development area. 6 The NLDC was successful in negotiating the purchase of most of the property within the development area, but not the property belonging to Susette Kelo and the other property owners who petitioned the Supreme Court of the United States ("Supreme Court") for certiorari after unfavorable lower court decisions regarding NLDC's condemnation proceedings against their properties were concluded. 7 The case came to the Supreme Court after the Connecticut Supreme Court held that under state law taking developed land as part of a development project was a "public use," and further, under19 Hawaii Housing Authority v. MidkiffI and Berman v. Parker,

economic development was a "a valid public use under both the Federal and State Constitutions."20 The Supreme Court noted that the majority below found the takings executed were "reasonably necessary" to achieve the "public use," and the "intended use of the land was sufficiently definite and had been given 'reasonable attention' during the planning process." 21 The dissent stated that although they agreed that the plan served a valid "public use," they would have prohibited the takings on constitutional grounds because a "heightened scrutiny" requirement should be applied when judging condemnations for

13.

14.

15.

16.

17.

18.

19.

20.

21.

Id. at 473-74.

Id. at 474, n 2.

Kelo v. City of New London, 545 U.S. 469,474-75 (2005).

Id. at 475.

Id. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

See Berman v. Parker, 348 U.S. 26 (1954).

Kelo, 545 U.S. at 476.

Id. at 476-77.

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economic development.2" The dissent concluded that the city had not proffered clear and convincing evidence that the intended benefits would come to fruition. 23 During the course of the state litigation, the NLDC had indicated that they would lease Fort Trumbull parcels to private developers who would develop the land according to the integrated plan. 24 The NLDC was negotiating with Corcoran Jennison, a private real estate developer, for a 99-year ground lease with a contemplated rent of $1 per year, during which time Corcoran Jennison would have sole discretion to develop the land and select tenants.25 In light of the foregoing facts, the U.S. Supreme Court framed the issue as follows: Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. 6 In Kelo, the Supreme Court considered a situation where parcels of property owned by the petitioners were not blighted, but simply stood within the boundaries of an area that was intended by the city to undergo economic rejuvenation.27 In addition, private entities undertook the redevelopment project as a for-profit venture. 8 Thus, the Court was correct in stating that the Kelo facts fit neither of the situations described above.29 The Supreme Court narrowly affirmed the Connecticut

22. Id. at 477.

23. Id. 24. Brief of Petitioners at 6, Kelo v. City of New London, 545 U.S. 469, (2005) (No. 04-108 Dec. 3, 2004), 2004 WL 2811059.

25.

26.

27.

28.

29.

Id. Kelo, 545 U.S. at 477.

Id. at 483.

Id. at 478.

Id. at 477-78.

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Supreme Court with a 5-4 decision.30 The holding 3 turned on two concepts embodied in Berman and Midkiff. In Berman, the Supreme Court upheld the constitutionality of an urban renewal plan in Washington, D.C. that called for the demolition of a department store that was not blighted property.32 Justice Douglas, writing for a unanimous Court, observed that the entire area had to be covered by a single plan to achieve success, deferring to legislative and agency judgment of the plan. 33 He focused on the purpose of the plan and did not require individual consideration of parcels.34 The key factors in Berman were that the plan addressed a blighted area as a whole and that the Court would defer to the legislative prerogative.35 In Midkiff, the Court again deferred to legislative prerogative in the context of a land redistribution program in Hawaii whose purpose was to promote the alienability of land.36 At that time, a few fee simple owners held most land in Hawaii.37 The Ninth Circuit concluded that Hawaii's actions violated the Constitution because they amounted to a taking of property by the State from one private individual so it could transfer it to another private individual for that person's benefit. 38 The unanimous Supreme Court reversed the Ninth Circuit and found a "public use" in making land ownership available to more people. The Court clarified its approach by stressing that in analyzing "public use" it focused on the "'taking's purpose, and not its mechanics.' -39 B. The Supreme Court Holds Economic Development Equates with "Public Use" Under the Fifth Amendment Based primarily on the foregoing decisions, the Supreme 30. Id. at 489-90.

31. Kelo v. City of New London, 545 U.S. 469, 493 (2005).

32. Berman v. Parker, 348 U.S. 26, 35 (1954).

33. Id. at 34.

34. Id. at 35.

35. Id. (In the case of the District of Columbia in 1954, the legislative prerogative belonged to Congress).

36. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 244 (1984).

37. Id. at 232.

38. Id. at 235.

39. Id. at 244.

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Court concluded that the takings in the Fort Trumbull area met the "public use" requirement, deferring to the City's judgment as expressed through their redevelopment plan.4 0 The Kelo Court observed that the City's judgment in economic matters was entitled to deference, and that the City acted within the authority provided by a state statute authorizing eminent domain for economic development.4 Significantly, the Court glossed over the fact that the properties involved in this case were not blighted, and the area around Fort Trumbull was not a "blighted" area.4 2 The Court made short work of this noteworthy distinction by acknowledging no blight was involved, and then stating that the City's "determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference."4 3 The critical factor for the Court was that New London "carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including-but by no means limited to-new jobs and increased tax revenue.""

The five-justice majority dismissed the arguments in opposition. First, the majority replied to the argument that economic development does not qualify as a "public use" by asserting that promoting economic development is an "accepted" function of government.4 5 Second, the majority responded to the argument that taking land for economic development blurs the line between public and private takings by stating that private enterprise can sometime do a better job at revitalization than government. 46 Third, the majority dismissed the argument that its decision promoted individual-to-individual property transfer based on an ability to pay higher taxes as speculative and not before the Court. 47 The majority also responded to the petitioners' argument that, to meet the Fifth Amendment's requirements of "public use," 40.

41.

42.

43.

44.

Kelo v. City of New London, 545 U.S. 469, 484 (2005).

Id. at 483-84.

Id. at 483.

Id. Id.

45. Kelo v. City of New London, 545 U.S. 469, 484 (2005).

46. Id. at 486.

47. Id. at 486-87.

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there should be a " 'reasonable certainty' that the expected benefits will actually accrue. '48 The Court deferred to the judgment of a city or an agency, expressing concern that judicial oversight of condemnation proceedings, vis a vis, judging whether there is a chance that the plan would succeed, would take too much time and frustrate a plan's chance of success 49

C. Supreme Court's Invitation to the States to Provide Greater ProtectionsAgainst Eminent Domain Probably the most significant aspect of the expansive majority opinion in Kelo is the invitation issued near its close by Justice Stevens to the states." The invitation provided: In affirming the City's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek. " Thus, the majority decision invited state action to increase

48.

49.

50.

51.

Id. at 487. id. at 488.

Kelo v. City of New London, 545 U.S. 469, 489-90 (2005).

Id.

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protections for private property owners from economic takings, despite the majority's choice not to do so under the federal constitution.

D. The Dissent in Kelo Justice O'Connor's dissent in Kelo squarely confronted the majority's finding that condemnation for economic purposes constituted "public use."52 Justice O'Connor agreed that Kelo was a case of first impression, examining whether economic development takings are constitutional. 3 Further, she put the Berman and Midkiff decisions in proper context.54 Of the homes in the urban renewal district contemplated in Berman, 63.4% were beyond repair and the neighborhood as a whole was a threat to public health.55 As a result, the Court deferred to Congress' decision to eliminate the harm as a whole and not on a lot-by-lot basis.56 Thus, despite the fact that the department store that was the subject of the case was not blighted, there was no question as to the blighted nature of the entire neighborhood.57 In Midkiff, the State and Federal governments owned 49% of the State's land, while 47% of the land was in the hands of seventy-two private landowners.5" Hawaii began a land redistribution program because government officials concluded that the concentration of property was harming the state.59 Justice O'Connor observed that both the urban renewal project and the land redistribution condemnation served to provide direct and measurable public benefits. 60 This was not so in Kelo. Justice O'Connor concluded: The Court's holdings in Berman and Midkiff were true to the

52. Id. at 498 (O'Connor, J., dissenting).

53. Id. 54. Id. at 498-99.

55. Berman v. Parker, 348 U.S. 26, 30 (1954).

56. Id. at 34-35.

57. Id. 58. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 232 (1984).

59. Id. at 233.

60. Kelo v. City of New London, 545 U.S. 469, 500 (2005) (O'Connor, J., dissenting).

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principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society-in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to 6society and thus within the government's power to condemn. 1 Also in dissent, Justice Thomas commented on the foundations of both Berman and Midkiff that on the subject of "public use," Courts owe no deference to legislative determinations. 62 He stated: There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a "public use." To begin with, a court owes no deference to a legislature's judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the "public purpose" interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature's determination of the various circumstances that establish, for example, when a search of a home would be reasonable,, or when a convicted double-murderer may be shackled during a

61. Id. at 500-01. citing Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 232 (1984).

62. Id. at 514-18 (Thomas, J.. dissenting).

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sentencing proceeding without on-the-record findings, or when state law creates a property interest protected by the 63 Due Process Clause.

Both dissenters articulated well-reasoned arguments for the proposition that a taking for the purpose of economic development does not meet the "public use" requirement, and thus any such taking is unconstitutional. Justice O'Connor concluded that the authority relied on by the majority did not apply in Kelo. She reached this conclusion because both Berman and Midkiff can be distinguished on the facts. Both contain fact patterns that feature public harms that could be remedied by the government action taken. The distinguishing feature is that taking property for economic development does not result in a public benefit, but instead a speculative benefit that will likely accrue directly to a private party or parties and only accrue to the public in an incidental way.

Justice Thomas asserted that the deference given to legislative bodies in Berman and Midkiff simply is not warranted under existing case law. This assertion dovetails with his broader point that the current reading of "public use" does not comport with its original meaning and that the majority's current interpretation of "public use" should be discarded. 64

III. CITY OF STOCKBRIDGE V. MEEKS: GEORGIA'S HOMEGROWN VERSION OF KELO

A. FactualBackground Before the Supreme Court decided Kelo in 2005, a similar factual situation arose in Stockbridge, Georgia. The City of Stockbridge, in an effort to reconfigure its downtown area, sought condemnation of a family business, Stockbridge Florist and Gifts, Inc. run and owned by Mark and Regina Meeks, ultimately leading to state-court and federal-court litigation as

63. Id. at 517-18. citing see, e.g., Payton v. New York, 445 U.S. 573, 589590 (1980); Deck v. Missouri, 544 U.S. 622, 161 (2005); Castle Rock v.

Gonzales, at 756-758; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970).

64. Id. at 523.

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the Meeks fought to retain their property, or in the alternative, receive just compensation. In May 2003, the Meeks were approached by Eckerd drug stores to sell their property for cash and an exchange of property. That same month, the City approached the Meeks, stating it wished to buy the property as well.6 6 Eckerd negotiated with the Meeks and two adjoining property owners to buy their properties for the erection of a store. The negotiations went so far as to include the signing of an option contract. The size of the proposed store was 13,000 square feet, and the value of the exchange was approximately $743,000.00.6 The following November, the City adopted a zoning law that covered the area of the Meeks property that was entitled "Old Downtown Overlay District." The ostensible purpose of the overlay district was to "recognize and affirm the function of the existing traditional downtown as the central focus of commercial, artisan, and civic activities within the community. ' 6 8 Critically, the overlay district limited the size of drugstores to 5,000 square feet.69 In addition, the Meeks and their fellow property owners received no notice of the meeting during which the overlay district was adopted because the published notice was buried in the local newspaper, and not in the legal advertisement section. 0 As the City of Stockbridge failed to inform the Meeks and their fellow property owners of the overlay district issue, Meeks continued negotiating with Eckerd. When Eckerd learned of the square footage limitation while inquiring with the City about utilities, it notified the Meeks it was canceling the purchase of the property. 1 Soon after the Eckerd deal fell through, the City again contacted the Meeks about purchasing the property.

Subsequent negotiations resulted in a verbal agreement that 65. See City of Stockbridge v. Meeks, 641 S.E.2d 584 (Ga. App. 2007); Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16,

2005).

66. Complaint at 7, Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed September 16, 2005).

67. Id. at 7-8.

68. Id. 69. Id. at 9.

70. Id. at 9-10.

71. Id. at 10.

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would allow the Meeks to exchange their property for property of equal value within the district."

Shortly thereafter, the City adopted a resolution formally recognizing its intention to use the Urban Redevelopment Law. The City did this in order to exercise eminent domain. The Urban Redevelopment Law ("URL") was adopted in 1955 by the General Assembly and allowed municipal governments to declare areas within their jurisdiction as "slums" and to clear those areas through the power of eminent domain, so the land could be redeveloped "for public uses and purposes."73 The URL's definition of a slum was very broad.74 To enact a redevelopment plan, the URL requires a city to pass a resolution that the area covered by the plan is a "slum." The URL, however, does not require a city to consider evidence before making this finding; rather the city has the sole discretion to make this determination, and at the time of the Stockbridge

72.Complaint at 7, Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed September 16, 2005).

73. Id. at 4.

74. Id. at 5; O.C.G.A. ยง 36-61-2(18) (2008) ("Slum area" means an area in which there is a predominance of buildings or improvements, whether residential or nonresidential, which by reason of dilapidation, deterioration, age, or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; existence of conditions which endanger life or property by fire and other causes; or any combination of such factors is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime and is detrimental to the public health, safety, morals, or welfare. "Slum area" also means an area which by reason of the presence of a substantial number of slum, deteriorated, or deteriorating structures; predominance of defective or inadequate street layout; faulty lot layout in relation to size, adequacy, accessibility, or usefulness; unsanitary or unsafe conditions; deterioration of site or other improvements; tax or special assessment delinquency exceeding the fair value of the land; the existence of conditions which endanger life or property by fire and other causes; by having development impaired by airport or transportation noise or by other environmental hazards; or any combination of such factors substantially impairs or arrests the sound growth of a municipality or county, retards the provisions of housing accommodations, or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare in its present condition and use).

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case, there was no provision for judicial review. 5 As to compensation for the property taken by the city after the area is designated a "slum, "a special master makes this determination; however, a special master may not pass on the appropriateness of the "slum" designation, and only his determination of value is subject to judicial review. 6 In using the URL, the City declared the area containing the Meeks' property a slum. However, there was nothing about the Meeks property or the surrounding property that were slum-like.

After the slum designation, the City created the "Urban Redevelopment Agency of the City of Stockbridge." After the activation of this agency, the City passed an Urban Redevelopment Plan, which showed that the area of the Meeks' property would be developed for light retail. 7 After the passage of the plan, the Meeks received a letter from the City that stated if they could not negotiate for the remaining eight properties in the development area, the City would abandon the project. The letter also contained an offer of $205,000.00 for the property approximately one quarter of what was offered by Eckerd.7 8 In response to this offer, the Meeks informed the City that they wished to go forward with the property exchange previously agreed to by the City. However, instead of abandoning the project or executing the previously agreed exchange, the City passed a resolution authorizing the redevelopment agency to exercise eminent domain in the redevelopment area that contained the Meeks' property.7 9 Next, the Meeks received an additional letter asking them to

75. See, e.g., Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16, 2005); Complaint at 5-6, Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16, 2005); Allen v. City Council, 113

S.E.2d 621, 624 (Ga. 1960) (holding that decisions regarding what areas are considered slums within a municipality are left up to the discretion of the local governing body).

76. Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept.

16, 2005); Complaint at 6, Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16, 2005)..

77. Complaint at 12, Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16, 2005).

78. Id. at 13.

79. Id. at 13-14.

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cooperate, and telling them that if the City could not acquire the property by negotiation, then the City would indeed abandon the project. Again though, instead of abandoning the project, and in an effort to recharacterize its intended taking as a "public use," the City amended the plan to show that the new City Hall and adjacent parking would be built on the site of the Meeks' flower shop. ° B. The State Court Litigation - City of Stockbridge v. Meeks 1. Special Master and Trial Court proceedings Shortly after the City amended the plan, the Meeks were served with process for condemnation proceedings. The condemnation petition was remarkable in that it did not reference the URL or the plan adopted by the City. In addition, it did not reference that the Meeks' property was being taken for use as the site of the new City Hall. Rather, the petition broadly described the reason for the condemnation as "for the construction and development of public facilities to provide additional services to the citizens of the City. '81 Less than two weeks after service of the condemnation petition, a special master conducted a hearing. During the day-long hearing, counsel for the Meeks put up evidence that the City had acted in bad faith by disrupting Eckerd's acquisition of the property by attempting to force a sale at a much lower price. The City argued that the special master could not consider this evidence.

All the while, the City failed to state the public purpose behind the condemnation petition.8 2 The special master returned a finding that condemned the Meeks' property and awarded $325,000 for the condemned property plus $96,500 for furniture, fixtures, and relocation expenses, a much lower value 83 than had been offered by Eckerd during prior negotiations.

80. Id. at 16.

81. Id. 82. Id. at 16-17.

83.Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept.

16, 2005); Complaint at 17, Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16, 2005);, see also City of Stockbridge v. Meeks, 641 S.E.2d 584, 585 (Ga. App. 2007).

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The special master made no ruling on the Meeks' bad faith allegations.' More litigation followed. The Meeks appealed to Henry County Superior Court. Upon review, the court reversed the Special Master's finding because the City had failed to plead facts in the petition supporting its exercise of the eminent domain power.

2. Appeal to the Georgia Court of Appeals From the trial court's ruling on April 3, 2006, the City appealed to the Georgia Court of Appeals.86 As grounds for the appeal, the City asserted that the Meeks did not raise the issue of the City's failure to assert a public purpose before the Special Master, that it was the Meeks' burden to show the condemnation was for something other than a public purpose, and that the City's actions were in bad faith.

On January 31, 2007, the Georgia Court of Appeals rejected the city's arguments. Instead, the court found that the Meeks sufficiently asserted that the City was condemning the property for private and not "public use" in their response to the condemnation petition, in a motion to dismiss, at the Special Master's hearing and in the objections to the Special Master's findings.88 The Court of Appeals concluded that the grounds for the trial court's dismissal were properly raised.8 9 The Court of Appeals also found incorrect the City's argument that, absent a finding of bad faith, there was a presumption that a taking was done for a valid public purpose.9 0 The Court observed that there was only a presumption of necessity when bad faith was absent. 9 The key factor stressed by the Court, however, was the pleading requirement in O.C.G.A. ยง 22-2-102.2, which required the municipality to assert facts showing a public purpose in the 84. Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16, 2005); Complaint at 6, Meeks v. City of Stockbridge, No 1:05-CV2422 (N.D. Ga. filed Sept. 16, 2005).

85. City of Stockbridge v. Meeks, 641 S.E.2d 584, 585 (Ga. App. 2007).

86.

87.

88.

89.

Id. Id. Id. Id.

90. City of Stockbridge v. Meeks, 641 S.E.2d 584, 586 (Ga. App. 2007).

91. Id.

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condemnation petition and the right to condemn.92 The City's exercise of the eminent domain power was predicated on it making this showing, and the City failed to do so. 93 Finally, because of the above-described pleading requirements, the Court of Appeals concluded that the City, and not the Meeks, had the burden to show the taking was for a public purpose, and Stockbridge had not done so. 94 As noted throughout the facts discussed above, the Meeks sought to privately negotiate a sale of their property in an effort to capitalize on its value while staying in business. Not only did their private efforts not fit within the City's plans, but also the City interfered with the Meeks' sale. The full extent of the City's interference involved city planning that rendered the private sale an impossibility, a designation of useful property as a slum, a sham redesignation and a faulty condemnation proceeding.

C. The Federal Court Litigation - Meeks v. City of Stockbridge Southeastern Legal Foundation ("SLF")95 became involved in this matter when the ongoing litigation came to its attention.

SLF recognized that this case fit well into their mission statement of protecting individual private property rights from unreasonable governmental intrusion. Although SLF did not represent the Meeks in state court, SLF did represent them in the United States District Court for the Northern District of

92. Id. at 585-86.

93. Id. at 586.

94. Id. at 586.

95. SLF is a Georgia-based, constitutional, non-profit, public interest law firm and policy center founded in 1976. SLF is dedicated to protecting individual rights from the overreaching strong arm of government. To that end, property rights have always been at the forefront of SLF's mission. SLF has been directly involved in several major property rights decisions during its existence, including a number of precedent-setting property rights cases before the United States Supreme Court. Additionally, in response to Kelo, SLF was asked by legal counsel with Governor Sonny Perdue's office, as well as leaders of the Georgia House of Representatives and Senate, to research and draft a proposed Constitutional amendment and statutory amendments to neutralize Kelo's effects in Georgia.

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Georgia to obtain an injunction, preventing Stockbridge from seizing the Meeks' property. SLF moved for the injunction, not only to maintain the status quo until the Georgia Court of Appeals could rule on the case, but also to attack Georgia eminent domain law as unconstitutional under the Fifth and Fourteenth Amendments of the United States Constitution.

Specifically, SLF attacked the URL, asserting that it was unconstitutionally broad in its definition of a "slum," it lacked meaningful judicial review of "slum" designations, and the URL allowed unfettered discretion in its enforcement. 96 In addition, SLF challenged that the URL was invalid because it did not track the Georgia Constitutional amendment that permitted its passage. Specifically, the Constitutional amendment used the term "blight," while the URL used a broad definition of "slum", expanding the reach of the statute beyond its Constitutional mandate.9 7 In the State Court litigation, the Georgia Court of Appeals held in the Meeks' favor on January 31, 2007. 98 As a result, the federal complaint for injunctive relief was rendered moot.

However, the General Assembly did not wait for this Court of Appeals decision before enacting legislation protecting private property in the wake of Kelo and the bad acts in Meeks. Even prior to the Court of Appeals decision in City of Stockbridge v.

Meeks, interest in remedying the harsh effects of Kelo was galvanized by Justice Stevens' invitation to State governments to provide additional protections for their citizens' properties. 99

96. Complaint at 18-20, Meeks v. City of Stockbridge, No 1:05-CV-2422 (N.D. Ga. filed Sept. 16, 2005).

97. Id. at 23. SLF filed its federal complaint for injunctive relief on September 16, 2005.The State case was dismissed in Henry Superior Court in favor of the Meeks, and the City of Stockbridge filed an appeal of the trial court's dismissal. The federal district court entered an order on May 3, 2006, granting the Meeks' motion to dismiss without prejudice, allowing them to refile their action depending on the holding by the Georgia Court of Appeals ruled in the underlying case.

98. City of Stockbridge v. Meeks, 641 S.E.2d 584, 585 (Ga. App. 2007).

99. Kelo v. City of New London, 545 U.S. 469, 489-90 (2005).

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IV. GEORGIA'S LEGISLATIVE RESPONSE TO THE INJUSTICE OF KELO AND THE ABUSE IN CITY OF STOCKBRIDGE: HOUSE BILL

1313 AND A CONSTITUTIONAL AMENDMENT In response to the Kelo decision and the abusive treatment of the Meeks by the City of Stockbridge, the Georgia General Assembly, reflecting strong public sentiment, acted aggressively to change State law to protect private property owners. This protection did not only extend to property subject to taking for economic development, but also to private property subject to eminent domain in general. The resulting legislation, House Bill 100 1313 ("HB 1313"), received substantial bipartisan support.

The widespread appeal of this protective measure came from public opposition of the use of eminent domain to take private property for economic development as well as the widespread rejection of Georgia eminent domain law that allowed the government to take property without judicial oversight or accountability - the very issues raised by SLF on behalf of the Meeks in federal court. 01 The strategy employed to protect private property in the legislation was two-fold; it contained a reworking of eminent domain law both through an Amendment to the Georgia Constitution and through House Bill 1313.

A. The ConstitutionalAmendment The Meeks' experience in Stockbridge revealed the abuses that can occur when there is a lack of accountability in the use of eminent domain. The proposed Amendment which was

100. Jody Arogeti, Anita Bhushan, Jill M. Irvin & Jessica Kattula, Legislative Review, Eminent Domain, 23 GA. ST. U.L. REv. 157, 167-68 (2006) (The House Rules Committee substitute of HB 1313 passed the House by a vote of 173-1 on March 9, 2006 while the Senate Judiciary Committee substitute of HB 1313 passed the Senate by a vote of 50-0 on March 24, 2006. The bill then went to committee where a compromise was reached between the House and Senate versions of the bill.).

101. Early in the process of drafting the legislation, various elected officials contacted SLF to write legislation for use by the General Assembly.

As noted above, SLF has a history of assisting the General Assembly in writing legislation, and SLF's inclusion was appropriate since SLF represented the Meeks in federal court and possessed first-hand knowledge of the Georgia eminent domain law's unconstitutionality.

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passed by the voters of Georgia amended Article IX, Section II, Paragraph VII of the Georgia Constitution, striking previous language stating the General Assembly could authorize any county, city or housing authority to take property by eminent domain and sell it to private enterprise for private use. 02 The Amendment added accountability to the process by requiring that the "governing authority" of the city or county where the property is located must approve the taking of property for redevelopment purposes. Furthermore, the Amendment provided, "[t]he power of eminent domain shall not be used for redevelopment purposes by any entity, except for public use, as defined by general law. 10 3 Article IX, Section II, Paragraph V was amended to recognize that local governments could use eminent domain for "any public purpose" subject to limitation by "general law." The Amendment added that any eminent domain use by a nonelected housing authority must be approved by the elected "governing authority" for the city or county in which the property was located. 1°4 These sections instilled accountability by making elected officials publicly responsible for eminent domain decisions, and recognized the power of the General Assembly to further limit the exercise of eminent domain through the enactment of general law.

B. House Bill 1313: Salient Provisions House Bill 1313, which chronologically came before the constitutional amendment, significantly limited the employment of eminent domain, and added several practical features that protected private property from unaccountable economic development activities. The spirit of the effort to protect private property was reflected in the official title of the Act, "The Landowners Bill of Rights and Property Protection Act."'0 5 The following provisions were the primary provisions of the Act. O.C.G.A. § 22-1-1, clarified the meaning of "'Blighted property,' 'blighted' or 'blight,"' providing that "blight" could 102. GA. CONST. art. IX, 103. Id. 104. Id.

§.

II.

105. 2006 Ga. Laws 39, § 1.

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not be based on esthetic conditions.10 6 It also indicated that such parcels had to be treated separately with reference to a determination of "blight" and clarified the meaning of economic development as follows: (4) 'Economic development' means any economic activity to increase tax revenue, tax base, or employment or improve general economic health, when the activity does not result in: (A) Transfer of land to public ownership; (B) Transfer of property to a private entity that is a public utility; (C) Lease of property to private entities that occupy project; or an incidental area within a public 10 7 (D) The remedy of blight.

As to the meaning of the critical term "public use," the Act stated: (9)(A) 'Public use' means: (i) The possession, occupation, or use of the land by the. general public or by state or local governmental entities; (ii) The use of land for the creation or functioning of public utilities; (iii) The opening of roads, the construction of defenses, or the providing of channels of trade or travel; (iv) The acquisition of property where title is clouded due to the inability to identify or locate all owners of the property; (v) The acquisition of property where unanimous consent is received from each person with a legal claim that has been identified and found; or (vi) The remedy of blight.' °8 In addition, to neutralize the Supreme Court's holding in Kelo, the General Assembly included the following language: "[t]he public benefit of economic development shall not

106. O.C.G.A. § 22-1-1 (2008).

107. O.C.G.A.

§ 22-1-1(4)(A)-(D) (2008); see also, Arogeti, et al., supra

note 100, at 175-76.

108. O.C.G.A. § 22-1-1(9)(A).

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constitute an economic use."'' 9 O.C.G.A. § 22-1-2, which relates to the "nature" of eminent domain, was radically altered to provide that no condemning authority "shall use eminent domain unless it is for public use."

The section went further to state that "public use" was a matter of law, and that the burden for proving so remained with the condemnor. The section also provided a method for reclaiming the property or being awarded additional compensation if the condemned property was not put to "public use" within five years.'I0 From a practical standpoint, the eminent domain process was vastly improved with the addition of O.C.G.A. § 22-1-9. The preamble for this section recognizes several of the provision's practical purposes it is meant to address, such as expediting the acquisition of property, avoiding litigation, consistent governmental treatment of property owners and prompting public confidence in the acquisition process.' l Although the General Assembly couched the following section in terms of being "guided by the following policies and practices," "to the greatest extent practicable," the guidelines are sensible and compelling, and closely match the stated purposes of the section. 112 The new guidelines are examined below.

The guidelines address the process in a linear way, providing a step-by-step template for the acquisition process. First, the condemning authority should work in a concerted manner to acquire the subject property by negotiation." 3 The property shall be appraised before negotiations begin, and the owner of the property under consideration is allowed to accompany the independent appraiser. 14 Also, before negotiations begin, the condemning authority must establish in writing just compensation for the property, and the amount offered cannot be less than the written appraisal.' 1 5 Further, government's

109.

110.

111.

112.

113.

114.

115.

O.C.G.A. § 22-1-1(9)(B) (2008).

O.C.G.A. §§ 22-1-2(a)-(c) (2008).

O.C.G.A. § 22-1-9 (2008).

Id. O.C.G.A. § 22-1-9(1) (2008).

O.C.G.A. § 22-1-9(2) (2008).

O.C.G.A. § 22-1-9(3) (2008).

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strong arm tactics were limited by the section's requirement that the condemning authority cannot make the owner surrender the property unless it first pays into the registry of the court the amount proposed as just compensation or the amount determined as just compensation in the condemnation proceeding." 6 Also, after condemnation, the property owner must not be given less than ninety (90) days to abandon the property.17 Any rental allowed to a tenant of the property postcondemnation would be at a fair-market rate.' s In addition, the government was admonished that it shall not act in bad faith to compel an agreement on the price to be paid." 9 Furthermore, the condemning authority must file proceedings to condemn a property interest, and shall not "intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his or her real property."' 20 The owner can donate the property to the condemning authority at the owner's 2 option.' ' This section is practical and intended as a response to ameliorate the bad feelings and mistrust engendered by the Kelo decision and the City of Stockbridge's actions against the Meeks. It codifies reasonable requirements, such as written independent appraisal of the property before negotiations begin, and allowing all interested parties to be present during the appraisal. 22 Also, the condemnor must offer its opinion of the property's value in writing and cannot offer less than the value set by the independent appraisal. Thus, the mechanics of the appraisal process are not only transparent and eliminate surprise, but the fiscal boundaries established during the process keep negotiations reasonable.

In addition, it is fair in the context of this process to require that the condemnor pay money into the registry of the court before the owner is required to surrender possession. 23 This 116. O.C.G.A. 117. O.C.G.A. 118. O.C.G.A. 119. O.C.G.A. 120. O.C.G.A. 121. O.C.G.A. 122. O.C.G.A.

§ 22-1-9(4) (2008). § 22-1-9(5) (2008). § 22-1-9(6) (2008). § 22-1-9(l)-(7) (2008). § 22-1-9 (8)(2008). § 22-1-9 (9)(2008). § 22-1-9 (2008).

123. O.C.G.A. § 22-1-9(3) (2008).

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means that there is ready cash available for the condemnee, and it moves the process along because the owner will not have to surrender the condemned property without evidence of payment. This section is also sensitive to an owner's concerns about moving because he will have at least a month and a half to leave the property before the government takes possession.

Furthermore, the General Assembly admonishes local governments that they may not intentionally drive people off their land by forcing a bad deal. 24 This paragraph speaks directly to the abuses practiced by the City of Stockbridge on the Meeks.

In addition to the practical guidelines added to the negotiation process by O.C.G.A. § 22-1-9, O.C.G.A. § 22-1-10 increases due process protections for property owners. This section requires sufficient notice to the condemnee by both governmental and nongovernmental condemnors. 125 As to a governmental condemnor, the law requires the property to be posted with a sign at least 15 days before any meeting at which approval of the condemnation may occur. 126 It also requires personal service of the hearing notice, and, as an alternative, service by publication or statutory overnight delivery. 2 7 In addition, the law requires publication of the hearing notice in the county legal organ, and the meeting for the consideration of the condemnation must commence after 6:00 p.m. 128 O.C.G.A. § 22-2-10 is friendly toward the private property owner because it provides the owner with full procedural due process. It is also significant that the meeting when the condemnation is considered must occur after 6:00 p.m., a time after working hours at which most people can attend. 129 With regard to a nongovernmental condemnor, such as a public utility, the provisions are similar except that the section requires that the nongovernmental entity establish rules for the exercise of eminent domain, and a system to document the time

124.

125.

126.

127.

128.

129.

O.C.G.A. O.C.G.A. O.C.G.A. O.C.G.A. O.C.G.A. Id.

§ 22-1-9(7) (2008). § 22-1-10 (2008). § 22-1-10(a)(1) (2008). § 22-1-10(a)(2) (2008). § 22-1-10(a)(1)-(4) (2008).

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at which it was exercised. Notice is similar; however, instead of a hearing, the property owner is offered a meeting with the individuals having the power of documented approval of the condemnation. 3 0 Under O.C.G.A. § 22-1-10, any condemnation notice personally served or mailed to the property owner must inform them of at least their right to "notice, damages, hearing, and '1 3 1 appeal of any award entered by the special master."

Furthermore, the notice must inform the property owner that she has the right to file a motion in a pending condemnation action under O.C.G.A. § 22-1-11.132 This motion is available to the condemnee before the vesting of title and mandates the court, "determine whether the exercise of the power of eminent domain is for a public use and whether the condemning authority has the legal authority to exercise the power of eminent domain."' 3 3 At the court's option, it can stay other proceedings related to the condemnation while deciding. 134 The burden of proving "public use" rests with the condemning authority. 35 This section contains significant changes that allow a condemnee a direct challenge to a condemnor's assertion of "public use." The possibilities that arise from the existence of this motion should keep governments circumspect about the cavalier articulation of "public use."

O.C.G.A. § 22-1-12 further provides a measure of accountability of the condemning authority. The section requires the authority to pay the property owner's attorney's fees if the condemnor cannot acquire the property by condemnation, or if it abandons the effort.' 36 This section also provides additional compensation for moving a household, a business, or the cessation of business or farm operations due to condemnation of the property. "31

130.

131.

132.

133.

134.

135.

136.

137.

O.C.G.A. O.C.G.A. Id. O.C.G.A. Id. Id. O.C.G.A. O.C.G.A.

§ 22-1-10(b) (2008). § 22-1-10(d) (2008). § 22-1-11 (2008).

§ 22-1-12 (2008). § 22-1-12 (2008).

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O.C.G.A. §§ 22-2-102.1 and 22-2-102.2 provide for a condemnor to apply for an in rem condemnation with judicial supervision throughout the process. 3 8 These sections allow the condemning authority to avoid the use of a special master under 139 O.C.G.A. § 22-2-102(a) (2).

O.C.G.A. § 22-2-112 clarifies the timeline of the appeal of a a jury trial special master's award, and specifically provides 1for 40 on the issue of "just and adequate compensation."'

O.C.G.A. § 22-2-131 deals with in rem condemnations, filed in Superior Court, where the condemnor believes that the title of the subject property is defective in some way, or that there may be unknown persons who have an interest in the property. This section was amended to add a requirement that the condemnor affirmatively state in the petition the necessity to condemn and describe the "public use" intended for such private property, 141 property.

O.C.G.A § 36-42-8 was amended to clarify that downtown development authorities do not have the power of eminent of domain. 142 Also, O.C.G.A. 36-62-6 removed the power 143 general. in authorities development from domain eminent O.C.G.A. 36-61-3.1 was added to the URL to clarify that "public use," as defined in O.C.G.A. § 22-2-1, is applicable to the URL, and that any use of eminent domain under the URL must be for a "public use" and must be approved by the respective county or city governing body where the property is located. 144

138. O.C.G.A. §§ 22-2-102.1 and 22-2-102.2(1)-(6) (2008).

139. Anecdotally, it has been reported that filing an action under O.C.G.A. § 22-2-131 allows for a motion made under O.C.G.A. § 22-1-11 to be made directly as part of the case rather than shuttling between the special master and superior court. This would save time.

140. O.C.G.A. § 22-2-112(a)-(b) (2008).

141. O.C.G.A. § 22-2-131(a)(6) (2008).

142. O.C.G.A. § 36-42-8(b) (2008).

143. O.C.G.A. § 36-62-6(b) (2008).

144. O.C.G.A. § 36-61-3.1(a)-(b) (2008).

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V. EVALUATION OF THE LEGISLATIVE RESPONSE

A. Absence of Litigation Since 2006 Enactment of Eminent Domain Reform Legislation In the three years since enactment of HB 1313 and passage of the constitutional amendment, the striking feature thus far about the impact of the post-Kelo legislation in Georgia is how few reported cases these measures have generated since their passage. There are practical considerations that may indicate why there has been limited litigation. For one, the legislation is relatively new, which indicates that legal challenges may yet appear in court. Additionally, the current economic recession, felt particularly strongly in the development sector, has provided fewer incentives to test the legislation due to dramatic decreases in building activity and due to municipalities reigning in their growth plans.

With regard to the definitions section for Title 22, Eminent Domain, this section specifically states that economic development cannot be a "public use."' 45 This specific provision was referenced in only one reported decision, Fox v. City of Cumming. 46 Although the case directly referenced O.C.G.A. ยง 22-1-1 regarding "public use," the case focused on the motion available under O.C.G.A. ยง 21-1-11 to test whether an action constituted "public use". The Court held that because City of Cumming had not yet initiated a condemnation proceeding, the plaintiff/appellant property owner was not authorized to bring a motion under O.C.G.A. ยง 21-1-11 seeking a "public use" determination. 147 As such, the Court never undertook the public use analysis. The basis for the holding was the language of O.C.G.A. ยง 21-1-11, which stated that a determination could be sought, "[b]efore the vesting of title in the condemnor and upon motion of the condemnee, or within ten days of entry of the special master's award.

,,148 The Court inferred from this

language that the condemnation action had to be pending before

145. O.C.G.A. ยง 22-1-1(9)(B) (2008).

146. Fox v. City of Cumming, 658 S.E.2d 408 (Ga. App. 2008).

147. Id. at 409.

148. Id.

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standing to apply for a judicial determination of plaintiff had 149 "public use." ' This is the only case referencing this amended code section since the passage of the post-Kelo legislation in Georgia.

As to the amended O.C.G.A. § 22-1-2, which covers the nature and right of eminent domain, there has been no reported litigation directly on point. However, O.C.G.A. § 22-1-2 is referenced in the recent case of William E. Honey Business Interest, LLLP v. Georgia Power Company. 5 ° This case dealt with a property owner who sought return of land condemned in 1984 by Georgia Power for a power line easement. The Court of Appeals applied prior law in this case, finding Georgia Power had not abandoned its easement because of periodic maintenance, even though it never constructed the transmission lines.' 5 1 The dissent referred to new O.C.G.A. § 22-1-2 to condemned highlight the trend in shortening the time before 52 condemnee.1 the to returned be should property Aside from these two cases, Fox and William E. Honey Business Interest, there are no other reported opinions to date applying the recently amended or enacted statutes under the 153 Landowners Bill of Rights and Property Protection Act.

149. Id. at 410.

150. William E. Honey Bus. Interest, LLLP v. Ga. Power Co., 661 S.E.2d 203 (Ga. App. 2008).

151. Id. at 205.

152. Id. at 206.

153. There have been no reported cases since the enactment of the postKelo legislation in the following amended and/or newly enacted provisions: O.C.G.A.§ 22-1-9 (2008) (Policies and Practices guiding eminent domain); O.C.G.A. § 22-2-10 (2008) (Duties of condemnor prior to exercise of eminent domain; rights of condemnee; exceptions); O.C.G.A. § 22-1-10.1 (2008) (Time for bringing condemnation action; exceptions); O.C.G.A. § 221-12 (2008) (Reimbursement to property owner of reasonable costs and expenses associated with condemnation proceedings); O.C.G.A. § 22-1-13m (2008) (Compensation to condemnee for relocation damages and expenses); O.C.G.A. § 22-1-14 (2008) (Valuation of condemned property); 22-2-84.1 (Appeal to superior court from assessor's award); O.C.G.A § 22-2-100 (2008) ("Condemning body" and "condemnor defined"); O.C.G.A. § 22-2102.1 (2008) (Petitioning superior court for judgment in rem); O.C.G.A. § 22-2-106 (2008) (Compensation of special master; allowance by judge or reasonable time for special master to inspect premises); O.C.G.A. § 22-2-131

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However, notwithstanding the dearth of case law resulting from Georgia's post-Kelo eminent domain reform, some analysis has been undertaken to compare the results in Georgia with other jurisdictions as to the efficacy of their respective post-Kelo legislative efforts.

B. Comparisonwith Post-Kelo Reform in OtherJurisdictions When compared to other states, Georgia has been characterized as having effective reform in both the enactments of the General Assembly and the amendment to the State Constitution.' 54 In addition, the practical aspect of Georgia's laws has been recognized as exemplary because its post-Kelo reforms ban economic development condemnations and "roughly speaking restrict blight condemnations to areas that fit the intuitive layperson's definition of the term."' 55 Specifically with regard to the Constitutional Amendment, the restrictions on eminent domain enacted by the General Assembly were noted as stronger than the Constitutional Amendment, with the latter adding that "new private-to-private takings be approved

(2008) (Contents of petition); O.C.G.A. § 22-2-132 (2008) (Order to appear, etc.; directions for notice and service thereof; attachment of process to petition); O.C.G.A. § 22-3-60 (2008) (Authority to lease, purchase, or condemn property or received donations for waterworks and sewage systems); O.C.G.A. § 22-6-63 (2008) (Authority to condemn property for purpose of constructing waterworks, water distribution system); O.C.G.A. § 23-3-73 (2008) (Government power to enforce quiet title actions); O.C.G.A. § 22-4-3 (2008) (Application of new eminent domain definitions to title pertaining to persons displaced by federal-aid projects); O.C.G.A. § 36-42-8 (2008) (Powers of downtown development authorities generally); O.C.G.A. § 36-44-6 (2008) (Delegation of redevelopment posers to redevelopment agencies); O.C.G.A. § 36-61-3.1 (2008) (Urban redevelopment, "Public use" defined; eminent domain to be exercised solely for "public use"); O.C.G.A. § 36-62-6 (2008) (Development authorities, powers of authority generally); O.C.G.A § 36-82-62 (2008) (Powers as to undertakings and revenue bonds generally).

154. Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 MINNESOTA L. R.EV. (forthcoming June 2009), George Mason Law & Economics Research Paper No. 07-14, 13, availableat SSRN: http://ssm.com/abstract=976298.

155. Id. at 35.

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by local elected officials."' 5 6 Even with these positive reports on the protection offered by Georgia's legislation, one study shows that there were no private-to-private condemnations in Georgia from 1998 to 2002.157 Professor Somin offered that the figures came from a study undertaken by the Institute for Justice, the law firm that represented the property owners in Kelo. 5 8 These figures were not definitive because they were based on news reports and court filings, and the figures did not differentiate between economic takings and other private-to-private condemnations.' 5 9 Many of these types of cases are unreported. 6 0 However, Professor Somin acknowledged that the figures present a "rough indication of which states engage in private-to-private condemnations more than others.' 6 ' Professor Somin made several observations about the quality of the legislative responses to Kelo. He found that several of the states, including Georgia, enacted effective post-Kelo eminent domain reforms, despite his allegation that there is little history of such takings.1 62 In addition, he found that post-Kelo reforms contained in popular referendums were generally stronger than those passed by state legislatures. 63 He credits the strength of the referendum efforts to the involvement of private property advocacy groups that are not beholden to interests in favor of weak eminent domain laws. He maintains that such groups have a genuine interest in successful legislation, and usually acquire detailed information about eminent domain laws when proposing legislation "since they have a real chance of influencing policy outcomes through their actions."' 6" Although Professor Somin observes that property rights 156. Id. at 41.

157. Id. at 16.

158. Id. at 15.

159. Id. Professor Somin also observes that, "And it is noteworthy that states with a relatively large number of private-to-private takings are not more likely to have enacted effective post-Kelo reforms than others."

160. Id. 161. Id. 162. Id. at 37.

163. Id. at 38.

164. Id. at 58.

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activists do attempt to influence the legislative process, he also notes that such influence is "filtered through the legislative process, where organized interest groups will inevitably get a strong say." 165 His overall explanation of the phenomena of weak legislative results, as opposed by strong results from popular referendums, is that the public has "rational ignorance" of the contours of the eminent domain issue and are susceptible 166 to placation by weak legislative efforts that appear strong.

Professor Somin could not explain Florida's strong post-Kelo legislation, and he did not examine Georgia's legislation more than noted above; however, Georgia was experiencing a "perfect storm" at the time of the Kelo decision. The center of the storm was the Meeks' flower shop in Stockbridge, Georgia.

This close-to-home example of government acting against private property rights, without accountability in the context of the Supreme Court's frightening allowance of private property to be taken away for economic development, focused the public and the legislature on an area of the law that Professor Somin acknowledged received little prior scrutiny. 167 The massive public education campaign, courtesy of Kelo and the City of Stockbridge, created an environment where the SLF could work with the General Assembly to provide effective model legislation, not only to rein in government power to condemn property solely for economic development, but to reform and improve the accountability and functionality of the eminent domain process.

VI. ADDITIONAL PROTECTIONS ARE WARRANTED FOR PROPERTY OWNERS IN GEORGIA

There is no doubt that the changes made to Georgia's eminent

165. Id.

166. Id. at 56. Professor Somin observed that, "[t]he publicity surrounding Kelo made much of the public at least somewhat aware of the problem of economic development takings. But it probably did not lead voters to closely scrutinize the details of proposed reform legislation. Few citizens have the time or inclination to delve into such matters and many are often ignorant of the very existence of even the most important legislative items."

167. Id.

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domain law by the General Assembly and by Constitutional Amendment during 2006 were positive in that they provided protections to the private property owner that were not present prior to the Kelo and Meeks decisions. The Constitutional Amendment, approved subsequent to the passage of the general legislation, has not been tested by court challenge. And as noted above, there have been few reported cases involving the updated eminent domain statutes. Nevertheless, there are some features of Georgia's eminent domain law that could be improved to protect private property owners in the short term and in the future. With the recent emergence of "big government" stimulus packages and renewed emphasis on public works projects, the interests of private property owners are likely to be challenged in the near future by new government works programs.

A. The Definition of "Public Use" Should Be Incorporatedinto the Constitution The quickest and most effective next step to strengthen private property rights would be for the General Assembly to include a better-defined "public use" provision in the Constitutional Amendment enacted in November 2006. The potential problems with the current provision are clear: wide legislative discretion granted by the Amendment and the breadth of the terms contained in the general law that describes "public use." Although the provision amended Article IX, Section II, Paragraph VII restricting redevelopment, the Amendment went only so far. The adopted paragraph states as follows: Each condemnation of privately held property for redevelopment purposes must be approved by vote of the elected governing authority of the city within which the property is located, if any, or otherwise by the governing authority of the county within which the property is located.

The power of eminent domain shall not be used for redevelopment purposes by any entity, except for public use, as defined by general law. 168 The general law provides the proper blueprint for a revised 168. GA. CONST. art.

IX, ยง 2, T. 7(a).

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Constitutional provision regarding "public use." Including the definition of "public use" within the Constitution would remove legislative discretion to change its meaning. This would provide an extra layer of protection that is not available if the definition is subject to political discretion.169 B. The Definition of "Blight" Should Be Tightened or the "Remedy of Blight" Should Be Removed as a "Public Use" In addition to moving the definition of "public use" within the Constitution, another area where private property protection could be strengthened, is to tighten the definition of "blight," or simply to remove "the remedy of blight" from eminent domain law altogether. "Blight" is the broadest term associated with "public use." It is defined in the code as follows: "Blighted property," "blighted," or "blight" means any urbanized or developed property which: (A) Presents two or more of the following conditions: (i) Uninhabitable, unsafe, or abandoned structures; (ii) Inadequate provisions for ventilation, light, air, or sanitation; (iii) An imminent harm to life or other property caused by fire, flood, hurricane, tornado, earthquake, storm, or other natural catastrophe respecting which the Governor has declared a state of emergency under state law or has certified the need for disaster assistance under federal law; provided, however, this division shall not apply to property unless the relevant public agency has given notice in writing to the property owner regarding specific harm caused by the property and the owner has failed to take reasonable measures to remedy the harm;

169. During the 2006 legislative session when both the general legislation and the proposed Constitutional Amendment were being considered, Dana Berliner, a senior attorney with the Institute for Justice, a libertarian public interest law firm, testified about the danger of not placing the definition of "public use" within the Constitution. She testified that, "'[t]he point of Constitutional protection is not to leave fundamental rights in the hands of legislators."' She further testified that, "'[niow, planners and developers will unleash their lobbyists for years to come to press the Legislature to change the definition of public use."' Jason Pye, Commentary, Eminent Domain Protection's No Done Deal, Ga. Pub. Policy Found. (June 29, 2007) (Jason Pye is the former Chairman for the Libertarian Party of Georgia).

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(iv) A site identified by the federal Environmental Protection Agency as a Superfund site pursuant to 42 U.S.C. Section 9601, et seq., or environmental contamination to an extent that requires remedial investigation or a feasibility study; (v) Repeated illegal activity on the individual property of which the property owner knew or should have known; or (vi) The maintenance of the property is below state, county, or municipal codes for at least one year after notice of the code violation; and (B) Is conducive to ill health, transmission of disease, infant mortality, or crime in the immediate proximity of the property.

Property shall not be deemed blighted because of esthetic conditions.170

This code section is a vast improvement over the section that previously defined "blight." Even the new section, however, still allows the taking of private property based on distinctions that are open to interpretation. In an urban setting, this definition could allow the taking of any property that is old, contained graffiti, not up to code in some respect, and was "conducive to ill health... or crime in the immediate proximity

of the property." '' Conditions that satisfy these categories are not difficult to articulate with regard to a variety of urban structures. Local governments possess the legitimate interest to foster communities that are not "blighted," but it does not follow that properties that do not meet a subjective standard possessed by a local government's code enforcement officer should be taken by eminent domain.

The control of potential negative uses of the "remedy of blight" could be addressed by the General Assembly. One proposal to add language to the Georgia Constitution that provides additional eminent domain accountability has been introduced in this session. 7 2 The proposed eminent domain Amendment would add a section "(f)" to Article I, Section III, Paragraph I of the Georgia Constitution, which deals with eminent domain. The text of the proposed Amendment is as

170. O.C.G.A. ยง 22-1-1(A)-(B) (2008).

171. Id. 172. H.R. 70, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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follows: Condemnation of private property pursuant to the power of eminent domain shall be approved by a resolution or ordinance of the governing authority of the municipality within which the property is located, if any, or otherwise by the governing authority of the county within which the 73 property is located.

The proposed Amendment adds additional accountability for the use of eminent domain within local jurisdictions by requiring local officials vote in a public meeting on any use of eminent domain. Likewise, an additional Amendment should be added to provide that the definitions of "public use" now contained in the code be incorporated into the Constitution and the "remedy of blight" be prohibited as a "public use." Such a proposal would further demonstrate to the citizens of Georgia that the state government is serious about protecting private property rights.

C. Adopt the FloridaApproach - Prohibition of "Blight" as a Basisfor Eminent Domain In contrast to Georgia's approach, Florida does not allow "blight" to serve as a basis for condemnation. 174 As noted above, Georgia's present statutory language dealing with "blight" is much stronger than the preceding language, and provides the private property owner with a greater degree of protection. 175 In contrast to Georgia's "strong" statute is Florida's even "stronger" eminent domain Constitutional provision and legislative limitation on using eminent domain to remedy blight. Florida's Constitutional provision on eminent domain, which should be read with Fla. Stat. ยง 73.014, states: (a) No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner or secured by deposit in the registry of the court and available to the owner.

173. Id. 174. FLA. CONST. art. X, ยง 6; FLA. STAT. ยง 73.014 (2009).

175. See supra text accompanying note 170.

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(b) Provision may be made by law for the taking of easements, by like proceedings, for the drainage of the land of one person over or through the land of another. (c) Private property taken by eminent domain pursuant to a petition to initiate condemnation proceedings filed on or after January 2, 2007, may not be conveyed to a natural person or private entity except as provided by general law passed by a three-fifths176vote of the membership of each house of the Legislature.

And the corresponding statute, Fla. Stat. ยง 73.014. Taking property to eliminate nuisance, slum, or blight conditions prohibited, provides: (1) Notwithstanding any other provision of law, including any charter provision, ordinance, statute, or special law, the state, any political subdivision as defined in s. 1.01(8), or any other entity to which the power of eminent domain is delegated may not exercise the power of eminent domain to take private property for the purpose of abating or eliminating a public nuisance. Notwithstanding any other provision of law, including any charter provision, ordinance, statute, or special law, abating or eliminating a public nuisance is not a valid public purpose or use for which private property may be taken by eminent domain and does not satisfy the public purpose requirement of s. 6(a), Art. X of the State Constitution. This subsection does not diminish the power of counties or municipalities to adopt or enforce county or municipal ordinances related to code enforcement or the elimination of public nuisances to the extent such ordinances do not authorize the taking of private property by eminent domain.

(2) Notwithstanding any other provision of law, including any charter provision, ordinance, statute, or special law, the state, any political subdivision as defined in s. 1.01(8), or any other entity to which the power of eminent domain is delegated may not exercise the power of eminent domain to take private property for the purpose of preventing or eliminating slum or blight conditions. Notwithstanding any other provision of law, including any charter provision, ordinance, statute, or special law, taking private property for the purpose of preventing or eliminating slum or blight conditions is not a valid public purpose or use for which 176.

FLA. CONST. art.

X, ยง 6.

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private property may be taken by eminent domain and does not satisfy the public purpose requirement of s. 6(a), Art. X 7 of the State Constitution. 1 The import of these two sections is obvious. The legislative limitation expressly forbids the use of "blight" as a basis to take private property and references the specific Florida Constitutional provision using the phrase "public use." In combination with the Constitutional requirement that in order for condemned property to be transferred to a private person that the transfer has to be approved by both chambers of the Florida legislature, the statute demonstrates Florida's intention-"blight" cannot be used to seize private property in Florida.

Even though the Florida approach expressly prohibits takings under the guise of "blight," Fla. Stat. ยง 73.014(1) states that the law is not intended to deprive local governments of the ability to enforce maintenance codes or abate public nuisances, so long as the remedies do not include taking of the property under eminent domain. 17 8 This section acknowledges that there are effective methods available to local governments to require property owners to meet the minimum code requirements without taking the property.

In contrast, Georgia's definition of "blight," although rather narrowly drawn, contains language that is open to subjective interpretation on several different levels.179 Thus, a local government acting to economically revitalize an area could still, albeit parcel-by-parcel, use the "remedy of blight" to displace private property owners based on a subjective interpretation of the definitions contained in O.C.G.A. ยง 22-1-1.

D. Blight Should Be Addressed Through AppropriateMeans, Not Eminent Domain A proposal to eliminate the "remedy of blight" as a basis for eminent domain, however, may be ill-received by local governments desiring to address run down areas within their jurisdiction. A November 5, 2007 editorial in the Savannah 177. FLA. STAT. ยง 73.014 (2009).

178. FLA. STAT. ยง 73.014(1) (2009).

179. O.C.G.A. ยง 22-1-1(1) (2008).

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Morning News opined that "[t]he state's eminent domain legislation has had the unintended consequence of making it more difficult to clean up blighted areas."' 8 0 The editorial's point was that the General Assembly overreacted to the Kelo decision, making it too difficult for cities to deal with blight. 81 As evidence of the perceived problem, the editorial cited the presence in Savannah of dilapidated housing and the neglect by absentee landlords. 82 The editorial advocated amending the laws passed in 2006, stating, "[t]hese amendments could include strict guidelines that nevertheless allowed cities a more expedited avenue for blight removal."' 3 The editorial further advocated that, "[i]n order to keep cities from taking homes solely for the purpose of economic development, the new provisions might also require any seized property to maintain the zoning level it had prior to the seizure."'' 84 The editorial is revealing because it not only urges watering down the present legislation with regard to "blight," which is a persuasive reason for adding those protections to the Constitution, but it also acknowledges the danger that is inherent in the present "blight" definition-it leaves open the possibility that a local government would use "blight" to engineer economic redevelopment. Thus, a local government could do directly what the law will not allow it to do indirectly by using private developers.

The editorial neglected the existing enforcement authorities available now to deal with such problems. Nuisance is an appropriate remedy available to a local government to remedy blight.' 85 For example, the City of Savannah has an extensive

180. Editorial, Blight Removal, SAVANNAH MORNING NEWS, Nov. 5, 2007, available at http://www.savannahnow.com/node/389591.

181. Id.

182. Id. 183. Id. 184. Id. 185. See O.C.G.A. ยง 41-1-1 (2008) (A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary,

reasonable man.); O.C.G.A. ยง 41-2-10 (2008) (A county or municipality

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ordinance dealing with nuisance abatement that would address the problems articulated by the editorial. 186 This ordinance allows for the filing of a complaint by five citizens, or by the Director of Inspections or a like designee, that a building, dwelling or other structure constitutes a nuisance under the code section. The respondent owner is then provided a due process hearing. In addition, a provision governs orders for corrective action. If, after the complaint is sustained, the corrective order is not complied with, the property can be demolished and a lien for the cost of demolition placed against the property. The City 87 can subsequently collect on the lien.1 The presence of ordinances such as this, and the due process such ordinances provide, frames the question why would a local government ever have to utilize the "remedy of blight" to do any act concerning code enforcement other than to seize private property? There is no logical answer to this question other than "the remedy of blight" permits a seizure of private property under the heading of "public use." Thus, the "remedy of blight" serves as a catchall provision that potentially allows a local government to seize private property for possible economic redevelopment while avoiding the statutory prohibition on that activity.

With this in mind, Georgia should move to strengthen the 2006 protections for private property owners, even extending to private property that some might judge as blighted. Doing so would not weaken the power of local governments to deal with the abatement of a dangerous nuisance. Removing the "remedy "may determine, under existing ordinances, that a dwelling, building, or structure is unfit for human habitation or is unfit for its current commercial, industrial, or business use if he finds that conditions exist in such building, dwelling, or structure which are dangerous or injurious to the health, safety, or morals of the occupants of such dwelling, building, or structure; of the occupants of neighborhood dwellings, buildings, or structures; or of other residents of such county or municipality. Such conditions may include the following (without limiting the generality of the foregoing): (1) Defects therein increasing the hazards of fire, accidents, or other calamities; (2) Lack of adequate ventilation, light, or sanitary facilities; (3) Dilapidation; (4) Disrepair; (5) Structural defects; and (6) Uncleanliness.").

186. SAVANNAH, GA., NUISANCE

2064.

187. Id.

ABATEMENT CODE

art. C, §§ 9-2052-9-

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of blight" would not only eliminate a potential for abuse, but it would require local governments to utilize existing nuisance abatement tools. If local governments are able to accomplish the core government function of maintaining a safe and healthy jurisdiction through their traditional police power tools, there is no reason for the "remedy of blight." Its presence in eminent domain law only tempts abuse, even when narrowly drawn.

VII. CONCLUSION

The decisions in Kelo and City of Stockbridge focused attention in Georgia on the critical problem of when and to what extent the government's power to take private property should be controlled. The response was overwhelming: private property should be protected against governmental overreaching, even when that governmental action is taken in the spirit of promoting the greater good under the banner of economic improvement and expansion. The sense was that if protections for private property were not increased, no private property within Georgia would be safe from confiscation. And in the wake of Kelo and City of Stockbridge, the Georgia General Assembly passed eminent domain reform legislation to provide greater protection to Georgia property owners.

Even though great strides were made to prevent situations like Kelo and Stockbridge, the question that remains, however, is what greater strength should be given to private property protections now, so that future actions to erode those protections are not successful? The response to this inquiry is that every protection that can be erected should be erected because of the intrinsic importance of this issue - protection of private property against government taking. Even though protective barriers can be removed by political action, the time it will take to effect their removal would cause future generations to consider the wisdom of such an act. Such consideration, and the accompanying debate, will ensure that private property rights will be protected, despite the immense pressure that will arise to make it easier for government to take those rights away.

THE GUN CONTROL DEBATE AND THE POWER OF THE GEORGIA GENERAL ASSEMBLY: A HISTORICAL PERSPECTIVE KATHLEEN

M.

BURCH*

I. Introduction .......................................................

II. Heller v. District of Columbia ................................

A. The Facts of Heller v. District of Columbia ...........

B. Finding an Individual Right ...................................

C. The Questions Raised by Jutice Scalia's Majority O pinion .................................................................

III. Georgia's Constitutional and Legislative History .............

A. The Colonial Period (1732-1776) ............................

1. The Trusteeship ..................................................

2. The Move Toward Independence ......................

94 96 97 98 99 104 105 105 110

B. The Constitutional Right to Bear Arms and the General 115 A ssem bly .................................................................

115 1. The 1861 Constitution ........................................

2. The Reconstruction Constitution ....................... 120 123 C. The Modem Constitutions .......................................

1. Constitutional Provisions ................................... 123 2. The Constitutional Right to Keep and Bear 124 A rms ........................................................................

IV. The Supreme Court of Georgia and Gun Controversy . 125 125 A . N unn v. G eorgia .......................................................

Associate Professor, Atlanta's John Marshall Law School. B.A., 1986, Rosary College; J.D., 1989, Georgetown University Law Center. Portions of this article were presented at a symposium hosted by the John Marshall Law Journal and the Property Law Society. I thank the many individuals who assisted me in locating primary source material for this article including the staff of the Supreme Court of Georgia, the staff of the Georgia Archives and Mary Wilson and A.J. Doucett research librarians at Atlanta's John Marshall Law School. I also thank my research assistant, Johnna Main and Kiara, my daughter and proofreader, without whose inspiration life would be much less fun.

94

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1. T he F acts ............................................................

126 2. T he Opinion .......................................................

127 3. Is Nunn Still Good Law? .................................... 136 V. Guns and the Georgia General Assembly .......................... 138 A. Framing the Debate ..............................................

138 B. Gun Regulation Prior to 2008 .................................. 140 C. HB 89: The Business Security and Employee Privacy A ct ..........................................................................

144 1. Public G atherings ...............................................

145 2. Parks and Public Transportation ........................ 147 3. The Employee Parking Lot Exception ............... 148 V I. C onclu sion ........................................................................

15 1 I.

INTRODUCTION

The debate over the Georgia General Assembly's power to regulate guns began almost 200 years ago1 and continues to today.2 While the national debate on gun control focuses on the meaning of the right "to keep and bear arms" as articulated in the Second Amendment to the United States Constitution,3 the debate in Georgia focuses on the Georgia General Assembly's expansion of the right to carry concealed weapons. 4 The debate in Georgia is articulated in much the same language as the national debate.

Individual rights proponents or pro-gun advocates argue the extreme that the Second Amendment prohibits the government from restricting, for any reason, an 1. See 1837 Ga. Acts, p. 90-91.

2. See H.R. 182, 150th Gen. Assem., Reg. Sess. (Ga. 2009) (preemption

of local government regulation of the discharge of a firearm on property of five or more acres); S.B. 9, 150th Ga. Gen. Assem., Reg. Sess.. (Ga. 2009) (repealing requirement of carrying concealed pistol in holder); and GeorgiaCarry.org, Inc. v. City of Atlanta, No. 08-15571, 2009 WL 614778 (N.D. Ga. Sept. 26, 2008).

3. U.S. CONST. amend. II ("A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.").

4. Institute for Continuing Legal Education in Georgia, Georgia and the Second Amendment: A State Primer on Guns and their Regulation Before

and After Heller (December 10, 2008) (086943) [hereinafter ICLE Georgia and the Second Amendment].

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individual's right to carry a gun. And, gun control proponents argue, the Second Amendment is not a complete prohibition on the government's ability to regulate gun ownership and gun use.

The debate on gun control in Georgia does, at times, focus on the tension between the various individual rights - in particular, the tension between one individual's right to bear arms and another individual's property rights, including the right to exclude an individual carrying a weapon from one's property.'

These debates, however, tend to focus on rights protected by the United States Constitution, not those protected by the Georgia Constitution.

Many had hoped that in Heller v. District of Columbia6, the United States Supreme Court would not only end the debate over whether the Second Amendment protected an individual as opposed to a collective right to bear arms, but would also provide some guidance as to the extent of the government's both state and federal - power to regulate guns. Unfortunately, the Supreme Court raised more questions than it answered.

Moreover, because the Supreme Court declined to address whether the Second Amendment applies to the states through the incorporation doctrine, state legislatures and citizens on both sides of the gun control issue are left to wonder what effect Heller has on the gun control debate in their state.

Although Heller provides some instruction on the outer limits of gun control regulation, Heller should have little effect on the gun debate in Georgia. The question of what power the Georgia General Assembly has to regulate guns can and should be answered by looking to the provisions of the Georgia State Constitution. As Harold Clarke, former Chief Justice of the Georgia Supreme Court, stated in 1994: For too many years, we punted the important issues to the federal courts. If people's rights can be decided at the state level, we should handle it here.

I think there is a group on the court, of which I am one, that believes that the Georgia Supreme Court could interpret the state Constitution more expansively than the federal Constitution in several areas. That automatically means

5. Id. 6. 128 S. Ct. 2783 (2008).

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giving more rights to the citizens of Georgia.7 The issue which needs to be addressed is did the framers of the Georgia State Constitution believe that there was an individual right to keep and bears arms and if so, what is the extent of the right to keep and bear arms, and how did the right to keep and bear arms relate to other rights protected by the Georgia Constitution, such as property rights. In order to answer these questions, one must delve into Georgia constitutional history.

Like the Founders, the framers of the various Georgia constitutions were influenced by the philosophy of John Locke who in his "Essay Concerning the True Original, Extent, and End of Civil Government" I maintained that the the primary purpose of government is to protect life, liberty, and property.

The individual had a right to keep and bear arms, a right which evolved over time. That right to keep and bear arms was never an unlimited right. From the inception of the colony, the Georgia legislative body retained and exercised the power to regulate that right. As many gun rights advocates have relied upon the Supreme Court of Georgia's opinion in Nunn v.

Georgia,9 the opinion will be analyzed to determine its adherence to both the Georgia Constitution and to legislative perogatives. Finally, current gun control laws will be analyzed to determine whether the laws are consistent with all of the rights preserved by the Georgia Constitution.

II.

HELLER

v. DISTRICT OF COLUMBIA

In Heller v. Districtof Columbia,'0 the United States Supreme Court was presented with the issue of whether the gun control regulations adopted by the District of Columbia violated the Second Amendment to the United States Constitution. Because the District of Columbia is under the direct control of the United

7. MELVIN B.

HILL, JR., THE

GEORGIA STATE CONSTITUTION:

A

REFERENCE GUIDE 29 (Greenwood Press 1994).

8. JOHN LOCKE, Esssay Concerningthe True Original, Extent, and End of Civil Government, in Two TREATISES OF GOVERNMENT 265-428 (Peter

Laslett ed., Cambridge University Press 2005) (1698).

9. 1 Ga. 243 (1846).

10. Heller, 128 S. Ct. 2783 (2008).

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States Congress," the Court could not avoid the constitutional question. Even though thirty-two states l" filed an amicus curiae brief in support of the respondent, Mr. Heller, the Court declined to address the incorporation issue. 3 Thus, the Court's holding, that the Second Amendment protects an individual right to keep and bear arms, is a restriction only on the powers of the federal government.

A. The Facts of Heller v. Districtof Columbia

Dick Heller, along with five other plaintiffs, 14 challenged the District of Columbia's Firearms Control Regulations Act of 1975. With minor exceptions, the Firearms Control Regulations Act made it a crime to carry an unregistered firearm, prohibited the registration of firearms, prohibited the carrying of a handgun without a license, allowed the chief of police to issue licenses valid for one year, and required all lawfully owned guns, such 5 locked. and unloaded kept be to as rifles, Heller was described by the Court as "a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, [and who] wishes to possess one at his home."' 16 Heller had attempted to obtain a license for a handgun he had owned prior to moving to the

11. D.C. CODE ANN. § 601 (2001).

12. Thirty states (Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia, and Wyoming) joined Texas' Amicus Curiae Brief. Brief for Texas, et al., Heller v. District of Columbia, 128 S.Ct. 2783 (2008) (No. 07-290). The State of Wisconsin filed its own brief. Motion for Leave to File Out of Time a Brief of the State of Wisconsin as Amicus Curiae in Support of Respondent and Brief of the State of Wisconsin as Amicus Curiae in Support of Respondent, Heller v. District of Columbia, 128 S.Ct. 1783 (2008) (No. 07-290).

13. Heller, 128 S.Ct. at 2813, n. 23 (incorporation is "a question not presented by this case").

14. The Court of Appeals found that Heller was the only plaintiff to have standing. Parker v. District of Columbia, 478 F.3d 370, 374-78 (2007).

15. See D.C. CODE ANN. §§7-2501.01(12), 7-2502.01(a), 72502.02(a)(4), 22-4504(a), 22-4506, 7-2507.02 (2001).

16. Parker,478 F.3d at 373-74. See also Heller, 128 S.Ct. at 2788.

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District of Columbia and had been denied a license."

B. Finding an Individual Right Both Justice Scalia in his majority opinion18 and Justice Stevens in his dissenting opinion 9 agree that the Second Amendment codifies a pre-existing right.20 Both state that the pre-existing right flows from the 1689 English Bill of Rights,2 which provides "[t]hat the subjects which are protestants may have arms for their defence, suitable to their conditions, and as allowed by law."' 22 Justice Scalia claims that "[b]y the time of the founding, the right to have arms had become fundamental for English subjects, 2 3 implying that the right was fundamental to the colonists. Relying on Blackstone's Commentaries24 , Scalia states that the right considered fundamental was "the natural fight of resistance and self-preservation.' 2' 5 Without further exploration of the parameters of the natural right which existed prior to and was codified in the Second Amendment, Scalia states that "the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited. .. ,26 but, at a minimum, included the right to have a gun to protect one's home.2 7 The majority came to this conclusion even though the English Bill of Rights had severely limited those who could exercise the rights (to protestants), the 17. Heller, 128 S. Ct. at 2788.

18. Id. at 2783 (Justice Scalia was joined by Chief Justice Roberts and Associate Justices Kennedy, Thomas, and Alito).

19. Id. at 2787 (Justice Stevens was joined by Associate Justices

Ginsburg, Breyer and Souter).

20. Compare Heller, 128 S. Ct. at 2797 (The Second Amendment "codified a pre-existing right. The very text of the Second Amendment

recognizes the pre-existence of the right and declares that it 'shall not be infringed'.") with 128 S. Ct. at 2831 ("the right to keep and bear arms for service in a state militia was also a pre-existing right").

21. WALTER MCELREATH, A TREATISE GEORGIA 211 (The Harrison Company 1912).

ON THE CONSTITUTION

OF

22. Id. 23. Heller, 128 S. Ct. at 2798.

24. ST. GEORGE TUCKER, BLACKSTONE'S (1803).

25. Heller, 128 S. Ct. at 2798.

26. Id. at 2799.

27. Id. at 2818.

COMMENTARIES

145-46 n. 42

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arms which could be carried (suitable), and provided that the right could be regulated (as allowed by law).2 8 In his dissent, Justice Stevens identifies the issue as the scope of the right protected by the Second Amendment,2 9 but does not explore the origins of the right3" or the parameters of the right to have arms that was preserved by the 1689 English Bill of Rights. Likewise, in his dissent, Justice Breyer does not explore the origins of the right to bear arms, but proposes a test for determining whether gun control legislation is constitutional and then applies the proposed test to the District of Columbia's regulation.31 All nine justices of the Supreme Court agree that the Second 32 Amendment does not create the right which it protects.

Although none of the three opinions articulate the scope of the preexisting right which is protected by the Second Amendment, 33 all agree that the Second Amendment does not define the scope of the right to bear arms. All nine justices also 34 agree that the government can regulate the right to bear arms.

But, the extent of the government's ability to regulate guns is left unanswered, specifically reserved to future litigation.3 C. The Questions Raised by Justice Scalia'sMajority Opinion A major portion of the opinion is devoted to interpreting the language of the Second Amendment and setting out secondary source material. In a 36 page opinion, Justice Scalia spends 5 paragraphs discussing the existence of the pre-existing individual right protected by the Second Amendment.3 6 Scalia's interpretation of the language of the Second Amendment raises numerous questions which remain unanswered.

Justice Scalia starts his analysis of the Second Amendment 28. Id. at 2848 (Breyer, J., dissenting).

29. Id. at 2822 (Stevens, J., dissenting).

30. Id. at 2822-47 (Stevens, J., dissenting).

31. Id. at 2847-70 (Breyers, J., dissenting).

32. Id. at 2790, 2822 (Stevens, J., dissenting); id. at 2847 (Breyer, J., dissenting).

33. Id. at 2789-2811.

34. Id. at 2788, 2823 (Stevens, J., dissenting); id. at 2848 (Breyer, J., dissenting).

35. Id. at 2821.

36. Id.at 2790-2811.

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by dividing the language of the Amendment into the prefatory clause and the operative clause.37 Scalia states "[t]he former [meaning the prefatory clause] does not limit the latter grammatically, but rather announces a purpose."38 Scalia then states that the prefatory clause has no function other than to "clarify" an ambiguity.39 Because the prefatory clause cannot be used to "limit or expand the scope of the operative clause,"40 analysis must begin with the operative clause. In other words, according to Scalia, the phrase "[a] well regulated Militia, being necessary to the security of a free State", 4' provides an example of one of the reasons that the right to bears arms is protected by the Constitution. The phrase does not limit the right to bear arms to the militia, to use by those in the militia,4 2 or to military purposes.

In analyzing the operative clause, Scalia breaks the clause into two units: "right of the people" 43 and "keep and bear arms'." 44 "Right of the people" is interpreted to "unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through the participation in some corporate body. 45 This interpretation of "the people" as identifying an individual right is deemed to be consistent with the use of "the people" as found in other provisions of the Constitution, including the Preamble, Article I ยง2, First Amendment, Fourth Amendment, Ninth Amendment, and Tenth Amendment.4 6 37. Id. at 2789.

38. Id. 39. Id. 40. Id. 41. Similar language is found in the preamble of Georgia's 1765 Militia Act, which states "[w]hereas, a well ordered and well disciplined militia is essentially necessary to the safety, peace and prosperity of this province...".

See Militia Act of 1765, p. 33, microformed on Georgia Colonial Laws and Georgia' Laws, Drawer 288, Box 21 (Ga. Archives).

42. At the time of the adoption of the Second Amendment, Georgia required men between the ages of sixteen and sixty to keep and bear arms.

Militia Act of 1773, p. 296, microformed on Georgia Laws 1764-1778, Drawer 54, Box 50 (Ga. Archives).

43. Heller, 128 S. Ct. at 2790-91.

44. Id. at 2791-97.

45. Id. at 2790.

46. Id.

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"Keep and bear arms" means to possess and carry weapons which would have been in common use during the colonial period.4 7 Scalia states that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."4 8 Analogy is made to the First Amendment protection of speech on the interet and the Fourth Amendment protection of telephone calls from search and seizure. Thus, modem weapons are protected under the Second Amendment.

The only limitation from the text of the Second Amendment appears to be that the weapons "constitute bearable arms."4 9 Scalia, however, never defines "bearable". In fact, he never uses the term again in the opinion. If two can carry it, but not one, is it still "bearable"? What if it can only be carried disassembled? Handguns are bearable, but what about rocket launchers? And, why should one's right to keep and bear arms depend upon one's personal strength?

Scalia states that the weapons protected by the Second Amendment are only "those 'in common use at the time'', but not "dangerous and unusual weapons. 5 ° Little guidance is given as to what period in time is the relevant one for determining common usage. If the Second Amendment protects weapons not in existence at the time of ratification, is the protection limited, as was stated by the Court of Appeals, to "lineal descendants" of those weapons? 5' Or is the protection measured by the arms common at the time of the attempted regulation? From Scalia's statement that banning the current "most preferred firearm in the nation" is unconstitutional,52 one could infer that protection is measured at the time of the constitutional challenge. No attempt is made to define what constitutes "dangerous or unusual" weapons.

After concluding that the Second Amendment protects the individual right to keep and bear arms, Scalia announces that the right is not absolute.53 Scalia states that the Court is not 47.

48.

49.

50.

Id. at 2797.

Id. at 2791-92.

Id. at 2792.

Id. at 2817.

51. Parker,478 F.3d at 398, 400.

52. Heller, 128 S. Ct. at 2818.

53. Id. at 2816.

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providing an "exhaustive" analysis of the Second Amendment right, but that "prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" are constitutional. 4 The government can continue to exclude weapons from the courthouse and schools and airports (considered sensitive after 9/11), but whether the government can exclude weapons from other locations such as grocery stores, taverns, parks, and playgrounds remains an open question.

Although Scalia likens the limits on the Second Amendment to those of the First and Fourth Amendments, Scalia fails to reconcile the limits on Second Amendment rights with the fact that even felons and the mentally ill have the right to exercise other constitutional rights to the same extent as non-felons and the sane. 5 The constitutional prohibition of Second Amendment rights to particular classes of people, places the Second Amendment in a separate and distinct category of constitutional rights. Scalia provides no rationale for this difference. 6 Nor does Scalia discuss what standards the government must use when establishing classes of people whose Second Amendment right can be extinguished or whether these individuals are entitled to have a hearing prior to the deprivation of this right to satisfy due process requirements.

Perhaps, this is why Scalia refuses to provide any standard of scrutiny by which to analyze regulations of Second Amendment

54. Id. at 2816-17.

55. Id. 2817 (Stevens, J., dissenting) (critique of Justice Scalia's position that the Second Amendment can not be exercised by particular classes of

people).

56. Early militia acts which required colonist to keep and bear arms did not contain exceptions of this obligation for the mentally ill or felons. The Militia Act for the Colony of Georgia required all men between the ages of sixteen to sixty to report for muster with arms and to keep and maintain arms for inspection at their home. Exemptions from muster, but not service existed for some public officials, judges and clergy. In addition, masters were required to provide arms not only for themselves but also for their indentured servants. See Militia Act of 1765, p. 33, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives).

57. Heller, 128 S. Ct. at 2783-2822.

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rights." Instead, Scalia states that "[u]nder any of the standards of scrutiny we have applied to enumerated constitutional rights, banning from the home 'the most preferred firearm in the nation to 'keep' and use for protection of one's home and family' would fail constitutional muster."59 Scalia rejects Justice Breyer's suggestion of an "interest-balancing" approach,6 ° stating that "[a] constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them," 61 which, of course, requires an answer to the question of what was the scope of the pre-existing right to keep and bear arms. Moreover, as the right to keep and bear arms is a preexisting right, then when are the people deemed to have adopted the right?

At the time the pre-existing right was first recognized?

Or, at the time the pre-existing right was "enshrined" in a constitution? The court provides no answers to these questions.

One of the problems with Scalia's analysis is that at the time the Second Amendment was ratified there were gun control laws in effect in the colonies.62 Moreover, the 1689 English Bill of Rights from which the individual right protected by the Second Amendment is presumed to have derived limited the right to a right to "have" arms to protestants,6 3 "suitable to their condition", and most importantly "as provided by law".' If the right in existence at the time of the ratification of the Second 58. Id. at 2817-22. Scalia does reject Justice Breyer's application of a rational basis standard. Id. at 2818 n. 27.

59. Id. at 2817-18.

60. Id. at 2821.

61. Id. 62. 1778 Mass. Session Laws, ch. 5, p. 193, 194; Act of Aug. 26, 1721, §4 in 3 Mitchell, Statutes at Large in Pennsylvannia; 5 Colonial Laws of New York, ch. 1501, p. 244-46 (1894).

63. Under a literal reading of the 1689 English Bill of Rights, a majority of the current U.S. Supreme Court justices would not have a right to keep and bear arms; only two of the justices are protestants. See Religious Affiliation of the U.S. Supreme Court at http://www.adherents.com/adhsc.htm (last visited on April 11, 2009).

64. A reading of the entire 1689 English Bill of Rights makes it clear that the Bill of Rights was meant to limit the power of the Crown with regard to

Parliament.

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Amendment was the same limited right as provided by the 1689 English Bill of Rights, then the scope of the right adopted would have included a limitation on the right as provided by law.

Does Scalia's reference to First and Fourth Amendment jurisprudence provide some guidance in ascertaining the Georgia General Assembly's power to regulate guns?

Before one looks to other areas of federal constitutional jurisprudence for answers, the next step is to determine what rights were included in the Georgia State Constitution and the scope of the rights as understood by the Georgians who adopted the provisions that protect the rights. The scope of the right protected by the Second Amendment is of less relevance in Georgia. Georgia did not ratify the Bill of Rights until 1939;65 but adopted a provision protecting the right to keep and bear arms in the Georgia Constitution of 1861.66

III. GEORGIA'S CONSTITUTIONAL AND LEGISLATIVE HISTORY From the inception of self-governance in Georgia, 67 there

68 was a concern for the protection of property rights.

65. HILL, supra note 7 at 4.

66. GA. CONST. art. I, sec. 6 (1861).

67. From June 9, 1732 to April 23, 1752, during the Trusteeship Period, the inhabitants of Georgia exercised almost no self-governance. Even the provincial parliament, created in 1750, was without power to create law.

MCELREATH, supra note 21 at 12-15. The end of the Trusteeship did not improve matters. After the end of the Trusteeship Period, in order for a bill passed by both houses of the Georgia Assembly to become law, the bill if agreeable to the Royal Governor was sent to London to the king's attorney, who, if he had no objection, forwarded the bill to the Lords Commissioners of Trades and Plantations, who, if they approved, forwarded the bill to the king's council. If the king's council approved the bill, the King signed the bill in to law. The signed law was transmitted back to the Georgia Assembly through the same process in reverse. It usually took two years for a bill passed by the Georgia Assembly to become law, even when the bill pertained to the colony's internal/domestic affairs. Id. at 38-39.

68. The importance of property rights is well-articulated in the Annotated Georgia Constitution of 1877. McELREATH, supra note 21 at 423-676. "The right of private property is sacred in the eyes of the law and stands upon the same foundation as the coordinate rights of personal liberty and personal security and yields only to the right of eminent domain, but all property is held subject to the police power of the State." Id. at 427. GA. CONST. art. I, sec.2, par. 2 (1877) ("Protection the Duty of Government. Protection to

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It was not until the Constitution of 1861, the Confederate Constitution, that a "Declaration of Fundamental Principles" was included that specifically states that it is the duty of the government to protect "person and property 69 , provides that "[n]o person shall be deprived of life, liberty, or property, except by due process of law"70 , and lists the right "to keep and bear arms" as an enumerated individual right.71 The first three Georgia Constitutions, the Constitution of 1777, the Constitution of 1789, and the Constitution of 1798, all focused primarily on establishing the major branches of government and 72 defining and limiting the powers of government.

This section will discuss each of the major constitutional time periods and whether the positions taken by Georgians with regard to "arms" during each time period were consistent with legislative prerogatives.

A. The Colonial Period(1732-1776) The fact that the first three Georgia Constitutions did not specifically protect individual rights, does not mean that the delegates to the constitutional conventions or the people of Georgia believed that they had no such rights. The delegates to the constitutional conventions presumed that they had carried with them the rights they or their ancestors had held in England.73 1. The Trusteeship Georgian's belief that they held the same rights as British citizens was premised upon the language of the Charter of the Province of Georgia.74 The Charter of the Province of Georgia Person and property is the paramount duty of government, and shall be impartial and complete.").

69. GA. CONST. art. I, sec. 3 (1861).

70. GA. CONST. art. I, sec. 4 (1861).

71. GA. CONST. art. I, sec. 6 (1861).

72. See GA. CONST. (1777); GA. CONST. (1789); and GA.CONST. (1798).

73. See Nunn v. Georgia, 1 Ga. 243, 249 (1846) (Lumpkin J.) ("the rights

and liberties of English subjects" were secured to them "whether living 3,000 or 300 miles from the royal palace").

74. Charter of the Province of Georgia (1732), http://georgiainfo.galilieo.usg.edu/conn1776.htm (last visited on February 6,

2009).

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provided: Also we do for ourselves and successors, declare by these presents, that all and every the said persons which shall happen to be born in the said province [Georgia], and every of their children and posterity, shall have and enjoy, all liberties, franchises, and immunities of free denizens and natural born subjects, within any of our dominions, to all intents and purposes, as if abiding and born within 5 this, our kingdom of Great Britain, or any other dominion.

The rights which would have been preserved to natural born British subjects would have included those rights identified in the Magna Carta,76 the Petition of Right, 77 the Habeas Corpus Act,78 and the 1689 Bill of Rights.79 Being protestant,8" Georgians would have believed that they

75. MCELREATH, supra note 21 at 233.

76. A majority of the provisions of the Magna Carta protected property rights. See id. at 186-194.

77. The Petition of Right protects against taxation directly by the king and prohibits punishment for failure to pay taxes which are compelled without authority from parliament, including the taking of property, imprisonment, or death as punishment. See id. at 186-94.

78. Provides a mechanism to challenge the sovereign's holding of an individual. See id. at 201.

79. The 1689 Bill of Rights is the first of the English documents which mentions a right to have arms. The right to have arms is seventh right listed, after suspension of parliament, the suspension of laws enacted by parliament, the creation of ecclesiastical courts, taxation without authority of parliament, the right to petition the king, and the raising and keeping of a standing army without the consent of parliament. See id. at 207-12. See Reynolds v. State, 3 Ga. 53, 59 (1848) (Lumpkin, J.) (common law of England was adopted at the law of Georgia on May 14, 1776). Judge Warner, one of the first three judges of the Georgia Supreme Court, stated "[i]t has doubtless been noticed by the [legal] profession that there were few dissenting opinions in [the early days of the court's existence], and the reason is that each judge felt himself bound strictly to adhere to the fundamental principles of the law as it had existed from the time of Magna Charta and embraced in the written constitution of this State and the United States." A HISTORY OF THE SUPREME COURT OF GEORGIA: A CENTENNIAL VOLUME 34 (John B. Harris ed., Georgia Bar Association 1948) (hereinafter GEORGIA SUPREME COURT HISTORY).

80. The first Catholic settlement in Georgia was established sometime between 1790-92, after the Constitution of 1777 guaranteed religious freedom. JOHN HANLEY, The ARCHDIOCESE OF ATLANTA: A HISTORY 8

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had a right to bear arms for their self-defense as provided by the 1689 English Bill of Rights. The colonists were after all settling frontier area and were surrounded by enemies - the Spanish to the south and the Cherokees to the north and west. The Charter of Province provides that the Trustees may grant to those individuals willing to "inhabit and reside" in the colony the right to take with them into the colony "armour, weapons, powder, shot, ordinance, munition" for purposes of defense.81 The Charter of Province being the organic law which established the colony provided the "as by law" required by the 1689 English Bill of Rights. The list of the types of weapons and the purpose of defense against "the wild people" then residing in the colony established which arms were "suitable" to the "position" of one who was residing in the colony of Georgia. The defense for which the colonists were allowed to keep arms was the defense of themselves against the dangers of residing in the colony. This right to carry weapons for one's personal self-defense is evidenced by the Charter of Province's demarcation between granting permission to the colonist to have weapons and its grant to the corporation acting as Trustee the power to train, and instruct, exercise and govern a militia, for the special defence and safety of our said colony, to assemble in martial array the inhabitants of the said colony, and to lead and conduct them, and with them to encounter, expulse, repel, resist and pursue by force of arms as well by sea as land, within or without the limits of our said colony, and also to kill, slay and destroy and conquer by all fighting ways, enterprises and means whatsoever, all and every such person or persons, as shall at any time hereafter, in any hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of our said colony; and to use and exercise the martial law in time of actual war and invasion or rebellion, in such cases where by law, the same may be used or exercised; and also from time to time to erect forts, and fortify any place or places within our said colony, and the same to furnish with all necessary ammunition, provisions, and stores of war, for offense and defence . ... "

(Editions du Signe 2006). See also Ga. Constit. art. LVI (1777).

81. Charter of the Province of Georgia (1732).

82. Id.

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During the period of the Trusteeship, the colonists' right to carry arms arose from a specific contractual grant set forth in the Charter of the Province of Georgia. The Crown granted the Trustees the ability to grant to all who inhabited Georgia the privilege of carrying a weapon whether or not the same person would have had a right to carry a weapon in England. The right to carry a weapon was a contractual right. Moreover, King George limited the right to carry a weapon to personal selfdefense. The right to use force to protect the colony was granted to the corporation as a whole; it was a collective right, not an individual right.s3 On April 23, 1752, the trustees surrendered the charter of the colony of Georgia to King George. 4 Captain John Reynolds 83. The right to use force to protect the colony was exercised through a series of acts with titles such as "An act of the better ordering the Militia of this Province" or "An Act for the better ordering of the Militia". See Militia Act of 1764, p. 5, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives); Militia Act of 1765, p. 33, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives). The colonial militia law required all men between the ages of sixteen and sixty to keep arms in their home and to bring or bear these arms during musters or when called upon for militia duty. An individual who failed to comply with the duty to keep and bear arms was subject to a series of fines. The types of arms which an individual was required to keep included "one gun or musket fit for service, one cartridgebox with at least nine cartridges filled with good gunpowder, and ball that shall fit his piece, a horn or flask containing at lest a quarter pound of gunpowder, and a shot pouch with half a pound of bullets, one girdle or belt, one worm or picker, four spare flints, a ball of bess-wax, and a cork that shall fit his piece, a bayonet, sword, or hatchet"." Militia Act of 1765, p. 33, 35, microformed on Georgia Colonial Laws and Georgia' Laws, Drawer 288, Box 21 (Ga. Archives). Although the earliest published Militia Act for the colony of Georgia available in the Georgia Archives is dated 1764, the Act merely extends the law then in place. Militia Act of 1764, p. 5, microformed on Georgia Colonial Laws and Georgia' Laws, Drawer 288, Box 21 (Ga. Archives). The preamble of the 1764 Act refers to the "law now in being for the regulation of the militia is near expired". Id. In 1773, the Militia Act was reenacted under essentially the same terms as the Milita Act of 1765.

See Milita Act of 1773, p. 294, microformed on Georgia Laws, Drawer 54, Box 50 (Ga. Archives). While it is currently not possible to know the exact obligations imposed by the Militia Acts in place prior to 1765, such an Act did exist and it can be assumed that the Act imposed a similar obligation upon all males inhabiting the colony of Georgia to keep and bear arms.

84. MCELREATH,supra note 21, at 15.

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was appointed Governor of Georgia85 and arrived in Savannah on October 29, 1754.86 When the General Assembly met on January 7, 1755,87 some of the first business to which the General Assembly attended was enacting laws for the protection of the colony, one of which required white men from the age of sixteen years on to keep and carry firearms.8 8 These laws were deemed "absolutely necessary for the security and defence of this province". 8 9 The acts passed by the colonial General Assembly were approved by the Crown's Council Chamber. 90 Thus, Georgians collectively through their elected representatives requested of the Crown the ability to keep and bear arms to protect the colony and each other. The Crown granted the right to keep and bear arms to the white male inhabitants of Georgia to keep the colony secure. The obligation to use the right to keep and bear arms for the collective safety of the colony was imposed collectively through the same Georgia General Assembly. Of note, Savannah and other towns where the King's troops were stationed were exempted from the obligation to carry fire arms, 9 1 thus suggesting that the obligation to bear fire arms was perceived as a substitute for military or a police force. The colonists requested the right to keep and bear arms for the purpose of more effectively protecting their property and life. They then imposed the duty to keep and bear arms on all men - again to protect the property and lives of the community.

85. Id. at 18.

86. Id. at 22.

87. Id. at 24.

88. Fire-arms to Publish Worship Act of 1757, p. 15, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives); Militia Act of 1764, p. 5, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives); Militia Act of 1765, p. 33, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives).

89. Fire-arms to Publish Worship Act of 1757, p. 15, microformed on

Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives) (act required all white men from sixteen years on to carry with them "on Sabbath-days, fasts, and festivals, and to such place of publick worship... one good gun, or a pair of pistols, with at least six charges of gun-powder and ball").

90. Id. 91. Patrol Act of 1768, p. 4, 6, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives).

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2. The Move Toward Independence On July 4 th, 1775, the Provincial Congress 92 met in Savannah and adopted a series of resolutions which confirmed their belief in their natural rights as citizens of Georgia and rights as British subjects. Four of those resolutions were: Resolved, That we were born free, have all the feelings of men, and are entitled to the natural rights of mankind.

Resolved, That by birth or incorporation we are all Britons, and whatever Britons may claim as their birthright is also 93 ours.

Resolved, That by the law of nature and the British Constitution, no man can legally be deprived of his property without his consent given by himself of his representatives.

Resolved, That the acts of the British Parliament for raising a perpetual revenue on the Americans by laying a tax on them without their consent, and contrary to their protestations, are diametrically opposed to every idea of property, to the spirit of the constitution, and at one stroke deprive this vast continent of all liberty and property, and as such must be detested by every well wisher to Great Britain and America.94

92. The Provincial Congress was created in January 1775 in response to receiving the Declaration of Colonial Rights issues by the first Continental Congress in September 1774. The Provincial Congress consisted of elected delegates from each of Georgia's twelve parishes. The Provincial Congress operated outside of the control of the Royal Governor and with the start of the Revolutionary war became the operating government of Georgia.

MCELREATH, supra note 21, at 48-62. For a number of years the Provincial Congress and the General Assembly both meet and claimed to be acting as the legitimate government of Georgia. The ability of each body to meet and take action depended upon the vicissitudes of war and who controlled Savannah and Augusta. Id. 93. As the natural rights of mankind and the birthrights of Britons are listed separately, and as all Britons are men and as such would also be entitled to the natural rights of mankind, the colonist must have believed that the birthrights of Britons include(d) something more than the natural rights of mankind.

94. MCELREATH, supra note 21, at 56-57.

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In both the 1774 and 1775 Resolutions, Georgians focused on property rights. The complaint to the Crown and Parliament was that Parliament was violating both the English Constitution and natural law, upon which the English Constitution was based, by taxing the colony. Georgians claimed that such taxation violated the English Constitution and natural law for two reasons. First, the amount of the tax levied was so great that it subsumed the value of the property. The property the colonists were concerned about was both real and personal property and both tangible and intangible property.9 5 Second, the tax was levied without due process of the law. Due process required an opportunity to participate in the law-making process by consenting to the authority of the legislative body. 96 Because the colonists were not represented in Parliament, they had not consented to the authority of Parliament and not had the opportunity to be heard. Through 1775 and until early 1776, there is little evidence that Georgians were focused on a right to bear arms.

In April of 1776, Georgia's Provincial Congress adopted the Rules and Regulations of the Colony of Georgia which served as a temporary constitution. 97 The Rules and Regulations establish the bare essentials of a functioning government and provide no mention of individual rights. 98 The Preamble to the Rules and Regulations, however, sets forth the belief that natural law includes the right to "bear arms" against an oppressive government and for self-protection.9 9 The Preamble states: Whereas, the unwise and iniquitous system of administration obstinately persisted in by the British Parliament and Ministry against the good people of America hath at length driven the latter to take up arms as their last resourcefor the preservationof their rights and liberties which God and the Constitution gave them; And whereas an armed force, with hostile intentions against the people of this province, having lately arrived at Cockspur, °° his Excellency Sir James 95. LOCKE, supra note 8 at §§ 25-51.

96. Id. at § 138.

97. MCELREATH, supra note 21 at 60.

98. Id. at 60-62.

99. Id. at 60.

100. Cockspur island is located at the mouth of the Savannah River, north

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Wright, Baronet, and King's Governor of Georgia, in aid of the views of the administration and with a design to add to those inconveniences which necessarily result from a state of confusion, suddenly and unexpectedly carried off the great seal of the Province with him;1' It should be noted that prior to the preparation for the use of force, Georgians had petitioned the Crown for redress of its complaints. 0 2 The colonists believed that petitioning the government was an exercise of both British law and natural law as recognized by the 1774 resolution. Georgians did not resort to force (i.e. the use of arms) except as a "last resort",1 1 3 and only then when they were threatened with the use of force, the landing of hostile forces," ° at a location at the mouth of the Savannah River where the British troops could isolate Georgians both militarily and economically. Thus, Georgia's use of force to fight an oppressive government was use of force in a defensive mode. Such use of force to protect ones' self, family, and property, was an affirmative defense recognized at common law. 105 Moreover, this right to fight an oppressive government was exercised collectively, first by using the democratic process of Georgia's Provincial Congress to decide as a collective body to use force and then by using force through of Tybee island. Due to its location, Cockspur was considered strategic for both military and economic reasons. Early in the colony's history, Cockspur was used for military purposes and was the site of Fort George. Although Fort George was destroyed by patriots at the beginning of the Revolutionary War, the British established a safe haven on the island for loyalists of King George. See http://www.visitgeorgiaonline.com/cockspur island.htm (last visited on April 9, 2009). On January 12, 1776, two war ships arrived with royal troops. When Sir James Wright, the third Royal Governor of Georgia fled to Cockspur with the seal, Cockspur became the capital of the colony.

MCELREATH, supra note 21 at 57.

101. MCELREATH, supra note 21 at 60 (emphasis added).

102. Georgia was not the only colony which took this course. In February 1768, Massachusetts sent a letter requesting that the other colonies join it in petitioning "parliament and the king for redress". Id. at 39. The Georgia Assembly requested that Benjamin Franklin, its agent, "join earnestly with the other colonies' agents in soliciting a repeal of those acts, [i.e. imposing of taxes and duties], and in remonstrating against any acts of like nature for the future." Id. 103. LOCKE, supra note 8 at §§ 220-26.

104. MCELREATH, supra note 21 at 60.

105. See 1802 Ga. Acts, p. 25.

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the organized militia.

By recognizing that the power of government emanates from the people, the people of Georgia withdrew their power to govern from the crown and gave some of their power to govern to the representative government being created by the Constitution of 1777.106 The recognition of natural law and sovereign power residing with the people left Georgians in the position of believing that they did not need to list all of the individual rights to which they were entitled under natural law.

A reservation of rights was not included in the Constitution of 1777,107 but Article VIII of the Constitution of 1789 specifically provided that "[a]ll powers not delegated by the constitution as amended, are retained by the people." ' The Constitution of 1789 was adopted after the ratification of the Constitution of the United States, a constitution which changed the relationship of the state with the federal government. Article VIII of the Constitution of 1789 can be seen as an explicit recognition by the people of Georgia that they had retained their natural rights and that by ratifying the U.S. Constitution, Georgians had not ceded their individual rights to either the U.S. or the state government. 109 Based on the statements made and the resolutions adopted leading up to the ratification of the Constitution of 1777, the concern with protecting private property from the government was an essential component to Georgia's break from Britain.

Nevertheless, the silence during this period on the "right" or the "ability" of Georgians to carry weapons is not real silence, as Georgians took up arms in 1776 to protect their property rights. 110 Moreover, the Militia Act of 1773 was in effect and required all male inhabitants of the colony between the ages of

106.

LOCKE,

supra note 8 at §§ 220-26.

107. GA. CONST. (1777). Under the Articles of Confederation, each state maintained its own sovereignty. Thus, there would not have been the need to specifically reserve power to the state or to the people.

108. GA. CONST. art. VIII (1789).

109. See Nunn v. Georgia, I Ga. at 250 (Lumpkin, J.) (because people withheld power from Congress does not mean that the peoples conferred that power on state legislatures).

110. Rules and Regulations of the Colony of Georgia, Preamble (1776), http://georgiainfo.galileo.usg.edu/con1776.htm (last visited on Feb. 6, 2009).

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sixteen and sixty to keep and bear arms." I Approximately one hundred years later, Georgians and Georgia repeat the same conversation and same process as events lead to the Civil War. The demarcation of the right to use force between the individual and the community existed in Georgia from the creation of the colony. As set forth in the Charter of the Province of Georgia, individuals had the right to have weapons for self-defense and the Trustees, who were the government of the colony, had the responsibility to protect the community from outside forces." 12 Through the Militia Act and the Patrol Act, the government then requested that men between the ages of sixteen and sixty assist in the protection of the community by keeping and bearing arms." 3 The community regulated the use of force by identifying who could exercise the force and the manner in which the force would be exercised.

With the recognition that sovereignty resides with the people and not the government, and that the people cede power to the government for the benefit and good of all, the concept of preexisting rights takes on a new dimension. When the people of Georgia ceded sovereign power to the State of Georgia, did the people cede their right to keep and bear arms for all purposes?

From the inception of the colony, the right to bear arms for personal self-defense was separate and distinct from the right to use force to defend the colony. Moreover, throughout the colonial period, when the people of the Georgia exercised the right to use force (or bear arms) against an oppressive government," 4 this right was exercised as a last resort and was 111. The arms which were required to be kept included "one gun or musket fit for service, one cartridge... with at least nine cartridges filled with good gun powder and ball that shall fit his piece, a horn or flask

containing at least one quarter pound of gun powder, a shot pouch with one half pound of bullets, flint, beeswax, a bayonent or hatchet..." Militia Act of 1765, p. 33, microformed on Georgia Colonial Laws and Georgia' Laws, Drawer 288, Box 21 (Ga. Archives).

112. See supra footnotes 81-83 and accompanying text.

113. Militia Act of 1765, p. 33, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives); Patrol Act of 1768, p. 4, 6, microformed on Georgia Colonial Laws and Georgia Laws, Drawer 288, Box 21 (Ga. Archives).

114. As established above, the British government was deemed oppressive because Parliament's acts were contrary to the colonists rights to property and liberty. See supra notes 94-101 and accompanying text.

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exercised as a collective right. As of 1789, Georgians had exercised their right to use force to protect the fundamental rights to property and due process of the law, and the exercise of the right to use force was exercised collectively, leading one to conclude that the right to bear arms to protect against outside forces is a collective right of last resort.

As the right to use force for self-defense was a right separate and distinct from the right to use force to protect the community from outside forces, it must be the individual right to use force for self-defense which is reserved to the people pursuant to Article VIII of the Georgia Constitution of 1789. The extent of the state's authority to regulate the individual's right to use force for self-defense remains to be answered.

B. The ConstitutionalRight to Bear Arms and the General Assembly 1. The 1861 Constitution Leading Georgia politicians were instrumental in drafting the Confederate Constitution. Howell Cobb"'5 was the President of the Confederate Congress that drafted and unanimously approved the Confederate Constitution." 6 Thomas R.R. 17 Cobb, who, as chair of the Committee on the Constitution of the State and the Constitution and Laws of the United States, almost single-handedly drafted the Georgia Constitution of 1861, was a delegate to the Confederate Congress which drafted 115. Howell Cobb was Speaker of the U.S. House of Representatives from 1850 to 1851. In 1851, Howell Cobb was elected Governor of Georgia.

Our Georgia History, http://ourgeorgiahistory.com/ogh/HowellCobb (last visited April 9, 2009).

116. Constitution of the Confederated States at http://avalon.law.yale.edu/19th-century/cascas.asp (last visited April 11, 2009). The Constitution of the Confederate States was unanimously adopted by the Congress of the Confederate States on March 11, 1861. JOURNAL OF THE CONSTITUTIONAL CONVENTIONAL 179-180 (1865), microformed on Georgia Laws, Drawer 54, Box 50 (Georgia Archives) (hereinafter JOURNAL OF 1861 CONVENTION).

117. Thomas R.R. Cobb served in the Confederate Congress as Chair of the Committee on Military Affairs. Cobb, a Brigadier General, died in the Battle of Fredricksburg on December 13, 1862. Thomas R.R. Cobb family letters, MSS 62f, Kenan Research Center, Atlanta History Center, available on line at http://archivegrid.org (last visited on April 11, 2009).

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the Confederate Constitution.Is The Confederate Constitution provided that "[a] well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed"1 1 , that "[n]o person shall be... deprived of life, liberty, or property without due process of law"' 20 , that "[t]he enumeration, in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people of the several States"'21 , and "[t]he powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof."' 22 The Confederate Constitution explicitly protected private property rights 23 and also the right to keep and 24 arms. bear On March 16, 1861, the Georgia Convention, which had reassembled in Savannah, unanimously adopted an ordinance ratifying the Constitution of the Confederate States of America. 25 On that same day, the Georgia convention assigned a committee to draft what became the Georgia Constitution of 1861.26 Georgia's 1861 Constitution 27 was adopted in convention on March 23, 1861 and ratified by people of the state. 2 8 When the 1861 Constitution was being drafted, the drafters believed that the federal government was impinging 118. The originals of both the Confederate Constitution and the Georgia Constitution of 1861 are in the same handwriting, that of Thomas R.R. Cobb.

MCELREATH, supra note 21 at 129. The original handwritten Georgia Constitution of 1861 is in the Georgia Archives.

119. CONFEDERATE CONST. art. I, sec.9(13).

120. CONFEDERATE CONST. art. I, sec. 9(16).

121. CONFEDERATE CONST. art. VI, sec. 5.

122. CONFEDERATE CONST. art. VI, sec. 6.

123. See CONFEDERATE CONST. art. I, sec. 9(4) (protecting property rights in slaves).

124. CONFEDERATE CONST. art. I, sec. 9(16).

125. JOURNAL OF PUBLIC AND SECRET PROCEEDINGS CONVENTION OF THE PEOPLE OF GEORGIA 187-91 (1861).

OF

THE

126. Id. 127. The Georgia Constitution of 1861 has been called the most perfect constitution. See MCELREATH, TREATISE supra note 21 at 135.

128. GA. CONST. (1861). The Constitution of 1861 was the first Georgia constitution to be ratified by popular vote. MCELREATH, supra note 21 at 280, 297.

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upon the state's rights and by doing so were impinging upon the rights of the citizens of that state. The drafters of the 1861 Constitution consciously drafted provisions to protect the rights which they believed the federal government was impinging upon. Thus, Article I of the Constitution of 1861, entitled "Declaration of Fundamental Principles", 129 provided in part: 1.The fundamental principles of Free Government cannot be too well understood, nor too often recurred.

3. Protection to person and property is the duty of Government; and a Government which knowingly and persistently denies, or withholds from the governed such protection, when within its power, release [them] from the

obligation of obedience.

30

4. No citizen shall be deprived of life, liberty or property, except by due process of law; and of life or liberty, only by the judgment of his peers.

6. The right of the people to keep and bear arms shall not be infringed. 3'

129. Although the "Declaration of Fundamental Principles" like the rest of the 1861 Constitution was penned by Thomas R.R. Cobb and contained the essence of Cobb's political and religious philosophy, Cobb was not the only one who held these views. Compare "Declaration of Fundamental Principles" with Enunciation of Fundamental Principles" introduced by Mr. Fouche, a delegate to the Convention. Id. at 130-132.

130. Compare with Mr. Fouche: "Then in its relation to individuals, the protection of person, property and character, against violence, fraud, and defamation, is the sole legitimate object of all just government; and an imbecile government which cannot, or a corrupt government, which will not give it, ought to be reformed or overthrown." Enunciation of Fundamental Principles, Eleventh. Id. at 132.

131. The language of this provision is different than both the U.S. Constitution and the Confederate Constitution, both of which reference "militia". Compare U.S. CONST. amend. II with CONFEDERATE CONST. art.

I, Sec. 9(13). As Thomas R. R. Cobb was involved with drafting both the Confederate and the Georgia Constitution in 1861, it can only be presumed that the difference in language was intentional. Also by the time that the 1861 Constitution had been drafted, the Georgia Supreme Court had issued

118

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16.A faithful execution of the laws is essential to good order; and good order in society is essential to liberty.

27.The enumeration of rights herein contained shall not be construed to deny to the people any inherent rights which they have hitherto enjoyed.

28.This declaration is a part of this Constitution, and shall 1 32 never be violated on any pretense whatever.

The Convention's adoption of language in the Georgia Constitution of 1861 protecting the right to keep and bear arms which did not reference the militia or protection of the state is consistent with maintaining the separation between the individual right to keep and bear arms for personal protection and the collective right to keep and bear arms for the protection of the state. By protecting the individual right to keep and bear arms in the Georgia Constitution, the Convention ratified the Supreme Court of Georgia's holding in Nunn v. Georgia'33 that the right to self defense stems from natural law and the state has limited power to regulate the right to bear arms for defense of its opinion in Nunn v. Georgia, 1 Ga. 243 (1846), see infra at 24. Cobb would have been aware of the Nunn decision and the Georgia Supreme Court's rationale for two reasons. First, in 1949, Cobb, a lawyer admitted to practice before the Supreme Court of Georgia, was appointed clerk of the Supreme Court of Georgia. See Certificate appointing Cobb, The Georgia Archives at 4-2-46, DOC-2050, File 2 Names, Cobb, Thomas Reade Rootes.

Second, Cobb was Judge Lumpkin's son-in-law; Lumpkin authored the Nunn opinion. Thomas R.R. Cobb family letters, MSS 62f, Kenan Research Center Atlanta History Center. Compare with Mr. Fouche: "That all citizens in a free State, may freely, and peaceable assemble to consider any matter interesting to them; may keep, and beararms; may petition their government for anything within the sphere of its powers; may freely speak, write and publish their opinions upon any subject, standing to the penalty of law for any abuse of these privileges; may profess any religious creed, and practice any form of religious worship, without being subjected, on account thereof, to any political or legal disability, or entitled to any political or legal privileges of favor." Enunciation of Fundamental Principles, Thirteenth.

MCELREATH, supra note 21 at 132.

132. GA. CONST. (1861).

133. 1 Ga. 243 (1946).

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oneself and one's property. The individual right to bear arms was enshrined in a document which was the first Georgia constitution ratified by popular vote. Georgians no longer had to rely upon the reservation of rights found in the 1789 and 1798 constitutions to establish the existence of an individual right, but could now point to a positive right, a right enumerated in the Georgia Constitution of 1861.

The "right to keep and bear arms" was not absolute. The right to keep and bear arms enshrined in the 1861 Constitution was, at most, the right understood by Georgians at the time the 1861 Constitution was adopted. 13 4 In 1861, Georgians understood that the Georgia General Assembly could prohibit the carrying of concealed weapons' 3 5 and could limit the use of weapons through the criminal code. 3 6 Moreover, the 1861 Constitution recognizes that "good order in society is essential to liberty"' 3 7 and that it is the "duty" of government to provide "good order in society" by providing "protection to person and property".'38 The restrictions on the right to bear arms which were in effect in 1861 were restrictions which furthered the "good order in society" by protecting people and property from the unlawful use of force. The individual right to bear arms gave way to the greater good of having order in society which order was necessary for protecting the individual's greater right to life, liberty and property.

Georgians, however, reserved to the people the right "to keep and bear arms" for personal self-defense.' 3 9 Again, just as with the colonial period, Georgia separated the right to keep and bear arms for personal protection, an individual right preserved in the Constitution of 1861, from the right to use force to protect the state and the right to use force to oppose an oppressive government, rights Georgians believed were collective rights exercised through the Convention of 1861 and preserved 134. Heller, 128 S. Ct. at 2821 (Scalia, J.) ("Constitutional rights are enshrined with the scope they were understood to have when the people

adopted them.").

135. Nunn v. Georgia, 1 Ga. at 243. See discussion, infra at notes 169221 and accompanying text.

136. See 1817 Ga. Acts, p 92.

137. GA. CONST. art. I, sec. 16 (1861).

138. GA. CONST. art. I, sec. 3 (1861).

139. GA. CONST. art. I, sec. 6 (1861).

120

through Article 40 Constitution.

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Confederate

2. The Reconstruction Constitution After the War, Georgia set about revising its constitution. The Constitution of 1865 provides that the primary "duty" of government is the "[p]rotection to person and property"' 4' and that "[n]o person shall be deprived of life, liberty, or the property, except by due process of law." 142 By listing the protection of property in the first two sections of the Constitution, Georgians were recognizing the primacy of the protection of property and the government's affirmative duty to protect the community and its property.

Article I, Section 4 of the Constitution of 1865 provides: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."'' 43 The delegates to the convention believed that they were required to adopt the same language as that contained in the U.S. Constitution.

Article I of the Georgia Constitution of 1868 continued the obligation of the government to protect property. 144 In addition, Article I, Section 14 of the Georgia Constitution of 1868 provides: "A well-regulated militia being necessary to the security of a free people, the right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne." 45 Section 14 contains the same language as the Second Amendment, but also clarifies that the legislature has the power to regulate arms in a manner akin to the time, place, and manner regulations of46speech under the First Amendment to the U.S. Constitution.

140. CONFEDERATE CONST. art. I, sec. 9(13).

141. GA. CONST. art. I, sec. 1 (1865).

142. GA. CONST. art. I, sec. 2 (1865).

143. GA. CONST. art. I, sec. 4 (1865).

144. See GA. CONST. art. I, sec. 1 (1868) ("Protection to person and property is the paramount duty of government, and shall be impartial and complete.") and GA. CONST. art. 1, sec. 3 (1868) ("No person shall be deprived of life, liberty, or property, except by due process of law.").

145. GA. CONST. art. I, sec. 14 (1868).

146. Heller, 128 S. Ct. at 2798.

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During the Reconstruction time period, there was much public unrest. Due to the limits placed on voting rights, which excluded many well educated white men, Georgians did not view the Constitution of 1868 or the government installed under that Constitution as legitimate.' 47 Those who had been disenfranchised and those who supported the disenfranchised had not consented to the new civil government and thus, they believed that the new civil government had no authority to rule. 14 8 The belief that the government was illegitimate lead to lawlessness in some parts of the State. In response to the events of the day, the Georgia General Assembly passed the following resolution: A Resolution requesting the Governor to prohibit armed and unlawful assemblages.

Whereas, It being the practice (sic) of a portion of the citizens of this State to assemble in large numbers, with arms, for the purpose of exercising in military tactics, and for other unlawful purposes, without authority of law, and to the terror of the good citizens thereof; therefore, Resolved, by the Senate and House of Representatives, That his Excellency the Governor be and he is hereby respectfully requested to issue his proclamation prohibiting such armed and unlawful assemblages; but the right of the people to peaceably assemble for the consideration of any matter shall not be impaired by any proclamation of the Governor.' 49 A resolution was passed because Georgia was under military rule and the power to prohibit armed gatherings lay with the military governor, not the Georgia General Assembly.

Consistent with the principle set forth in Article I, Section 16 of the Constitution of 1868, the Georgia General Assembly sought to limit the right to bear arms to "further good order in society" and thus, protect life, liberty, and property.1 50 Because the purpose of the prohibition was to prevent the terrorizing of citizens and because, at least some of the arms, were used in "exercising military tactics", the arms at issue were arms worn

147.

148.

149.

150.

MCELREATH, Supra note 21, at 160.

See LOCKE, supra note 8 at ยง 87.

1868 Ga. Acts, vol. 1, p. 183.

GA. CONST. art. I, sec. 16 (1868).

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in the open. In 1868, the restriction prohibiting arms at public gatherings applied, not just to concealed weapons, but to all weapons. In imposing a limitation on the right to bear arms, the Georgia General Assembly was fulfilling its constitutional obligation to protect life and property.' 5' In 1870, the Georgia General Assembly passed "An Act to preserve the peace and harmony of the people of this State" which prohibited any person from carrying "any dirk, bowieknife, pistol or revolver, or any kind of deadly weapon, to any court of justice, or any election ground or precinct, or any place of public worship, or any other public gathering in this State, except militia muster-grounds."' 52 The 1870 Act applied to all weapons, whether concealed or not. In enacting the 1870 Act, the Georgia General Assembly was again fulfilling its constitutional obligation to protect life and property.

Through the Resolution of 1868 and the Act of 1870, the Georgia General Assembly exercised its power under the Constitution of 1868 to "prescribe by law the manner in which arms may be borne". 53 The power was interpreted by the General Assembly to include the banning of all arms from public gatherings when the purpose of the ban was to protect the public. This interpretation of the General Assembly's power to regulate guns is consistent with the natural law right of the individual to protect themselves and their property and is consistent with the constitutional obligation of the state to protect the community. One individual's right to self-defense must be balanced against another individual's right of selfdefense. It is the government, through the legislature, which has the power to regulate property rights 54 among members of the community. 5 5 The 1870 ban applied to property where the need to balance individual rights was at its greatest - places of public gatherings or public worship or where the government was the property owner, courthouses and election sites. The 1870 ban applied to locations and events at which the need for 151. GA. CONST. art. I, sec. 1 (1868) ("Protection to person and property is the duty of government, and shall be impartial and complete.").

152. 1870 Ga. Acts, vol. 1, p. 421.

153. GA. CONST. art. I, sec. 14 (1868).

154. Property is used to include life, liberty, and property. See LOCKE, supra note 8 at §§ 123, 139.

155. Id.

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self-defense was lessened and the need to protect one's property was virtually non-existent, but the need to protect others the greatest.

C. The Modern Constitutions 1. ConstitutionalProvisions The Constitution of 1877 restates the purpose of government.

Article I, Paragraph I provides that all government is "instituted solely for the good of the whole."' 5 6 Article I, Paragraph II provides: "Protection to person and property is the paramount duty of government, and shall be impartial and complete." 157 The government's duty to protect life and property must be done for the good of the whole community, thus protecting all life and all property regardless of the type of property or the identity of the owner.

Article I, Paragraph XXII of the Constitution of 1877 provides: "Arms - The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne."15 8 Paragraph XXII deletes the reference to the militia, clarifying that the right protected by the Georgia Constitution is an individual right. The power of the General Assembly to regulate the right to bear arms is retained.

Although the Georgia Constitution was amended in 1945, 1976, and 1983, there were no substantive changes to the provision on the protection of property or the provision on arms.

Today, Article I, Paragraph II of the Georgia Constitution of 1983 provides: Protection to person and property: equal protection.

Protection to person and property is the paramount duty of government and shall be impartial and complete.59 No person shall be denied the equal protection of the laws.'

And, Article I, Paragraph VIII of the Georgia Constitution of 156.

157.

158.

159.

GA. GA. GA. GA.

CONST. CONST. CONST. CONST.

art. I, par. I (1877). art. I, par. 11 (1877). art. I, par. XXII (1877). art. 1, par. 11 (1983). See also GA. CONST. art. 1, par. I

(1983) ("No person shall be deprived of life, liberty, or property except by due process of law.").

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1983 provides: Arms, right to keep and bear. The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.' 6 ° 2. The ConstitutionalRight to Keep and BearArms Every Georgia constitution since 1861 has included a provision guaranteeing the citizens of Georgia the right to keep and bear arms, but the language and thus, the meaning of that right changed over time. Because the language of Article I, Paragraph VIII of the Georgia has been carried forward verbatim from the 1877 Georgia Constitution, the time of measuring the intent and meaning of the right to keep and bear arms is 1877.161 During Reconstruction, the Georgia General Assembly acted twice to restrict the carrying of weapons in public. Based on the preambles to the 1868 Resolution and the 1870 Act, both acts were taken in response to the use of force by individuals against other members of society. Both acts were taken to protect the lives and property of members of the community. The Georgia General Assembly was therefore fulfilling its constitutional obligation to protect and preserve property, which includes life, from the unlawful use of force by others.1 62 The Georgia General Assembly's Acts were taken by a vote of the majority of the representatives of the people and thus, the legislature was acting pursuant to the Georgia Constitution. 163 Because these 160. GA. CONST. art. I, par. VIII (1983).

161. Heller, 128 S. Ct. at 2821 (Scalia, J.) (the scope of a constitutional right is determined as of the time of its adoption).

162. See GA. CONST. art. I, sec. 1 (1865) ("Protection to person and property is the duty of government.") and GA. CONST. art. I, sec. 1 (1868) ("Protection to person and property is the paramount duty of government, and shall be impartial and complete.").

163. See GA. CONST. art. II, sec. V.1 (1865) ("The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.") and GA. CONST. art. III, sec. 5.1 (1868) ("The General Assembly shall have power to make all laws and ordinances, consistent with this constitution, and not repugnant to the Constitution of the United States, which they shall deem

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actions were taken prior to the ratification of the 1877 Constitution and because these actions are consistent with the State's obligations under the 1868 Constitution which was in effect at the time the General Assembly acted, these actions assist in defining the power of the Georgia General Assembly under Article I, Paragraph VIII of the current Georgia Constitution.

Because Article I, Paragraph VIII, specifically provides that the Georgia General Assembly may act to limit the individual right to "keep and bear arms", the Georgia General Assembly has the power to limit the right to keep and bear arms in the same manner as was done by the General Assembly prior to 1877. The power to regulate the right to keep and bear arms must be exercised in furtherance of the State's constitutional duty to protect and preserve life, liberty and property.

Today, the power of the Georgia General Assembly to regulate guns remains the same as it did when the Georgia General Assembly passed the 1870 Act to preserve peace and harmony. The Georgia General Assembly has the constitutional power to regulate where arms may be carried, what type of arms may be carried, and how they may be carried. The General Assembly's power includes the power to ban weapons when the ban is a limited ban which balances the various individuals' rights to self-defense and which bans only those weapons at those locations which if not banned would create a substantial risk of infringing upon another individual's right to defense of self or property. The General Assembly's power to regulate is not a power to destroy, but the duty to protect the community.

IV. THE SUPREME COURT OF GEORGIA AND GUN CONTROVERSY A. Nunn v. Georgia 166 165 Nunn v. Georgia1" has been cited by judges and scholars as evidence that at the time the Second Amendment was ratified it was understood to protect an individual fight to bear arms.

necessary and proper for the welfare of the State.").

164. 1 Ga. 243 (1846).

165. See, e.g. Heller, 128 S.Ct. 2783 (2008).

166. See, e.g. Stephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bill of Rights, 41 BAYLOR L. REV. 629 (1989).

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Nunn, decided more than 50 years after the adoption of the Second Amendment, must be understood as a product of its time, pre-Civil War Georgia. Chief Judge Lumpkin's opinion uses rhetorical questions to raise several philosophical questions regarding the relationship between the right to bear arms to oppose an oppressive government and the power of government to regulate arms. Lumpkin does not answer the questions posed. Moreover, even if Lumpkin answered the questions posed in the affirmative, the philosophical discussion of the relationship between the individual's right to bear arms and the government's right to regulate weapons would not support the court's limited holding in the case. Nunn is not about what the Second Amendment meant at the time it was ratified, but a message to the Union that Georgia was armed and would use its arms to fight an oppressive government - the Union.

In Nunn, the Supreme Court of Georgia merely recognized the rights that the citizens of Georgia held as of 1846 and that had been retained by the people throughout the constitutional drafting period. 167 As Nunn predates the Constitution of 1861 by fifteen years, the holding is evidence of the intent and meaning of the right "to keep and bear arms" set forth in Article I, Section 6, of the Georgia Constitution of 1861.168 1. The Facts On December 25, 1837, the Georgia General Assembly had passed a law entitled "An Act to guard and protect the citizens of this State against the unwarrantable and too prevalent use of deadly weapons."'' 69 Section 1 of the 1837 Act prohibited any merchant or vendor of wares or merchandize in this State, or any other person or persons whatever, to sell, or to offer to sell, or to keep or to have about their persons or elsewhere, any of the herein-after-described weapons, to wit: Bowie or any other kinds of knives, manufactured and sold for the purpose of wearing or carrying the same as arms of offence or defence; pistols, dirks, sword-canes, spears &c., 167. See GA. CONST. art. VIII (1789) ("All powers not delegated by the constitution, as amended, are retained by the people.").

168. Hiram Warner and Eugenius Nisbet, two of the first three judges of the Supreme Court of Georgia, were delegates to the 1861 Constitutional Convention. JOURNAL OF 1861 CONVENTION, supra note 116 at 1-7.

169. 1837 Ga. Acts, p. 90-91.

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shall also be contemplated in this act, save such pistols as 170 are known and used as horseman's pistols, &c.

Section 4 of the 1837 Act exempts "Sheriffs, Deputy Sheriffs, Marshalls, Constables, Overseers or Patrols" and states "that no person or persons shall be found guilty of violating the beforerecited act, who shall openly wear, externally, Bowie Knives, Dirks, Tooth-Picks, Spears, and which shall be exposed plainly 1 to view".,

7

Hawkins H. Nunn was indicted and convicted for "having and keeping about his person, and elsewhere, a pistol, the same not being such a pistol as is known and used as a horseman's pistol."'' 7 There is no reference to any evidence before the court that Nunn was carrying a concealed weapon. 173 Nunn had moved in the trial court to quash the indictment on the grounds that the 1837 Act violated the Second Amendment of the U.S. Constitution, violated Article I, Section 17 of the Georgia Constitution of 1798,114 that the 1837 Act was void for uncertainty and "absurdity", and that the indictment does not 175 charge that he was carrying the weapon "secretly".

2. The Opinion In 1846, when Nunn was decided, neither the Georgia Constitution then in effect nor any of the previous Georgia 170. Id. 171. Id. 172. 1 Ga. at 248. A horseman's pistol was one of the types of weapons which were used by the militia and which the State of Georgia purchased for its arsenal. 1799 Ga. Acts, p. 76-78 (authorizing the Governor to use state funds to purchase "five hundred pair of horseman's pistols" along with other weapons).

173. 1 Ga. at 248.

174. Article I, Section 17 of the Georgia Constitution of 1798 provides: "Every bill shall be read three times and on three separate days, in each branch of the General Assembly, before it shall pass, unless in cases of actual invasion or insurrection; nor shall any law or ordinance pass, containing any matter different from what is expressed in the title thereof; and all acts shall be signed by the president in the Senate, and the speaker in the house of representatives. No bill or ordinance which shall have been rejected by either house shall be brought in again during the session, under the same or any other title, without the consent of two-thirds of each branch."

175. 1 Ga. at 254.

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Constitutions contained a provision akin to the Second Amendment to the United States Constitution. 7 6 Although the Supreme Court chastised the General Assembly for "the great vagueness in the wording of the statute", the Court did not strike the statute down as void for vagueness. Nor did the Court rely upon any provision of the Georgia Constitution in declaring the Act unconstitutional. 77 The Court specifically declined to 78 avoid the larger constitutional question.

In an opinion written by Chief Judge Joseph Lumpkin, the Supreme Court of Georgia framed the issue to be addressed as whether the Legislature can deny to one of its citizens the privilege of carrying a weapon openly.' 79 The Court concluded that to the extent that the 1837 Act prohibits the carrying of concealed weapons, the Act is constitutional. 80 The Court also concluded that to the extent that the 1837 Act prohibits the "bearing of arms openly", the Act "is in conflict with the Constitution,' 8' and void...

In coming to these conclusions, the Court reviewed decisions from the courts of Kentucky, Alabama and Indiana. 83 In each of these states, the state legislature had enacted a statute prohibiting the wearing of concealed weapons; and each state had a provision in their state's constitution which provided that "the people have a right to bear arms for the defence of 176. Compare GA. CONST. (1777); GA. CONST. (1789), and GA. CONST. (1798) with U.S. CONST. amend. II. 177. 1 Ga. 243.

178.

179.

180.

181.

1 Ga. at 245-46.

1 Ga. at 247.

1 Ga. at 254.

The constitutional right to which the Court refers is the Second

Amendment to the United States Constitution, an amendment which had not been ratified by the people of the State of Georgia at the time that the Court was interpreting it. HILL, supra note 7, at 4. Moreover, at the time the Court was interpreting the Second Amendment as applying to the States the U.S. Supreme Court had not yet developed the "incorporation doctrine" because

the

14 th

Amendment had not been drafted or ratified. U.S. CONST. amend.

XIV (1868). Most importantly, Georgia through its executive and legislative branches had been engaging in acts which evidence their resistance to the idea that the provisions of the U.S. Constitution restricted the Georgia General Assembly or Executive. MCELREATH, supra note 21 at 120-22.

182. 1 Ga. at 253.

183. 1 Ga. at 248-49.

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themselves and the State."' 4 The Court stated that "[i]t is true, that these adjudications are all made on clauses in the State Constitutions; but these instruments confer no new rights on the people which did not belong to them before."'' 85 In support of this statement, the Court relies upon the 1689 English Bill of Rights. The Court expanded the group to whom the right to bear arms was granted under the 1689 English Bill of Rights from the nobility to all freemen and stated that these rights were substituted by the provisions of "our own Constitution". 8 6 In other words, the Constitution protected all freemen's right to bear arms.

Although the Court does not specify which of "our own" constitutions, Georgia or United States, it refers to, the lack of reference is irrelevant. Start with the premises found in the Resolutions adopted by the Provincial Congress of Georgia in 1775 that (1) sovereignty resides with the people; (2) all freemen are entitled to the natural rights of mankind, which include the right to use force to protect life, liberty, and property; and (3) that inhabitants of States of the United States, 87 including Georgians, are entitled to the rights of Britons.

With these three premises a given, at the time that the colonists won the Revolutionary War, all sovereignty resided with the people. The people cede some of their sovereignty to the United States government and some of their sovereignty to their respective state governments. The rights not ceded remained with the individual people. As set forth above, 8 8 in Georgia, the right to resist an oppressive government was a collective right ceded to the State, or, at least, the decision to exercise the right was required to be decided by a collective body elected by the people. The right to use force to protect one's own life and property was a right not ceded to either the state or the United States and thus, was retained by each individual. Nunn had an individual right to self-defense. All men between the ages eighteen and forty-five were required to keep and bear arms. 8 9 The most effective means to effectuate the right to self-defense 184. Id.

185. Id. (emphasis in original).

186. Id. 187. MCELREATH, supra note 21 at 48-62.

188. See supra notes 97-104 and accompanying text.

189. 1807 Ga. Acts, p. 105.

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was through the use of arms, and most men had arms. The right to bear arms was a means by which to effectively exercise the right to self-defense and thus, included in the right to selfdefense. The Supreme Court of Georgia could come to no other conclusion, but that the people had a right to bear arms to protect themselves.1 90 Because the Georgia Constitution in effect at the time had no provision pertaining to the individual right to keep and bear arms and because there was a split among the courts in the states which did have such a provision in their state constitution, the Georgia Supreme Court relied upon the Second Amendment to the United States Constitution.' 9' The Court recognized that the Second Amendment was a restriction on federal power and had not been extended to the states.' 92 Nevertheless, the Court found that "[t]he language of the second amendment was broad enough to embrace both Federal and State governments" and that there was nothing in the language of the Second Amendment "which restricts its meaning" to the United States government. 93 The Court then concluded "[w]e do not believe that, because the people withheld this arbitrary power of disenfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is far too dear to be confided to a republican legislature."'' 94 It appears that the right the Court is referencing is not the individual right to bear arms, but a right to 190. Moreover, judges were not exempt from the 1837 Act. Thus, to find in favor of the State would mean that the judges would not be able to carry weapons to protect themselves as they rode the required 1,000 miles on the circuit each year. While the decision is consistent with the understanding of the framers of the early Georgia Constitutions, the decision also, in a real sense, protected the Judges at a time when there was no court security or personal body guards. See HISTORY OF GEORGIA SUPREME COURT, supra

note 79.

191. 1Ga. at 250.

192. Id. 193. Id. The Court relied on the reasoning in People v. Goodwin, 18 John. Rep. 200, that "[t]hese general and comprehensive expressions extend the provisions of the Constitution of the United States, to every article which is not confined by the subject matter to the national government, and is

equally applicable to the States."

Supremacy Clause. 1 Ga. at 150.

194. Id.

The Goodwin Court relied upon the

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bear arms against an oppressive government.19 5 Nunn did not claim that he was carrying his pistol to fight an oppressive government; Nunn was carrying a pistol for self-protection. As the Court's discussion of the right to bear arms to fight an oppressive government is not necessary to its holding, it is dicta.

To the extent that the Court concludes that there is a right to use force against an oppressive government and that such a right is an individual right, the Court is wrong on both counts.

Throughout its history, both before and after the Court issued the opinion in Nunn, Georgians exercised their right to resist an oppressive government as a collective right, the resistance was 96 voted on by the people through their elected representatives.

Moreover, the use of force to fight an oppressive government made sense in a monarchy where sovereignty resided in the Crown, which could impose its will on the people. The use of force to fight an oppressive government when the government is a democracy and sovereignty resides in the people is an oxymoron. 197 In a democracy, citizens do not use force, they use the political process; otherwise, they are fighting themselves - which is suicide. 98 The Court's rhetorical musings on whether the Georgia General Assembly would disarm its people is posturing. The Court asks, "[i]n solemnly affirming that a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia, the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate?"' 199 The right to bear arms, however, was never "unlimited". From the early days of the

195. Id. at 249-50 (comparison of the purpose of the 1689 English Bill of Rights, to oppose the Crown's army, with the rationale of the Second Amendment and fear that the powers of the government were not sufficiently limited).

196. If there were any doubt that the right to use force against an oppressive government is not an individual right, one need only look at the

Union's response to the Confederacy's use of force and the prosecution of Confederate leaders for treason. MCELREATH, supra note 21 at 136-40.

197. To the extent that there are groups of citizens who are not allowed to participate in the democratic political process, there is less of an oxymoron.

198. See LOCKE, supra note 8 at §§ 211-43.

199. 1 Ga. at 251.

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colony, the right to bear arms was first a contractual right, and then a statutory obligation.2 °0 Beginning as early as 1817, Georgia began to limit duels, first by prohibiting state officials from being involved in duels and penalizing law enforcement who failed to prevent duels and finally criminalizing the participation in duels and allowing prosecution for murder if one of the participants deceased as a result of the duel.20 ' The anti-dueling statutes were not called into question by Nunn. °2 In 1846, most men residing in Georgia were required to keep and bear arms. 20 3 The State still had a Militia Law in effect, which required those who could to provide their own arms and munitions. 204 But, the State had concluded in 1799 that it could not rely upon its citizens to have the arms necessary for the protection of the State. 20 5 Thus, by 1846, the State had arsenals which held state owned arms and munitions which were inspected on a regular basis by the General Assembly.20 6 The State issued arms and munitions to those men who did not have their own. 20 7 The State of Georgia was not threatening to disarm its citizens. The State of Georgia was in fact purchasing arms and munitions so that it could better arm and train its citizens for the protection of the State. 20 8 The judges of the Supreme Court of Georgia would have been well aware of the proceedings of the Georgia General Assembly, all three had at one time served in that body. 2 9 Moreover, all three of the judges, being white men between the ages of 16 and 45,20 were 200. See supra notes 80-83 and accompanying text.

201. See, e.g. 1817 Ga. Acts, p. 92.

202. Approximately a decade before his election to the Supreme Court of

Georgia, because of his expertise in criminal law, Lumpkin was one of three lawyers appointed to a commission to draft a revision of the Georgia Penal Code. The Commission's work was enacted into law in 1833. See PAUL DEFOREST HICKS, JOSEPH HENRY LUMPKIN: GEORGIA'S FIRST CHIEF JUSTICE

35 (University of Georgia Press 2002).

203. 1807 Ga. Acts, p. 105.

204. Id. 205. 1799 Ga. Acts, p. 76-78.

206. 1808 Ga. Acts, p. 11.

207. Id. 208. 1807 Ga. Acts., p. 16.

209. GEORGIA SUPREME COURT HISTORY, supra note 79, at 15-16.

210. In August 1846, Lumpkins was 45 years old; Hiram Warner was 43 years old; and Eugenius A. Nisbet was 42 years old. HICKS, supra note 202,

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required to keep and bear arms as provided by the Militia Act. The Court stated that the right to bear arms belongs to "the whole people, old and young, men, women, and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.""I The Court extended the right to bear arms to all free people residing within the State. The Court, however, failed to note that the training of the militia was then occurring in state sanctioned military academies, where the students were armed by the state, thus reducing the need for private individuals to keep arms within their homes.21 2 But, by extending the right to bear arms to more people and expanding the types of arms which may be kept, the Court ensured that when the militia was called up for duty, those left behind women, boys, the elderly - could arm themselves for protection.

Moreover, since the men called to militia duty would have been obliged to take with them the arms specified by the Militia Act or the equivalent type of arms,2t 3 once the call to militia duty came, the home would be stripped of the types of arms "used by the militia". In order to effectuate the right to bear arms to women, boys, and those too old to serve in the militia, the type of weapon must also be expanded to include those weapons not used by the militia, i.e. those weapons left at home. The expansion of the right to include those not in the militia and to weapons not used by the militia in fact protects the individual right to bear arms to protect oneself and one's property. Thus, while the militia is off exercising the collective right to bear arms to protect the state and resist the tyrannical Union government, the women, children, and the elderly left at home were able to exercise the individual right to bear arms to protect at 5; GEORGIA SUPREME COURT HISTORY, supra note 79 at 15-16.

211. 1 Ga. at 251 (emphasis in original).

212. Id. See 1808 Ga. Acts, p. 11-13 (authorizes the establishment of

military academies because the "present Militia system is inadequate to bring about the state of organization, order, and discipline" required of a wellorganized militia and authorizes use of arms from "public arsenal" be used to train individuals at the military academies).

213. 1807 Ga. Acts, p. 105.

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themselves and their property. 14 The Supreme Court of Georgia expanded the right to bear arms in order that the individual right to bear arms for self defense could be realistically exercised by all members of the community.

The Supreme Court of Georgia could have reached this conclusion without relying on the Second Amendment and without reference to the right to protect the state or the right to oppose a tyrannical government. The fact that the Court did rely on the Second Amendment and continually referenced the well-regulated, i.e. trained, militia, leads one to conclude that the Court's audience was not only the parties before it, but a much larger audience. 215 To have restricted the right to bear arms may have given the appearance of a weak state unable to defend itself. By 1846, Georgia was already in conflict with Congress regarding state's rights and the slavery question. The Nunn opinion with its expansion of the right to bear arms is the Supreme Court's contribution to the protection of the state, its people, and the coming war effort.21 6 Although the Court had stated that the right to bear arms openly is unlimited, the Court held that the General Assembly can prohibit the carrying of concealed weapons. 217 The Court rationalized that the prohibition on carrying a concealed weapon "does not deprive the citizen of his naturalright of self-defence, or of his constitutional right to keep and bear arms. 21 8 The Court does not provide any authority for its position that a 214. In addition, by expanding the right to bear anns to women and boys and expanding the types of arms, Georgians would be able to protect themselves against rebellions such as Nate Turner's 1831 rebellion in Virginia, where more than eighty whites died. See HICKS, supra note 202 at 56.

215. See HICKS, supra note 202 at 51-62 (discussion of slavery and events leading to the Civil War).

216. In August 1846, less than one month after the Court heard and decided the Nunn case, the Wilmot proviso was adopted by the U.S. House of Representatives. The Wilmot proviso followed the attempt to prohibit slavery in the District of Columbia, the application of California for admission as a non-slave state, lead to the fear of a changing majority in Congress which would either forbid slavery or limit the ability of citizens of Georgia and other southern states to bring slaves into other territories of the United States. MCELREATH, supra note 21 at 122-23.

217. Id. 218. Id.

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citizen of Georgia has a natural right to self-defense, not even to a statute providing an affirmative defense for the protection of self or others. 19 As evidenced by the Court's opinion, Georgians believed that citizens' natural rights were a given.2 2 ° Because the most effective way to exercise the right of selfdefense was through the use of arms, the 2right to bear arms was 1 seen as a part of the right to self-defense.

The Court's holding is consistent with its expansion of the right to bear arms. The Militia does not carry concealed weapons when they are acting to protect the state. When the Militia is called up for duty, those left at home do not need to carry a concealed weapon in order to exercise their right to protect themselves or their property. Since concealed weapons are not necessary for the exercise of the right to keep and bear arms, concealed weapons can be prohibited by the Georgia General Assembly.

The Supreme Court of Georgia's holding in Nunn v. Georgia that the individual had not ceded his natural right to use force for defense of himself was consistent with Georgia's historical demarcation between an individual right to self-defense and a collective right to protect the state. The holding that the individual right can be limited by the legislature was consistent with other restrictions on an individual's ability to use force against another - one can not exercise their right to use force to the detriment of others. If A carries a concealed weapon, then B does not have the knowledge needed in order to exercise his right to protect himself. Thus, the Legislature may regulate A's right to bear arms for the protection of B. Much of the Court's dicta, however, has more to do with Georgia's pending dispute with the Union and ensuring protection of the State, through the Militia, and the protection of those left at home, than it does with providing insight into what the framers of the Second Amendment believed 50 years earlier.

Nunn is a Civil War case, not a Revolutionary War case.

219. Cf. 1802 Ga. Acts, p. 25-26 (recognizing the affirmative defense of

self-defense in murder cases).

220. 1 Ga. 243.

221. Id.

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3. Is Nunn Still Good Law? Sixteen years after the Supreme Court of Georgia's decision in Nunn, the individual right to bear arms was protected in Article I, Section 6 of the Georgia Constitution of 1861.222 Article I, Section 6 does not affirmatively recognize or cede to the General Assembly the power to regulate arms. 223 As there

are no reported cases litigating the meaning of Article I, Section 6, the starting assumption should be that the Constitutional provision preserved the right articulated by the Supreme Court of Georgia in Nunn. This is so because Article I, Section 6 was drafted by Thomas R.R. Cobb, the Clerk of the Supreme Court of Georgia and son-in-law of Chief Judge Lumpkin, the author of Nunn,224 and because Hiram Warner and Eugenius Nisbet, the two Associate Judges of the Supreme Court of Georgia who heard the Nunn case and joined in the opinion 25 , were delegates to the 1861 Constitutional Convention. 26 Moreover, in 1858, the work of the Supreme Court of Georgia was so highly valued that the General Assembly declared that an opinion of the 227 Supreme Court of Georgia was the law of the Georgia, making the Court's holding in Nunn the law of Georgia.

The Civil War and Reconstruction, however, call Nunn into question. The Civil War negated the validity of the Court's dicta in Nunn. The right to use force to fight an oppressive government is not an individual right protected by the Second 222. GA.CONST. art. I, Sec. 6 (1861) ("The right of the people to keep and bear arms shall not be infringed.").

223. But Article I, Section 3, of the 1861 Constitution imposes on the government an affirmative duty to protect life and property, and Article I, Section 16, of the 1861 Constitution states that "good order is essential to liberty" and that the rule of law is "essential to good order." Thus, there is an argument that read together Sections 3 and 16 of Article I provide the General Assembly with the power to regulate arms to the extent that to do so is a protection of life and property.

224. For a discussion of the close relationship between Thomas R.R. Cobb and Lumpkin see HICKS, supra note 202 at 76.

225. 1 Ga. 243.

226.

JOURNAL OF

1861

CONVENTION,

supra note 116 at 1.

227. 1858 Ga. Acts, p. 74 ("A decision of the Supreme Court ... made by a full court, and in which all three of the judges have or may concur... is hereby declared to be and shall be considered, regarded and observed by all courts of this state as the law of this state and to have the same effect, as if the same had been enacted in terms by the General Assembly.").

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Amendment. Either the right to use force against an oppressive government had been ceded to the federal government at the time Georgia ratified the U.S. Constitution and was re-ceded in the 1865 Convention when Georgia repealed the ordinance of secession and ordinance joining the Confederate States,2 28 or in a democracy with periodic elections, there is no right to use force to resist government. 229 At the time Nunn was decided, Georgians did not have an individual right to use force to fight an oppressive government or to protect the State - that right and power belonged to the federal government.

During Reconstruction, Georgians recognized the need for the General Assembly to have the power to regulate the individual right to bear arms for self-defense and so, included language in Article I, Section 14 of the Constitution of 1868, which specifically recognized the General Assembly's power to regulate arms. This power of the General Assembly to regulate weapons has been included in every Constitution since 1868.230 The General Assembly exercised its power to regulate arms in 1868 and 1870 - both times for the purpose of protecting the public. The Constitutional provision empowering the General Assembly to regulate arms overruled that portion of the Nunn decision which had limited the General Assembly's power to regulate weapons which were carried openly.

In 1886, the United States Supreme Court impliedly overruled a portion of Nunn when it held in Presserv. Illinois2 3 ' that the Second Amendment does not apply to the States. The United States Supreme Court declined to address the incorporation issue in Heller v. District of Columbia.2 32 As of today, the Second Amendment does not and has not applied to

228. Even if Georgia, by seceding from the Union, could have reacquired the right to fight an oppressive government that right was ceded to the Confederate States when Georgia ratified the Constitution of the Confederate States of America which contained a provision almost identical to Article V, Section 4 of the U.S. Constitution. McELREATH, supra note 21 at 136-40.

229. See LOCKE, supra note 8 at §§ 211-43.

230. See GA. CONST. art. I, par. XXII (1877); GA. CONST. art. I, par. VIII (1983). See also HILL, supra note 41 (Article I, Paragraph VIII of the 1983 Constitution "came forward without change from the 1945 and 1976

Constitutions.").

231. 116 U.S. 252 (1886).

232. 128 S. Ct. at 2813 n. 23.

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the States. Thus, the legal authority upon which Judge Lumpkin relied in Nunn does not support the Supreme Court of Georgia's holding in the case. The legal authority for Georgians' individual right to bear arms must be found elsewhere.

The Second Amendment, however, was not essential to the Supreme Court of Georgia's holding that the General Assembly could ban the carrying of concealed weapons, but could not ban the carrying of weapons in the open.23 3 The Court had premised its holding on the individual's "natural right of self-defence". 3 As natural law existed prior to the ratification of the Second Amendment, by locating the right to bear arms in natural law, the Supreme Court of Georgia has already satisfied the requirement of finding legal authority, other than the Second Amendment, for the right to keep and bear arms. In order to continue the protection of the right to bear arms in perpetuity, Georgia has included a specific provision in the Georgia Constitution.

Nunn remains central to an understanding of the right to selfdefense in Georgia. The right to self-defense includes the right to effectively defend oneself and one's home. As the most effective method of self-defense is a firearm, firearms are part of the right to self-defense. This right is a state constitutional right. One individual's right to self-defense, however, can not eclipse or subsume another individual's right to self-defense.

These conflicting rights must be balanced and regulated. The appropriate body to engage in the balancing of competing rights is the General Assembly, the democratically elected branch of government.

Thus, the Georgia Constitution specifically recognizes the power of the Georgia General Assembly to "provide by law" a balancing of individual rights for the purpose of protecting the community.

V. GUNS AND THE GEORGIA GENERAL ASSEMBLY

A. Framing the Debate Pursuant to its constitutional obligations, the Georgia General Assembly is required to protect all citizens of Georgia from the 233. 1 Ga. at 251.

234. Id.

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unlawful use of force by another. 235 No person and no type of property has any higher rank than others.236 The Georgia General Assembly is required to treat all citizens the same whether or not the citizen has exercised their state constitutional right to keep and bear arms.

The Georgia General Assembly may, by statute, provide more protection for property than that provided by the State Constitution. The problem arises when the reason articulated for providing a particular type of property more protection or providing the owners of particular types of property more privileges is non-existent. The current gun debate in Georgia has focused on the expansion of statutory rights for those individuals who have chosen to exercise their constitutional right to keep and bear arms by carrying concealed weapons.

The problem with this debate is the language used to frame the debate. Proponents of more rights for gun owners speak in terms of an inalienable right to carry guns, even concealed weapons, anywhere and everywhere.237 Georgia legislators are also using that same language to frame the gun debate.238 The language chosen by the proponents of gun rights does not reflect the meaning of the Georgia Constitution as intended by the drafters of the Constitution. There has never been an unlimited right to carry a weapon in Georgia. The most expansive interpretation of right to carry arms in Georgia is the Supreme Court of Georgia's decision

in Nunn,2 39 which

specifically stated that the Georgia General Assembly had the power to completely ban the carrying of concealed weapons.2 4 ° Thus, there has never been an inalienable right to carry a concealed weapon in Georgia. In 1846, the Supreme Court of Georgia upheld the General Assembly's ban on the carrying of concealed weapons because the ban was consistent with the government's obligation to protect people and property.

Perhaps due to fear that the U.S. Supreme Court would limit the right to keep and bear arms in Heller v. District of

235.

236.

237.

238.

239.

240.

GA. CONST. art. I, para. 11 (1983).

LOCKE, supra note 8 at § 142.

See ICLE, Georgia and the Second Amendment, supra note 4.

Id. Supra, note 164.

Id. at 252.

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" ' or because of a 2005 courthouse shooting,242 the Columbia24 current gun debate in Georgia has focused on increasing the statutory rights of gun owners to carry concealed weapons in public places. Gun proponents have framed the issue in terms of an individual having an inalienable right to carry a weapon, including a concealed weapon.243 Some legislators have used the same language and stated that the State must have a heightened interest before it can regulate guns.2 44 The language of this debate does not correctly reflect the Georgia Constitutional right to keep and bear arms and does not correctly reflect the power of the Georgia General Assembly to regulate guns.

The Georgia General Assembly has the power and a duty under the Georgia Constitution to regulate, including banning, the carrying of concealed weapons in public places when the regulation furthers the state's obligations under the Georgia Constitution to protect people and property. The question is whether the Georgia General Assembly has struck the correct balance between one individual's right to keep and bear arms and another individual's protection of their property interests.

B. Gun Regulation Priorto 2008 Prior to the 2008 legislative session, Georgia gun laws were a balance between the 1870 Act banning weapons at public 2 45 and the Supreme Court of Georgia's holding in gatherings 6 Nunn.

24

In formulating its gun control laws, the State differentiated between types of weapons based upon the nature of the weapon and inherent dangerousness of the weapon. The State has banned the "possession [of] any sawed-off shotgun, sawed-off rifle, machine gun, dangerous weapon [and] silencer[s], 247 with

241. 128 S. Ct. 2783.

242. Brian Nichol's Trial, Timeline http://www.1lalive.com/news/local/nichols/incident-timeline.aspx visited on April 13, 2009).

243. ICLE, Georgia and the Second Amendment, supra note 4.

244. Id. 245. 1870 Ga. Acts, vol. I,p. 421.

246. Supra note 164.

247. O.C.G.A. ยง 16-11-122 (2007).

at (last

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limited exceptions.2 4 8

The State has differentiated between

pistols and revolvers 249 and other weapons, requiring a license when the pistol or revolver is carried "outside of the home, motor vehicle, or place of business. 25 ° One may carry a "dangerous or deadly" weapon other than a pistol or revolver outside of the home or place of business only if the weapon is carried "in an open manner fully exposed to view". 2 1 l A person

may carry a concealed weapon if they have on their person a "valid license" for the concealed weapon and are carrying the concealed weapon in a holster or similar device.252 Carrying a concealed weapon without a license is a criminal offense.253 In addition to requiring a license to carry a concealed weapon, the State has limited where one can carry a concealed weapon and prohibited concealed weapons at public gatherings. 2 14 Prior to 2008, a "public gathering" was defined as "athletic or sporting events, churches or church functions, political rallies or functions, publicly owned or operated buildings, or establishments at which alcoholic beverages are sold for consumption

' on the premises." 255

There were

exceptions for "organized sport shooting events" 256 and for law 248. The exceptions include law enforcement officers, members of the armed forces, security officers at federally licensed nuclear facilities.

Exceptions also exist for items which have been made "inoperative" and where federal law would preempt the state statutory provision. O.C.G.A. § 16-11-124 (2007).

249. In addition to differentiating based on the type of weapon, the State has also differentiated based on age and status. With limited exceptions, individuals under the age of 18 may not "possess or have under their control a pistol or revolver". O.C.G.A. § 16-11-132 (2007). A person who is on probation or who has been convicted of a felony is prohibited from carrying a firearm, which includes "any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge." O.C.G.A. § 16-11-131 (2007).

250. O.C.G.A. § 16-11-128(a) (2007).

251. O.C.G.A. § 16-11-126(a) and (c) (2007).

252. Id. 253. O.C.G.A. § 16-11-126(b) (2007).

254. O.C.G.A. § 16-11-127 (2007).

255. O.C.G.A. § 16-11-127(b) (2007). Note the similarity with the 1870 Act which limited firearms at "any court of justice, or any election ground or precinct, or any place of public worship, or any other public gathering in this State". 1870 Ga. Acts, vol. I, p. 421.

256. O.C.G.A. § 16-11-127(c) (2007).

142

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enforcement officers carrying weapons into "publicly owned or operated buildings".2 5 7 In addition, the State prohibited the possession of weapons 25 8 in "School safety zones", 2 9 which were defined as 1,000 feet of any school.2 6 ° The State has declared that "the regulation of firearms is properly an issue of general, state-wide concern,'

26

' that the

"lawful design, marketing, manufacture, and sale of firearms and ammunition" is not a "nuisance per se", 262 and thus, has

preempted county and municipalities' ability to regulate firearms. 263 The State has permitted county and municipal 257. Id. The law enforcement exception applies to "[l]aw enforcement officers, peace officers retired from state or federal law enforcement agencies, judges, magistrates, solicitors-general, and district attorneys". Id. See also O.C.G.A. § 16-11-130 (2007) (Exemptions for peace officers, wardens, employees of correctional institutions and jails, military personnel, government defense contractors, employees of district attorneys offices, parole officers, probation officers, the Attorney General and employees of the Attorney Generals office, public safety directors, judges, United States Attorneys and their Assistants, medical examiners, clerks of the superior court, and some retirees of these offices.).

258. Weapons are broadly defined to include "any pistol, revolver, or any weapon designed or intended to propel a missile of any kind, or any dirk, bowie knife, switchblade knife, ballistic knife, any other knife having a blade of two or more inches, straightedge razor, razor blade, spring stick, metal knucks, blackjack, any bat, club, or other bludgeon-type weapon.., nun chahka. .. or fighting chain.., any stun gun or taser ....

O.C.G.A. § 1611-127. 1(a)(2) (2007). There are exceptions for sports equipment and ROTC equipment. O.C.G.A. § 16-11-127.1(c) (2007). There are also exceptions for law enforcement personnel and others similarly situated. O.C.G.A. § 1611-127.1 (c) (2007).

259. O.C.G.A. § 16-11-127.1(b) (2007).

260. O.C.G.A. § 16-11-127.1(a)(1) (2007). Schools include "any real property owned by or leased to any public or private elementary school, secondary school, school board and used for elementary or secondary education" and "the campus of any public or private technical school, vocational school, college, university, or institution of post-secondary education." Id. 261. O.C.G.A. § 16-11-173(a)(1) (2007).

262. O.C.G.A. § 16-11-173(a)(2) (2007).

263. O.C.G.A. § 16-11-173(b)(1) (2007) ("No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows; the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or components of firearms; firearms dealers; or dealers in firearms

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governments to regulate their own employees who carry weapons,2 6 to require "ownership of guns by heads of households within the political subdivision", 265 and to limit or prohibit "the discharge of firearms within [their] boundaries. 266 This scheme of gun control regulation balanced the interests of gun owners and non-gun owners. The pre-2008 statutory scheme recognized the individual's natural right to use force to protect themselves and their property when the law enforcement delay would be most likely to cause irreparable harm. This scheme carved exceptions for the possession of weapons, including pistols and revolvers, in one's home, car, and place of business. Also, consistent with Constitutional duty, the State recognized that it had a duty to protect the community and that one of the tools it could use to protect the community was to ban all concealed weapons at public gatherings and to ban the possession and carrying of unlicensed pistols or revolvers outside of the home, car, or place of business. The Georgia General Assembly exercised its power under the Georgia Constitution 267 to regulate the carrying of weapons openly and limited the carrying of pistols and revolvers to those who were licensed and exercised its power to regulate the carrying of concealed weapons by banning them from public gatherings.

The Georgia General Assembly limited its gun control regulation to that which was necessary to protect the community. More individuals can be harmed by one weapon at a public gathering, than can be injured by possessing weapons in a home, car, or a place of business. And, A can not effectively exercise their right to use force for self-defense if A does not know that B, the aggressor, is carrying a concealed weapon. Without the knowledge that B is carrying a concealed weapon, A does not know that the delay in seeking law components.").

264. O.C.G.A. ยง 16-11-173(c) (2007).

265. O.C.G.A. ยง 16-11-173(d) (2007).

Requiring an individual to exercise a constitutional right raises serious constitutional questions and if challenged, would likely be deemed unconstitutional. The constitutionality of Section 16-11-173(d) is outside the scope of this article.

266. O.C.G.A. ยง 16-11-173(e) (2007).

267. See GA. CONST. art. I, para. VIII (1983) ("the General Assembly shall have the power to prescribe the manner in which arms may be bourne").

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enforcement assistance may cause irreparable harm - injury or death. A does not have the knowledge needed to effectively exercise the right to self-defense. The General Assembly had stepped in and provided A with the knowledge that B's threat of the use of force is not deadly, and thus, A should seek law enforcement assistance. By placing A in the position of seeking law enforcement assistance, the General Assembly had reduced the likelihood of the use of force at public gatherings, had solidified the rule of law, and had taken affirmative steps to protect the community and its property.

C. H.B. 89: The Business Security and Employee Privacy Act In the 2008 Georgia General Assembly's legislative session, House Bill 89 was introduced.268 When originally introduced, H.B. 89 would only have repealed a portion of Section 16-11126 of the Georgia Code which pertained to the manner in which a loaded firearm was required to be transported in a privately owned passenger vehicle.269 When the H.B. 89 was first reported out of the Senate Rules Committee, the bill included two new provisions - (1) an amendment adding Section 16-11-135 to the Georgia Code, pertaining to guns in employees cars, and (2) an amendment to Section 51-1-29.2 of the Georgia Code, pertaining to liability of volunteer associations who assist the government during disasters.27 ° When the H.B. 89 was reported out of the Senate Rules Conmittee the second time, the bill included a provision amending Section 16-11-126(c) of the Georgia Code, which would allow a person with a license to carry a concealed weapon to carry the weapon "in all parks, historic sites, or recreational areas. 271 Subsequently, Representative Bearden offered an amendment on the Floor of the House, which amendment included the ability to carry concealed weapons in "publicly owned buildings" located in parks, historic sites, and 268. H.B. 89, 149th Gen. Assem., Reg. Sess. (Ga. 2008). For the legislative history of H.B. 89 see http://www.legis.ga.gov/legis/2007_08/surn/hb89.htm (last vistied on April 11, 2009).

269. H.B. 89 (as introduced).

270. H.B. 89 (as reported by S. Rules Comm. as 07 LC 28 3747S). The amendment to O.C.G.A. § 51-1-29.2 (2008) is not relevant to this article.

271. H.B. 89 (as reported by S. Rules Comm. as 08 LC 38 0516S).

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recreational areas, "on public transportation", and in establishments which serve more food than alcohol.272 House Bill 89 passed with Senator Bearden's amendment.273 H.B. 89 has substantially changed the gun control laws of the State in three ways. First, H.B. 89 allows individuals to carry concealed weapons onto private property where the occupant of the private property "derives less than 50 percent of their total annual gross food and beverage sales from the sale of prepared meals or food." 274 Second, H.B. 89 allows individuals to carry concealed weapons in public parks, historic sites, recreation areas, and on public transportation. 275 Third, H.B. 89 changes the relationship between the employer and employee. 276

The

provisions of H.B. 89 pertaining to establishments serving food are the most troublesome as these provisions impinge upon property rights of the establishment's owner, the property owner, and the other patrons. The provisions of H.B. 89 which allow the carrying of weapons in all parks, historic site, recreation areas, and on public transportation are troublesome because local government entities are preempted from protecting their property and their local community. The provision of H.B. 89 which regulate the relationship between the employer and employee are a proper balance between the interests of the employee and the interests of the employer and property owner.

1. Public Gatherings The most troublesome change to the law is the amendment to Section 16-11-127(b) of the Georgia Code 277 which changed the definition of "public gathering" from all establishments which serve alcoholic beverages to exclude those establishments which serve alcoholic beverages and "which derive less than 50 percent of their total annual gross food and beverage sales from the sale of prepared meals or food."2 7 8 This change in definition 272. H.B. 89 (House Amend. as 08 AM 28 0852).

273. H.B. 89 (as passed April 14, 2008).

274. H.B. 89 at 3.

275. H.B. 89 at 4.

276. H.B. 89 at 6-8.

277. As H.B. 89 became effective on July 1, 2008, citation will be to the current section of the Official Georgia Code Annotated.

278. O.C.G.A. ยง 16-11-127(b) (2008).

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means that establishments which were places of public gathering are no longer places of public gatherings within the meaning of the statutory language and thus, a person may carry a concealed weapon into these establishments. Moreover, unlike Section 16-11-135(e) of the Georgia Code, there is no provision in the statute which specifically states that the statutory definition does not restrict the private property owner's rights. 279 Nor is there a provision in the statute which limits the establishment's or the property owner's liability if a patron uses a concealed weapon on the premise.8 0 The exclusion of establishments which sell more food than alcohol on an annual basis from the definition of "public gathering" is contrary to the General Assembly's obligations under the Georgia Constitution. The General Assembly's primary purpose is protecting property, which includes life, liberty, and property. Weapons are just one type of property, a type of property entitled to no greater rank of protection than any other type of legal property. When the government regulates property rights between private individuals, 2s' the government must do so in an impartial manner 282 and in a manner which does not allow one person to harm the property of another. 28 3

Because there is no provision specifically

reserving the rights of property owners, either the owner of the business or the owner of the real property on which the business is located, and there is such a provision in Section 16-11-135(e), Section 16-11-127(b) can be interpreted as not providing such a reservation of property rights, thus calling into question whether the business or property owner can exclude weapons from the establishment. The lack of clarity in the ability to exclude coupled with the lack of statutory protection from tort liability if a customer were to use a concealed weapon on the premises is an invasion of the property rights of the business and the property owner. In addition, when a person carries a concealed weapon into a restaurant and the other patrons are not aware of the concealed weapons, the other patrons are not in a position to exercise their right to self-defense. The response then is for 279.

280.

281.

282.

283.

See O.C.G.A. ยง 16-11-135(k) (2008).

See O.C.G.A. ยง 16-11-135(e)-(g) (2008).

LOCKE, supra note 8 at ยง 139.

Id. at ยง 142.

Id. at ยง 6.

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everyone to carry a concealed weapon, which increases the likelihood that in the event of a dispute a person will be less likely to seek law enforcement assistance before engaging in the use of force. When individuals begin to act as the judge in determining when another's use of force was an illegitimate use of force and punish that use of force, civil society is destroyed.

Section 16-11-127(b)'s exclusion of establishments which serve more food than alcohol from the definition of public gathering does not sufficiently protect the property interests of the establishment, the property owner, or the other patrons.

2. Parks and Public Transportation Section 16-11-127(e) of the Georgia Code removed restrictions on the carrying of weapons in parks, historic sites, recreational areas, and on public transportation. Section 16-11127(e) permits a person to who has a license to carry a pistol or a revolver to openly carry the pistol or revolver in all parks, historic sites, recreational areas, and on public transportation. 8 4 Section 16-11-127(e) also permits a person who has a concealed weapon permit to carry a concealed weapon in all parks, historic sites, recreational areas, and on public transportation. 285 All parks, historic sites, recreational areas, and public transportation include those owned by city, county, and other municipal governments.

Because the State has preempted all local government entities from regulating the possession and carrying of weapons,286 with the expansion of the places where a weapon may be carried, local governments can not create gun free zones of local parks and recreational centers - the places where our children play. Local government entities can not exercise the rights of a property owner to exclude weapons from its property. Unlike the limitation of liability in Section 16-11135(e) of the Georgia Code, the General Assembly has not limited the liability of the local government entity for gun incidents which occur on the local government's property. One using a park or recreational area does not know whether any of the other patrons are carrying concealed weapons and thus, does not have the information needed to make an appropriate

284. O.C.G.A. ยง 16-11-127(e) (2008).

285. Id. 286. O.C.G.A. ยง 16-11-173 (2007).

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decision on the use of force. This lack of knowledge leaves the individual in the position of needing to carry a weapon in order to respond to any threat of force when using the park. Once individuals begin to assume that others are carrying weapons, it becomes more likely that an individual will respond to a threat of the use of force with force before appealing to law enforcement, which means that men will become their own judges - placing at risk the protection and preservation of property. The General Assembly has not balanced the property rights of the local government entity and the property rights of other members of the community against the property rights of the individual carrying the concealed weapon.

Because the State has prevented local government entities from regulating the possession or carrying of weapons within the municipal boundaries, local governments have no alternative avenues by which to protect their property or the local community. The lack of alternative avenues to protect property prevents the local governments from fulfilling their duty to protect the community. When the General Assembly enacts laws which do not preserve, but destroys property rights, the General Assembly has acted in violation of its duty under the Georgia Constitution to protect property.

3. The Employee ParkingLot Exception Section 16-11-135 of the Georgia Code prohibits all employers from knowing whether an employee or business The invitee has brought a weapon onto their premises. prohibition applies to private and public employers, including state, county, and municipal governments.287 The Act prohibits any employer from "establishing, maintaining, or enforcing" any employment policy which allows the employer to search an employee's car or the car of an invited guest when the car is on the employer's parking lot.288 An employer can not include as a condition of employment that employees can not keep a weapon in their vehicle. 289 There are limited exceptions to these restrictions on the employer. 290 Section 16-11-135(e) attempts 287.

288.

289.

290.

O.C.G.A. O.C.G.A. O.C.G.A. O.C.G.A.

ยง 16-11-135(a) (2008). ยง 16-11-135(a) (2008). ยง 16-11-135(b) (2008). ยง 16-11-135(c) (2008).

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to limit the employer and property owners from liability if a concealed weapon is used on the property, "unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer's premises."291 Section 16-11-135(k) provides that it does not "restrict the rights of private property owners or person in legal control of the property through a lease, a rental agreement, a contract, or any other agreement to control access to such property. 2 92 While at first glance, Section 16-11-135 appears to violate the employer's property rights, the balance struck by the legislature is consistent with the Georgia Constitution, if the "knowledge" requirement for the imposition of civil liability on the employer is narrowly construed. Sections (a) and (b) of Section 16-11135 appear to interfere in two of the employer's property rights - (1) the property being the labor the employer has purchased from the employee, and (2) the business premise. Because Sections (a) and (b) pertain only to guns locked in the employee's vehicle and do not require the employer to allow the employee to bring the weapon into the workplace, there is no interference with the employer's property interest in the employee's labor.

Because the law does not specifically prohibit the employer from prohibiting weapons from the workplace, the employer can exclude weapons from the actual workplace. By excluding weapons from the workplace, the employer would be taking action to affirmatively protect his property interests in the business premises and the work product of his other employees. The employer would also be acting to protect the property of the other employees.

The limitation of liability in Section (e), which limits the liability of the employer and the property owner resulting from

291. O.C.G.A. ยง 16-11-135(e) (2008). See also O.C.G.A. ยง 16-11-135(f) (2008) (employer or property owners compliance with other applicable law "shall be a complete defense").; O.C.G.A. ยง 16-11-135(g) (2008) (where civil action brought against the employer or property owner based on the criminal use of the firearm in the workplace is resolved in favor of the employer or property owner, plaintiff is liable for "all legal costs" of employer or property owner); and O.C.G.A. ยง 16-11-135(h) (2008) (no security measures required; remedial security measures not admissible to show negligence).

292. O.C.G.A. ยง 16-11-135(k) (2008).

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the employee's exercise of his statutory rights under Sections (a) and (b), preserves the property of the employer and property owner by making their property unavailable to satisfy any remedy imposed for the employee's use of a weapon. The knowledge exception must be narrowly construed so that the exception does not swallow the rule. Knowledge should be limited to those incidents where the employee has brought the weapon into the workplace, the employee has threatened to use the weapon in the workplace, or where the employee has threatened the use of force against a specific person or group of persons in the workplace.

Moreover, because Section 16-11-135(k) specifically reserves the "rights of the private property owners or persons in legal control of property through a lease, rental agreement, contract, or any other agreement to control access to such property"2 93 the property owner can use the lease to exclude weapons from the property. If an employer does not want weapons in employee vehicles, than the employer can ask the property owner of the parking lot to exclude all weapons. If the employer is the property owner, the employer, acting as the property owner, can exclude weapons from cars. Because there is an alternative avenue by which the employer and property owner can protect their property interests, the General Assembly has struck an appropriate balance.

H.B. 89 contains several provisions that fail to provide adequate provision for the safety of the community. The failure of the General Assembly to act consistly with the principles of protecting property rights appears to stem from the manner in which the debate was framed. When the debate is framed in terms of protecting an inalienable right, the inclination is to remove obstacles to the exercise of the inalienable right. But, the ability to carry a concealed weapon is not an inalienable right; it never has been. When the debate was framed in terms of protecting the "inalienable right to carry a gun", the inclination of the General Assembly was to protect the inalienable right by removing obstacles to the exercise of the right. When H.B. 89 removed the obstacles to the exercise of a statutory right, the property rights of others were invaded. Guns are personal property and should be treated the same as all other 293. O.C.G.A. ยง 16-11-135(k) (2008).

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property; not given preferential treatment.

The gun control debate in Georgia needs to be rephrased into the correct terms. And, the balance of rights between all types of property and property owners needs to be restored.

VI. CONCLUSION

The "right to keep and bear arms" is a right protected by the Georgia Constitution.

The General Assembly may not completely ban the possession of guns in Georgia. The General Assembly may, however, exercise its constitutional power to regulate arms to fulfill its duty to preserve property and to protect of the community. The Georgia General Assembly must take the lead in reorienting the gun control debate to insure that the property rights of all Georgians are protected.

TAKING AWAY LOCAL CONTROL: THE RISKS OF REGULATING A PUBLIC UTILITY'S EMINENT DOMAIN AUTHORITY I. INTRODUCTION

For over 100 years, the state's authority of eminent domain has been delegated to public utility companies.' The utility companies utilize this authority when they are unable to voluntarily acquire the property necessary to provide services to their customers. Due to rapid growth in metro Atlanta over the past decade, the need for such property has increased.2 As citizens become less tolerant of voluntarily relinquishing their property, however, utilty companies are forced to exercise their authority of eminent domain.3 Unhappy with this result, citizens often turn to their local government in an attempt to stop the utility companies.

Recently, local governments have attempted to regulate public utility companies by passing ordinances targeting the utilities' eminent domain authority. Georgia courts repeatedly have held that these ordinances are invalid because local governments have no authority to regulate in this area.4 On 1. Jones v. N. Ga. Elec. Co., 54 S.E. 85, 89 (Ga. 1906).

2. Brief of Appellee at 3, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL 5095872; see also Sarah Elizabeth Tosone, Legislative History, Eminent Domain and Utilities, 21 GA. ST. U. L. REv. 157 (2004).

3. Stacy Shelton, Proposed Pipeline Spurs Questions, ATLANTA J. CONST., December 13, 2008, at B-6, available at 2008 WLNR 23910464; see also Carol M. Chinn, Editorial, Don't Let the Lights go Out in Georgia, ATLANTA J. CONST., Feb. 25, 2003, at All, available at 2003 WLNR 6214120.

4. Rabun County v. Ga. Transmission Corp., 575 S.E.2d 474 (Ga. 2003) (three year moratorium on construction of high voltage power lines); Cobb County v. Ga. Transmission Corp., 578 S.E.2d 852 (2003) (seven and onehalf month moratorium on construction of above-ground high voltage power lines); City of Buford v. Ga. Power Co., 581 S.E.2d 16 (Ga. 2003) (one year moratorium on electric power substations); Forsyth County v. Ga.

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January 15, 2009, legislation was introduced to explicitly require a public utility to obtain approval from the local governing authority before condemning land.5 If enacted, this legislation would cause a curious dichotomy in Georgia lawpublic utilities which provide a vital and useful service to Georgia citizens would be required to obtain approval from a local government before they can condemn land, but the local government would be prohibited by Georgia's Constitution from withholding approval of the condemnation.

Several legal and policy rationales demonstrate the consequences of this legislation. If local governments were allowed to approve condemnations, utilities would be subject to potentially conflicting and disabling regulations throughout different localities in which they operate. Furthermore, unlike a typical developer, a utility is statutorily limited in the uses to which it can put a parcel of property. 6 When local government regulation deprives the public utility of statutory use of property it has acquired, the government risks effecting a taking of the utility's property without just compensation.

To understand and resolve these issues, Part II will explore the language of the proposed legislation. Part III will provide a brief overview of the nature of public utility companies in Georgia and their statutorily delegated power of eminent domain. Part IV will analyze local government's prior attempts at regulating a public utility, specifically focusing on why such regulations have failed. Finally, Part V will analyze the risks of Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (overlay zoning district required public utility to obtain approval from county before constructing high voltage transmission line); all discussed infra ยง IV. 5. H.B. 362, 150th Gen. Assem., Reg. Sess. (Ga. 2009); H.R. 70, 150th

Gen. Assem., Reg. Sess. (Ga. 2009).

6. See O.C.G.A. ยง 22-3-20 (2008) (Any person operating or constructing or preparing to construct a plant for generating electricity shall have the right

to purchase, lease, or condemn rights of way or other easements over the lands of others in order to run power lines, maintain dams, flow backwater,

or carry on other activities necessary for constructing and operating such a plant provided that the person first pays just compensation to the owner of the land to be affected."); O.C.G.A. ยง 46-3-201 (2008) (An electric membership corporation shall have power to acquire "all interests in realty necessary and appropriate to effectuate the purposes of such electric membership corporation."); infra text accompanying notes 132 and 133.

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local government regulations, particularly the risk that the local governments will violate the Takings Clause of the United States and Georgia Constitutions.

II.

PROPOSED LEGISLATION

Motivated by a "property rights philosophy," Representative Ron Stephens of the 164th district introduced legislation in the Georgia House which would add a provision to the Eminent Domain title of Georgia's Code.7 The bill would require a public utility to obtain approval from the local government before it can exercise its eminent domain authority.' House Bill 362 is limited in scope and provides: No public utility shall exercise the right of eminent domain unless it has obtained prior approval by resolution or ordinance from the governing authority of the municipality within which the property is located, if any, or otherwise from the governing authority of the county within which the property is located. No action for condemnation shall be brought by a public utility in any court of this state without the resolution or ordinance required by this Code section.9 Representative Stephens also introduced legislation which would amend Georgia's Constitution to provide similar terms: "Condemnation of private property pursuant to the power of eminent domain shall be approved by a resolution or ordinance of the governing authority of the municipality within which the property is located, if any, or otherwise by the governing authority of the county within which the property is located."'"

This proposed constitutional amendment does not address public utilities specifically, but it states in more general terms that the governing authority of the municipality must approve condemnations. Notably, if passed, the proposed resolution would amend the Eminent Domain paragraph in the Bill of Rights section of Georgia's Constitution and not the Home Rule 7. Bill Asserts Property Rights in Utility Visits, ATHENS-BANNER HERALD, Jan. 16, 2009, available at:

http://www.onlineathens.com/stories/0 11609/new_377882709.shtml, accessed Mar. 14, 2009.

8. H.B. 362.

9. Id. 10. H.R. 70.

last

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Act-the portion of the constitution which authorizes and restricts local government regulation.''

III. PUBLIC UTILITY COMPANIES AND THEIR EMINENT DOMAIN AUTHORITY

A public utility company is an entity that produces a service that benefits the public.12 Georgia's statutes specifically list services and commodities which allow a company to qualify as a public utility. 3 Utility companies often provide services throughout multiple localities. 4 The corporate nature of a public utility company varies. Some public utilities are public corporations owned by political subdivisions of the state. 5 Others public utilities are either owned cooperatively by the customers the utility serves 6 or investor-owned corporations.

It has been recognized that "the public utility's importance to society gives it a unique status in property law."' 7 This unique status often conflicts with the status of private property owners.

Although Georgians have given paramount importance to private property rights, Georgians possess property subject to the perpetual repurchase option of the State to appropriate the

11 See infra Part IV-A. 12. O.C.G.A. § 22-1-1 (2008) ("Public utility" means any publicly, privately, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, power, electricity, light, heat, gas, oil products, water, steam, clay, waste, storm water not connected with highway drainage, and other similar services and commodities, including publicly owned fire and police and traffic signals and street lighting systems, which directly or indirectly serve the public. This term also means a person, municipal corporation, county, state agency, or public authority which owns or manages a utility as defined in this paragraph. This term shall also include common carriers and railroads).

13. Id. 14. See Brief of Appellant at 9, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL 5095872.

15. See O.C.G.A. § 46-3-110 through O.C.G.A. § 46-3-155 (2008) (municipal electric membership corporations); O.C.G.A. § 46-6-80 through O.C.G.A. § 46-4-125 (2008) (Municipal Gas Authority of Georgia).

16. See O.C.G.A. § 46-3-170 through O.C.G.A. § 46-3-440 (2008) (electric membership corporations).

17. 8 S.W. MOORE, NICHOLS ON EMINENT DOMAIN, § G14A.01 (2008).

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property for a public use and oust the owner therefrom upon receipt of compensation. 8 Georgia's Code specifies, "the right of eminent domain is the right of the state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good."' 19 This right of the state is not without limitation, however, as both the United States and Georgia Constitutions place limits on the exercise of eminent domain power.2" The legislature determined that some situations arise where, for the public good, the state must delegate its authority to take property to non-governmental entities such as corporate bodies. 2' One such delegation is granted to public utilities, including electric utility companies.22 A public utility does not acquire all of the property it uses via its eminent domain power-most of the property is obtained via a voluntary sale.23 When the utility 18. 1 DANIEL PROCEDURE § 2-1

F. HINKLE, PINDAR'S GEORGIA REAL ESTATE LAW & (6th ed. 2009).

19. O.C.G.A. § 22-1-2 (2008).

20. See U.S. CONST. AMEND. V.; GA. CONST. art. I, §3, 1(a) (private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid).

21. O.C.G.A. § 22-1-4 (2008) (authorizing General Assembly to exercise right of eminent domain through the medium of corporate bodies or individual enterprise).

O.C.G.A. § 46-3-201(b)(9) (2008) (electric membership 22. See corporations shall have the power to "acquire rights off way, easements, and all interests in realty necessary and appropriate to effectuate the purposes of such electric membership corporate by condemnation. . ."); O.C.G.A. § 46-3126(3) (2008) (municipal electric authorities shall have the power "to for its corporate acquire.. .real property... necessary or convenient purposes... by the exercise of the power of eminent domain."); O.C.G.A. § 22-3-20 (2008) ("Any person operating or constructing or preparing to construct a plant for generating electricity shall have the right to purchase, lease, or condemn rights of way or other easements over the lands of others in order to run power lines, maintain dams, flow backwater, or carry on other activities necessary for constructing and operating such a plant provided that the person first pays just compensation to the owner of the land to be affected").

23. O.C.G.A. § 22-3-161(b) (2008) (".. .the utility shall attempt in good faith to negotiate a settlement with each property owner from whom the utility needs to acquire property rights for the line"); see also Carol M. Chinn, Editorial, Don't Let the Lights go Out in Georgia, ATLANTA

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is unable to acquire land via a voluntary transaction, however, it is entitled to take land by exercising the State's power of eminent domain if the land is reasonably necessary for the utility to achieve their purposes.2 4 The delegation results from recognition that public utilities need to acquire property from an owner "who will not, for the common good, submit their property to use by a utility company."25 Georgia courts have held such delegations are constitutional because they serve a public purpose of supplying the public with light, heat and power.2 6 In consideration of receiving the legal benefits for generating this service or commodity, a public utility is subject to extensive regulation either by the General Assembly or by a commission established by the State for such purpose.

Feb. 25, 2003, available at 2003 WLNR6214120 ("In practice, electric utilities seldom use eminent domain authority. Typically, it is a last resort to keep a single property owner or group of property owners from refusing to provide access").

24. See O.C.G.A. § 46-3-201(b)(9) (2008) (electric membership corporation authorized to acquire property by condemnation); O.C.G.A. § 46-3-126(3) (2008) (municipal electric authorities shall have the power to acquire property by condemnation); O.C.G.A. § 22-2-20 (2008) ("Any person operating or constructing or preparing to construct a plant for generating electricity shall have the right to purchase, lease, or condemn rights of way or other easements over the lands of others in order to run power lines, maintain dams, flow backwater, or carry on other activities necessary for constructing and operating such a plant provided that the person first pays just compensation to the owner of the land to be affected").

25. Jones v. N. Ga. Elec. Co., 54 S.E. 85, 89 (Ga. 1906); Ga. Power Co. v.

Ham, 77 S.E. 396, 397-398 (Ga. 1913), abrogated in part Central Ga. Power Co. v. Nolen, 85 S.E. 945 (1915).

26. Ham, 77 S.E. at 397. (State authorized to delegate their authority of eminent domain to corporate bodies and such delegation is not unconstitutional); Banks v. Ga. Power Co., 481 S.E.2d 200 (Ga. 1997) (Court held that O.C.G.A. § 22-3-20 is constitutional even in the absence of guiding language on what is reasonably necessary); but c.f Garbutt Lumber Co. v. Ga. & Al. Ry., 46 S.E. 942 (Ga. 1900) (power of eminent domain may not be delegated to entities "engaged in a business in which the public is in no way interested, and a business which from its very nature is a purely private enterprise, and necessarily entered into for the purpose of private pecuniary gain").

27. For example, Georgia's Code has 270 chapters devoted to rules, regulations, and requirements of an electric membership corporation; See O.C.G.A. § 46-3-170 through O.C.G.A. § 46-3-440 (2008) (electric membership corporations); see also O.C.G.A. § 46-2-1 through 46-2-95 J.CONST.,

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Delegation of the eminent domain authority to public utilities is not unfettered. As with all takings, the property must be put to a public use.28 Further, property taken by a utility must be "useful, needful, and necessary for public purposes."29 For instance, generation of services, such as electricity, which directly or indirectly serve the public are considered a public purpose.3 0 However, the court has acknowledged that defining which parcels of property are necessary to achieve this purpose is notoriously difficult and depends upon the facts of each case. 3 Although the utility company must put the property to a public use, the utility company acquires ownership of and all accompanying property rights in the parcel.

IV. LOCAL REGULATIONS OF PUBLIC UTILITY COMPANIES

As the population of Georgia has expanded, so has the need for public utility services, such as gas and electricity.3 2 A public utility has to acquire property to furnish these services, and voluntarily purchasing property is not always possible.3 3 As public utilities have resorted to their eminent domain authority to acquire land, local governments have attempted to prevent such acquisitions by using their authority to enact ordinances and regulations within their local area. When local governments attempt to enact these ordinances and regulations, they act pursuant to limited authority granted by either the state's constitution or statutes.

(2008) (rules, regulations and jurisdiction of Georgia Public Service

Commission).

28. U.S. CONST. art. V; GA. CONST. art. I, ยง 3, 1.

29. Banks, 481 S.E.2d at 203, citing Piedmont Cotton Mills v. Ga. Ry. Elec. Co., 62 S.E.2d 52 (Ga. 1908); see also statutory text recited supra note 22.

30. Nolan v. Cent. Ga. Power Co., 67 S.E. 656 (Ga. 1910).

31. Banks, 482 S.E.2d at 203; Jones v. N. Ga. Elec. Co., 54 S.E. 85, 89 (Ga. 1906).

32. Brief of Appellee at 3, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL 5095873; see also, Tosone, supra note 2; Shelton and Chin, supra note 3.

33. Jones, 54 S.E. at 89 (delegation of power of eminent domain results from the need to acquire land from one lone land owner who refuses for the common good to release his property); see also, Shelton and Chinn, supra

note 3.

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A. Georgia'sHome Rule Act: Authority to Regulate Both counties and municipalities are creations of the state, and as such, the state government grants certain powers to them. 34 Like many states, Georgia's Constitution contains a Home Rule Act which provides authority to local governments and defines the specific areas where the localities may regulate.35 Initially, Georgia was hesitant to grant regulatory authority to counties and municipalities.36 After many years of resisting the national trend to enable local governments to enact regulations, and a few failed attempts,37 Georgia established two home rule acts: "a system of indirect ("legislative") rule for municipalities and a system of direct ("constitutional") home rule for counties."3 8 Although the basis for municipal and 34. See Hammond v. Clark, 71 S.E. 479, 487 (Ga. 1911) ("A county has been defined to be: 'One of the civil divisions of a country for judicial and political purposes, created by the sovereign power of the state of its own will, without the particular solicitation, consent, or concurrent action of the people who inhabit it; a local organization, which, for the purpose of civil administration, is invested with certain functions of corporate existence."'); see also Dept. of Transp. v. City of Atlanta, 337 S.E.2d 327, 332 (Ga. 1985) ("Cities exist by the grace of the state through special acts of the General Assembly").

35. See, e.g. GA. CONST. art. IX, ยง 2, 1(a) ("The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto..."); see also GA. CONST. art. IX, ยง 2, 2 ( "The General Assembly may provide by law for the self-government of municipalities and to that end is expressly given the authority to delegate its power so that matters pertaining to municipalities may be dealt with without the necessity of action by the General Assembly") and O.C.G.A. ยง 36-35-3 (2008) (statutory Home Rule authority for municipalities which mirrors constitutional authority for counties).

36. R. Perry Sentell, Jr., The Georgia Home Rule System, 50 MERCER L. REv. 99 (1998).

37. Id. at 106.

38. Id. (stating Georgia takes an "intriguing approach" to Home Rule delegation by granting Counties Constitutional authority and municipalities statutory authority); See also GA. CONST. art. IX, ยง 2, 2 ("The General Assembly may provide by law for the self-government of municipalities and to that end is expressly given the authority to delegate its power so that matters pertaining to the municipalities may be dealt with without the

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county regulations may differ, and the court must base its analysis differently depending on the local entity at issue, for the limited purpose of this discussion, the substance of 39a locality's authority and the end result is substantially the same.

The Constitutional Home Rule Act and Statutory Home Rule Act enable counties and cities to enact ordinances, resolutions or regulations relating to its property, affairs and local government.4 ° The ability of a local government to act is limited to provisions for which there is no general law applicable at the state level and to actions which are not inconsistent with Georgia's Constitution.41 Based upon this provision, both counties and municipalities in Georgia have the ability to regulate the use and development of land pursuant to their police powers.42 Both home rule provisions, however, emphatically exclude several enumerated matters from a local government's authority to regulate.43 Among these exclusions, Georgia's Constitutional Home Rule Act and Statutory Home Rule Act state that local authority to regulate "shall not be construed to extend to... action affecting the exercise of the power of eminent domain."44 B. Local Ordinanceswhich Affect Eminent Domain House Bill 362 prohibits a public utility company from exercising its right of eminent domain until it obtains an ordinance or resolution from the locality in which the property is located.45 Along the same lines, House Resolution 70 states that the local governing authority shall approve all condemnations. Unlike House Bill 362, however, House Resolution 70 does not explicitly reference public utilities in its necessity of action by the General Assembly").

39. See Sentell, supra note 36.

40. GA. CONST. art. IX, § 2, 1(1)(c)(6); O.C.G.A. 36-35-6(a)(4) (2008).

41. GA. CONST. art. IX, § 2, 1(1)(c)(6), and O.C.G.A. 36-35-6(a)(4).

42. See id.

43. GA. CONST. art. IX, § 2 1 (emphasis added); see also, Sentell, supra note 36 at 117.

44. GA. CONST. art. IX, §2, 1(c)(6); O.C.G.A. § 36-35-6(a)(4) (2008) ("the powers granted to municipal corporations... shall not be construed to extend to the following:.., action affecting the exercise of the power of eminent domain").

45. H.B. 362.

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language nor does it mandate any action by the condemning body. In light of current constitutional principles, this comment will first address the constitutionality of House Bill 362, and then address, the effect, if any, that the proposed constitutional amendments contained in House Resolution 70 may have on House Bill 362.

1. House Bill 362 The language of the House Bill 362 mandates that "no public utility shall exercise the right of eminent domain unless it has obtained prior approval by resolution or ordinance from the governing authority. 46 However, the Home Rule Acts in Georgia's Constitution and statutes prohibit these same local governments from taking any action which may affect the exercise of the eminent domain power.47 The court has consistently reiterated that local government regulations or ordinances, which may not address condemnations on their face, could still interfere with the reasons for which a utility company condemned property; thus, the regulations would still offend the 48 Home Rule Act. House Bill 362 requires local governments to approve the condemnation by an ordinance or resolution. Local governments have the authority to create such ordinances pursuant to the first paragraph of the Home Rule Act. This paragraph of the Home Rule Act also limits the circumstances under which local governments may grant an ordinance or resolution. 49 The government may only enact ordinances "for which no provision has been made by general law and which is not inconsistent with this Constitution."50 The limitations in the Home Rule Act are important when considering House Bill 362. The General Assembly has enacted numerous general laws, an entire chapter 5 in fact, governing the exercise of eminent domain by a utility. ' 46. Id. 47. Rabun County v. Ga. Transmission Corp., 575 S.E.2d 474 (Ga. 2003); Cobb County v. Ga. Transmission Corp., 578 S.E.2d 852 (Ga. 2003); City of Buford v. Ga. Power Co., 581 S.E.2d 16 (Ga. 2003); Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006).

48. Id. 49. GA. CONST. art. IX, ยง 2, 1.

50. Id. 51. See Official Code of Georgia Annotated, Chapter 22 (Eminent

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Included among these provisions are provisions specifying that it is "the province of the General Assembly to determine when the right of eminent domain may be exercised"52 and the condemning body shall initially decide whether property is necessary for the public use it is trying to achieve.53 Counties are not empowered to frustrate the purpose of a public utility by second guessing a utility's determination of necessity.5 4 The General Assembly has also enacted numerous other provisions to regulate and specify the rights, duties, and obligations of public utilities, including the right to condemn property. 5 Thus, these numerous general laws remove from a local government any authority to pass ordinances or resolutions approving the exercise of eminent domain of a public utility. While House Bill 362 would purport to require public utilities to seek approval of a condemnation, when the language is construed or interpreted along with other statutes which are more specific and place greater limitations upon regulations of eminent domain (even at the state level), the local government would be extremely limited in what circumstances, if any, they could deny a condemnation based upon this limitation in the Home Rule Act. The Home Rule Act contains specific areas where local governments are exempted from acting. In the same paragraph which grants the local governments the authority to enact reasonable ordinances, local governments are explicitly exempted from taking action which affects the exercise of eminent domain. 6 The courts have interpreted the meaning of this exclusion within the context of a public utility's eminent domain authority.

Recently, using authority granted under the Home Rule Acts, local governments enacted ordinances creating a moratorium on 58 construction of any high voltage power lines 57 and substations Domain).

52. O.C.G.A. ยง 22-1-3 (2008).

53. Forsyth County, 632 S.E.2d at 104; O.C.G.A. ยง 22-2-102.1 (2008) (condemning body shall be the exclusive judge of the necessity of the taking).

54. Forsyth County, 632 S.E.2d at 104.

55. See Official Code of Georgia Annotated, Chapter 46 (Public Utilities).

56. GA. CONST. art. IX, ยง II, $ I 57. Rabun County v. Ga. Transmission Corp., 575 S.E.2d 474 (three year moratorium on construction of high voltage power lines); Cobb County

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or placing permitting requirements on an electric utility prior to any construction. 59 Each time, utility companies quickly sought court intervention to determine the constitutionality of the ordinances. 60 The ordinances did not directly address the ability of a utility company to acquire property using their eminent domain power.6 ' Instead, the ordinances prohibited the utility from constructing or installing equipment for a specific period of time.62 This however, according to the court, meant that the local government was attempting to prevent use of the land the utilities were taking pursuant to their eminent domain authority.

Relying on the exemption in the Home Rule Acts, Georgia's Supreme Court consistently ruled that an ordinance which infringes on a utility's acquisition or use of property obtained through the exercise of their eminent domain authority offends this exemption in the Georgia Constitution.63 The court's rationale was not limited to a complete prohibition of construction or installation of equipment by a utility company. In Forsyth County v. Georgia Transmission Corp., the court held that an ordinance which required a utility to obtain a permit before seeking to condemn land also violated the Home Rule Act because the county retained an ability to deny the permit and thus interfered with the utility's ability to use the acquired land. 64 The court quickly dismissed the county's argument that the ordinance gave them a "self-imposed duty to... work cooperatively with" and assist the utility in obtaining the permit. 65 The court construed the exemption in the v. Ga. Transmission Corp., 578 S.E.2d 852 (Ga. 2003) (seven and one-half month moratorium on construction of above-ground high voltage power lines).

58. City of Buford v. Ga. Power Co., 581 S.E.2d 16 (one year moratorium on electric power substations).

59. Forsyth County, 632 S.E.2d 101 (overlay zoning district required public utility to obtain approval from county before constructing high voltage transmission line).

60. Rabun County, 575 S.E.2d at 475; Cobb County, 57 S.E.2d at 852; City of Buford, 581 S.E.2d at 591; Forsyth County, 632 S.E.2d at 102.

61. See Rabun County, 575 S.E.2d at 475; Cobb County, 578 S.E.2d at

852.

62.

63.

64.

65.

Id. Id. Forsyth County, 632 S.E.2d at 102.

Brief of Appellant at 9, Forsyth County v. Ga. Transmission Corp.,

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Home Rule Act to include not only initial actions which stop a utility's power to actually take the property, but the court also extended this exemption to include later actions which occur after the property is taken.66 The county further argued that requiring the utility to obtain a permit before taking property would only advance its position in a taking proceeding by giving the utility a stronger argument that the taking is for a public necessity. 67 This too was rejected by the court as the utility is not required to demonstrate necessity to the county. 6 The court specifically held that "the power to wholly preclude construction is an unconstitutional infringement on [the utilities] legislatively-delegated power of eminent domain. 69 In essence, local governments can enact no regulations which retain even the potential to prohibit an entity with eminent domain authority from using the land it has taken because doing so would offend the Home Rule Act in Georgia's Constitution.7 0 Finally, the court rejected an argument that the specific zoning power of a local government trumped the general prohibition on actions affecting eminent domain in the Home Rule Act.7' The court held that because the state granted public utilities the power of eminent domain, such delegation of power should exempt public utilities from local zoning laws.72 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL 5095872.

66. See id.

67. Brief of Appellant at 9, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (No. S06A0421 Nov. 28, 2005), 2005 WL 5095872.

68. Id. at 12.

69. Forsyth, 632 S.E.2d at 104.

70. Id. 71. Id. 72. Id. The rationale of this holding of the court could potentially be

subject to challenge, as the court's broad reading of utilities' general eminent domain authority arguably fails to comport with the court's prior

cases reiterating that eminent domain statutes and condemnation procedures should be strictly construed. See Dept. of Transp. v. City of Atlanta, 337

S.E.2d 327 (Ga. 1985). Other states have construed eminent domain statutes to find that a public utility is not immune from local regulations unless a statute specifically says so. See Potomac Edison v. Jefferson County Planning and Zoning Comm'n, 512 S.E.2d 576, 581 (W.Va. 1998) (utility is subject to county land use regulations) (Georgia's Supreme Court expressly

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Because a municipality's Home Rule Authority is statutory rather than grounded in the constitution,73 the court has not based its analysis on the Constitutional Home Rule Act provision. The court has, however, reached the same result with a municipality as they have with counties.74 Much like the Constitutional Home Rule Act for counties, the statutory Home Rule Act for a municipalities states that municipalities may not enact any ordinances which affect the exercise of eminent domain. 75 The statutory Home Rule Act also provides express preemption over areas regulated by the Public Service Commission. The court has combined this provision with the language in the Constitution requiring that state statutes shall control over local ordinances. 76 Because the Constitution expressly provides that "no local or special law shall be enacted in any case for which provision has been made by an existing general law", local governments are preempted from enacting ordinances regulated by the Public Service Commission.7 7

Therefore, although a municipality's Home Rule Authority is derived primarily from statutes, constitutional provisions coupled with these statutes still prevent a municipality from enacting regulations which affect a public utilities' eminent domain authority.

declined to follow this case in Forsyth County v. Georgia Transmission Corp., 632 S.E.2d 104 (2006)); Stopaquila.org v. Aquila, Inc., 180 S.W.3d 24, 41 (Mo. App. W.D. 2005) (electric utility must comply with county zoning regulations). Even if it were challenged however, zoning could never be used to prevent a utility from utilizing property they have already acquired. As discussed infra, part IV. 73. The Constitutional provision on municipal home rule is more general and broad than the provision for counties, stating instead, "the General Assembly may provide by law for the self-government of municipalities and to that end is expressly given the authority to delegate its power so that matters pertaining to the municipalities may be dealt with without the necessity of action by the General Assembly." GA. CONST. art. IX, ยง 2, T2.

74. City of Buford v. Ga. Power Co., 581 S.E.2d 16 (Ga. 2003).

75. O.C.G.A. ยง 36-35-3 (2008).

76. City of Buford, 581 S.E.2d at 18.

77. Id. at 17, citing GA. CONST. art. III, ยง 6, 4(a) (The court held that, despite the fact that the Public Service Commission may not have rules and regulations in effect to regulate a public utility does not negate the granting of authority to them by the legislature.).

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2. House Resolution 70 House Resolution 70 purports to amend Georgia's constitution to provide that local governments shall approve a condemnation by ordinance or resolution.78 If ratified by voters House Resolution 70 would amend the Eminent Domain section of the Constitution, not the Home Rule Act section.7 9 The proposed ordinance does not grant the local government the authority to pass an ordinance approving condemnations. It only requires the condemning body to obtain approval from a local government. 80 Therefore, the exemption in the Home Rule Act would remain in the constitution and potentially exclude local governments from enacting any ordinance which affects the exercise of eminent domain. Because the language of House Resolution 70 specifically addresses condemnations pursuant to the power of eminent domain, this could create a conflict between the eminent domain section of the Bill of Rights in the Constitution and the Home Rule Act section of the Constitution.

When the General Assembly enacts potentially conflicting constitutional provisions, courts can interpret the conflicts to give effect to the last enacted constitutional amendment and thus impliedly modify or repeal the conflicting prior constitutional provision."' However, courts do not favor finding a repeal of constitutional provisions by implication.8 2 A repeal should be found only where there is an irreconcilable conflict and the two provisions cannot reasonably stand together.8 3 Constitutional provisions relating to the same matter must be harmonized and construed together if possible. 84 Finally when

78. H.R. 70.

79. Id. (to amend Article 1, Section III, Paragraph I of the Constitution).

80. Id. 81. Copeland v. State, 490 S.E.2d 68, 73 (Ga. 1997), citing Birdsey v.

Wesleyan College, 87 S.E.2d 378 (Ga. 1955) ("When an amendment to the Constitution has been proposed by the General Assembly and ratified by the voters, the amendment will not be declared void on the ground that it does not accord with some other provision of the same Constitution. If an amendment, duly adopted, is in conflict with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision").

82. McLennan v. Aldredge, 159 S.E.2d 682, 686 (Ga. 1968).

83. McLucas v. State Bridge Bldg. Auth., 77 S.E.2d 531 (Ga. 1953).

84. Copeland,490 S.E.2d at 71.

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construing the Home Rule Act, the Court has consistently applied a strict construction and construed any doubts against the local government.85 Using these interpretational principles, if voters pass and approve House Resolution 70, the Court should attempt to harmonize the prohibition in the Home Rule Act with the new provision in the Bill of Rights section. Pursuant to the proposed amendment, condemnations of private property shall be approved by an ordinance or resolution in the locality in which property to be condemned is located.86 It does not grant a local government authority to act. Instead, it serves as a limit on actions of the condemning body. The location of the amendment in the Bill of Rights section of the Constitution further supports this interpretation.87 The Bill of Rights section protects an individual's person and property, 88 by limiting the actions of both state and local government.8 9 The Bill of Rights section of the Constitution is not the only limit on actions of local government. The Home Rule Act is another provision of the Constitution which further defines and limits the authority of local governments to enact ordinances or resolutions. 9° Such authority shall not extend to matters affecting the exercise of eminent domain. 91 Thus, in addition to provisions in the Bill of Rights regarding private property, counties are further limited in passing ordinances or resolutions which affect the exercise of eminent domain.92 With this consideration in mind, the court should view this provision as an additional limit on the actions of a local government. The proposed amendment could serve as a supplement to other constitutional limitations on local governments and thus further limit actions of the local government. As the local governments 85. See, Sentell, supra note 36 at 148.

86. H.R. 70.

87. H.B. 362; H.R. 70.

88. GA. CONST. art. I, §3, 1; see also GA. CONST. art. I, §1, 2 ("Protection to person and property is the paramount duty of government and shall be impartial and complete").

89. See Toombs County v. O'Neal, 330 S.E.2d 95, 98 (Ga. 1985).

90. See Dept. of Transp. v. City of Atlanta, 337 S.E.2d 327, 332 (Ga. 1985).

91. GA. CONST. art. IX, § 2, l(1)(c)(6).

92. Id.

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have no authority to act in a way that affects the exercise of eminent domain, local governments could only pass ordinances for areas which they can regulate. 93 In a dispute between a local government and a public utility company, Georgia's Supreme Court recently interpreted conflicting constitutional provisions against the limited powers of a local government.94 The court interpreted the conflicts in a manner that gave full effect to the exemptions in the Home Rule Act, particularly the eminent domain exemption. 95 The language of House Resolution 70 further bolsters this proposition. Unlike the language of the bill intended to amend Georgia's eminent domain code which was sponsored by the same legislator, the resolution does not specify that it applies to condemnations by public utilities.96 Based upon the nature of a public utility providing service throughout multiple localities, coupled with the history of resistance for local government regulation in Georgia, the exception in the Home Rule Act should remain fully enforceable and prohibit localities from enacting regulations which affect the eminent domain authority of a public utility. 97 This provision serves as a means to prevent

93. See id.

94. Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101, 104 (2006).

95. See Id. (denying argument that specific zoning authority trumped general eminent domain exemption of Home Rule Act because they were parts of the same constitutional section and because doing so would render the exemption meaningless); see also Sentell, supra note 36 (Georgia courts typically construe the exemptions narrowly and against the local

government).

96. H.R. 70.

97. See Nolan v. Central Ga. Power Co., 67 S.E. 656 (Ga. 1910) (generation of electrical power is a public benefit and is capable of being

carried over long distances providing a large capacity of service of customers with this public benefit). Similar states have followed a rationale which limits local control of eminent domain authority of a public utility. See e.g.

Darlage v. Eastern Bartholomew Water Corp., 379 N.E.2d 1018 (Ind. App. 1978), citing Graham Farms Inc. v. Indianapolis Power & Light, 233 N.E.2d

656 (Ind.1968) (utility held generally immune from zoning regulations); Pa. Power Co. v. Township of Pine, 926 A.2d 1241, 1252-1253 (Pa. Commw.

Ct. 2007) ("Local authorities not only are ill-equipped to comprehend the

needs of the public beyond their jurisdiction, but, and equally important, those authorities, if they had the power to regulate, necessarily would

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a local government from denying citizens in another locality the service generated by the utility. 9 For this reason, interpreting the constitutional provisions in a manner which maintains the exemption in the Home Rule Act furthers the spirit of the Home Rule Act and local regulations in Georgia. 99 Unless the Home Rule Act is specifically repealed or modified, courts should continue to interpret conflicting constitutional provisions in a manner that makes condemnations by a public utility exempt from local government regulation.

Georgia's Supreme Court recently reaffirmed that a public utility is generally granted a protected status with respect to local regulation: because of the greater public welfare which utilities serve and because "their facilities must often be located in areas which would otherwise not be the most suitable from the standpoint of customary zoning criteria .... [facilities...] must often be located in residential zones in order to properly provide service, even though they might tend to adversely affect property values or change the character of a neighborhood." 100

The court has consistently held that "[a local government] cannot by ordinance impose upon a public utility essential to the welfare of the people, conditions of operation or maintenance of exercise that power with an eye toward the local situation and not with the best interests of the public at large as the point of reference"); Town of E. Greenwich v. O'Neil, 617 A.2d 104, 109 (R.I. 1992) (local government preempted by state statutes from enacting ordinances affecting electric utility).

98. See Sager A. Williams, Jr., Limiting Local Zoning Regulation of Electric Utilities: A BalancedApproach in the Public Interest, 23 U. BALT. L. REv. 565 (1994) (arguing that because regulations by municipalities often go too far and deprive others of the benefits provided by the utility, a balanced regulatory framework with local input is the appropriate course of action).

99. See, Sentell supra, note 36 at 131, discussing Gwinnett Co. v. Yates, 458 S.E.2d 791 (Ga. 1995) (discussing another exemption in the Home Rule Act interpreted to further a peace keeping function within the local government and with the state and local government).

100. Ga. Public Service Comm'n v. Turnage, 669 S.E.2d 138, 139 (Ga. 2008), citing 4 EDWARD H. ZIEGLER, JR., ARDEN H. RATHKOPF, AND DAREN A. RATHKOPF, RATHKOPF'S THE LAW OF ZONING AND PLANNING ยง 78:2 (4th ed.) (2008) (correction to original source).

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its property, which would confiscate or destroy its power to serve the public."' 0 1 Thus, Georgia's Supreme Court has reiterated that enacting regulations which interfere with the eminent domain authority of a utility violates Georgia's Constitution. Georgia's legislature should not abandon this protection of all citizens.

IV. REGULATIONS BY LOCAL GOVERNMENTS AND REGULATORY TAKINGS

In addition to the Home Rule Act, Georgia's Constitutional provision against taking property without just and adequate compensation also serves as a limit on the actions of local governments. 0 2 Given the unique and limited nature of land acquired by a public utility, local government regulations could trigger this constitutional provision. A utility acquires property for a public purpose, and the utility is limited in the uses to which it can put a piece of property. When local government regulates the land owned by a public utility, more difficult issues are raised than with regulations applicable to a typical property owner. Local governments are entitled to regulate use of private property within their districts, but such 0 regulations 3 may not go too far or they could amount to a taking.

Prior decisions of the Georgia Supreme Court provide an apt illustration of the effect local government regulations have on a public utility and its property. In 2004, a public utility was in the process of acquiring property throughout two Georgia counties in order to construct a new high voltage power line to provide service to customers in rapidly growing Forsyth County."04 After the utility had acquired property and began construction, Forsyth County enacted an ordinance which required the utility to obtain approval from the county before

101. City of Doraville v. Southern R. Co., 181 S.E.2d 346 (Ga. 1971) (attempt by municipality to regulate location of railroad switching yard was preempted by state laws granting regulation of the utility to a state agency) (cited in Rabun County v. Ga. Transmission Corp., 575 S.E.2d 474, 477(Ga.

2003)).

102. Ga. Const. Art. I, ยง3, 1.

103. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922); Mann v. Dep't of Corrections, 653 S.E.2d 740 (Ga. 2007).

104. Forsyth County, 632 S.E.2d at 103.

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beginning any construction. °5 Ultimately, the utility did not seek county approval, but instead, sought court declaration that such ordinance violated the Home Rule Act, and the court agreed.10 6 However, had the utility sought issuance of and been denied the permit, a different result could have occurred. The utility would have possessed land which it was wholly precluded from constructing necessary equipment upon. 107 The county argued that it should be allowed to treat a public utility like any other developer. 0 8 At first blush, this analogy seems logical. It is true that, like a developer, a public utility does purchase a piece of property (either through a voluntary sale or through eminent domain). After the purchase, like any other developer, a utility also maintains a property right in the parcel. However, a significant factual distinction arises when dealing with a public utility. A utility's right to acquire property is limited by statute-it may only acquire property which is necessary for the utility to achieve its purposes. 0 9 Unlike a typical developer, the utility can only use property obtained via their eminent domain authority for a public purpose. 1 0 Local action's which deprive the utility of the ability to engage in these statutory uses, therefore, could constitute a taking of the property without just compensation.

The Court has hinted at this result in prior cases which determined local control of public utilities. The court expressed a concern that the utility "would be in danger of losing a valuable property right as a result of enforcement of the unconstitutional ordinance.""' Further, in one of the earliest Georgia cases to decide local regulation of public utilities'

105. Brief of Appellant at 4, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL 5095872.

106. Forsyth County, 632 S.E.2d at 103.

107. See id. at 104.

108. Brief of Appellant at 19-20, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL

5095872.

109. See, Banks v. Ga. Power Co., 481 S.E.2d 200, 203 (Ga. 1997), citing Piedmont Cotton Mills v. Georgia Ry. Elec. Co., 62 S.E. 52 (1908); see also statutory text recited supra note 22.

110. GA. CONST. art. I, §3, l.

111. Cobb County v. Ga. Transmission Corp., 578 S.E.2d 852 (Ga. 2003).

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eminent domain authority, the Court stated that "a municipality cannot by ordinance impose upon a public utility essential to the welfare of the people, conditions of operation or maintenance of its property, which would otherwise confiscate or destroy its ' power to serve the public."112 The court has acknowledged a utility's importance to society and the value of their property rights. Thus, the Court has already suggested a willingness to consider a challenge against local government regulations as a regulatory taking.

A. Regulatory Takings Law Following recent Supreme Court precedent, challenges against local regulations as a regulatory taking could potentially fair better than in previous years. 1 3 This has already proven true in Georgia. In 2007, a unanimous Georgia Supreme Court held in Mann v. Department of Correctionsthat a state statute which gives the government authority to constantly oust an individual from his property violated the takings clause of the United States and Georgia Constitutions." 4 The Mann case arose when a registered sex offender, Anthony Mann, challenged a state statute that required him to vacate his residence if a statutorily specified entity moved within 1,000 feet of his home." 5 The result in this case is significant. Prior to this case, regulatory takings challenges in Georgia were often denied by Georgia's Supreme Court." 6 The court frequently was divided in those 112. City of Doraville v. S. Ry. Co., 181 S.E.2d 346, 351 (Ga.1971).

113. See D. Benjamin Barros, At Last, Some Clarity: The Potential LongTerm Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 ALB. L. REV. 343 (2005) (Lingle has "a silver

lining for property rights advocates," as arguments that a regulation further a "really important purpose" are no longer applicable in a takings challenge).

114. Mann v. Dept. of Corrs., 653 S.E.2d 740 (Ga. 2007). The decision was unanimous in declaring the residency restrictions an unconstitutional

regulatory takings. The Court rejected a takings analysis as applied to the Defendant's employment in which two justices filed a special concurrence.

115. Id. 116. See, e.g., Greater Atlanta Homebuilders Ass'n v. Dekalb County, 588 S.E.2d 694 (Ga. 2003) (tree preservation ordinance did not offend takings clause, but see dissent arguing that ordinance violated takings clause using an exactions analysis), City of Atlanta v. TAP Assoc., 544 S.E.2d 433 (Ga. 2001) (three dissenting justices argued the zoning of petitioner's property did not substantially advance overall goals of the zoning

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opinions and most of the dissent centered around which legal 7 test should be applied to determine if a taking had occurred.' 1 When the Mann case reached Georgia's Supreme Court, the Court reiterated that "government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster-and that such "regulatory takings" may be compensable under the Fifth Amendment.""' The basis for this language came from Lingle v. Chevron, U.S.A., a recent United States Supreme Court opinion which, in the view of many scholars, brought clarity to takings challenges."19 In Lingle, the United States Supreme Court overruled application of a test which examines whether a regulation substantially advances legitimate state interests. 20 Instead, the Court stated such a test "revealed nothing about the magnitude or character of the burden a particular regulation

regulation), Parking Ass'n of Ga., Inc., v. City of Atlanta, Ga., 450 S.E.2d 200, 203 (Ga. 1994), cert. denied, 515 U.S. 1116 (1995) (majority denied takings claim based on balancing test; dissent argued balancing test inappropriate and applied an exactions analysis instead), Turner v. City of Atlanta, 357 S.E.2d 802 (Ga. 1987) (majority denying takings claim because property owner did not show detriment, but see dissent arguing taking of property occurred when city down-zoned commercial property); but cf Lamar Advertising v. City of Albany, 389 S.E.2d 216, 217 (Ga. 1990) (sign ordinance which required removal of signs was an unlawful taking without compensation), Duffield v. Dekalb Co., 249 S.E.2d 235 (Ga. 1978) (property owner alleged sufficient facts to state a claim for inverse condemnation based on alleged noise and odors which interfered with right to use, enjoy and dispose of property).

117.Id. 118. Mann, 653 S.E.2d at 743.

119. See Dale A. Whitman, Deconstructing Lingle: Implications for Takings Doctrine, 40 J. MARSHALL L. REV. 573 (2007) (arguing that by eliminating the character of the government action prong, Lingle simplifies and rationalizes takings in a desirable way); Michael B. Kent, Jr., Construing the Canon:An Exegesis of Regulatory Takings JurisprudenceAfter Lingle v.

Chevron, 16 N.Y.U. ENVTL. L.J. 63 (2008) ("by establishing an authoritative 'canon' of regulatory takings decisions, the Lingle Court made great strides toward clarifying its jurisprudence in this area of constitutional analysis"); D. Benjamin Barros, At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 ALB. L. REV. 343 (2005) (arguing that the Supreme Court recently provided some clarity to the takings doctrine).

120. Lingle v. Chevron U.S.A., Inc, 544 U.S. 528, 542 (2005).

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imposes upon private property rights."' 2 1 Many regulatory takings cases in Georgia had applied this same test to deny a 2 regulatory taking. 12 The Lingle Court reiterated that there are essentially three tests to determine "regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain."1 23 Facts which satisfy the first two tests are per se takings: first, the government requires the owner to suffer a permanent physical invasion of his property 124 or second, the government restricts the property to an extent that they deprive25 the owner of all economically beneficial use of their property. 1 Finally, takings challenges which factually do not fall within one of the prior categories are determined under an ad hoc factor balancing test which considers the economic impact of a regulation on a claimant, the extent to which the regulation has interfered with distinct investment backed expectations and the character of the government action. 126 Thus, when the Mann case reached Georgia's Supreme Court in 2007, the Lingle opinion had disavowed a test which Georgia had applied in many regulatory takings challenges 127 and provided some clarification to help courts discern which test should be 128 applied.

The Mann court began their analysis by reiterating that 121. Id. 122. See Parking Ass'n of Ga., Inc., v. City of Atlanta, 450 S.E.2d 200, 203 (Ga. 1994), cert. denied, 515 U.S. 1116 (1995) (majority denied takings claim because the ordinance advanced legitimate governmental interests);, see also Gradous v. Bd. of Comm'rs, 349 S.E.2d 707 (Ga. 1986) (reciting where plaintiff has burden of showing regulation has a insubstantial benefit to the public).

123. Lingle, 544 U.S. at 539.

124. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (law requiring landlords to place cable equipment in their buildings effected a taking because it was a direct physical invasion of the property by

the government).

125. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992) (prohibiting property owner from placing any developments on his land was a taking because it deprived him of all use of the parcel).

126. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).

127. See cases recited supra note 116.

128. See Barros, supra note 113.

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"regulations that fall short of eliminating property's beneficial economic use may still effect a taking, depending upon the regulation's economic impact on the landowner, the extent to which it interferes with reasonable investment-backed expectations, and the interests promoted by the government action."12 9 In applying these factors, the Court found several facts significant in its takings analysis. First, the statute prevented Mann from using the property for its intended purpose thus causing a strong economic impact. Second, the scope of the regulation spanned the entire state and precluded Mann from having any reasonable investment backed expectations in his property. 30 Third, relying on the Lingle decision, the Court expressed doubt that the final factor was even relevant in a takings analysis. Instead the Court "[assumed] arguendo, that the substantiality of the public purpose advanced by the regulation is still pertinent to a takings challenge."1 31 The Court's application of this factor at a minimum shows that it bears far less weight than the other two factors after Lingle.' 32 Therefore, following Lingle and Mann, challenges to local government regulations as a regulatory taking in Georgia will focus less, if at all, on the character of the government's action. Instead, courts should examine the impact of the (presumably valid) government action on a property owner.

129. Mann v. Dept. of Corrs., 653 S.E.2d 740 (Ga. 2007).

130. Id. 131. Id. The court's assumption on this factor is of particular significance.

Commentators are uncertain regarding the effect of government action following Lingle. Some commentators argue that the last factor creates a presumption in favor of the government. Others argue it is no longer relevant in the analysis at all. See Whitman, supra, note 119 (arguing according to Lingle, the only focus is on the regulation's impact on the owner but character of government action is relevant for background principles which apply to all takings and are inseparably intertwined with the aims, objectives, and purposes of the governments action); Barros, supra, note 113 (stating, "the character of the government act generally should have no role in a takings analysis." The author recognizes narrow exceptions to this general rule as stated in Lingle, including abatement of common law nuisances and per se physical invasions. He then concludes the next paragraph by stating, "post-Lingle it is clear that takings law presumes that the government will not affect property for really silly reasons").

132. Mann, 653 S.E.2d at 745.

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B. Regulations Which Amount to a Per Se Taking of Property Without Just Compensation The United States Supreme Court has held, "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking."' 133 The Court views this as a per se taking. 3 4 Local governments have, on separate occasions, attempted to wholly preclude'3 5 and completely prohibit construction on utilityowned property. 136 In many of these cases, the utilities acquired property as part of an overall plan traversing numerous counties and cities. 37 The economically beneficial use of the land is fulfillment of the plan for which the property was acquired.

Georgia's statutes prohibit the utility from putting the land to any use other than that necessary for construction or operation of their plan.' 38 Had the local governments been successful in their prior attempts (i.e. had the Court not declared such acts unconstitutional under the Home Rule Act), then the utility companies would have been left with property it could not use for any purposes. In essence, the local regulations would have deprived the utility of all economically beneficial use of land.

A public utility has limited use for property. The property must further the needs of the service provided by the utility

133. Lucas v. S. C. Coastal Council, 505 U.S. 1003 (1992) (emphasis in

original).

134. Id; Lingle, v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005).

135. Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga.

2006).

136. Rabun County. v. Ga. Transmission Corp., 575 S.E.2d 474, 476 (Ga. 2003).

137. Forsyth County, 632 S.E.2d at 102.

138. See O.C.G.A. ยง 22-3-20 (2008) ("any person operating or

constructing or preparing to construct a plant for generating electricity shall have the right to purchase, lease, or condemn rights of way or other

easements over the lands of others in order to run power lines, maintain dams, flow backwater, or carry on other activities necessary for constructing and operating such a plant provided that the person first pays just compensation to the owner of the land to be affected"); O.C.G.A. ยง 46-3-201 (2008) (an electric membership corporation shall have power to acquire "all interests in realty necessary and appropriate to effectuate the purposes of such electric membership corporation").

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company. 13 9 The deprivation of all economically beneficial use of the land is compounded when one considers the nature of property used by a public utility. Placement of the lines often spans multiple counties 40 and is part of an ongoing lawful 14 enterprise to provide the public with much needed services. ' Regulations which give local governments the ability to deny construction on property acquired by a utility would interfere with this ongoing plan and could affect both property and members of the public outside of the locality which denies the permit. Regulations which have the effect of destroying a substantial part of a lawful enterprise effects a taking of property. 142 As the law stands now, because of the exemption in the Home Rule Act, local governments may not regulate how a public utility uses property acquired by them via eminent domain. As such, they can not effect a taking of property. If amended, however, Georgia's General Assembly could give local governments a mechanism to regulate too far. Georgia's constitutional protection against taking property without just and adequate compensation does not make distinctions between property owned by a private individual and property owned by a public utility company. 43 As such, these Constitutional provisions apply with equal force to land owned by a public utility.

C. Regulations Which Amount to the FunctionalEquivalent of a DirectAppropriation Even if the regulation does not deprive the utility of all economically beneficial use of their property, local regulations depriving the utility of use of the property could be the functional equivalent of a taking. "Regulations that fall short of eliminating property's beneficial economic use may still effect a 139. See O.C.G.A. ยง 22-3-20 (2008); O.C.G.A. ยง 46-3-201 (2008).

140. See Brief of Appellants at 4, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL 5095872 (project which was already commenced spanned 15 mile swath

through both Cherokee and Forsyth Counties).

141. See Jones v. N. Ga. Elec. Co., 54 S.E. 85, 89 (1906).

142. Lamar Advertising v. City of Albany, 389 S.E.2d 216, 217 (Ga. 1990).

143. See Dept. of Transp. v. Scott, 492 S.E.2d 216, 217 (Ga. 2005) (Hunstein, J., dissenting).

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taking, depending upon the regulation's economic impact on the landowner, the extent to which it interferes with reasonable investment-backed expectations, and the interests promoted by the government action."'"

The economic impact of the regulation and particularly the extent to which that regulation interferes with the investment backed expectations of a property owner would bear great weight in a takings analysis.1 45 In consideration of these factors, several characteristics regarding the nature and use of property by a public utility company is significant. A utility acquires the property because it is necessary, useful and appropriate for their purposes. 14 6 Utility companies determine when property is needed to fulfill their purposes. 147 There may be numerous routes available, but the court has deferred to a utility in choice of a route. 48 The survey, planning and acquisition of property along the route which the utility needs can cost millions of dollars. 149 The utility passes the financial burden of designing a plan onto customers. 50 Government action which exaggerates or increases this burden, including actions which require a utility to relocate from their desired plan, could arguably lead to even greater liability in a takings analysis if the company could show that investors were denied a return on capital for property currently dedicated to a public use.' 5 ' Finally, based on the 144. Mann v. Dept. of Corrs., 653 S.E.2d 740 (Ga. 2007) citing Mann v.

State, 603 S.E.2d 283 (Ga. 2004).

145. Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005). ("primary

among [the Penn Central] factors are the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-back expectation.) internal citations omitted, emphasis added.

146. O.C.G.A. ยง 46-3-201 (b)(9).

147. O.C.G.A. ยง22-2-102.1 (the condemning body and not the governing authority is to be the exclusive judge of the necessity of the taking).

148. Hagans v. Excelsior Elec. Membership Corp., 60 S.E.2d 162 (Ga. 1950); Banks v. Ga. Power Co., 481 S.E.2d 200 (Ga. 1997).

149. See Brief of Appellee at 4, Rabun County v. Ga. Transmission Corp., 575 S.E.2d 474 (No. S02A1372 July 2, 2002).

150. See Chinn, supra, note 3.

151. Other courts have held that where government actions deprive a public utility investors' of a return on capital for property currently dedicated to public use, this is an unconstitutional confiscation of property. See 29A C.J.S. EMINENT DOMAIN ยง 127, citing Anaheim, Riverside, Banning, Colton,

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rationale in prior Georgia cases, it is doubtful that requiring a utility to sell and relocate would be sufficient to eliminate or minimize the economic impact of the regulation unless the utility specifically had this goal in mind when it acquired the 2 property. 11

The scope of local government regulations with the potential to force a public utility to abandon service plans in which it has invested numerous hours and substantial amounts of money "looms over every location" within the state.'53 Because property is acquired as part of an ongoing plan, the taking could be more than just one parcel or a few parcels in one locale.

Utilities' equipment and lines pass over numerous miles and localities to provide service to their customers pursuant to plans or routes drafted to fulfill their customers' needs.1 54 A taking by one county could affect the remainder of the route serviced or proposed to be serviced by a utility. If the action of the locality was of such a severe nature that it deprived the utility of the ability to continue with their plan, then the utility could hold other properties, outside of the locality, which have no economically beneficial use or suffer a severe economic impact, which would compound the economic impact on a utility.

Further, a lack of uniformity among neighboring counties where the utility must traverse to serve their customers could further impact the investment backed expectations of utility companies.'55 In Forsyth County, for example, the county passed the local regulation after the utility had already begun to acquire property in at least two counties to fulfill its multimillion dollar project. 5 6 The ordinance attempted to place limitations on the utility and ultimately, as viewed by the Court, and Azusa, Ca., v. Federal Energy Regulatory Comm'n, 669 F.2d 799 (D.C.

Cir. 1981).

152. See Mann v. Dept. of Corrs., 653 S.E.2d 740 (Ga. 2007).

153. Id. citing Mann v. State, 603 S.E.2d 283 (2004).

154. Brief of Appellant at 9, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421 Nov. 28, 2005), 2005 WL

5095872.

155. See Williams, supra note 98 (arguing that because regulations by

municipalities often go too far, a balanced regulatory framework with local input is the appropriate course of action).

156. Cross Brief of Appellee at 29, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421), 2005 WL 5095906.

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had the potential to stop it from completing the project. 57 The scope of such restrictions likely preclude a public utility from having any reasonable investment backed expectations in property it acquires or plans to acquire.'5 8 The Georgia Supreme Court expressed doubt as to whether the character of the government action is still relevant in a takings claim.'59 Even assuming arguendo, as the court did in Mann, this factor is still relevant, it is likely outweighed by the other factors. Although local governments may enact these ordinances pursuant to their police power, after Lingle, it is clear that this type of argument has no place in a takings analysis. 60 Even if you presume these actions are valid, the character of the government action in this circumstance has a negative consequence.' 6' In Forsyth County, for example, when enacting the ordinance the county was aware that the utility could ultimately hold property which they could not use and ' ' 62 thus invest millions of dollars as a "wasteful expense.

Because of the nature of public utilities, such expense gets passed onto the customers. Further, utilities attempted to acquire property in the past to expand their services. 63 They determined that without expanding their equipment, customers will suffer from deprivation of service.' 64 By providing local control, the 65 legislature could potentially deprive the public of a benefit.

Thus, even if the government action is presumed valid in enacting the ordinances, the negative consequence of the action could cause this factor to weigh against the local government.

157.

158.

2007).

159.

160.

(2005).

161.

Id. Id; see also Mann v. Dept. of Corrs., 653 S.E.2d 740, 743 (Ga. Mann, 653 S.E.2d at 744.

Id. at fn 7, citing Lingle v. Chevron U.S.A., Inc, 544 U.S. 528 See, Kent supra note 119 at 101 (in takings challenges, the focus is

on the consequences of the action, not on the reasons for the action).

162. Brief of Appellant at 4, Forsyth County v. Ga. Transmission Corp., 632 S.E.2d 101 (Ga. 2006) (No. S06A0421), 2005 WL 5095872.

163. Brief of Appellee at 3, Forsyth County, 632 S.E.2d 101 (Ga. 2006) (No. S06A0421), 2005 WL 5095873.

164. Rabun County v. Ga. Transmission Corp., 575 S.E.2d 474 (Ga. 2003).

165. Jones v. N. Ga. Elec. Co., 54 S.E. 85, 89 (Ga. 1906); Nolan v.

Central Ga. Power Co., 67 S.E. 656 (Ga. 1910).

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When viewed in this manner, local regulation of public utilities poses a substantial economic impact upon the utility.

The regulations affect not only the public utility company but also the residents within the utility's service area. Allowing local governments to enact regulations might at first blush seem like a plausible idea. When examined more closely, however, these regulations do not protect property rights. Instead, they could deprive the public utility of their property rights and the public of utility services by perfecting a taking of property without just compensation.

V. CONCLUSION

Georgia's current law prohibits local governments from regulating when a public utility can acquire land. Because of the nature of a public utility and benefit provided by it, such prohibitions should remain. Even if such regulations were allowed, it would be difficult for a local government to regulate a public utility's use of land without effecting a taking.

Although citizens may be upset that their property is taken or that unsightly equipment may be placed in their neighborhood, regulations by a local government raise far greater concerns for both the utility company and other citizens. State and local governments should consider the implications of such regulations before acting.

Amanda R. Gaddis*

*

J.D. Candidate, May 2009, John Marshall Law School; B.A., Kennesaw

State University. The author would like to thank Amelia Ragan and Amanda Dixson for their astute editing assistance, and Professor Michael Kent for his invaluable feedback and guidance.

ACKNOWLEDGING A GEORGIA FARMER'S PROPERTY INTEREST IN WATER The notion of private property is fundamental to the existence of our

Nation. It is a fundamental duty of the government to protect, rather than to destroy, personal property.' Every man has the right to enjoy his property to the fullest extent; and whenever that right is invaded by another and injury accrues to him, and therefore he is entitled to damages. 2

I. INTRODUCTION

Georgia's current law regarding use and regulation of water which flows on private property is susceptible to divergent interpretations regarding whether water itself, or merely the use of water by farmers constitutes a property right subject to divestment through eminent domain, or whether water is a public resource subject to regulation in the public interest. If the water rights of farmers are subject to divestment through eminent domain, then application of the takings clauses of the Georgia and Federal Constitutions is required.

Historically, "Georgia has been blessed with an abundant supply of water."3 However, "increased water consumption, as well as an extended drought from 1998 until 2002, has made it clear that water is a finite resource."4 As these conditions worsened in 2007, Governor Sonny Perdue declared a state of emergency due to this "drought of historic proportions. ' 1. Estate of E. Wayne Hage. v. United States, 82 Fed. Cl. 202, 208 (2008).

2. Price v. High Shoals Mfg. Co., 64 S.E. 87, 89 (Ga. 1909).

3. Georgia Water Coalition Frequently Asked Questions (FAQs) http://www.garivers.org/gawater/faqs.html (last visited Mar. 23, 2009). The Coalition was formed in 2002, and is an alliance of 150 organizations whose mission is to ensure that water is managed fairly for all Georgians, and protected for future generations.

4. Id. 5. Georgia's Governor DeclaredDrought Emergency, MSNBC, Oct. 20, 2007, http://www.msnbc.msn.com/id/21393296/.

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"According to the U.S. Census Bureau, from 1990 to 2000, the population in Georgia increased 26.4%, compared to the national increase of 13. 1%."16 Similarly, between 1990 and 2000, Greater "Atlanta added more than 1 million people and its water use climbed nearly 30 percent to about 420 million gallons per day. Now, metropolitan Atlanta boasts roughly 5 million people and projects an additional 2 million more by 2030, when water usage could climb past 700 million gallons per day."' "Agricultural water consumption in Georgia is 1,580 million gallons per day and accounts for 57.4 percent of all water consumed in the state." 8 This population increase, as well as the recent drought conditions, has strained Georgia's water supply.

II. AN OVERVIEW OF GEORGIA'S WATER LAW In the 1848 case of Hendrick v. Cook, the Supreme Court of Georgia declared a riparian regime, stating "[e]ach riparian proprietor is entitled to a reasonable use of the water, for domestic, agricultural and manufacturing purposes; provided, that in making such use, he does not work a material injury to the other proprietors." 9 Courts have consistently reiterated that a property owner has rights not only in his property, but also has a property right in the use of the water which runs through or on his property.' 0 In addition to riparian rights an individual has in the use of water flowing on his property, Georgia has a permitting system in place where large users of surface water must obtain a permit to withdraw the water." The act

6. Georgia Water Coalition 2006 Report 1, http://www.garivers.org/ gawater/pdf%2Ofiles/waterreportfinalversion.pdf (last visited Dec. 8, 2008).

7. GeorgiaFarmersSee Water Hogs in Atlanta, MSNBC, Nov. 14, 2007, http://www.msnbc.msn.com/id/21793386/. (last visited Apr. 14, 2009).

8. Georgia Water Coalition Frequently Asked Questions (FAQs), supra note 3.

9. 4 Ga. 241, 256 (1848) (emphasis in original).

10. See Price v. High Shoals Mfg. Co., 64 S.E. 87, 89 (Ga. 1909).

11. Surface Water Act. The language in O.C.G.A. ยง 12-5-105 discussing water withdrawal rights of groundwater closely parallels and is extremely similar to the surface water withdrawal permit system found in O.C.G.A. ยง 12-5-3 1. Accordingly, water rights will refer to both groundwater rights and surface water rights for the purposes of this comment.

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specifically distinguishes between farmers and non-farmers.12 Unlike non-farmers, when a farmer obtains a permit pursuant to the terms of the act, his permit grants him unlimited use of the water.13 Moreover, his permit is irrevocable, fully transferable, and unlimited in duration.' 4 When compared to the traditional attributes of property, the permit seems to reinforce that the holder of the permit has a property right for the use, transfer, and exclusion of the water on his property, particularly in light of Georgia's riparian regime. In enacting the statutes governing water allocation permits, the state legislature did not overturn Georgia's riparian tradition. Moreover, a literal interpretation of such statutes conveys to the farmers a private property interest in the use of water.

Recently, as Georgia's population has grown and drought conditions worsened, considerable debate concerning the managing of the surface and ground waters in the state has arisen. Scholars, 5 as well as environmental action groups, such as the Georgia Water Coalition, believe that the "surface and ground waters must be managed as a public resource, regulated by the state in the public interest, and in a sustainable manner." 16 A closer view of these groups' agendas, however, reveals that such groups have misinterpreted Georgia's prior case law, and attempted to re-characterize water use as a public, instead of a private right.

A recent Nevada case decided by the United States Federal Claims Court held that the government's regulatory actions amounted to a taking, because they interfered with the plaintiff's use of the water.17 Similar results could occur in Georgia if regulations were to interfere with a landowner's interest in the use of the water which comes upon his land.

12. See O.C.G.A. §§ 12-5-31 and 12-5-105 (2008).

13. Id. 14. Id. 15. John L. Fortuna, Water Rights, Public Resources, and Private Commodities: Examining the Current and Future Law Governing the Allocation of Georgia Water, 38 GA. L. REV. 1009 (2004).

16. Georgia Water Coalition Frequently Asked Questions (FAQs), supra

note 3.

17. Estate of E. Wayne Hage v. United States, 82 Fed.Cl. 202 (2008).

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A. Two Theories of Water Allocation In the United States, two theories of water allocation have developed in order to govern the rights of citizens to use water: the riparian theory and the theory of prior appropriation. The theory of riparian rights dominates in the states east of the Mississippi River, where, traditionally, water has been abundant. The classic theory of riparian rights has been stated as follows: Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was ... to run, without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to diver it, or a title to some exclusive enjoyment.

He has no property in the water itself, but a simple usufruct while it passes along... Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. I8 Riparian rights are "usufructory" in nature. 19 A usufructory right entitles one to use and enjoy the fruits of another's property for a period without damaging it or diminishing it, although the property might naturally deteriorate over time.2 0 A riparian owner thus does not own the water as it flows in a stream, but merely the right to use the water while it flows over his property, so long as he returns it to its normal course.2 ' Given the usufructory nature of water of riparian rights, they are necessarily tied to ownership of land abutting a water source. 2

18. A.

DAN TARLOCK, LAW OF WATER RIGHTS AND RESOURCES

ยง 3:7

(Marie-Joy Paredes & Lisa A. Fiening eds., 2008) (quoting 3 JAMES

KENT,

COMMENTARIES ON AMERICAN LAW

617-22 (13th ed. 1888)).

19. Id. 20. BLACK'S LAW DICTIONARY 1580 (8th ed., 2004).

21. TARLOCK, supra note 18, at ยง 3:9; see also Ctr. Townhouse Corp. v.

City of Mishawaka 882 N.E. 2d 762, 768 (Ind. App. 2008) ("A riparian landowner does not own the water in a stream that runs along his property, but he does own the right to the reasonable use of the stream as part of the title to his real estate.").

22. See Crawford Co. v. Hathaway, 93 N.W. 781, 792 (Neb. 1903) ("The

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Acknowledging Farmer'sProperty

A riparian owner may use the waters flowing over his property, so long as such use is reasonable, as most states have adopted a reasonable use rule. 3 The details of the reasonable use rule vary in different states, but regardless of the approach, the central theme is to ensure that a particular riparian owner's use of the water is not detrimental to the uses of other riparian owners. "Each riparian owner... has the right to the use of the stream, so long as such right does not interfere with the rights of other riparian owners to do the same."24 Riparian owners essentially serve as a check on each others uses.

The prior appropriation theory of water rights developed in the western United States, where water is less readily available.

"The central goal of the prior appropriation doctrine has always been to provide for the consumptive use of water." 5 The theory was born out of the customs of the California miners, who settled disputes over the use of water "by simple priority rules."2 6 Prior appropriation law is premised upon the principle of "first in time, first in right. 21 7 Unlike the riparian system, prior appropriation rights are not tied to the ownership of riparian land, but rather, are dependent upon an appropriation of water from a source, and application of that water to a beneficial use.2 8 Prior appropriation doctrine allows "a water user to divert water over another's property. 29 B. Common Law Doctrine of RiparianRights in Georgia Since Hendrick, Georgia has recognized a riparian regime.3 0

riparian owner acquires title to his usufructuary interest in the water when he appropriates the land to which it is an incident, and when the right is once vested it cannot be divested except by some established rule of law.").

23. TARLOCK, supra note 18, at § 3:12.

24. Ricci, Boenning, and Pasko. Battles Over Eastern Water, 21 SUM NAT. RESOURCES & ENV'T 38, 38 (2006).'

25. Christopher L. Len, Synthesis - A Brand New Water Law, 8 U. DENV. WATER L. REV. 55, 62 (2004).

26. TARLOCK, supra note 18, at § 5:3.

27. Fortuna, supra note 15, at 1022.

28. TARLOCK, supra note 19, §§ 5:24 - 5:30.

29. Len, supra note 25, at 62 (citing Bruce Barcott, There's an Old Saying in Colorado: You Can Steal My Wife, but Not My Water, LEGAL Aug. 2004, at 48-49).

30. Hendrick v. Cook, 4 Ga. 241 (1848).

AFF.,

July-

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In 1909, the Supreme Court of Georgia reaffirmed its position that a riparian owner's use of water, rather than title to the water itself, flowing on his property is a private right.31 In Price, the plaintiffs were riparian owners, and mill operators on the Apalachee River, brought suit against an upstream riparian owner, who operated machinery, using power from the river waters. The plaintiffs complained of lost business at their mill because the defendant erected a reservoir on the river above the plaintiffs' mill, creating a pond of water covering a considerable area, which caused the evaporation and absorption of the water, thereby diminishing the supply to which the plaintiffs were entitled.32 The plaintiffs also alleged that gates were placed in this dam by the defendant, which were closed in the evening and shut off the flow of the water until they were opened the next morning, with the result that the plaintiffs did not receive enough water to operate their mill until early afternoon.33 The plaintiffs argued that the use and detention of water by the defendant was unreasonable and entirely beyond the size and capacity of the stream, and that the obstruction, detention, retardation, and diminution of the water were subversive of the rights of the plaintiffs and caused them damages of $1,000 annually.34 Addressing the nature of rights that riparian owners enjoy in the waters on their lands, the Court stated: [T]he right to have a natural water course continue its physical existence upon one's property is as much property as is the right to have the hills or forests remain in place.

Such flow and use belong to the land through which it passes, as an incident, convenience, or easement which inseparably connects itself therewith as a part thereof, and frequently gives or adds value thereto, and is a private property right in the proprietor thereof, within the protection of the constitutional provision that private property shall be forever held inviolate, subject to the public welfare, and shall not be taken for public use without compensation being first made. The property, therefore, consists, not in the water itself, but in the added value which the stream gives to the 31. Price v. High Shoals Mfg. Co., 64 S.E. 87, 88 (Ga. 1909).

32. Id. 33. Id.

34. Id.

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Acknowledging Farmer'sProperty

land through which it flows. This is made up of the power which may be obtained from the flow of the stream, from the increased fertility of the adjoining fields because of the presence of the water, and of the value of the water for the uses to which it may be put. The right to the continued existence of these conditions is property, to protect which the owner may resort to any or all the instrumentalities of private which may be employed for the protection property rights.35

The Court held that a new trial was required, because the instructions given by the trial court did not adequately protect the property rights of the plaintiff.36 The Court advised that the following charge be given on retrial: "If the defendant made an unreasonable use of the water, so as to damage the plaintiffs, it was an illegal invasion of their property rights and a continuous and positive tort, and the plaintiffs could recover whatever damages they sustained. .. "I' The common law development of water rights in Georgia has focused on, and not strayed from, the theory of riparian rights.

O.C.G.A. § 44-8-1, defining water rights, codifies the riparian regime, providing that "Running water belongs to the owner of the land on which it runs; but the landowner has no right to divert the water from its usual channel nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner."3 8 The prohibition of diversion is not a prohibition against use of water for irrigation,3 9 although diversion may be prohibited, if for other purposes.a° C. Georgia'sPermitting System In Georgia, regulations concerning water usage have increased over the past half-century. 41 "In 1977, the Georgia 35. Id. at 89.

36. Id. 37. Id. at 90.

38. O.C.G.A. § 44-8-1 (2008).

39. Pyle v. Gilbert, 265 S.E.2d 584, 588 (Ga. 1980).

40. Id. 41. See Joseph W. Dellapenna, The Law of Water Allocation in the Southeastern States at the Opening of the Twenty-First Century, 25 U. ARK. LITTLE ROCK L. REv. 9, 68 (2002). ("Over the past forty years, the Georgia General Assembly has enacted a broad range of statutes that regulate various

190

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General Assembly amended the Water Quality Protection Act of 196442 (the "Surface Water Act") and established a revocable permit system to govern large users of surface water."43 Under this Act, "users withdrawing, diverting, or impounding surface water greater than 100,000 GPD (gallons per day) on a monthly average are required to obtain a permit from the Environmental Protection Division of the Department of Natural Resources ("EPD").'44 The language used in the Surface Water Act is very similar to that used in the Ground Water Act, so it will be used interchangeably throughout this comment when discussing agricultural permits. Both Acts "distinguish between farm and non-farm uses, and the nature of the use determines both the scope and duration of the permit."45 Georgia Comprehensive Rules and Regulations ยง 391-3-2.02, defines "farm use" as "irrigation of any land used for general farming, forage, aquaculture, pasture, turf production, orchards, or tree and ornamental nurseries; provisions for water supply for farm animals, poultry farming, or any other activity conducted in the course of a farming operation.

' 46

Non-farm use permits are

issued for water withdrawn for any activity other than those 47 described in the aforementioned definition of "farm use."

Examples of "non-farm" uses include public drinking water, aspects of water use in the state. Two statutes directly address the allocation of water to particular uses through the requirement of permits for the use of water-The Ground-water Use Act of 1972 ("Ground Water Act") and a 1977 amendment to the Georgia Water Quality Protection Act of 1964 ("Protection Act"). These statutes impose similar permit systems on water users; the first applies to users of groundwater and the second to users of surface water. Both statutes are premised on the idea that the general welfare and public interest require that the water resources of the state be put to beneficial use to the fullest extent to which they are capable, subject to reasonable regulation in order to conserve the waters and to provide and maintain conditions which are conducive to the development and use of water resources.").

42. O.C.G.A. ยง 12-5-1 (2008).

43. Fortuna, supra note 15, at 1034.

44. Id. 45. Id. at 1035.

46. GA. COMP. R. & REGS. 391-3-2.02 (2008).

47. Interview with Christopher Ward, Environmental Compliance Specialist, Agricultural Permitting Unit, Environmental Protection Division, Georgia Department of Natural Resources, March 25, 2009.

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Acknowledging Farmer'sProperty

and municipal and industrial water withdrawals.48 "Non-farm use permits may be suspended or modified if it is determined that the quantity of water allowed to be withdrawn under the permit is either (1) greater than needed for the use upon which the permit is based; or (2) interferes with the reasonable use of another applicant."4 9 In addition, "non-farm use permits may be revoked, suspended, or modified for nonuse."50 "The Surface Water Act contains special provisions which govern the issuance of permits for 'farm uses."' 5 Many of these provisions seem to convey a property right, on which the farmer relies for his continued operation. The Act states "that if the use was initiated prior to July 1, 1988 and the permit application was filed prior to July 1, 1991, the Surface Water Act exempts farm use permit applications from evaluation under the reasonableness standards applied to non-farm use permits. 52 Moreover, the permits are of "unlimited duration and may be transferred or assigned to subsequent owners of the lands which are the subject of the permit. '53 Also, "permits for farm use, after initial use has commenced, shall not be revoked, in whole or in part, for nonuse. '54 The language used in the Act is similar to one of the basic principles of property law, which is that '5it "grants owners the power to control the resources they own. 5 Control may take various forms, including the privilege to use the property, the power to transfer or assign it (alienability), and 56 the right not to have it taken from you.

The rights given to farmers under O.C.G.A. ยง12-5-31 and O.C.G.A. ยง 12-5-105 closely resemble the general characteristics and attributes associated with private property. A "fundamental maxim of property law is that [an] owner of a property interest may dispose of all or part of that interest as he

48. Id.

49. Fortuna, supra note 15, at 1035.

50. Id. 51. Id. 52. Id. 53. Id. at 1036.

54. O.C.G.A. ยง12-5-105(b)(2) (2008).

55. JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY 24 (2d ed.,

2005).

56. Id.

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sees fit."'57 Property rights "also consist of the group of rights which the so-called owner exercises in his dominion of the physical thing, such as the right to possession, use and dispose of it."58 Moreover, a basic principle of private property is that it should be alienable. 59 Alienability is the idea that private property should be freely transferable from one person to another.6" Finally, owners of private property are generally free to exclude others.61 "The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights."62 Accordingly, "the term property comprehends not only the legal thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from the use. ' 63 Georgia's permitting system, codified at O.C.G.A. ยง 12-5-31 and O.C.G.A. ยง 12-5-105, seems to recognize both the historically established riparian rights system, and a prior appropriation doctrine, usually associated with the West.

O.C.G.A. ยง 12-5-31(a)(3), closely paralleled by O.C.G.A. ยง 125-105(a) provides: Notwithstanding any other provision of this Code section to the contrary, a permit for the withdrawal or diversion of surface waters for farm uses shall be issued by the director to any person when the applicant submits an application which provides reasonable proof that the applicant's farm use of surface waters occurred prior to July 1, 1988, and when any such application is submitted prior to July 1, 1991. If submitted prior to July 1, 1991, an application for a permit to be issued based upon farm uses of surface waters occurring prior to July 1, 1988, shall be granted for the withdrawal or diversion of surface waters at a rate of withdrawal or diver57. Phillips v. Wash. Legal Found., 524 U.S. 156, 167 (1998); see also United States v. Gen. Motors Corp., 323 U.S. 373, 377-378 (1945).

58. Phillips, 524 U.S. at 170; see also Gen. Motors Corp., 323 U.S. at 378; Loretto v. Telepromter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).

59. SINGER, supra note 55, at 10.

60. Id. 61. Id. at 7-11.

62. Loretto, 458 U.S. at 435.

63. Bowers v. Fulton County, 146 S.E.2d 884, 890 (Ga. 1966) (quoting Woodside v. City of Atlanta, 103 S.E.2d 108, 114-115 (Ga. 1958)).

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sion equal to the greater of the operating capacity in place for withdrawal or diversion on July 1, 1988, or, when measured in gallons per day on a monthly average for a calendar year, the greatest withdrawal or diversion capacity during the five-year period immediately preceding July 1, 1988. If submitted after July 1, 1991, or, regardless of when submitted, if it is based upon a withdrawal or diversion of surface waters for farm uses occurring or proposed to occur on or after July 1, 1988, an application shall be subject to evaluation and classification pursuant to subsections (e), (f) and (g) of this Code section, but a permit based upon such evaluation and classification shall be issued to ensure the 64 applicant's right to a reasonable use of such surface waters.

III. GEORGIA'S PERMITTING SYSTEM CREATES PROPERTY RIGHTS

Historically, property interests have been recognized in a variety of contexts. For example, in Phillips v. Washington Legal Foundation,the Supreme Court of the United States held that "interest income generated by funds held in IOLTA accounts is the 'private property' of the owner of the principal" for purposes of the Takings Clause. '65 There, the Court stated that "while the interest income at issue may have no economically realizable value to its owner, possession, control, and disposition are nonetheless valuable rights that inhere in the property. 6 6 Also, the Supreme Court of Georgia has held that land owners and developers acquire vested property rights in the land they develop in reliance on existing zoning laws.67 Similar to the fundamental principles of owning private property, the express language in O.C.G.A. §§12-5-31 and 125-105 states that all permits issued under the Act "may be transferred or assigned to subsequent owners of the lands which are the subject of such permit" and that "permits for farm use, after initial use has commenced, shall not be revoked, in whole or in part, for nonuse."68 Moreover, "permits for farm uses are

64.

65.

66.

67.

68.

O.C.G.A. § 12-5-31(a)(3) (2008).

524 U.S. 156, 172 (1998).

Id. at 170; see also Hodel v. Irving, 481 U.S. 704, 715 (1097).

DeKalb County v. Chapel Hill, Inc., 205 S.E.2d 864, 868 (Ga. 1974).

O.C.G.A. §§12-5-105(b)(1), (b)(2) (2008).

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of unlimited duration."69 A permit is also exclusive in that "all permits are issued [only] to land owners who have the deed for the location where the well or pump station [is] located."7 However, these permits may be assigned for use to their tenants.71 As stated earlier, the Georgia Code provides that "running water belongs to the owner of the land on which it runs; but the landowner has no right to divert the water from its usual channel nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner. '72 Turning to Georgia's common law, "the right of a riparian owner to have the nonnavigable stream flow to him in its natural manner has.. . been held to be within the constitutional protection against governmental taking without compensation. '73 Moreover, a "riparian right is property which cannot be taken except for public use and upon payment of just compensation. ' 74 "An action that deprives property owners of the basic rights that make up riparian rights, including the general use of water, wharfing rights, access to navigable waters, and the right to accretions, requires compensation for the property owners. 75 Given the fact that the Georgia General Assembly drafted the permitting statutes with this background of water law, the inference arises that they must have, at a minimum, understood 69. Fortuna, supra note 15, at 1036.

70. Interview with Edward Rooks, Geologist, Agricultural Permitting Unit, Environmental Protection Division, Georgia Department of Natural Resources, April 3, 2009. See also Agricultural Water Use Permits, Agriculture Permitting Unit, Georgia DNR Environmental Protection Division, http://www.nespal.org/sirp/apu/ (last visited Apr. 14, 2009).

71. Id.; see also Agricultural Water Use Permits, Agriculture Permitting Unit, Georgia DNR Environmental Protection Division, http://www.nespal.org/sirp/apu/. (last visited Apr. 14, 2009).

72. O.C.G.A. ยง 44-8-1 (2008).

73. Robert Clark Kates, Georgia Water Law 284-285 (Institute of Government, The University of Georgia 1969) (citing City of Elberton v.

Hobbs, 49 S.E. 799 (Ga. 1905)).

74. 26 AM. JUR. 2D Eminent Domain ยง 181(citing U.S. v. Gerlach Live Stock Co., 339 U.S. 725 (1950); Kaukauna Water-Power Co. v. Green Bay & M. Canal Co., 142 U.S. 254 (1891); City of Wilmington v. Parcel of Land Known as Tax Parcel No. 26.067.00.004, 607 A.2d 1163 (Del. 1992)).

75. 26 AM. JUR. 2D Eminent Domain ยง 181 (citing Belvedere Dev. Corp. v. Dep't. of Transp., Div. of Admin., 476 So. 2d 649 (Fla. 1985)).

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the right to use water is a private property right.76 The legislature did not expressly contravene the existing common law regime of riparian rights. "Unless the contrary manifestly appears from the words employed, the language of a Code section should be understood as intending to state the existing law, and not to change it.""7 Furthermore, when "the exercise of police power in regulating the use of land infringes upon the landowner's right to its unfettered use of the land, then such regulation of land use is in derogation of common law, requiring strict construction against the [state] and liberal construction in favor of the landowner." 8 "In construing a legislative act, a court must first look to the literal meaning of the act."7 9 "Statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat their legislative purpose, and statutory construction 'must square with common sense and sound reasoning.' "80 A literal reading of O.C.G.A. ยง 12-5-31 and O.C.G.A. ยง 12-5105 indicates that the language used conveys to some farmers a property interest in the use of water, and to others, to the reasonable use of water. Both statutes state that the permits are transferable, irrevocable, and are of unlimited duration.8 Moreover, any regulation that would infringe upon a farmer's right to use the land and water would be liberally construed in favor of the farmer.8 2 However, it should be mentioned that courts in other 76. See Thornton v. Anderson, 64 S.E.2d 186, 189 (Ga. 1951) (citing 59 C.J. 1038, ยง 616 for the proposition that "All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of

the courts.").

77. Threlkeld v. Whitehead, 98 S.E.2d 76, 80 (Ga.App. 1957).

78. Dekalb County v. Post Apartment Homes, 506 S.E.2d 899, 901 (Ga. App. 1998).

79. City of Atlanta v. Miller, 569 S.E.2d 907, 908 (Ga.App. 2002) (quoting Diefenderfer v. Pierce, 396 S.E.2d 227, 228 (Ga. 1990)).

80. Id. at 908-909 (quoting Tuten v. City of Brunswick, 418 S.E.2d 367, 404 (Ga. 1992)).

81. O.C.G.A. ยง 12-5-105 and O.C.G.A. ยง 12-5-31 (2008).

82. Dekalb County v. Post Apartment Homes, 506 S.E.2d at 901.

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jurisdictions have sustained regulations of the use of water against constitutional challenges.83 These jurisdictions hold that "usufructuary water rights, in sum, have always been incomplete property rights, so the expectations or right holders to the enjoyment of these rights are generally weaker than the expectation of the right to exploit the full value of the dry land."84 In Cherry v. Steiner, an Arizona court, applying their law, stated the rule that "a landowner whose land overlies groundwater has only the right to use the water, but maintains no proprietary interest in the actual water."85 Accordingly, the court held that "without an interest in the percolating water, the plaintiffs may not assert a wrongful taking of their property."86 In Cherry v. Steiner the court stated that the plaintiffs had no proprietary interest in the water. However, the property interest asserted is not in the actual water itself. The property interest lies in the right to use the water, granted under the terms of the permit. Moreover, while other jurisdictions hold that water rights, being usufructory in nature, are incomplete property rights, the argument is not that there is a complete right to water, but a right to use the water.

IV. OPPOSITION TO WATER USE AS A PRIVATE PROPERTY RIGHT

The notion of water use as a private property right is not without its dissenters. Scholars, 7 as well as groups, such as the 83. In re Water Use Permit Applications, 9 P.3d 409, 493 (Haw. 2000); see also Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663, 669-70

(Fla. 1979) ("holding that restriction on landowner's water use deprived owner of no beneficial use of the land itself, and thus did not constitute a taking").

84. In re Water Use Permit Applications, 9 P.3d at 493 (internal quotations omitted).

85. Cherry v. Steiner, 543 F. Supp. 1270, 1277 (Ariz. 1982).

86. Id. 87. See Fortuna, supra note 15.

(Argument that Georgia should not

establish a private water market to promote greater efficiency in these times of scarcity. The common-law riparian regime never supported "private ownership" of surface water on land. Price's language of "right to use" as well as its insistence on the "reasonable use" requirement in relation to other users affirmed this conclusion. Georgia's permitting system, a form of regulated riparianism, was designed to allow Georgia to allocate water

effectively in times of shortage. Under this system, the reasonableness of

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Georgia Water Coalition, favor the allocation of water as a public resource. The concern is that increasing scarcity of water will result in a move towards private water markets. The Georgia Water Coalition recommends altering the permit system to bring farm use permits in line with all other permits.

This move will give the government the ability to modify such permits, giving the government greater flexibility to address growing water scarcity.

The Georgia Water Coalition believes the permits issued to farmers "do not convey any property right that would require compensation if modified or changed."88 All non-farm use permits, as well as those farm use permits issued after July 1, 1988, are subject to evaluation under reasonableness criteria established by EPD.8 9 The Coalition recommends changing the current system of water withdrawal permits to bring all agricultural permits, including those issued prior to July 1, 1988, under the same reasonableness standards as all other water users. 90 Under the Coalition's proposal, "agricultural withdrawals will continue, subject to the same metering, reporting, and permitting conditions that apply to other water users in the state."' According to the Coalition, "when all users, including

use is regulated by a regulatory agency (the EPD) rather than the courts.

Additionally, determinations of reasonableness are made prior to the issuance of permits. Unlike non-farm use permits, farm-use permits are of unlimited duration, may be transferred to subsequent owners of the land,

may not be revoked/suspended for non-use, and may not be modified because 1) the quantity permitted to be withdrawn is greater than need or 2) use would prevent reasonable non-farm use of other applicants.

Additionally, if the use initiated prior to July 1, 1988, and the permit application was filed prior to July 1. 1991, the permit application was not subject to the reasonableness standard. The government reserved the right to

modify all existing permits under emergency orders in periods of extreme shortage. Thus, current law gives the state the ability to respond to growing scarcity. Thus, private water markets should not be legislatively established

or recognized under current law.).

88. Georgia Water Coalition Frequently Asked Questions (FAQs), supra

note 3.

89. Fortuna, supra note 15, at 1035.

90. Georgia Water Coalition Frequently Asked Questions (FAQs), supra

note 3.

91. Id.

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agricultural users, monitor and report their withdrawals, Georgia will finally be in a position to maintain its water resources at the highest quality, while preventing foreseeable shortages."9 2 In short, the Coalition believes that the current water allocation system is unfair in that it gives farmers too much freedom in their withdrawal of water. Accordingly, the Coalition recommends that a statewide plan be enacted which would bring agricultural permits under the same standards as all other users. 93 The Georgia Water Coalition is incorrect in its interpretation of Georgia's case law as well as statutes. According to the Coalition, Price establishes water use as public in nature, rather than as a private right. They argue that Price provides for the public nature of water by stating that "riparian proprietors have no title to the water which flows over their land, but are entitled to a reasonable use thereof.. . The property, therefore, consists not in the water itself, but in the added value which the stream gives to the land in which it flows. '94 Consequently, there is no one "owner" of a given water supply. 95 However, Price explicitly stated the contrary.96 The Coalition further argues that because O.C.G.A. ยง 12-5105 and O.C.G.A. ยง 12-5-31 do not contain provisions for the payment of just compensation for the taking of a water use permit, these permits do not convey any property interest to the 92.

93.

94.

95.

Id. Id. Price v. High Shoals Mfg. Co., 64 S.E. 87, 89 (Ga. 1909).

Georgia Water Coalition Frequently Asked Questions (FAQs), supra

note 3.

96. Price, 64 S.E. at 88 ("Every riparian owner is entitled to reasonable use of the water. Every such proprietor is also entitled to have the stream

pass over his land according to its natural flow, subject to such disturbances, interruptions, and diminutions as may be necessary and unavoidable on account of the reasonable and proper use of it by other riparian proprietors.

Riparian proprietors have a common right in the waters of the stream, and

the necessities of the business of one cannot be the standard of the rights of another; but each is entitled to a reasonable use of the water with respect to the rights of others. What is a reasonable use is a question for the jury, in view of all the facts in the case, taking into consideration the nature and use

of the machinery, the quantity of the water used in its operation, the use to which the stream can be applied, the velocity of its current, the character and

size of the water course, and the varying circumstances of each case.").

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permit holder,9 7 although the issuance of farm permits is mandated, at least if the water use was initiated prior to July 1, 1988. Although Georgia has, and continues to adhere to the doctrine of regulated riparianism, perhaps inadvertently, the doctrine of prior appropriation also applies, under certain circumstances, pursuant to the permitting statutes.

V. EMINENT DOMAIN At the exponential rate that Georgia's population is increasing, coupled with recent drought conditions, there is a very real possibility that there will not be enough water to satisfy the needs of both farmers and non-farmers. Because use of the water is recognized as a private right in Georgia, government regulations of the right must not "go too far." ' An innocent farmer who has reasonably relied on water as his source of livelihood and has made expenditures based on that reliance could possibly suffer extreme hardships as the result of future government regulatory actions. Having established that Georgia's farmers have rights in the use of water flowing on their property, we turn to the question of whether, if a permit should be revoked, denied, or otherwise regulated to the point of denying a farmer of the beneficial use of that water, the government has worked a taking, requiring payment of just compensation.

Pursuant to Article I, Section III, Paragraph l(a) of the Georgia Constitution, "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid."99 O.C.G.A. ยง 22-1-2(a) defines eminent domain as: [T]he right of the state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good... Notwithstanding any other provisions of law, neither this state nor any political 97. Georgia Water Coalition Frequently Asked Questions (FAQs), supra note 3.

98. See Mann v. State, 603 S.E.2d 283, 285 (Ga. 2004); Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).

99. GA. CONST. art. I, ยง 3, 1 1(a) ; City of Atlanta v. Sig Samuels Laundry and Dry Cleaning, 652 S.E.2d 533 (Ga. 2007).

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subdivision thereof nor any other condemning authority shall use eminent domain unless it is for public use. Public use is a matter of law to be determined by the court and the condemnor bears the burden of proof.'

Moreover, the Fifth Amendment to the United States Constitution protects citizens by providing that if private property is taken for public use, those citizens should be justly compensated.' 0 ' Article IX, section 2, paragraph 5 of the Georgia Constitution generally provides the law of eminent domain for the state of Georgia. Specifically, it states that "the governing authority of each county and of each municipality may exercise the power of eminent domain for any public purpose."'' 0 2 Also, "each exercise of eminent domain by a nonelected housing or development authority shall be first approved by the elected governing authority of the county or municipality within which the property is located."' 13 A. Fifth Amendment Takings The Fifth Amendment to the United States Constitution provides that "[n]o person shall be... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.""

There are three different situations wherein a taking can occur.

A government's permanent physical occupation constitutes a per se taking, "without regard to whether the action achieves an important public benefit, or has only a minimal economic impact."10 5 Also, where government regulations result in a complete deprivation of "all economically beneficial use" of an owner's property, a per se taking has occurred. 10 6 However, failure to find a permanent physical occupation by the government, or to find regulations that deprive an owner of all economically beneficial use of her property, does not end the inquiry. A government may take a person's property interest via 100. O.C.G.A. ยง 22-1-2 (2008).

101. U.S. CONST. amend. V. 102. GA. CONST. art. IX, ยง 2,

5.

103. O.C.G.A. ยง 22-1-2 (2008).

104. U.S. CONST. amend. V.

105. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 420 (1982).

106. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992).

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regulations that "go too far," yet fall short of depriving an owner of all beneficial use of her property. The United States Supreme Court has recognized that: government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster-and that such "regulatory takings" may be compensable under the Fifth Amendment."

In Justice Holmes' storied but cryptic formulation, "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. °7 Determining how far is "too far" is the difficult task, and there is no set formula for determining when governmental regulation "goes too far" and constitutes a taking. 108 Such. determinations are made through the application of the Penn Central factors.

These factors are: (1) the extent to which the regulation has interfered with distinct investment-backed expectations; (2) the character of the governmental action; and (3) the economic impact of the regulation on the claimant. 0 9 The reasoning of Loretto, Lucas, and Penn Central each centers "directly upon the severity of the burden that government imposes upon private property rights."' " 0 The Penn Central test has been applied to find regulatory takings in Georgia. In Mann v. Georgia Department of Corrections, the Supreme Court of Georgia held a statute requiring a registered sex offender to relocate if a statutorily defined entity, "where minors congregate," moved to within 1,000 feet of his or her residence."' Applying the Penn Central factors, the Court held that the statute constituted a regulatory 2 taking. " Addressing the economic impact factor, the Court held that prohibiting Mann from living in the home that he and his wife 107. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005) (quoting Penn. Coal Co. v. Mahon, 260 U.S. 393,415 (1922)).

108. Lucas v. S.C. Coastal Council, 505 U.S. at 1015 (Court declined to establish any "set formula" for determining when Government regulation is a taking).

109. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

110. Lingle, 544 U.S. at 539.

111. 653 S.E.2d 740, 741 (Ga. 2007).

112. Id., at 745.

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purchased for the sole purpose of use as a residence would "utterly impair" the use of his property as his home." 3 Turning to the question of investment backed expectations, the Court held that the statute in question "precludes appellant (Mann) from having any reasonable investment-backed expectation in any property purchased as his private residence," because it would require him to move, any time an entity listed in the statute moved within his proximity." 4 Finally, in analyzing the character of the governmental action, the Court, while respecting the important interest of the State in protecting children from sex offenders, declared that the severity of the economic impact on Mann, as well as the disallowance of investment backed expectations in property purchased as his private home, outweighed the interest of the government, particularly in light of the fact that only the sex offender, and not the public at large, was 1required to bear the expense 5 associated with such protection.'

Conversely, in a recent decision by the Supreme Court of Georgia, the Court held that "a compensable taking does not occur where the complained of government activity merely interferes with a property owner's desire to use" public property.1 6 Specifically, in City of Atlanta v. Sig Samuels Laundry and Dry Cleaning, a unanimous Supreme Court of Georgia ruled that an owner of a local laundry and dry-cleaning business should not be compensated for a taking in connection with the city of Atlanta's planned installation of a sidewalk on public property." 7 In that case, the City planned to construct a sidewalk on public land the owner had been using for additional parking." 8 The Court reversed a trial court's determination that the owner should be compensated for the City's taking by installation of the sidewalk." 9 According to the holding of Sig Samuels Laundry and Dry Cleaning, a compensable taking would not occur in Georgia, 113. Id., at 744.

114. Id. 115. Id., at 745.

116. City of Atlanta v. Sig Samuels Laundry and Dry Cleaning, 652 S.E.2d 533, 534 (Ga. 2007).

117. Id. 118. Id. 119. Id.

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contra to a fair reading of Price, if a governmental entity decides to acquire farmers' water, once it is determined that water is a public resource, since Price holds that the "right [of a riparian owner] to ... use the water shall be regarded and protected as property."' 2 ° This private property interest is very similar to the property rights that are vested in users of water in many of the western states, and under Estate of E. Wayne Hage v. U.S., should require compensation if a taking did occur.

VI. TAKINGS AND THE ESTATE OF E. WAYNE HAGE In Nevada, farmers "own the right to use the water, so long as that water is put to beneficial use."'' 2 1 In Estate of Wayne Hage v. U.S., the Court found that the Government's construction of fences which excluded the plaintiff's cattle from waters historically used by the plaintiffs amounted to a physical taking because the plaintiffs had a permit for their cattle to access the water. 12 2 Applying Nevada law, the Court recognized that the plaintiffs had a vested water right in the water they were using, and also found that the plaintiffs would have put the waters to beneficial use. 23 The Court awarded the plaintiffs damages for the value of their water rights plus the value of their improvements. 24 In doing so, the Court applied the familiar takings jurisprudence of the Supreme Court of the United States, beginning with a brief discussion of Loretto v.

Teleprompter Manhattan CATV Corp.l1 5 The Court did not find 26 grounds.1 a taking on Loretto The Court did not end its analysis there, however, as several of the Hages' claims were not per se "physical" takings, but fell into the category of regulatory takings. 2 The Court applied 120. Price v. High Shoals Mfg. Co., 64 S.E. 87, 89 (Ga. 1909) (quoting JOHN

M.

GOULD, GOULD ON WATERS

§291 (3d ed., Callaghan and Co.

1900)).

121. Estate of E. Wayne Hage. v. United States, 82 Fed. Cl. 202, 208, 210

(2008).

122.

123.

124.

125.

126.

127.

Id.at 211.

Id.at 210-212.

Id.at 214-216.

Id.at 208.

Id. Id.

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Lucas v. South Carolina Coastal Council, and Penn Central Transp. Co. v. New York City to determine that the Government's actions, such as the requirement of a special use permit for clearing brush, and the regulations barring the Hages from access to the creek beds and ditches, as well as restrictions relating to the tools they could use to clear them, which led to willow proliferation, constituted a regulatory taking of the 128 Hages' property.

In considering the Penn Central factors to determine whether the Government's actions amounted to a taking, the Court held: First, Plaintiffs [the Hages] clearly had investment-backed expectations in the water rights as those rights had been purchased along with the Ranch. In an arid region such as central Nevada water is highly valuable and sought after. It gives the land most of the land's value. It is unreasonable to expect that Plaintiffs would even purchase the ranch without the water rights which gave it its value. The Government interfered with their expectations by allowing riparian growth to increase upstream and by preventing, through threats, Plaintiffs' access to the areas upstream to clear the obstructions in the water flow. The second factor, the character of the governmental action, is different for the riparian growth policy than for the threats. On one hand, there is no evidence that the policy that led to a proliferation of willows and other growth in the stream bed was malicious in nature. On the other hand, the threats and intimidation that pervaded the relationship between Plaintiffs and the Forest Service interfered with Plaintiffs' vested water rights by barring necessary maintenance. The third factor, the economic impact of the regulation on the claimant, leans decidedly against the Government. The severe reduction in water flow to Plaintiffs' patented lands deprived them of the water they needed for irrigation making the ranch unviable 29 and which they could have sold in the market.

Similar to the permits at issue in Hage, farmers in Georgia are given permits which either actually provide them with, or imply a property interest in the water they use. While the common law of Nevada requires that waters be put to beneficial use, the common law of Georgia requires only that the use be

128. Id. at 208-213.

129. Id. at 212.

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reasonable. 13 0 However, O.C.G.A. ยง12-5-105 and O.C.G.A. ยง 12-5-31 exempt farm use permits under the common law reasonableness standards, if the water use was initiated prior to July 1, 1988, and the permit application was filed prior to July 1, 1991. This exemption strengthens the argument that many farmers in Georgia have acquired vested property rights in their water or the use of water granted under the current permitting system.

VII. FARMERS AND VESTED RIGHTS IN WATER USE

Georgia has long recognized that land owners and developers acquire vested property rights in the land they develop in reliance on existing zoning laws. In fact, the Supreme Court of Georgia has held that "vested rights were acquired by [a land developer] which can not be destroyed by the enactment of a later ordinance."' 3 ' Such prior nonconforming uses are allowed to continue under state zoning enabling acts to some extent, because it would be an unconstitutional taking of property not to allow the continued existence of such uses.' 32 In the zoning

context, once an owner has obtained a building permit and begun substantial expenditures toward construction and, or development, a city may not change the zoning classification, because the owner has a vested right.1 33 This doctrine is premised on the idea that it is "fundamentally unfair to apply new zoning restriction laws retroactively on owners who have invested substantially in34reasonable reliance on the laws in place at the time they acted." 1 In City of Duluth v. Riverbrooke Properties,Inc., the Georgia Court of Appeals held that a subdivision acquired vested property rights under a preliminary developmental plan approved by the City of Duluth.' 35 In that case, the Court determined that the developers reasonably relied on the 130.

Gilbert, 131.

132.

133.

Price v. High Shoals Mfg. Co., 64 S.E. 87, 89 (Ga. 1909).; Pyle v.

265 S.E.2d, 584, 586 (Ga. 1980); O.C.G.A. ยง 44-8-1 (2008).

DeKalb County v. Chapel Hill, Inc., 205 S.E.2d 864, 868 (Ga. 1974).

SINGER, supra note 55, at 719.

Id.

134. Id.

135. City of Duluth v. Riverbrooke Properties, Inc., 502 S.E.2d 806, 811 (Ga. App. 1998).

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preliminary approval of development plans which contained a lake that was to "serve as an amenity for recreational use and to improve the appearance and as an incidental detention pond for surface water run-off and sediment of construction mud to protect the Chattahoochee River for water quality control." 136 After receiving complaints from residents living near the lake, the City determined that the subdivision was in violation of regulations enacted subsequent to the City's approval of the original regulations. 3 ' However, the Court determined that the subdivision acquired vested property rights under the preliminary developmental plan filed under the original regulations and, as a matter of law, such vested rights in the subdivision were "grandfathered" from the effect of the subsequent regulations. 3 8 Similar to the vested property rights given to developers who reasonably relied on existing zoning ordinances, farmers' right to use water should also be recognized as a vested property interest. Farmers in Georgia, like developers, make substantial expenditures based on their reliance of state action. The water permits resemble zoning ordinances, because both induce the respective actors to base their livelihood thereon. However, while Georgia recognizes the vested property interest given to developers who have reasonably relied on zoning ordinances, the State has not yet explicitly recognized the vested property interest of farmers who have, likewise, reasonably relied on the permits. Accordingly, since Georgia's farmers have a vested property interest in the water they use, the right should be recognized as a private property interest, similar to the laws of many western states, and consistent with Price.

Georgia recognizes farmers' rights to use water as a vested property interest, thus O.C.G.A. ยง12-5-31 and O.C.G.A. ยง 12-5105 should be clarified to require payment of just compensation if the state revokes or regulates the use of the permit.

VIII. CONCLUSION AND RECOMMENDATION In conclusion, as written, current Georgia law creates an unintentional ambiguity with regards to whether the use of 136. Id. at 809.

137. Id. at 809-810.

138. Id. at 811.

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water by farmers constitutes a property right subject to divestment only through eminent domain, or whether water is a public resource subject to the states regulatory power. The latter is a conclusion with which this paper takes issue. The laws of many western states follow the appropriation doctrine which recognizes a user's ownership in the water or its use. This recognition is due to the fact that users of water make decisions based on their reasonable reliance of this use. As was illustrated in the Hage, farmers in the western states are able to receive "just" compensation when water is taken for public purposes.

The increase in Georgia's population, coupled with recent drought conditions, raises the possibility that a governmental entity would determine that water being used for farming purposes would need to be acquired for other public purposes.

In this situation, what would happen to the farmer who has reasonably relied on the permits for his livelihood? Georgia's common law riparian tradition, and language of the permitting statutes infer the notion of private property rights in the use of water, but as evidenced by the views of the Georgia Water Coalition, this language is apparently susceptible to a different interpretation. To resolve the inevitable dispute over what rights are actually conveyed to farmers by O.C.G.A. §§12-5-31 and 12-5-105, it is recommended that the state legislature should conduct a study to determine the value of the farm use permits, and institute a compensation schedule to provide payment to farmers that may have their permits modified, suspended, or revoked. This solution would not only compensate the farmers for the value of their property rights in the permits, but would also reduce the State's litigation costs involved in defending lawsuits challenging the governmental conduct. Moreover, as a matter of policy, compensation for the loss of the farm water use permits is the proper course of conduct for the State.

Charles W. Snyder, III*and Nicholas R. Utley** * J.D. Candidate, May 2009, John Marshall Law School; M.P.A. University of

South Carolina; B.A. University of South Carolina. I would like to thank my wife, Marion Snyder, and my son, Will, for their love and support. ** J.D. Candidate, May 2009, John Marshall Law School; M.A. Georgia Southern University; B.A. Georgia Southern University.

Both authors would like to thank Professor Robert D'Agostino, Professor Michael B. Kent, Jr., Ashley Tumlin and Greg Frayser for their guidance and assistance.

AN UNCERTAIN FUTURE: GEORGIA'S POLICY ON RESTRICTIVE COVENANTS IN EMPLOYMENT CONTRACTS I. INTRODUCTION

The relationship of an employee to an employer is among one of the more complex and significant relationships in our society.I The employment relationship was originally considered a blend between the status of the individual and the right of contract. This led to a variety of legal rules based on 2 public policy considerations and mutual assent between parties.

The development of contract law led many to become increasingly aware that an employment contract was far more complex than an ordinary contract for a discrete, singular transaction, and was sometimes guided by principles not traditionally within the realm of contract law.3 This is primarily because the employment relationship often leads to unacceptable bargains due to the employer's inherent control over an employee and because the relationship deals with "human values of sustenance, security and survival."4 This Comment will focus primarily on one specific aspect of the employment contract: covenants not to compete. Covenants not to compete ("non-compete agreements") are agreements ''generally part of a contract of employment or a contract to sell a business, in which the covenantor agrees for a specific period of time and within a particular area to refrain from competition with the covenantee." The development of the law on noncompete agreements has been historically controlled by policy considerations which balance an employee's right to work, an employer's right to contract, and the public's right to unfettered 1. 1 KURT H. DECKER, COVENANTS NOT TO COMPETE 1 (2d. ed. 1993) 2. Id. at 2.

3. Id. 4. Id. 5. Griffin Toronjo Pivateau, Putting the Blue Pencil Down: An Argument for Specificity in Noncompete Agreements, 86 NEB. L. REv. 672, 675 (2008).

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competition.6 Moreover, the paradigm shift from a labor and industrial economy towards an information and knowledgebased economy has increased the difficulty in understanding the competing interests between the parties and in discerning a pattern within non-compete jurisprudence.7 Georgia law in the area of non-compete agreements can be fairly described as greatly cluttered, disorganized and even a "swampy morass of conflicting interests and policies."8 The case law is filled with subtle distinctions due to the infinite number of permutations in factual and legal circumstances that may arise in employment. In 1990, the Georgia Legislature attempted to alter Georgia's policy through the enactment of the Restrictive Covenant Act. 9 This Act generally permitted Georgia courts to "blue-pencil," or sever, offending and unreasonable clauses from a non-compete agreement. 10 In 1991, the Georgia Supreme Court quickly held the Act unconstitutional under Article III, Section VI, Paragraph V(c) of the 1983 Georgia Constitution.I1 In light of this tension between the Georgia courts and the legislature, the case law that has developed through the years is once again at the heart of the debate currently on the floor of the Georgia Legislature. On March 12, 2009, the Georgia House of Representatives passed House Bill 173. The Georgia Senate passed HB 173 on April 1, 2009. The bill is intended to set forth a statutory framework for enforcing restrictive covenants in employments contracts.' 2 However, HB 173 goes further by fundamentally altering Georgia's policy to allow courts to not only sever, but also modify restrictive covenants in employment contracts. The sponsor of the bill, Representative Kevin Levitas, 6. Decker, supra note 1, at 22.

7. See Katherine V.W. Stone, Knowledge at Work: Disputes Over the Ownership of Human Capital in the Changing Workplace, 34 CONN. L. REv. 721 (Spring 2002).

8. Reddy v. Cmty. Health Found. of Man, 298 S.E.2d 906, 917 (W. Va. 1982).

9. O.C.G.A. ยง 13-8-2(a)(2) (1990); See infra Part III.C. 10. O.C.G.A. ยง 13-8-2.1(g)(1).

11. See Rooney v. Jackson & Coker, Inc., 409 S.E.2d 522 (Ga. 1991); See Jackson & Coker, Inc. v. Hart, 405 S.E.2d 253 (Ga. 1991); See infra Part III.C. 12. H.B. 173, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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supplemented HB 173 with House Resolution 178, a constitutional amendment, which would create the constitutional and statutory authority that the Georgia Supreme Court implicitly stated is necessary in order to adopt legislation of this type. 13 Therefore, HB 173 can only be enacted if the amendment is passed by the Georgia Legislature and submitted and approved by the citizens of Georgia through a referendum during the 2010 general election.14 While there is certainly a need for legislative clarity concerning the law of restrictive covenants in Georgia, this Comment argues that such a dramatic change is unnecessary and contrary to Georgia's historical policy rationale in this area.

Before examining the proposed legislation, Part II will provide a brief summary of terminology used throughout the Comment.

Part III will discuss the current state of restrictive covenant law in Georgia, including previous legislation. Part IV will provide an overview of the current legislation and testimony during subcommittee sessions. Part V will discuss economic and public policy considerations in non-compete law and trends in other states. Finally, in Part VI this comment will illustrate how the "modification" provision in the proposed legislation will have unintended results and is in direct contravention with Georgia's historical pro-employee policy.

II. TERMINOLOGY AND KEY DEFINITIONS A. Restrictive Covenants Generally In Georgia, there are four main types of restrictive17 covenants:' 5 non-competition, 16 non-solicitation of customers, non-recruitment of employees, 1 8 and non-disclosure of 13. H.R. 178, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

14. GA. CONST., art. X, ยง 1, . 2 (1983).

15. Albany Bone and Joint Clinic, P.C. v. Hajek, 612 S.E.2d 509, 512 (Ga. Ct. App. 2005).

16. Generally, a non-competition covenant restricts a former employee from competing with the former employer in a specified area for a specified time. Id. 17. Non-solicitation covenants typically prohibit the solicitation of the former employer's customers. Id. 18. Non-recruitment covenants restrict a former employee's ability to

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confidential information. 9 These types of restrictive covenants exist in contracts between an employer and an employee and serve to protect the employer's interest in property, confidential information, customer goodwill, business relationships and other economic advantages the employer has generated for the business over the years.2" Restrictive covenants in employment contracts are generally disfavored as potential restraints of trade which tend to lessen competition.2 ' In Georgia, a restrictive covenant contained in an employment contract is considered to be a partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.2 2 This judicially-created legal test is commonly known to be derived from the "rule of reason." The question of the reasonableness of the restraint arises most often in connection with covenants not to compete and agreements not to disclose and use confidential business information or trade secrets.23

As stated above, the main focus of this Comment will be to explore the enforceability of non-compete agreements.

Because this Comment will also discuss non-solicitation agreements to some extent, it is necessary to distinguish the two. Although non-solicitation agreements are designed to protect different interests and are analyzed differently than noncompete agreements, they often overlap. A covenant not to compete prohibits the employee from performing competitive recruit the former employer's employees. Id. 19. Non-disclosure covenants limit a former employee's ability to use or to disclose confidential information that does not rise to the level of trade secrets. Id. 20. Id. Non-competition covenants may also exist ancillary to contracts for the sale of a business or those governing business partnerships or corporations. See Habif, Arogeti & Wynne, P.C. v. Baggett, 498 S.E.2d 346 (Ga. Ct. App. 1998) (professional partnership agreement); Watson v. Waffle House, Inc., 324 S.E.2d 175 (Ga. 1985) (sale of business).

21. See MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234 (1lth Cir.

2005).

22. Palmer & Cay of Ga., Inc. v. Lockton Cos., Inc., 615 S.E.2d 752 (Ga. App. 2005).

23. Id.

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activities in a certain geographic area for a certain period of time. 4 Thus, a non-compete agreement protects the employer's "investment of time and money in developing the employee's skills. '25 A covenant not to solicit prohibits an employee from soliciting some or all of the employer's clients for a limited time and sometimes in a limited geographic area. 26 Thus, a nonsolicitation covenant protects the employer's "investment of time and money in developing customer relationships and goodwill."27

Another important characteristic of restrictive covenants in Georgia is that non-compete and non-solicitation covenants stand or fall together, while non-recruitment and non-disclosure covenants are evaluated separately from the rest of the covenants.2 8 As a result, an invalid non-solicitation covenant will also invalidate an otherwise valid non-compete agreement and vice versa, but it will not invalidate an otherwise valid nondisclosure agreement. 9 B. Enforceabilityand the Blue-Pencil Doctrine States have used a variety of approaches to determine the enforceability of non-compete agreements. The approaches can be visualized by considering them along a "spectrum of enforceability." By far the most restrictive states (those on the "unenforceability" end of the spectrum) are California, Montana, and Oklahoma which prohibit employers or severely limit them from enforcing non-compete agreements as a matter of public policy. 3° California's outright statutory prohibition on non-compete agreements 3' is frequently used as an academic case study by many scholars and is used to evaluate approaches taken in other states based on the perceived effect of non-

24. Habif Arogeti & Wynne, P.C., 498 S.E.2d at 353.

25. Id. 26. Id. 27. Id. 28. Sunstates Refrigerated Servs., Inc. v. Griffin, 449 S.E.2d 858, 859-61 (Ga. Ct. App. 1994).

29. Id. 30. Pivateau, supra note 5, at 677.

31. CAL. Bus. & PROF. CODE § 16600 (Deering 2009).

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compete agreements on state economic conditions.32 Other states will generally enforce non-compete agreements by applying some variation of the "reasonableness" standard described above.33 Among these states, there are at least three schools of thought on how enforceability is most effective, all of which rely on the blue-pencil doctrine.34 The blue-pencil doctrine is defined as a "judicial standard for deciding whether to invalidate the whole contract or only the offending words."3 5 The doctrine is based upon an "understanding that there is not necessarily a sinister purpose behind an overbroad restrictive covenant" and courts will generally look at an employer's good faith in determining whether to apply the doctrine. 36 The three schools of thought on application of the blue-pencil doctrine to enforce non-compete agreements are: (1) the "no-modification" approach, (2) the strict blue-pencil approach, and (3) the liberal blue pencil or "partial enforcement" approach.3 7

32. See Christine M. O'Malley, Covenants Not to Compete in the Massachusetts Hi-Tech Industry: Assessing the Need for a Legislative Solution, 79 B.U.L. REV. 1215 (December 1999) (arguing that although California has a workable model to address needs in Massachusetts, a modified version of Colorado' s statute would strike a better balance); Ronald J. Gilson, The Legal Infrastructure of High Technology IndustrialDistricts: Silicon Valley, Route 128, and Covenants Not to Compete, 74 N.Y.U. L. REV. 575 (June 1999) (discussing the "serendipity" and "historical accident" of California's adoption of an existing proposed legal code containing the strict prohibition of restraints on freedom employment); James S. Wood, A Comparison of the Enforceability of Covenants Not to Compete and Recent Economic Histories of Four High Technology Regions, 5 VA. J.L. & TECH. 14 (Fall 2000) (stating that the formula for creating a sustainable technologybased agglomeration economy consists of a large number of extremely complex, interrelated factors).

33. Pivateau, supra note 5, at 677. In Georgia, courts examine reasonableness by scrutinizing a restriction's duration, geographic limitation and the scope of the limited activity. See W.R. Grace & Co., v. Mouyal, 422 S.E.2d 529 (Ga. 1992) (holding that a restrictive covenant prohibiting a former employee from rendering services to any client of the employer must contain a territorial restriction expressed in geographic terms); See infra Part III.B. 34. Pivateau, supra note 5, at 682.

35. BLACK'S LAW DICTIONARY 183 (8th ed. 2004).

36. Pivateau, supra note 5, at 682.

37. Id.

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The "no-modification" rule, also known as the "all-ornothing" rule, precludes the use of the blue-pencil doctrine entirely.38 In these states, courts cannot rewrite or strike overbroad provisions.39 If the court determines that the restrictive covenant is not reasonable, it will not modify or eliminate provisions; it will simply refuse to enforce the agreement at all.40 The strict blue-pencil approach allows a court to strike unreasonable contractual provisions, but the court is not permitted to revise or add language. 4n Finally, the liberal blue-pencil or "partial enforcement" approach provides the most flexibility for a court to substantively alter an agreement.4 2 Under this approach, courts can modify or reform the agreement to the extent that it is reasonable, but cannot modify or reform the agreement more broadly than what is reasonably necessary to protect the employer. n3 Georgia currently follows the "no-modification" rule for noncompete agreements in employment contracts. Although this Comment will focus on restrictive covenants ancillary to the employment contract, it is worth nothing that Georgia courts will treat different types of restrictive covenants with varying levels of scrutiny depending on the relative bargaining power between the parties.' Employment contracts receive a strict scrutiny analysis (the "no-modification" rule"), partnership agreements receive an intermediate level of scrutiny and 45 contracts for the sale of a business enjoy "much less scrutiny.

Contracts for the sale of a business are the most lenient and courts will generally allow much longer temporal restrictions and sometimes even modify the contract by implementing the "blue-pencil theory of severability. 46 However, as mentioned 38. Id. 39. Id. 40. Id. 41. Id. at 683.

42. Id. at 688.

43. Id. 44. Watson v. Waffle House, Inc., 324 S.E.2d 175, 177 (Ga. 1985) 45. See Jeffrey T. Rickman, Noncompete Clauses in Georgia: An Economic Analysis, 21 GA. ST. U. L. REv. 1107, 1119 (Summer 2005); New Atlanta Ear, Nose & Throat Assocs. v. Pratt, 560 S.E.2d 268, 271 (Ga. Ct. App. 2002).

46. Rickman, supra note 45, at 1119. The blue pencil doctrine of

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above, in employment contracts, courts applying strict scrutiny will not blue-pencil an overbroad covenant to make it enforceable, but will instead strike down the entire covenant.47 The Georgia Supreme Court's refusal to apply the blue-pencil theory is partly based on a policy determination that doing so would greatly chill employee competition. 48 The Eleventh Circuit provided a further explanation for refusing to use the blue-pencil theory: [r]ecognizing that employees often choose not to challenge illegal covenants in hopes of maintaining good relations with former employers, the Georgia Supreme Court refuses to reform even reasonable employment covenants in order to discourage employers from fashioning overly broad covenants that will remain unchallenged in most instances.49 C. Trade Secrets and Non-DisclosureAgreements

"Trade secret" is defined in the Georgia Trade Secret Act of 1990.50 Trade secrets can be distinguished from physical severability allows one to cross out an unreasonable part of a contract to permit the remaining, presumably valid, sections to stand. See Steven E. Harbour, Restrictions on Post-Employment Competition by an Executive Under Georgia Law, 54 MERCER L. REV. 1133, 1136 (2003). However, a court may not write in a limitation in order to make the contract enforceable.

See New Atlanta Ear, Nose & Throat Assocss v. Pratt, 560 S.E.2d 268, 273 (Ga. Ct. App. 2002). ("the blue pencil marks, but it does not write").

47. See Habif, Arogeti & Wynne, P.C. v. Baggett, 498 S.E.2d 346, 349 (Ga. Ct. App. 1998). See also Palmer & Cay, Inc. v. Marsh & McLennan Cos., 404 F.3d 1297, 1307 (11th Cir. 2005) (stating that "if employers were allowed to blue-pencil their agreements, they could load up non-competition agreements with oppressively overreaching terms and intimidate all but the litigation-hardy employees, then post-hoc excise offending provisions to avoid requested judicial invalidation").

48. Howard Schultz & Assocs., of the Southeast, Inc. v. Broniec, 236 S.E.2d 265, 269 (Ga. 1977).

49. Palmer & Cay, 404 F.3d at 1303-04.

50. See O.C.G.A. ยง 10-1-760. "Trade secret" means information, without regard to form, including, but not limited to technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information: (A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can

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personal property, the latter of which is provided greater legal protection. Trade secrets can also be distinguished from other confidential business information that does not rise to the level of a trade secret. A business may choose to protect a trade secret through an express non-disclosure agreement, but they are not required to do so.5 1 However, a business must use a nondisclosure agreement-if enforceable-to protect any confidential information that does not satisfy the elements of a Georgia trade secret.5 2 In Georgia, non-disclosure agreements are only enforceable if they are reasonably limited in the duration and the nature of the business interest sought to be protected.5 Unlike non-compete agreements, non-disclosure agreements do not require a territorial limitation.54 Non-disclosure agreements are meant to protect and prevent the exploitation of the employer's "commercial intangibles," such as knowledge or information relating to the employer's business. In this way, the underlying protectable interest is quite different than the interests Georgia courts have cited for non-compete and non-solicitation agreements and all three types have a relative effect on restraining trade. The courts apply a two-factor test for non-disclosure agreements: (1) whether the employer intends to protect confidential information regarding the business, including: trade secrets, operational methods, customer names and personnel data and (2) whether the covenant relates to protecting such information.5 Due to the public policy favoring non-disclosures, court generally have more flexibility in upholding these types of agreements, even if the court strikes down the non-competition or non-solicitation 57 covenant within the same agreement.

obtain economic value from its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

O.C.G.A. ยง 10-1-761(4 A-B).

51. Thomas v. Best Mfg. Corp., 218 S.E.2d 68 (Ga.1975).

52. Lee v. Envtl. Pest & Termite Control, Inc., 516 S.E.2d 76 (Ga. 1999); Durham v. Stand-By Labor of Georgia, Inc., 198 S.E.2d 145 (Ga. 1973).

53. Lee, 516 S.E.2d 76; Nasco, Inc. v. Gimbert, 238 S.E.2d 368 (Ga. 1977).

54. Lee, 516 S.E.2d 76.

55. Id. at 78.

56. Durham, 198 S.E.2d 145 (Ga. 1973).

57. Sunstates RefrigeratedSvcs., 449 S.E.2d 858, 860 (Ga. App. 1994)..

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D. A Recent Illustration On February 18, 2009, the Georgia Court of Appeals decided Global Link Logistics, Inc. v. Briles, s which serves as an illustrative example of the Georgia courts' rigid stance in refusing to enforce non-compete agreements that contain no specificity. In 2006, Jim Briles entered into an employment contract with Global Link's predecessor in interest which contained a non-disclosure covenant as well as a non-compete and non-solicitation covenant. 59 At the time of the agreement, Briles acquired no ownership interest in Global Link. Later, he acquired an equity interest in Global Link in one of the transactions surrounding Global Link's purchase of the predecessor. 60 Briles left the company in 2007 and began working for a competitor shortly thereafter. 61 The Court of Appeals affirmed the trial court's holding that the restrictive covenants were unenforceable .62 First, the court declined to consider this agreement as one ancillary to the sale of the business. The court found that even though Briles became part owner as a "result of the transaction," the covenant deserves strict scrutiny because Briles had "the bargaining power of only a mere employee at the time he negotiated the transaction. 6 3 Next, the court stated that the non-compete and non-solicitation agreements were broad and too indefinite to be enforceable because they failed to specify with particularity the activities that Briles was prohibited from performing, and because it purported to bar Briles from solicitation of all Global Link's 58. Global Link Logistics, Inc. v. Briles, No. A08A1871, 2009 WL 386906 (Ga. Ct. App. Feb. 18, 2009).

59. Id. at * 1. The non-disclosure covenant prohibited Briles, without time limitation, from disclosing or using for his own purposes "the information

(including lists of customers or potential customers), observations, customer and vendor relationships and data (including trade secrets) obtained by him while employed by the Company." Id. The non-compete covenant prohibited

Briles from "engaging (whether as an owner, operator, manager, employee, officer, director, consultant, advisor, representative or otherwise), directly or indirectly in an Competitive Business for 24 months after his departure, and from soliciting any Global Link customer, present or future supplier or employee during that time. Id. 60. Id. 61. Id. at *2.

62. Id. 63. Id. (emphasis in original)

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customers, regardless of whether Briles had material contact with them.64 Finally, the court also held the non-disclosure agreement unenforceable because it attempted to cover Briles' "observations" and lacked a time limitation, and was therefore 65 overly broad.

The Global Link case is a recent example of the difficulty employer's have in enforcing restrictive covenants that are not specific and narrowly drafted. One reason for this is because Georgia courts have fashioned many subtle rules, any of which can be used to invalidate an entire agreement. In this manner, Georgia courts have taken a decidedly pro-employee stance in non-compete agreements and have provided some rationale for their refusal to apply a blue-pencil theory. However, before examining this rationale along with other policy concerns 66, it is first necessary to trace the origins of Georgia non-compete law in greater detail.

III. CURRENT STATE OF THE LAW A. BriefHistory The earliest recorded case of restrictive covenants emerged in English common law. 6 7 In 1898, the Georgia Supreme Court

64. Id. at *3.

65. Id. at *2.

66 See discussion infra part V. 67 In 1414, subsequent to the adoption of the Ordinance of Labourers, a

judge refused to enforce a plaintiff's request to enjoin one of his former clothes dyers from working in the same town for six months. More than two hundred years later, in 1621, English courts carved an exception to the general rule that restraints on trade were absolutely void and enforced restraints limited to a specific geographic location. By 1711, the exception had become the general rule in the landmark case of Mitchel v. Reynolds, which established the modem framework for the enforceability of noncompete agreements and attempted to apply a rule balancing the interests of the employee with those of the employer. See MATr MARX ET AL., NONCOMPETES AND INVENTOR MOBILITY: SPECIALISTS, STARS AND THE MICHIGAN EXPERIMENT (2007), available at

http://www.hbs.edu/research/pdf/07-042.pdf [hereinafter Michigan Experiment Report]; see also Alger v. Thacher, 36 Mass. 51, 52 (Mass.

1837) (stating that English common law had been considered old and settled since 1415 that restraints on trade are void).

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decided the landmark case Rakestraw v. Lanier,6 8 which explicitly stated Georgia's policy in the context of employment restrictive covenant contracts. In Rakestraw, two physicians entered into a partnership contract with a non-compete clause, stating that if the partnership were to dissolve, neither party would practice medicine within fifteen miles of the partnership base and that any violation of the agreement would result in a $1,000 penalty.6 9 When Lanier sought to enforce the contract, the Georgia Supreme Court stated the clause was unenforceable because it imposed overly broad geographic and temporal restrictions."0 The Court thus established a reasonableness requirement which has had a lasting effect on Georgia restrictive covenant jurisprudence."

B. The Rule of Reason in Georgia The Georgia Constitution declares void any contract which "may have the effect of or which is intended to have the effect of defeating or lessening competition. 7 2 Although restrictive covenants lessen competition to some degree by their very nature, Georgia courts have created a distinction between general and partial restraints of trade. 3 Restrictive covenants in employment contracts are considered partial restraints of trade and thus do not always violate the Georgia Constitution. 4 The reasonableness requirement test established by Georgia courts states that a covenant restricting post-employment competition is enforceable if: [1] the restraint imposed is not unreasonable, [2] is founded on a valuable consideration, [3] and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and [4] does not unduly prejudice the interests of the public.7" The reasonableness of a restrictive covenant is a question of 68. Rakestraw v. Lanier, 30 S.E. 735 (Ga. 1898).

69. Id. at 735-736.

70. Id. at 741.

71. See Rickman, supra note 45, at 1112.

72. See GA. CONST., art. III, ยง 6, 1. 5(c) (1983).

73. See W.R. Grace & Co., v. Mouyal, 422 S.E.2d 529 (Ga. 1992)

74. Id. 75. Id.

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law for the court to determine, considering the nature and extent of the trade or business, the situation of the parties, and all other relevant circumstances.7 6 In determining the reasonableness of restrictive covenants, Georgia courts will examine the restriction's duration, geographic limitation and the scope of the limited activity as a "helpful tool" in examining reasonableness of a particular factual setting to which it is applied.7 7 Because the first prong of this test is the most imprecise, the duration, geographic limitation and scope of activity requirements are discussed in greater detail below. As a practical concern, the imprecision in this test and the legislature's failure to codify specific requirements has led to a lack of clarity for attorneys, as they attempt to draft non-compete agreements for their clients.

This lack of clarity allows a court to use any particular and subtle rule to invalidate the agreement.

A court will not invalidate a restrictive covenant for lack of consideration unless "there be such gross inadequacy of consideration as to shock the conscience and amount in itself to [be] evidence of fraud, or be void for some other reason. ' ' 78 Generally, courts have held that when covenants are created at the time of hiring, the employment itself is adequate consideration for the covenant. 79 However, courts have differed on enforcement of restrictive covenants in cases where the employee signs a covenant after a period of continuous employment.8 0 Courts have found that it is generally unreasonable for an employer to restrict a former employee from post-employment solicitation in a geographic area where the employer has no business interest.8 1 However, an employer does have a legitimate interest in preventing former employees from exploiting their personal relationships with the employer's

76. Id. at 465.

77. See Pittman v. Harbin Clinic Prof 1 Ass'n, 437 S.E.2d 619 (Ga. Ct. App. 1993).

78. Breed v. Nat'l Credit Ass'n, Inc., 88 S.E.2d 15, 17 (Ga. 1955).

79. See Landmark Fin. Servs., Inc. v. Tarpley, 224 S.E.2d 736, 738 (Ga. 1976).

80. See Mike Bajalia, Inc. v. Pike, 172 S.E.2d 676 (Ga. 1970); White v.

Fletcher/Mayo/Assocs., Inc., 303 S.E.2d 746 (Ga. 1983).

81. See W.R. Grace & Co., v. Mouyal, 422 S.E.2d 529, 531 (Ga. 1992).

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customers. s2 Thus, the territorial limitation must not be significantly larger than the area where the employee worked.8 3 However, it is also possible for an employer to make a showing of a legitimate business interest in an area outside of which the former employee worked, and the court will consider the uniqueness of the business and whether the employer has anyone else who can adequately service the restricted area.84 There is very little guidance from the courts on the extent to which a restraint will prejudice the public interest. Generally, the public interest seems to favor employee mobility. In Pregler v. C&Z, Inc. the Georgia Court of Appeals invalidated a nonsolicitation covenant explaining that because it prevented the employee from accepting business from unsolicited former clients, it unreasonably overprotected the employer's interest and had a negative impact on the employee and the "public's ability to choose the professional services it prefers."85 1. Cases Involving Duration

Although there is no specific duration requirement, a clause that lacks a duration restriction will always be found unenforceable. 86 There is little guidance by the courts as to what duration will survive judicial scrutiny, but courts have occasionally held that two years or less is considered reasonable. 87 A court may also find a time restriction reasonable if it is described relative to the time it would take for the employer to assign a new employee to the task and reestablish

82. Wiley v. Royal Cup, Inc., 370 S.E.2d 744, 745 (Ga. 1988).

83. Id. But see Habif, Arogeti & Wynne, P.C. v. Baggett, 498 S.E.2d 346, 352 (Ga. Ct. App. 1998).

84. Id. See also Nat'l Settlement Assocs. of Ga., Inc. v. Creel, 349 S.E.2d 177, 179 (1986).

85. Pregler v. C&Z, Inc., 575 S.E.2d 915, 916 (Ga. Ct. App. 2003).

86. See Johnson v. Lee, 257 S.E.2d 273, 275 (Ga. 1979); Stahl Headers, Inc. v. MacDonald, 447 S.E.2d 320, 322 (Ga. Ct. App. 1994).

87. See Aladdin, Inc. v. Krasnoff, 105, S.E.2d 730, 731 (Ga. 1958); Habif Arogeti & Wynne, P.C., 498 S.E.2d at 351; but see Smith v. HBT, Inc., 445 S.E.2d 315 (Ga. Ct. App. 1994) (holding a five year non-compete that applied only in certain territories and to clients identified on a list was not unreasonable considering the specialized nature of HBT's agricultural and industrial supply business).

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working relations with its customers. 88 2. Cases Involving GeographicLimitations When analyzing the geographic limitation requirement, it is again necessary to distinguish between a general non-compete provision and a non-solicitation restriction. A non-compete covenant may prevent an employee from accepting competing business (whether solicited or not) from any clients (whether previously contacted by him or not) within a given territory.89 In a general non-compete provision, the territorial restriction must be "specific" and "reasonable." 90 Georgia courts will generally enforce a territorial restriction limited to where the employer conducts business if the employer can prove the legitimate business interests it seeks to protect.91 An important but seldom used exception to this general rule is that a court will enforce a territorial restriction even if the employer conducts no business in the area if the employer can prove it has "substantial contacts" in the region. 92 Courts will usually invalidate a noncompete agreement if the territorial limitation was not fixed at the time the covenant was executed, 93 or if it significantly exceeded the area serviced by the former employee.94 In a recent 88. See Orkin Exterminating Co. v. Walker, 307 S.E.2d 914, 916-17 (Ga. 1983).

89. Id. 90. Kuehn v. Selton & Assocs., Inc., 530 S.E.2d 787, 790 (Ga. Ct. App. 2000); See also Rickman, supra note 45, at 1115.

91. See Rollins Protective Servs. Co. v. Somers, 289 S.E.2d 764 (Ga. 1982); Howard Schultz & Assocs., of the Southeast, Inc. v. Broniec, 236 S.E.2d 265, 267-68 (Ga. 1977); See also Rickman, supra note 45, at 1115-6.

92. See Edwards v. Howe Richardson Scale Co., 229 S.E.2d 651 (Ga. 1976) (holding that although employer was not doing business within the territorial restriction, it did have substantial contacts in the territory based on the highly competitive nature of the employer's business and the fact that the employer paid for the employee to attend a school to sharpen his skills).

93. New Atlanta Ear, Nose & Throat Assocs. v. Pratt, 560 S.E.2d 268, 272 (Ga. Ct. App. 2002) (striking down non-compete prohibiting physicians from working within an 8-mile radius of the employer's offices because the office locations were not written into the contract).

94. Wiley v. Royal Cup, Inc., 370 S.E.2d 744, 745-46 (Ga. 1988); Kloville, Inc. v. Kinsler, 238 S.E.2d 344, 345 (Ga. 1977); But see Habif, Arogeti & Wynne, P.C. v. Baggett, 498 S.E.2d 346 (Ga. Ct. App. 1998) (stating that the fact that the employee only worked in 9 of the 11 restricted

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case, Beacon Security Technology, Inc. v. Beasley, the Georgia Supreme Court held that a non-compete agreement which prevented the employee from performing a number of activities within eight restricted counties was unenforceable because the employer failed to prove that the employee actually performed each of those activities within each of the restricted counties during his employment. 95 Finally, courts have produced mixed 96 results in cases where the limitation is stated in vague terms.

In contrast, a covenant not to solicit prohibits an employee from soliciting some or all of the employer's clients for a limited time and sometimes in a limited geographic area. 97 A non-solicit covenant, may prevent an employee from soliciting those clients with whom he had contact during his employment, but it may not preclude the employee from accepting unsolicited business from those clients. 98 In W.R. Grace & Co., v. Mouyal, the Georgia Supreme Court stated that a former employer may restrict solicitation of customers with whom the employee has had meaningful direct contact or prior dealings, regardless of whether they include a geographic limitation. 99 However, an employer may not restrict a former employee from contacting any of the employer's customers without including a specific geographic region. °° In Trujillo v. Great Southern Equipment Sales, LLC.,10 1 the counties at the time of his termination did not render the covenant overbroad because "the law does not require exact precision").

95. Beacon Sec. Tech., Inc. v. Beasley, 648 S.E.2d 440, 442 (Ga. Ct. App. 2007).

96. Hamrick v. Kelley, 392 S.E.2d 518, 519 (Ga. 1990) (holding that a territorial limitation stated in terms of a radius of miles from an undefined term such as "metro-Atlanta" was too vague for enforcement); But see Keeley v. Cardiovascular Surgical Assocs., P.C., 510 S.E.2d 880, 884-85 (Ga. Ct. App. 1999) (stating that where a city, as opposed to a metropolitan area, is designated as the center of the radius the limitation is not overly vague).

97. Habif, Arogeti & Wynne, P.C. v. Baggett, 498 S.E.2d 346 (Ga. Ct. App. 1998).

98. Id. 99. Am. Software USA, Inc. v. Moore, 448 S.E.2d 206, 208-9 (Ga. 1994); W.R. Grace & Co., v. Mouyal, 422 S.E.2d 529, 531 (Ga. 1992); Rickman, supra note 45, at 1117.

100. Am. Software USA, Inc. 448 S.E.2d at 208-9; W.R. Grace & Co., 422 S.E.2d at 531; Rickman, supra note 45, at 1117.

101. Trujillo v. Great S. Equip. Sales, LLC, 657 S.E.2d 581 (Ga. Ct. App.

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Georgia Court of Appeals appeared to greatly narrow the permissible scope of non-solicitation clauses. Great Southern, a company engaged in the business of selling transportation 10 2 equipment, hired Ms. Sarah Trujillo to work as a salesperson.

Trujillo received on-the-job training, lists of Great Southern's customers, and introduction to many of the company's customers and suppliers. 3 Trujillo, a sales employee, argued that the customer non-solicitation provision was unenforceable under Georgia law because it extended beyond just the customers she personally contacted, and included customers about whom "the Employee had confidential or proprietary information because of his/her position with Employer." 1°4 The Court agreed with Trujillo and invalidated the provision as overbroad and unenforceable.10 5 The Court stated that the provision was not a reiteration of the confidentiality clause but was rather "an effort to impermissibly broaden the class of customers whom Trujillo could not solicit.' 0 6 Because the nonsolicitation clause was unenforceable, the otherwise valid noncompete clause was also invalidated. 1 7 3. Cases Involving Scope of Activities The third and final requirement to determine whether a noncompete clause is reasonable is an evaluation of the scope of prohibited activity. Georgia law states that the contract must clearly describe the employer's business and the specific industry that the employee may not enter and must list the specific activities that the employer would like to prohibit the employee from practicing.'0 8 In non-compete cases, a court will invalidate a clause if it prohibits the former employee from providing similar services

2008).

102. Id. at 582.

103. Id.

104.

105.

106.

107.

Id. at 583.

Id. Id. at 584.

Id.

108. Wilson v. Ctr. Bros., Inc., 296 S.E.2d 589, 590 (Ga. 1982); Howard Schultz & Assocs., of the Southeast, Inc. v. Broniec, 236 S.E.2d 265, 268 (Ga. 1977); See also Rickman, supra note 45, at 1118.

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to organizations that do not compete with the employer."° A clause which prohibits the former employee from working for a competitor in any scope or capacity will also be invalidated as too overbroad." A covenant that requires the former employee to promise not to engage in or be employed by any business that is "similar to" the employer's business is likewise too vague to be enforced.'1 1 In non-solicit cases, the court will invalidate the covenant if it applies to all clients with whom the former employee worked, even if they ceased to be clients before the employee's termination. 12 Courts will also not enforce agreements which preclude solicitation of the employer's customers who become known to the former employee through casual conversation in the office.' 13 A covenant that prohibits the former employee from contacting clients to sell them products unrelated to the former employer's business will also be invalidated because it goes beyond what is necessary to protect the employer's 1 business interests. 14 While there are a myriad of additional legal and business concerns that have not been mentioned, the cases above demonstrate that while the law is complex, it is predictable in nature despite lacking inherent clarity. The law is predictable

109. Habif, Arogeti & Wynne, P.C. v. Baggett, 498 S.E.2d 346, 352 (Ga. Ct. App. 1998).

110. Firearms Training Sys. v. Sharp, 445 S.E.2d 538, 540 (Ga. Ct. App. 1994).

111. Howard Schultz & Assoc., 236 S.E.2d 265; but see Allen v. Hub Cap Heaven, Inc., 484 S.E.2d 259, 265 (Ga. Ct. App. 1997) (holding that covenant prohibiting, within a small geographic area and for a short time, a franchisee from owning or operating any "Hub Cap Heaven, Inc. type business" would not be too vague for enforcement if the former franchise owner was the "heart and soul" of the business).

112. Gill v. Poe & Brown of Georgia, Inc., 524 S.E.2d 328, 331 (Ga. Ct. App. 1999) (stating that employer has no legitimate business interest in preventing an employee from soliciting business from clients who may have severed their relationship with the employer long before the employee's termination).

113. Morgan Stanley DW, Inc. v. Frisby, 163 F. Supp. 2d 1371, 1378 (N.D. Ga. 2001).

114. Allied Informatics, Inc. v. Yeruva, 554 S.E.2d 550 (Ga. Ct. App. 2001); see also Riddle v. Geo-Hydro Eng'rs, Inc., 561 S.E.2d 456, 458 (2002).

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because attorneys are aware of the court's policy favoring employee mobility as a way of increasing competition. But the law also lacks clarity because attorneys and courts must currently navigate through countless decisions based on an infinite number of factual variations in the employment relationship. Judicial treatment of restrictive covenants has affected the legislature's attitudes and perceptions on future developments in this area, which are discussed below.

C. The 1990 Restrictive Covenant Act In 1990, the Georgia Legislature passed the Restrictive Covenant Act' 15 which attempted to clarify and drastically alter Georgia law on restrictive covenants in employment contracts.

The substantive portions of the 1990 Restrictive Covenant Act initially drew a distinction between "general" and "partial" restraints of trade.'1 6 General restraints of trade would remain invalid on public policy grounds while partial restraints, or those imposing reasonable restraints, would be permissible. 17 Although there were other specific substantive provisions included in the Act, 1 8 the most significant portion of the Act attempted to change Georgia's policy in enforcement of noncompete covenants by allowing courts to enforce valid parts of a covenant and disregard those parts contrary to public policy if the "restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable."" 19 In Jackson & Coker, Inc. v. Hart, the Georgia Supreme Court held the 1990 Restrictive Covenant Act unconstitutional. 20 The 115. O.C.G.A. ยง 13-8-2(a)(2).

116. Id. 117. O.C.G.A. ยง 13-8-2.1.

118. See JAMES W. WIMBERLY, JR., GA EMPLOYMENT LAW ยง 2:17 (4th ed. 2009) (discussing the 1990 Restrictive Covenant Act and implications under Georgia's Constitution).

119. O.C.G.A. ยง 13-8-2.1(g)(1).

120. Jackson & Coaker, Inc. v. Hart, 405 S.E.2d 253 (1991). See GA. . 5(c) (1983) ("The General Assembly shall not have the power to authorize any contract or agreement which may have the effect or which is intended to have the effect of defeating or lessening competition, or encouraging a monopoly, which are hereby declared to be unlawful and CONST., art. III, ยง 6,

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court in Jackson held the General Assembly overstepped its power with the blue-pencil provision and stated specifically that the language of the provision was an effort by the General Assembly to "breathe life into contracts otherwise plainly void or being impermissible under the Georgia Constitution, Article III, Section VI, Paragraph V(c).' 12I The sole dissenter, Chief Justice Clarke, did not see the blue pencil provision as unreasonable, but rather a questionable policy decision, arguing that the Constitutional provision merely "prohibits the legislature from enacting statutes which unreasonably restrain trade.' ' 22 More uncertainty was added to non-compete law in Crosby v. Hospital Authority of Valdosta,123 when the United States District Court for the Middle District of Georgia discussed whether the court created "rule of reason" was itself a literal application in violation of the constitutional prohibition in Art. III, ยง 6, para. 5. The court first noted that the majority in Jackson did not even mention the rule of reason; and moreover, the statute at question in Jackson was "plainly not a codification of the rule of reason and indeed went considerably beyond that rule in permitting contracts or agreements restrictive in trade."' 2 4 The court further suggested that the majority in Jackson was simply taking issue with the lowered standard of enforceability for contracts restrictive of trade. 12 5 In what may be considered a flash of brilliant foresight, the court concluded by saying that, "doctrines such as the26rule of reason traditionally go out with a bang, not a whimper."'

The "bang" that the Crosby court described is at the heart of the debate currently in Georgia. Georgia has recently passed legislation to allow courts to modify restrictive covenants in employment contracts. However, it seems likely that the legislation can only be adopted through the passage and approval of the constitutional amendment. Although the current legislation is different from the 1990 Act, many of the void.").

121. Id. at 372.

122. Id. 123. Crosby v. Hosp. Auth. of Valdosta, 873 F. Supp. 1568 (M.D. Ga. 1995).

124. Id. at 1580.

125. Id. 126. Id.

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fundamental historical and policy rationales for favoring one theory over another remain unchanged. There is some concern, however, that the gravity of this doctrinal shift is perhaps not receiving the attention it fully deserves from authorities.

IV. HOUSE BILL 173

In April 2008, the Georgia House passed Resolution 1879 which established the House Study Committee on Restrictive Covenants in the Commercial Arena. 127 The main objective of the committee was to examine the proper functioning of restrictive covenants in today's marketplace and to fulfill the legislature's role in defining public policy in this area. 28 The committee was jointly chaired by Representative Kevin Levitas and Senator Judson Hill.' 29 Representative Levitas stated that the legislature's role should be to "provide clear guidance to the courts regarding the sustainability of these private agreements between private contracting parties and how to make them fair to all parties."' 3 ° Rep. Levitas added that some additional objectives of the committee are to provide certainty to parties and to create the ability to attract businesses into Georgia. 1 ' The Committee produced a final report based on their own evaluations, from public testimony of six speakers, and from two written comments from local businessmen. 3 2 Although, most of the witnesses generally expressed support for the legislature's role in creating clarity in employment contracts,'33 there was some debate on how to best accomplish that goal. An attorney, Ben Fink, testified that the current state of the law in 127. H.R. 1879, 149th Gen. Assem., Reg. Sess. (Ga. 2008), available at http://www.legis.ga.gov/legis/2007_08/sum/hrl 879.htm.

128. Press Release, Ga. H.R., Speaker Richardson Appoints Representative Levitas to Chair House Study Committee on Restrictive Covenants in the Commercial Arena (Aug. 26, 2008) available at http://www.tradesecretslaw.com/tags/georgia/.

129. Id. 130. Id. 131. Id. 132. H. STUDY COMM. ON RESTRICTIVE COVENANTS, RESTRICTIVE COVENANTS IN THE COMMERCIAL ARENA: FINAL REPORT (2008) availableat http://georgialegislativenetwork.coi/reports/wp-content/uploads/2009/02/ restrictivecovenants-finalreportl-14-08.pdf 133. Id.

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Georgia is certain and predictable leading to short-lived litigation, while states with blue-pencil doctrines have laws that are more difficult to predict and expensive to litigate.1 4 Mr. Fink also argued that attempting to gain uniformity with other states seems to be an illusory goal.'35 Attorney Bill Long added that although the current law is certain, he felt that the lack of clarity was attributable to the myriad of appellate court opinions across which the law is spread, rather than the legal standards themselves being unclear. 36 Mr. Long seemed to support legislation that would provide a summary of current law but stated that adding a blue-pencil provision would delay certainty for the longest possible time.' 37 Thus, while Mr. Long seemed to support legislation that would provide greater ease of accessibility and clarity, he agreed that blue-pencil litigation is expensive to litigate.' 38 Finally, attorney Les Schneider felt that the blue pencil doctrine was a useful tool, resulting in more outof-court settlements. 13 9 Most of the witnesses agreed that providing for severability of non-competition from nonsolicitation clauses would improve current law. 140 The Committee's findings and recommendations11442' stated in the Final Report resulted in the current legislation.

Section 1 of HB 173 amends O.C.G.A. ยง 13-8-2(a)(2) by eliminating the partial restraint language and instead referring to "certain competitive activities, as provided in Article 4."

Section 2 of HB 173 amends Chapter 8 by repealing the old 138-2.1. Section 3 of HB173 adds Article 4, which includes new code sections 13-8-50 through 13-8-59. Section 13-8-50 is a general policy statement. 43 Section 13-8-51 provides key 134. Id. at 7.

135. Id. 136. Id. 137. Id. 138. Id. 139. Id. 140. Id. 141. Id. at 9.

142. H.B. 173, available at http://www.legis.state.ga.us/legis/2009_10/ pdf/hb173.pdf; H.R. 178, available at http://www.legis.ga.gov/legis/ 2009_10/fulltext/hrl78.htm.

143. "The General Assembly finds that reasonable restrictive covenants contained in employment and commercial contracts serve the legitimate

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definitions, including the definition for "modification."'"

Section 13-8-52 states the applicable scope of parties that are affected by the bill. Section 13-8-53 provides some statutory guidance to employers and employees in drafting considerations. Section 13-8-54 contains the enforcement and modification provision. 4 5 The next sections (13-8-55 through 13-8-59) contain pleading requirements, standards of reasonableness, presumptions, and remedies respectively.

Section 4 states that HB 173 is automatically repealed if an amendment is not ratified during the 2010 election. Finally, Section 5 repeals all laws in conflict. HR 178, the constitutional amendment, would amend Article III, Section46VI, paragraph V, subparagraph (c) of the Georgia Constitution.1 purpose of protecting legitimate business interests and creating an environment that is favorable to attracting commercial enterprises to Georgia and keeping existing businesses within the state. Further, the General Assembly desires to provide statutory guidance so that all parties to such agreements may be certain of the validity and enforceability of such provisions and may know their rights and duties according to such provisions."

144. "'Modification' means the limitation of a restrictive covenant to render it reasonable in light of the circumstances in which it was made. Such term shall include: (A) Severing or removing that part of a restrictive covenant that would otherwise make the entire restrictive covenant unenforceable; and (B) Enforcing the provisions of a restrictive covenant to the extent that the provisions are reasonable."

145. "In any action concerning enforcement of a restrictive covenant, a court shall not enforce a restrictive covenant unless it is in compliance with the provisions of Code Section 13-8-53; provided, however, that if a court finds that a contractually specified restraint does not comply with the provisions of Code Section 13-8-53, then the court may modify the restraint provision and grant only the relief reasonably necessary to protect such interest or interests and to achieve the original intent of the contracting parties to the extent possible."

146. The relevant portion reads: "(3) In order to conform contracts with general laws relating to contracts that restrict competition during or after a term of employment or of a commercial relationship and in order to achieve the original intent of the contracting parties, a court may modify a contract that restricts competition during or after a term of employment or of a commercial relationship to cure any deficiencies relating to the competitive restrictions where the restrictions would, if left unmodified, contravene any provision of this Constitution or of the United States Constitution or would otherwise render the contract or any restrictive covenant contained in the contract unlawful and unenforceable."

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After some minor changes from the House Judiciary Committee, the Georgia House passed House Bill 173 by a vote of 137-22. Following additional consideration from the Senate Special Judiciary Committee, the Georgia Senate passed HB 173 on April 1, 2009. HR 178 will be considered next legislative session. Because the fate of non-compete law now lies in the hands of the people of Georgia, Part V will discuss some of the economic and public policy considerations underlying each theory of enforceability.

V. COMPETING INTERESTS AND POLICY TRENDS

The law of post-employment restrictive covenants has been described as a "sea - vast and vacillating, overlapping and bewildering. One can fish out of it any kind of strange support ' for anything, if he lives so long."147 This "support" takes the form of many competing interests, which can range from employee interest in job mobility,148 employer interest in protecting their business secrets, society's interest in a free and competitive labor market, and judicial interest in enforcing contacts. 149 Courts, legislators and scholars have continually redefined and reweighed these interests based on the peculiar and changing nature of the economic conditions within a particular geographic region.

A. The Information Economy and the New Employment Relationship Employees have traditionally been characterized according to their respective trade. Laborers are distinguished from professionals, blue-collar workers from white-collar workers, 1 50 and people in manufacturing jobs from those in service jobs.

147. Arthur Murray Dance Studios of Cleveland, Inc. v. Witter, 105 N.E.2d 685, 687 (Ohio Ct. C.P. 1952).

148. Employee mobility can be defined as the "ease by which a skilled employee can leave one job, join another company, and immediately apply his or her skills." Charles Tait Graves & James A. Diboise, Do Strict Trade Secret and Non-Competition Laws Obstruct Innovation?, 1 ENTREPRENEURIAL Bus. L.J. 323 (2007).

149. See Stone, supra note 7, at 723.

150. Norman D. Bishara, Covenants Not to Compete in a Knowledge Economy: Balancing Innovation from Employee Mobility Against Legal

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The transition of the American economy from a manufacturingbased economy to an information-based economy has forced many companies to shift their concentration from value gained from tangible assets to value gained from intangible assets: knowledge, experience and creativity of employees.' 5' In this information age, the possession of individual knowledge, expertise and skill are the primary sources of institutional and individual advancement.'52 Moreover, the shift in the U.S. labor market away from labor intensive goods manufacturing toward knowledge-based service industries is expected to continue.'53 The change in the economy has been accompanied by a change in the nature of the employment relationship. 154 This change has led theorists to develop the concept of the "psychological" contract.'55 The concept is based upon the premise that employees today are motivated not by guarantees of secure, long-term employment and generous retirement plans, but rather by promises that their "human capital" will be enhanced through training and experience, while their "social capital" is built through networking opportunities with other departments, vendors and customers.'56 The relationship between non-compete policy and human capital investment highlights the tension between the value of a company's workforce and a firm's ability to acquire and protect its knowledge-based property and business goodwill.'57 Employers are increasingly aware of the value provided by an employee's creative services, particularly in high-tech companies and other

Protectionfor Human Capital Investment, 27 BERKLEY J. EMP. & LAB.. L.

287, 288 (2006).

151. Ann C. Hodges & Porcher L. Taylor, III, The Business Fallout From the Rapid Obsolescence and Planned Obsolescence of High-Tech Produces: Downsizing Non-Competition Agreements, 6 COLUM. SCI. & TECH. L. REv.

3, 6 (2004-2005).

152. Stone, supra note 7, at 721.

153. Bishara, supra note 150, at 291.

154. Id. at 8.

155. See Sandra L. Robinson & Denise M. Rousseau, Violating the Psychological Contract: Not the Exception But the Norm, 15 J. ORG. BEHAV.

245, 246 (1994) (the "psychological" contract refers to an individual's beliefs about the terms of his or her employment contract).

156. Stone, supra note 7, at 735-6.

157. Bishara, supra note 150, at 295.

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knowledge-based industries. 5 8 Regardless of the method of enforcement of non-compete agreements within a particular state - with the exception of California - the courts ultimately

balance competing public policy considerations to determine the reasonableness of a restraint. The changing nature of the economy and the employment contract has forced authorities to re-examine which approach is most suitable to fit the current environment.

B. Three Common Policy Approaches In general, courts have struggled to maintain a balance between (a) protecting healthy competition and employee mobility and (b) the need to protect legitimate business interests that may be compromised by the conversion of valuable59 information and business goodwill invested in the employee.

Non-compete law must adapt to acknowledge both this balance and the changing economic conditions described above. There are three common approaches when examining the policy interests that non-compete law seeks to protect: (1) the employer-rights approach, (2) the economic based employeerights approach, and (3) the consequentialist employee-rights approach.

The first approach is a blend between law and economics, property rights, and contract and argues that non-compete agreements are an efficient tool to encourage and protect an employer's investment in human capital. 60 Because this approach tends to favor the employer, at the expense of employee mobility, a non-compete agreement can be said to inhibit any knowledge transfer from a departing employee to another firm. 161 Professor Gilson described this by using the term "knowledge spillovers."' 162 Opponents of this theory argue that the decrease in employee mobility under this approach will lead to decreased knowledge spillovers, resulting in a chilling 163 innovation. technological on effect 158. Id. at 296.

159. M. Scott McDonald, Non-Compete Contracts: Understanding the Cost of Unpredictability,10 TEx. WESLEYAN L. REv. 137, 141 (Fall 2003).

160. Bishara, supra note 150, at 298.

161. Id. at 306; see infra, Part C. 162. Gilson, supra note 32, at 621.

163. Bishara, supra note 150, at 306.

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The second approach is similarly a law and economics approach, but argues that this chilling effect on innovation is a result of favoring overreaching employers at the expense of employee mobility and knowledge spillover.' 64 The key ideas in this approach are that labor mobility in a knowledge economy will create "high-velocity" labor markets and that the lack of non-compete enforcement is a part of the legal infrastructure that allows for mobility. 165 This approach has been characterized mainly by describing the growth of California's economy as a function of the state's refusal to enforcement non-compete agreements. 66 Another commentator has suggested that less restrictive non-competition laws are more likely to foster the growth of entrepreneurial, creative companies. 67 Especially in regions with high-tech industries, an overly-restrictive employee mobility regime inhibits the development of venture1 68 backed innovation communities.

A third approach relies on the consequentialist argument that non-compete agreements are undesirable because they restrict a worker's freedom to maintain exclusive control over his or her labor. 169 This group primarily argues in favor of employees' rights by finding that non-compete agreements (1) restrain trade and keep important information from the public, (2) cause an overall loss to society by depriving it of valuable services, and (3) fail to protect an employee's unequal bargaining power. 70 This approach further emphasizes the sovereignty of the employee and challenges the firm's ability to control postemployment activities.' 7 ' In contrast to the effects on technological innovation described in the second approach above, the consequentialist employee rights model is generally 164. Id. at 298.

165. Id. at 307. See Gilson, supra note 32; See Alan Hyde, The Wealth of Shared Information: Silicon Valley's High-Velocity Labor Market, Endogenous Economic Growth, and the Law of Trade Secrets, Sept. 1998, availableat http://andromeda.rutgers.edu/hyde/wealth.

166. See infra Part V.C 167.

168.

169.

170.

Graves, supra note 148, at 323.

Id. at 343.

Bishara, supra note 150, at 298.

Id. at 311. See Maureen B. Callahan, Comment, Post-Employment

RestraintAgreements: A Reassessment, 52 U. Cm. L. REv. 703 (1985).

171. Bishara, supra note 150, at 311.

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more concerned with addressing equitable considerations as well as a public policy in favor of promoting autonomy.

Therefore, as a review, the employee mobility maximizing approach (little or no enforcement of non-competes) would encourage the formation of start-up companies because it would greatly lower the legal barriers to obtaining human capital and would be more employee-friendly.1 1 2 This may, however, lead to circumvention of trade secret laws in an environment like the Silicon-Valley community." 3 Another downside is that this approach is not favored by employers and would discourage employer investment in general human capital.'7 4 The knowledge-services maximizing approach would allow strong enforcement of non-compete agreements and increase human capital investment but inhibits employee mobility and discourages innovation through knowledge exchange firms.'7 5 The competing policy interests can be further understood by highlighting the trends taken by various states.

C. Trends in Other States As noted previously, California has statutorily prohibited non-compete agreements, and as a result, as been the target of much commentary. By the mid-1990s, California's Silicon Valley had pulled ahead of Boston's Route 128 as the more successful innovation community. Professor Ronald Gilson's influential article, along with earlier articles, has argued that the success of Silicon Valley as a high-growth agglomeration economy is the result of California's refusal to enforce covenants not to compete." 6 Challenging the common belief that strong intellectual property laws are necessary to promote economic growth, Professor Gilson argued that knowledge spillovers form a necessary component of Silicon Valley's success. 7 However, Gilson cautioned that other regions may 172.

173.

174.

175.

Id. at 318.

Id. Id. Id. at 319.

176. See ANNALEE SAXENIAN, REGIONAL ADVANTAGE: CULTURE AND COMPETITION IN SILICON VALLEY AND ROUTE 128 (1994) (comparing the

industrial districts of California's Silicon Valley and Massachusetts's Route 128); Gilson, supra note 32, at 622-24; See Hyde, supra note 165.

177. Gilson, supra note 32, at 621.

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policymakers not be able to emulate California's success and 78 industries.1 local of characteristics consider should Gilson's article has produced at least one response which challenges his theory regarding non-compete agreements.179 In his response, James Wood noted that venture financing and start-up success was also prevalent in regions where noncompetition clauses are legal, such as Austin, Texas, and North Carolina's Research Triangle, and not just in Silicon Valley. 8 0 Thus, Wood suggests, Professor Gilson may have attributed undue importance to the absence of non-competition agreements in Silicon Valley. However, Wood seems to accept the more general theory that knowledge spillovers provide economic benefits.' 8 ' Wood concludes by stating that the only certainty is that the formula for creating a sustainable technology-based agglomeration economy consists of a large number of extremely complex, interrelated factors. 8 2 Recently, Gilson's theory has been confirmed through some empirical evidence. In 1985, Michigan enacted the Michigan Antitrust Reform Act, which effectively (and possibly inadvertently) reversed Michigan policy by allowing nontook this compete agreements. 83 Several researchers opportunity to exploit Michigan's policy reversal by conducting a natural experiment, presumably to test Professor Gilson's theory. The results of the study concluded that employee by 34% once non-compete agreements were mobility decreased 84 enforced.

Finally, in Massachusetts, courts generally honor covenants not to compete and either rely on the agreement as signed or modify the agreement to meet the common law standard.185 Perhaps due to some of the same concerns raised in this Comment, Massachusetts has recently introduced legislation to follow California's approach and outlaw non-compete

178.

179.

180.

181.

Id. at 576.

See Wood, supra note 32.

Id. Id.

182. Id. at 65.

183. Michigan Experiment Report at 67.

184. Id. at 25.

185. O'Malley, supra note 32, at 1225.

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agreements. 8 6 Although a majority of states have implemented some form of the blue-pencil doctrine, many courts and legislators have recently reevaluated the significance of favoring the employer rights approach in light of current economic conditions.

D. A Retreatfrom Modernized Enforcement of Non-Compete Agreements Traditionally, the law of employee non-compete agreements was highly protective of the employee's interest in mobility and society's interest in free competition. 8 7 Gradually, however, many jurisdictions adopted less stringent approaches by broadening the scope of permissible non-compete agreements and by expanding the protectable interests. 88 Theoretically, these modernized non-compete agreements are not meant to punish the former employee, rather they are meant to protect the employer from unfair competition.' 89 The modern approach has also been to recognize some form of a blue-pencil theory, whether it is strict blue-pencil theory or an approach allowing for reformation or modification, as is being considered in Georgia. 90 Proponents of the modification approach have criticized the common law approach for being too "mechanical," placing undue emphasis on whether covenants are separable and thereby glorifying form over substance.' 9 ' Modification also allows the courts discretion to fashion reasonable terms that are consistent with the intent of the parties, and it prevents employer overreaching by allowing courts to refuse to enforce unreasonable provisions.192 Supporting the adoption of the blue-pencil doctrine will thus 186. See Wade Roush, Legislator Drafting Bill to Outlaw Non-Compete Agreements in Massachusetts. XCONOMY, December 16, 2008, available at

http://www.xconomy.com/boston/2008/1 2/16/legislator-drafting-bill-tooutlaw-non-compete-agreements-in-massachusetts/.

187. Michael J. Garrison and John T. Wendt, The Evolving Law of Employee Non-Compete Agreements: Recent Trends and an Alternative Policy Approach, 45 AM. Bus. L.J. 107, 122 (Spring 2008).

188. Id. at 122-129.

189. Pivatuea, supra note 5, at 676.

190. Garrison, supra note 187, at 130.

191. Id. 192. Id.

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cater to the interest of both parties in the agreement and will ease the harshness of the current one-shot approach that employers face. 9 3 The blue-pencil doctrine may also add value to the justice system by allowing courts to achieve a balance in employment contracts. 94 Several scholars believe non-compete clauses may actually bolster employees' wages and spur companies to invest in informational and human capital. 95 In contrast, some scholars have argued that a blue-pencil doctrine harms employees by allowing employers to draft overly broad provisions. 196 This problem is commonly referred to as the "in terrorem" effect on an employee. In addition, the doctrine creates confusion among the parties and the court system by lacking any flavor of certainty. 197 Because it is impossible to predict the construction of a non-compete agreement in blue-pencil states, the doctrine confuses employees by preventing them from understanding their rights.' 98 The doctrine also leaves an employer to guess at how broadly to draft a covenant. 99 This confusion can also be seen in the legal system, as courts, already overburdened with deciding questions of reasonableness and legitimate business interests, must now take on an additional burden of rewriting the agreement.20 0 This unpredictability and heightened judicial discretion will also cause an increase in the amount of litigation between parties.20° Taken as a whole, the modem approach in favor of bluepencil doctrines represents a liberalization of rules enforcing non-compete agreements and shifts the balance toward the employer's interest in protecting its property and forestalling competition by former employees. 2 However, an analysis of recent court opinions reveals a new trend: a heightened judicial

193.

194.

195.

196.

197.

198.

199.

200.

201.

202.

Rickman, supra note 45, at 1131 Id. Id. at 1120.

Pivateau, supra note 5, at 689-690.

Id. at 691-2.

Id. at 691.

Id. at 692.

Id. at 693.

Id. at 693-4.

Garrison, supra note 187, at 135.

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scrutiny for employee non-compete agreements.2 3 This can be seen through recent efforts by courts to carefully limit the protectable business interests and limit the power of modification, as well as through legislative efforts to tighten restrictions on non-compete agreements. 2° Therefore, the emerging law and the scholarly commentary on economic and policy concerns suggest a retreat from the permissive modem approach toward a movement back to the restrictive doctrines of the common law. 20 5 This recent trend is supported by the changing nature of the employment relationship and the evidence displaying positive economic effects of restrictive non-compete agreements.20 6 E. General Policy Considerationsin Georgia Georgia courts have been very clear that the essential terms of a non-compete agreement, those relating to territorial limitations, duration and scope of activity, must not be vague, indefinite or uncertain.20 7 Additionally, an employment contract inherently involves parties of unequal bargaining power and is thus considered a contract of adhesion.20 8 Just as any other contract, a restrictive covenant must also be based upon sufficient consideration.2 9 Without doubt, public policy considerations are the most predominant force courts employ to invalidate non-compete agreements, as they tend to place an unnecessary restraint on trade.21 In Georgia, whether a restriction is "not unreasonable" and whether it is "reasonably necessary" depends on the interest the court is seeking to protect. One of the interests the Georgia courts have cited is the employer's need to protect customer relationships out of fairness to the employer's investment in

203. Id. at 135.

204. Id. at 135-148.

205. Id. at 135.

206. Id. at 173.

207. Thomas E. Jordan, The Application of Contract Law to Georgia Non-Compete Agreements: Have We Been Overlooking Something Obvious?, 41 MERCER L. REv. 723, 727 (1999).

208. Id. at 731.

209. Id. at 732.

210. Id. at 734-7.

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resources and training for the employee.2 l Courts also seek to protect an employer's confidential information, but this interest is generally best protected through the use of a confidentiality agreement rather than a non-compete agreement. 21 2 In contrast, Georgia courts are very conscious of imposing an undue burden on an employee's freedom to seek meaningful future employment. 21 3 This is due primarily to the court's perception that employees have little bargaining power, which may be motivated in part by a paternalistic bias in favor of employees.2 14 Finally, Georgia courts will occasionally cite the need to further economic development and prevent the monopolistic effect of a non-compete agreement.2 15 VI. IMPLICATIONS OF HOUSE BILL 173

If enacted, HB 173 would create a dramatic change in the landscape of future non-compete jurisprudence in Georgia by giving courts the authority to modify agreements. Because HB 173 has now been adopted by the House and Senate, the next step is for the legislature and people of Georgia to ratify the amendment. The earliest this would occur is the 2010 general election. Although it is certainly the role of the legislature to identify Georgia's policy in regard to restrictive covenants, there is room for further debate on whether such a complete reversal of policy is necessary.

A. The Modification Provision Will Restrict Employee Mobility Current law prevents overly broad restrictions and requires employers to write their covenants with a certain degree of specificity or risk invalidation. Modification allows court discretion to fashion reasonable terms that are consistent with the intent of both parties. Proponents argue that the adoption of a modification provision will cater to the interest of both parties and will ease the harshness of the current one-shot approach that employers face. However, the unequal bargaining power 211. See Rickman, supra note 45, at 1112; See also Orkin Exterminating Co. v. Dewberry, 51 S.E.2d 669,671 (Ga. 1949).

212. See Rickman, supra note 45, at 1112-3.

213. Id. 214. See Harbour, supra note 46, at 1136.

215. Id.

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between the employer and employee, coupled with the desire of most employees to maintain good relations with their employer, results in employees rarely challenging illegal restrictive covenants. If courts are allowed to modify restrictive covenants, employers no longer risk total invalidation and will have less of an incentive to draft narrow restrictions. Thus, the employer is encouraged to create more overly broad restrictions with the knowledge that the majority of them will not be challenged. By looking at restrictive covenant laws in other states, it is apparent that broad restrictions in the employer-employee environment significantly decrease employee mobility. In California, where non-compete agreements are illegal employee mobility has been significantly increased. Michigan has seen a 34% decrease in employee mobility following authorization of non-compete agreements. Thus, the implementation of the blue-pencil doctrine in Georgia will lead to an influx of overly broad restrictive covenants that will have the effect of restricting employee mobility.

B. Recent Trends Favor Employee Mobility Through the implementation of the blue pencil doctrine, the legislature seeks to make restrictive covenants fair to all parties; however, the resulting deprivation to employee mobility outweighs the minimal employer interests that the law aims to protect. The movement towards an information-based economy and a retreat from modernized non-compete law favors employee mobility in Georgia, as less restrictive noncompetition laws are more likely to foster the growth of entrepreneurial, creative companies. A decrease in employee mobility under the blue-pencil doctrine will lead to decreased knowledge spillover in Georgia, resulting in a chilling effect on the state's current growth in technological innovation.

However, it could be argued that the blue-pencil doctrine works as an efficient tool to encourage and protect employers' investment in human capital, and the doctrine's implementation could attract more businesses to Georgia. Additionally, the bluepencil doctrine can help further protect an employer's confidential information, by allowing courts to reasonably modify the agreements instead of refusing to enforce the entire agreement. Nevertheless, the law has found that an employer's confidential information is generally best protected through the

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use of a confidentiality agreement rather than a non-compete agreement. Furthermore, the freedom of mobility that the current law fosters encourages the formation of start-up companies because it greatly lowers the legal barriers to obtaining human capital and is more employee-friendly.

According to Professor Gilson, a policy promoting employee mobility will lead to a positive growth of specialized industries.

Georgia's economy is benefiting and will continue to benefit from its restrictive, employee-friendly outlook on non-compete agreements. For example, Atlanta already serves 2as17 a developing bioscience2 16 and high-technology industry hub.

One of the main reasons the legislature has cited for adopting a modification provision is to align it with the majority of states that already use such a doctrine. But many scholars have warned that policy reversals in restrictive covenants should be based on a comprehensive study of the economic conditions in a particular region. The legislature has produced little empirical evidence to show the economic conditions in Georgia necessitate such a reversal. Alternatively, Georgia's current approach is one reason why Georgia has recently emerged as a nationwide leader in the biosciences and high-tech industry.

Georgia's history of refusing to apply the blue-pencil theory for the past 101 years, coupled with the state's economic development throughout that time, proves that valuing employee mobility over employer interests is best Georgia.

Therefore, allowing the courts to modify restrictive covenants will not be beneficial for Georgia.

216. Georgia is ranked ninth in the nation in number of biotech

companies, with more than 200 firms in metro Atlanta alone. Atlanta serves as a domestic headquarters for major pharmaceutical companies and bioscience companies. These industries are supported by a research sector

comprised of the Centers for Disease Control (CDC), as well as research departments of Emory University, The Georgia Institute of Technology and the University of Georgia. Metro Atlanta Bioscience Council, available at http://www.atlantabioscience.com/industry.asp (last visited Mar. 20, 2009).

217. Georgia is ranked twelfth in the nation in high-tech workers and fourteenth in terms of high-tech payroll. It is also ninth nationwide in hightech establishments and fourteenth in venture capital investments. It is fifth in telecommunications services employment, sixth in software publisher's employment and sixth in internet services employment. See Glen Whitley, Georgia's Tech Industry Adds 3,000 Jobs, AEANET.ORG, April 2, 2008, available at http://www.aeanet.org/PressRoompjjcs2008_georgia.asp.

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C. The Modification Provision Will FurtherComplicate the Law Apart from the considerations above, the adoption of a modification provision will increase the burden on the court.

Currently, Georgia courts are required to be tedious in their calculation of reasonableness and legitimate business interests.

Allowing courts to modify these agreements will further complicate the matter by exponentially increasing the amount of judicial subjectivity involved in interpretation. This will ultimately lead to a judicially imposed agreement and increase the amount of the judicial control over enforceability. The provision will also increase the burden on the courts by also requiring them to re-write the agreement. This will delay any certainty that the law provides and increase the backlog of litigation. Because it is impossible to predict the construction of a non-compete agreement, it will confuse employees, employers and the courts. The legislature must put the responsibility in the hands of the employers and employee at the front-end of the relationship, rather than requiring courts to modify contracts in an exercise of post-hoc adjudication.

VII. CONCLUSION The modification provision will have the unintended effect of restricting employee mobility and possibly decreasing overall economic growth in Georgia. Further, it will generate a burden on the court and promote judicial control over the parties, having the net result of increasing unpredictability in the law.

Thus, Georgia should not allow courts to modify employment agreements.

Although the adoption of a modification provision is unnecessary, the legislature must take action to provide a clear and coherent picture of the law. There is currently a lack of clarity because the existence of a legitimate interest and the necessity of the restraints imposed by a non-compete are unavoidably peculiar to the particular employer, employee and job at issue. The legislature should provide a statute on the current state of the law in order to create greater clarity. This can be accomplished by clearly formulating non-compete policy goals and then by formalizing these goals into legislation to serve as guidance to parties and courts. The legislature should also focus on creating more incentives for employers and

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employees to regularly review agreements and modify them according to the employee's changing duties and roles.

Employers should be encouraged to make a deliberate effort to adhere to fundamental principles of contract formation and drafting. In this sense, an agreement that balances employment inequalities between parties and strives to achieve the true intent of the parties may be best accomplished by reorganizing the employment relationship from the bottom-up, rather than compelling the courts to interpret and repair relationships that have already been destroyed through litigation.

Georgia's decision on whether to adopt a constitutional amendment, and in turn, a policy allowing courts to modify non-compete agreements will conceivably create a paradigm shift and touch the lives of judges, attorneys, businesses and employees alike. The implementation of this doctrine will potentially create more confusion in the area of restrictive covenant law than there is now. Further, the blue-pencil doctrine does not coincide with Georgia case law and economic data that has historically favored employee mobility.

The legislature should instead consider creating a statute that creates greater clarity and works to promote the employment relationship.

SHOGUNJ. KHADYE*

J.D. Candidate, May 2009, John Marshall Law School; B.S. North Carolina State University. I would like to thank Daniel Shaughnessy and Jeni Martin for all of their suggestions and their help with editing. I would also *

like to thank my parents and my sister for putting up with me and for providing me inspiration and encouragement.

ARE RED LIGHT CAMERAS IN GEORGIA OVEREXPOSING THE PUBLIC AND UNDERMINING PRIVACY RIGHTS? I. INTRODUCTION

Red-light running is the leading cause of urban crashes.'

More people are injured in crashes involving red-light running than in any other crash type.2 According to the National Highway Safety Administration, more than 850 people die and approximately 170,000 are injured each year in crashes caused by drivers running red lights. 3 In 2006, in Georgia alone, 69 people lost their lives in accidents caused by drivers who disregarded a stop signal.4 In an effort to increase intersection safety, Georgia passed a red light camera law in June 2003. 5 Since its implementation, Georgia's red light camera law has been at the center of much debate and controversy. Among other matters, opponents of red light camera enforcement express concerns that the cameras interfere with citizens' privacy rights. On January 28, 2009, House Bill 31 was introduced to repeal Georgia's red light camera program. 6 This comment argues that House Bill 31 1. Insurance Institute for Highway Safety, Highway Loss Data Institute: Red Light Running, http://www.iihs.org/research/topics/rlr.html (last visited Oct. 28, 2008).

2. City of Baton Rouge: Red Light Safety Program, http:/Ibrgov.com/redlight/redlightrunningfacts.htm (last visited Oct. 28, 2008).

3. Larry Copeland, Research: Red-light Cameras Work, USA TODAY, Feb. 14, 2008.

4. GOHS: Georgia Highway Safety Statistical Information: Contributing Factors, http://www.gahighwaysafety.org/statistics/contributingfactors.html (last visited Nov. 18, 2008).

5. H.R. 182, 14 4 th Gen. Assem., Reg. Sess. (Ga. 2003) available at http://www.legis.state.ga.us/legis/2003_04/sum/hb 182.htm (last visited Oct. 28, 2008).

6. H.B. 31, 15 0 th Ga. Gen. Assem., Reg. Sess. (Ga. 2009), availableat http://www.legis.state.ga.us/legis/2009_10/sum/hb3 I.htm.

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should not be signed into law, because Georgia's red light camera law only minimally interferes with privacy interests and has demonstrably improved intersection safety in Georgia.

Specifically, this comment argues that motorists have a diminished expectation of privacy in automobiles and no reasonable expectation of privacy in license plates. Moreover, Georgia's interest in promoting intersection safety outweighs the minimal intrusion on an individual's privacy interests caused by the use of red light cameras. This comment begins with an analysis of Fourth Amendment Privacy Rights. Parts III and IV provide the reader with an overview of various organizations who oppose and support red light camera legislation and also an insight into their differing views in Part V outlines important regard to privacy concerns. provisions of Georgia's current red light camera law to give the reader a better understanding of the extent to which Georgia's red light camera law interferes with an individual's privacy rights. Part VI analyzes the effectiveness of the red light camera law in Georgia and also provides the reader with a brief Part VII overview of how red light cameras operate. acknowledges that red light camera legislation in the United States has seldom been challenged on privacy grounds. This comment, after carefully weighing Georgia's interest in intersection safety against the level of intrusion on an individual's privacy caused by the use of red light cameras, concludes that Georgia's red light camera law, if challenged, would likely survive a constitutional challenge on privacy grounds.

II. PRIVACY RIGHTS UNDER THE FOURTH AMENDMENT The Fourth Amendment protects the right of the people to be secure in their persons, houses, paVers, and effects, against Stated differently, the unreasonable searches and seizures.

Fourth Amendment protects individual privacy against certain kinds of governmental intrusion. As Justice Brandeis put the matter in his dissent in Olmstead v. United States, the Fourth Amendment "conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right

7. U.S. CONST. amend. IV.

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8 most valued by civilized men."

Consistently with Katz v. United States, the U.S. Supreme Court has held that to invoke the protection of the Fourth Amendment, a person must be able to claim a 'justifiable,' 'reasonable,' or 'legitimate expectation of privacy' that has been invaded by government action. 9 Therefore, in the case of red light cameras, the issue is whether a motorist has a "reasonable" expectation of privacy while operating a motor vehicle on a public roadway.

The U.S. Supreme Court has commented on numerous occasions on the diminished expectation of privacy in an automobile.' ° In United States v. Knotts, the Court held that a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."

In Cardwell v. Lewis, the Court explained "one has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." 12 In Rakas v. Illinois, the Court pointed out "nothing is better established in Fourth Amendment jurisprudence than the distinction between one's expectation of privacy in an automobile and one's expectation when in other locations. We have repeatedly recognized that this expectation

in 'an automobile

. . .

[is] significantly different from the

traditional expectation of privacy and freedom in one's residence."'" 13 In support of this distinction, the Court offered the following reasons: Automobiles operate on public streets; they are serviced in public places; they stop frequently; they are usually parked in public places; their interiors are highly visible;

8. 277 U.S. 438, 478 (1928) (Brandeis, J. dissenting).

9. United States. v. Knotts, 460 U.S. 276, 280 (1983).

10. Knotts, 460 U.S. 276 (1983); Rakas v. Illinois, 439 U.S. 128 (1978); United States. v. Chadwick, 433 U.S. 1 (1977); South Dakota v. Opperman, 428 U.S. 364 (1976); Cardwell v. Lewis, 417 U.S. 583 (1974).

11. Knotts, supra note 9, at 281.

12. 417 U.S. 583, 590 (1974) (plurality).

13. 439 U.S. 128, 153-54 (1978) (citing United States v. Martinze Fuerte, 428 US 543, 561 (1976)).

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and they are subject to extensive regulation and inspection. 14 For these reasons, the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.

In addition to the diminished expectation of privacy in an automobile, it is also important to point out that motorists have no reasonable expectation of privacy in their license plate.15 In Ellison v. United States, the court agreed that a motorist has no reasonable expectation of privacy in the information contained on his license plate under the Fourth Amendment.' 6 In support of its conclusion, the court noted: "A tenet of constitutional jurisprudence is that the Fourth Amendment protects only what an individual seeks to keep private. What a person knowingly exposes to the public ...

is not a subject of Fourth Amendment

protection."' 17 The Ellison court also cited New York v. Class, in which the U.S. Supreme Court held that an automobile's Vehicle Identification Number, located inside the passenger compartment, but visible from outside the car, does not receive Fourth Amendment protection.1 8 In Class, the Court noted that "[I]t is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. The VIN's mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a 'search'."1 9 The Ellison court then concluded that this reasoning logically extends to license plates, which are legally required identifiers located outside the vehicle.2 0 "No argument can be made that a motorist seeks to keep the information on his license plate private. The very purpose of a license plate number, like that of a Vehicle Identification Number, is to provide identifying information to law enforcement officials and others. The reasoning in Class 14. Id. 15. United States. v. Ellison, 462 F.3d 557 (2006) (citing Katz v. United

States, 389 US 347, 351 (1967)).

16. Id. at 561.

17. Id. 18. Id. 19. Id. 20. Id.

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vis-a-vis Vehicle Identification Numbers applies with equal force to license plates: '[B]ecause of the important role played by the [license plate] in the pervasive governmental regulation of the automobile and the efforts by the Federal Government to ensure that the [license plate] is placed in plain view,' a motorist can have no reasonable expectation of privacy in the information contained on it." 21 The Ellison court also pointed out that every court that has addressed this issue has reached the same conclusion.22 However, establishing that there is a diminished expectation of privacy in automobiles and no reasonable expectation of privacy in license plates does not end the inquiry. In addition, "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests., 23 Here, the test would involve balancing Georgia's interest in preventing accidents caused by red-light runners, the effectiveness of red light camera enforcement in achieving that goal, and the level of 21. Id.

22. Id. at 562. Every court that has addressed this issue has reached the same conclusion. The Tenth Circuit has held on two occasions that license plates are "in plain view on the outside of the car" and thus, are "subject to seizure" because there is no reasonable expectation of privacy. United States v. Matthews, 615 F.2d 1279, 1285 (10th Cir.1980); see also United States v.

Walraven, 892 F.2d 972, 974 (10th Cir. 1989). The Fifth Circuit has also held that "[a] motorist has no privacy interest in her license plate number."

Olabisiomotosho v. City of Houston, 185 F.3d 521, 529 (5th Cir.1999); accord United States v. Sparks, 37 Fed.Appx. 826, 829 (8th Cir.2002); Hallstein v. City of Hermosa Beach, 87 Fed.Appx. 17, 19 (9th Cir.2003).

The only two panels of this court to address the question have reached the same result. United States v. $14,000.00 in U.S. Currency, No. 98-4380, 2000 WL 222587, at *3 (6th Cir. Feb.14, 2000) (finding no Fourth Amendment violation in a computer check of a license plate); United States v. Batten, 73 Fed.Appx. 831, 832 (6th Cir.2003) (same). As one panel wrote, "[T]here is no case law indicating that there can be any reasonable expectation of privacy in license plates which are required by law to be displayed in public on the front and rear of any vehicle on a public street."

Batten, 73 Fed.Appx. at 832; see also Wayne R. LaFave, 1 Search & Seizure ยง 2.5(b) (4th ed. 2004) ("[I]t is apparent that when a vehicle is parked on the street or in a lot or at some other location where it is readily subject to observation by members of the public, it is no search for the police to look at the exterior of the vehicle.") (citing Katz and Olabisiomotosho).

23. Delaware v. Prouse, 440 U.S. 648, 654 (1979).

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intrusion on an individual's privacy caused by the red light cameras.

While the governmental interest in intersection safety has been called into question, the effectiveness of red light camera enforcement and the level of intrusion on an individual's privacy caused by the red light cameras have equally been the topic of much debate and controversy.

III.

CRITICS OF RED LIGHT CAMERAS

Over the years, red light cameras have been the subject of much criticism.

Many organizations, interest groups, legislators, and individuals are publicly speaking out against their use. The National Motorist Association (NMA), for instance, which was founded to represent and protect the interests of North American motorists and which supports efforts to retain motorists' freedoms and rights, strongly opposes the use of red light cameras. 24 The NMA claims that red light cameras do not improve safety and cites numerous photo enforcement studies, which allege that red light cameras 25 are ineffective and even contribute to an increase in accidents.

For instance, the NMA points to a report released by the Virginia Transportation Research Council entitled "The Impact of Red Light Cameras (Photo-Red Enforcement) on Crashes in Virginia." V The report, a study of six jurisdictions in Virginia that deployed red light cameras during a seven-year period from January 1, 1998 through December 31, 2004, revealed that red light cameras were associated with an increase in rear-end crashes (about 27% or 42% depending on the statistical method used.) 27 According to the NMA, the preponderance of

24. National

Motorists

Association:

About

the

NMA,

http://www.motorists.org/aboutus/ (last visited Oct. 30, 2008).

25. National Motorists Association: Photo Enforcement Studies,

http://www.motorists.org/photoenforce/home/studies/ (last visited Oct. 31, 2008).

26. Nicholas J. Garber, et. al, Virginia Transportation Research Council Research Report: The Impact of Red Light Cameras (Photo Red Enforcement) on Crashes in Virginia, available at

http://www.motorists.org/photoenforce/2007Virginia.pdf 19, 2009).

27. Id.

(last visited Jan.

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independent research (in other words, research that was not funded by ticket camera vendors or units of government interested in justifying camera-based traffic enforcement) has illustrated that ticket cameras typically increase, not decrease, the number of accidents at controlled intersections.2 8 Opponents of red light cameras also claim that communities are not truly concerned with safety and instead only use red light cameras as revenue generators. 29 For that reason, many critics negatively refer to red light cameras as "cash cows." 3 o The mid-Atlantic chapter of the American Automobile Association (AAA), who initially supported the use of red light cameras, now shares this view. 31 In 2003, Lon Anderson, a spokesman for AAA, announced the organization's shift in attitude when he told state officials that municipalities are abusing red light photo enforcement cameras to shake down drivers for needed 32 revenue.

Opponents of red light cameras, point to alternatives to improve intersection safety. 3 3 They argue that red light violations can be reduced dramatically by simply increasing the yellow light duration. 34 They believe local governments ignore the safety benefit of increasing yellow light time and install red light cameras to collect profits instead. In support of their

28. National Collisions

Motorists

Association:

Ticket

Cameras, Intersection Increase,

http:/www.motorists.org/photoenforce/home/intersection-collisionsincrease! (last visited Jan. 19, 2009).

29. Kathryn Grondin, Red-light Cameras: Safety Tool or Moneymaker?, DAILY HERALD, Mar. 3, 2008.

30. Bob Barr, Lawful Frown on Red-light Cash Cows, available at

http://www.bobbarr.org/default.asp?pt=newsdescr&RI=825 31. Kelley Beaucar Vlahos, Critics Say Red Light Photo Enforcement a

Shakedown, Fox News, Sept. 15, 2003.

32. Id. 33. National Motorists Association: 6 Cities that were Caught Shortening Yellow Light Times for Profit, http://www.motorists.org/blog/6-cities-that-

were-caught-shortening-yellow-light-times-for-profit/ (last visited Jan. 19, 2009).

34. Id.; On January 1, 2009 O.C.G.A. ยง 40-14-22, which mandates a onesecond increase in the duration of the yellow warning light at intersections with red light cameras, became effective. It will be interesting to see what kind of impact this new law will have on red light camera enforcement in Georgia.

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claim, red light camera opponents point to six cities that have been caught shortening yellow light times for profit.35 For instance, an investigation by a local TV station in Dallas, Texas found that of the ten red light cameras that issued the greatest number of tickets in the city, seven were located at intersections where the yellow duration was shorter than the bare minimum recommended by the Texas Department of Transportation (TxDOT).3 6 In Tennessee, the city of Chattanooga was forced to refund $8,800 in red light cameras tickets issued to motorists trapped by an illegally short yellow time. 37 The refund only occurred after a motorist challenged his citation by3 8insisting that the yellow light time of 3.0 seconds was too short.

In addition to concerns about the effectiveness of red light cameras and their misuse as revenue generators, concerns have also been raised that the use of red light cameras interferes with citizens' privacy rights. In Georgia, former Congressman, Bob Barr, has taken a stance against the use of red light cameras. On February 20, 2007, during a hearing in front of the Motor Vehicle Committee of the House of Representatives, Mr. Barr spoke in support of House Bill 77, which had initially been 39 introduced to abolish the use of red light cameras in Georgia.

Mr. Barr expressed concerns that citizens will see an erosion of privacy rights as jurisdictions move to include pictures of those in the cars as well as of the car itself.40 According to Mr. Barr, the issue is one of public policy: "Do we, as a society, want to live in a panopticon where we have cameras, monitored and maintained by the state that can take away a person's freedom?" 41 Mr. Barr has also written an article on the use of red light cameras entitled "Lawful Frown on Red-light Cash Cows." 42 In the article, Mr. Barr makes it clear that, in his opinion, ubiquitous surveillance cameras are inconsistent with 35. Id. 36. Id. 37. Id. 38. Id.

39. Video Recording of the Motor Vehicles H. Comm. Meeting, Feb. 20, 2007 (remarks by Bob Barr), availableat http://www.legis.state.ga.us/legis/ 2007_08/house/Committees/motorVehicles/motorArchives.htm.

40. Id. 41. Id.

42. Bob Barr, supra note 30.

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the constitutional right to privacy embodied in our Bill of Rights 43 and that their prevalence does not reflect good public policy.

The Privacy Rights Clearing House, a nonprofit consumer information and advocacy group, shares Mr. Barr's view on red light cameras. "If you take it to its logical extreme," says Beth Givens, Director of Privacy Rights Clearinghouse, "we could become a society where automated systems are enforcing the law - a system of ubiquitous monitoring." 44 The privacy issues addressed by Mr. Barr and the Privacy Rights Clearing House raise legitimate concerns, specifically in states that permit jurisdictions with red light cameras to capture an image of the driver and his/her passengers. In Italy, for example, a senator's marriage faltered when his wife spotted his mistress in a photo radar citation.4 5 IV. SUPPORTERS OF RED LIGHT CAMERAS

While there are those who oppose the use or red light cameras, there are also many who support their use.

Surprisingly, the large majority of the American public supports the use of red light cameras. 4 6 A 2002 nationwide survey sponsored by the National Highway Traffic Safety Administration found that 75 percent of drivers favored the use of red light cameras.4 7 Looking at accident statistics, it is difficult to deny the existence of the red light running problem and the states' interest in increasing intersection safety. Traffic crashes are the single most significant cause of preventable death and injury in

43. Id. 44. Bruce Horovitz, Smile! You're on a Redflex Camera, USA TODAY, July 5, 2006.

45. National Motorists Association: Ticket Cameras: Inside the District's Red Lights, http://www.motorists.org/photoenforce/home/inside-red-light-

cameras/ (last visited Jan. 28, 2009).

46. Insurance Institute for Highway Safety, Highway Loss Data Institute: Q&As: Red Light Cameras, http://www.iihs.org/research/qanda/rlr.html (last

visited Oct. 31, 2008).

47. National Highway Traffic Safety Administration, 2004, National survey of speeding and unsafe driving attitudes and behavior: 2002; Volume II: findings. Report no. DOT HS-809-730. Washington, DC: US Department of Transportation.

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North America. 4 8 In 2006, as many as 171,000 crashes, 144,000 injuries, and 887 fatalities were attributed to red light running in the U.S. 4 9 In Georgia alone, 1,693 people died in car Therefore, Georgia has a legitimate accidents in 2006.50 governmental interest in improving intersection safety by reducing the number of accidents caused by red-light runners.

In addition to many drivers, there are also organizations that believe in the effectiveness of red light camera enforcement, such as the Insurance Institute for Highway Safety (IIHS) and the Federal Highway Administration (FHWA).5 ' In support of their positions, the IIHS and FHWA both cite studies that show that red light cameras render intersections safer. 52 For instance, a study by the FHWA found that red light running violations decreased by as much as 60 percent at intersections where cameras automatically enforce the law. 53 The report analyzed results of red light running camera programs in Los Angeles County; San Francisco; New York City; Howard County, The Georgia Maryland; and Polk County, Florida.54 Association of Chiefs of Police also supports the use of red light cameras and believes in their effectiveness. Speaking on behalf of the association, Marietta Police Chief Dan Flynn explained to the Motor Vehicles Committee of the House of Representatives that the number of red light violations as well as the number of

48. National Campaign to Stop Red Light Running: The Problem, http://www.stopredlightrunning.com/html/problem.htm (last visited Oct. 29,

2008).

49. Id. 50. Fatality Analysis Reporting System Encyclopedia: Fatalities and State, http://wwwFatality Rates by fars.nhtsa.dot.gov/States/StatesFatalitiesFatalityRates.aspx (last visited Oct. 29, 2008).

51. Horovitz, supra note 44.

52. Insurance Institute for Highway Safety, Highway Loss Data Institute, supra note 1; U.S. Department of Transportation, Federal Highway Light Running: Success Stories, Administration: Stop Red http://safety.fhwa.dot.gov/intersections/rlrcamsuccess.htm (last visited Oct.

31, 2008).

53. See Press Release, Federal Highway Administration: Red Light Running: Publications: Automated Cameras Work, FHWA Study Finds Red Light Running Violations Down 60 Percent, Feb. 24, 2000, available at

http://www.fhwa.dot.gov/pressroom/fhwa0009.htm 54. Id.

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accidents has declined steadily in Georgia as a result of red light camera enforcement.55 Supporters of red light cameras generally do not cite any privacy concerns. They believe having a police officer sitting on the side of the road and pulling them over for running the light is equally invasive. 56 As a matter of fact, cameras may be less invasive feeling, because they are just robots.57 They do not judge or ask questions about where the motorist is going and came from and so forth.58 They do not peek in the back of the motorist's car with a flashlight. 59 Supporters of red light cameras as helping remove the potential cameras also view 60 biases of police.

Due to the overwhelming amount of contradicting information available on red light camera enforcement provided by different interest groups, it is difficult to determine whether or not the red light camera enforcement law has proven to be effective in Georgia and to what extent, if any, red light camera enforcement interferes with Georgians' constitutionally protected right of privacy. Light can be shed on the issue by taking a closer look at a jurisdiction in Georgia that has been utilizing the red light camera system since June 2005. First, a general understanding of Georgia's red light camera law is useful.

V. GEORGIA'S RED LIGHT CAMERA LAW

On June 3, 2003, Governor Sonny Purdue signed House Bill 182 into law, which authorized the use of red light cameras in Georgia. 61 House Bill 182 amended Code Section 40-6-20 of the Official Code of Georgia Annotated relating to the 55. Video Recording of the Motor Vehicles H. Comm. Meeting, Feb. 20, 2007 (remarks by Marietta Police Chief Dan Flynn), availableat http://www.legis.state.ga.us/legis/2007_08/house/Committees/motorVehicles /motorArchives.htm 56. Drivers.com: Red light cameras: A Drivers.com Overview of the Issue,

http://www.drivers.corn/article/562/#Privacy(last visited Jan. 29, 2009).

57. Id. 58. Id. 59. Id. 60. Id. 61. Ga. Gen. Assem., H.B. 182, supra note 5.

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obedience to traffic control devices. 62 Specifically, the new law provided that "The driver of a motor vehicle shall be liable for a civil monetary penalty of not more than $70 if such vehicle is found, as evidenced by recorded images produced by a trafficcontrol signal monitoring device, to have been operated in disregard or disobedience of a circular red or red arrow signal in 63 violation... of this Code Section ..

In addition to ensuring that the new law could not be misconstrued as a criminal offense, lawmakers also imposed requirements upon the operation of red light cameras. For instance, red light cameras must record a minimum of two images (in the form of photographs, microphotographs, electronic images, or videotape) showing a traffic-control signal displaying a circular red or red arrow signal along with the rear of a motor vehicle operated in disobedience of such signal, and, on at least one image or portion of tape, clearly revealing the 64 license plate number displayed on the motor vehicle.

However, in an effort to address privacy concerns, Georgia Governor Sonny Purdue, on May 13, 2004, signed Senate Bill 603 into law, which specifically prohibits red light cameras 65 from capturing images of the driver or any passengers.

Pursuant to O.C.G.A. § 40-14-21(j), "a traffic-control signal monitoring device shall not be used to produce any photograph, microphotograph, electronic image, or videotape showing the 66 identity of any person in a motor vehicle."

Moreover, Georgia motorists, who despite this limitation on the use of red light cameras still have privacy concerns, also have the option of avoiding monitored intersections. Pursuant to O.C.G.A. § 40-14-23, counties and municipalities are required to warn motorists that traffic-control signal monitoring' devices are being employed within their jurisdiction.

Specifically, counties and municipalities using red light cameras are required to erect warning signs on state routes leading into their jurisdiction and on the public roads approaching the

62. Id.

63.

64.

65.

66.

67.

O.C.G.A. O.C.G.A. O.C.G.A. Id. O.C.G.A.

§ 40-6-20(f)(3)(A) (2008). § 40-6-20(f)(1)(B)(i)-(ii) (2008). § 40-14-210) (2008).

§ 40-14-23 (2008).

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intersection where red light cameras have been installed.6 8 VI. GEORGIA'S RED LIGHT CAMERA LAW IN ACTION

The City of Alpharetta is currently one of twenty-two communities in Georgia that are operating red light cameras or are in the process of installing them. 6 9 The city contracts with Nestor Traffic Systems, a private company headquartered in Rhode Island, which provides automated traffic safety systems to municipalities throughout the U.S. and Canada. ° Captain Osborne, as the Commander over the Traffic Safety Unit (TSU) of the Alpharetta Police Department is responsible for overseeing the issuance of the red light camera violations. 7 ' Alpharetta began operation of its red light camera system in June 2005 and during 72 the first year recorded violations at five different intersections.

The city now has seven intersections that are equipped with red light cameras.7 3 According to Captain Osborne, the goal of the city's red light camera enforcement program is safety.7 4 Specifically, the program seeks to reduce the number of crashes caused by red-light running by changing driver behavior through education and consistent enforcement of red light violations.

But, has the red light enforcement program been successful?

Have monitored intersections truly become safer? Accident data collected by the City of Alpharetta shows that, during the first year of its red light camera enforcement program, motor vehicle accidents caused by red light running declined by 64% at monitored intersections and 12.8% citywide.7 6 The program

68. Id.

69. Insurance Institute for Highway Safety, Highway Loss Data Institute: Communities using Red Light and/or Speed Cameras, http://www.iihs.org/research/topicsautoenforcecities.html (last visited Oct. 31, 2008).

70. Interview with Terri Osborne, Captain, Alpharetta Police Department, in Alpharetta, Ga. (Sept. 11, 2008).

71. Id. 72. Id. 73. Id.

74. Id. 75. Id. 76. Id.

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has also been successful at changing driver behavior over time. 77 Since the initiation of the red light camera program, fewer drivers run red lights at monitored intersections. 8 As a result, the City of Alpharetta has seen a decline in the number of citations issued.79 Pursuant to O.C.G.A. ยง 40-14-24, each county or municipality in Georgia using any traffic-control signal monitoring device must submit a yearly report on such use to the Governor, the Lieutenant Governor, and the Speaker of the House of Representatives. 80 Among other things, the report must include the number of violations recorded at each In compliance with the law, the City of intersection. 81 Alpharetta's 2006, 2007, and 2008 Annual Reports to Governor Sonny Perdue document the number of violations recorded at five monitored intersections within the City. 82 The data summarized in the table and graph below, which shows a reduction in the number of recorded red light violations, demonstrates the effectiveness of Georgia's red light camera law.

Number of Recorded Red Light Camera Violations City of Alpharetta Intersections 2006 2007 2008 Reduction

#1 5,539 3,113 2,340 57.8%

#2 5,982 3,718 2,828 52.7%

#3 2,842 2,120 1,479 48.0%

#4 8,144 7,253 5,394 33.8%

#5 4,526 2,496 2,400 47%

77. Id.

78. Id. 79. Id. 80. O.C.G.A. ยง 40-14-24 (2008).

81. Id. 82. Interview with Terri Osborne, supra note 70. (Note that data from 2005 was not included due to the fact that the City of Alpharetta did not implement the use of red light camera enforcement until June 2005. The 2005 Annual Report therefore does not contain data for an entire year.)

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Red Light Cameras in Georgia Reduction in Red Light Camera Violations inthe City of Alpharetta 2006 to 2008

B 2006 1 2007 a2008

1

2

4

5

Intersections: #1: Haynes Bridge Road at North Point Pkwy #2: S.R. 120 at North Point Pkwy #3: Windward Pkwy at Westside Pkwy #4: S.R. 9 at Academy Street #5: S.R. 120 at Haynes Bridge Road In addition to a reduction in red-light running and an increase in safety at monitored intersections, the City of Alpharetta has experienced other positive side effects since implementing the use of red light cameras.8 3 According to Captain Osborne, the cameras have a halo effect, meaning that the city has seen a decrease in red light violations even at intersections that are not monitored. 4 Furthermore, prior to the installation of its red light camera system, the city experienced problems with motorists blocking intersections during rush hours.8 5 Since the implementation of the red light camera system, this problem has 83.

Id.

84. Id.

85. Id.

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been completely alleviated at monitored intersections. 86 While there is significant evidence that the red light camera law in Georgia has indeed changed driver behavior in the City of Alpharetta and, as a result, has rendered monitored intersections safer, there is still a question as to what extent red light cameras interfere with an individual's right to privacy.

Here, a general understanding of how the red light camera enforcement system works is helpful.

The system employed by the City of Alpharetta uses multiple cameras placed at an intersection to record video evidence of red-light running. 87 Using time and distance calculations, the system predicts that a vehicle will run a red light and then activates three independent video cameras.88 These video cameras only capture evidence of the rear of the vehicle, the license plate, and a video showing the vehicle behind the stop line while the light is red and then proceeding through the intersection while the light is still red.89 Stated differently, no images of the driver or passengers are captured. 90 According to Captain Osborne, the video cameras do not zoom in on any of the occupants of the violator's vehicle. 9' The occupants are never discernible in the video recording, not even if they are riding in a convertible with the top down. 92 This is consistent with Georgia's red light camera law, which clearly prohibits capturing electronic images of the identity of any person in the violator's• motor vehicle. 93 Moreover, the cameras only record 94 violations. Contrary to common belief, they are not constantly monitoring and recording the intersections. 9 5 For these reasons, it appears that the red light cameras do not interfere with an individual's right to privacy.

While Georgia prohibits capturing the image of the driver, other states specifically require it. For example, in California 86.

87.

88.

89.

90.

91.

92.

93.

94.

95.

Id. Id. Id. Id. Id. Id. Id. O.C.G.A. § 40-14-21(e) (2008).

Interview with Terri Osborne, supra note 70.

Id.

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and Colorado images of the driver are taken for the purpose of red light camera enforcement. 96 Pursuant to Section 210 of California's Vehicle Code, automated enforcement systems are designed to obtain a clear photograph not only of a vehicle's license plate but also of the driver of the vehicle. 97 Similarly, in Colorado, red light cameras record a photograph of the vehicle, 98 the license plate of the vehicle, and the operator of the vehicle.

However, it is important to note that in both California and Colorado, red light offenses recorded by automated enforcement systems are criminal offenses. 99 Due to the fact that the standard of proof is higher in a criminal proceeding, photographic evidence of the driver is needed to prove, beyond a reasonable doubt, the identity of the offender. Yet even among states that require photographic evidence of the driver, some states have enacted specific provisions to address privacy concerns. For instance, in California, notwithstanding the California Open Records Act, or any other provision of law, photographic records made by an automated enforcement system must be kept confidential and are made available only to governmental agencies and law enforcement agencies and only for the purpose of red light enforcement.' 00 VII.

CONSTITUTIONAL CHALLENGES ON PRIVACY GROUNDS

While red light legislation has been challenged on different constitutional grounds, such as equal protection and procedural due process, it has seldom been challenged on privacy grounds.' 0 ' However, in Agomo v. Williams, a District of Columbia Superior Court case, the trial judge, the Honorable Melvin R. Wright, addressed the notion of privacy concerns

96. GHSA: Speed and Red Light Camera Laws,

http://www.ghsa.org/html/stateinfo/laws/autoenforce.html 31, 2008).

97. CAL.VEH. CODE

98. COLO. REV.

(last visited Oct.

ยง 210 (West 2008).

STAT. ANN.

99. Id.; CAL.VEH. CODE

ยง 42-4-110.5 (West 2008).

ยง 21461 (West 2008).

100. CAL.VEH. CODE ยง 21455.5(e)(1) (West 2008).

101. Insurance Institute for Highway Safety, Highway Loss Data Institute: Summary

of

Decisions

Concerning

Automated

http://www.iihs.org/laws/autoenforce-cases.html 2008).

Enforcement,

(last visited

Oct.

31,

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surrounding photo enforcement despite the fact that the plaintiffs had brought suit challenging the constitutionality of the District of Columbia's Automated Traffic Enforcement System on Fifth Amendment Due Process grounds. 10 2 The court concluded, "Although cameras operated by the government are a concern regarding privacy issues, those concerns are outweighed by the legitimate concerns for safety 1 03 on our public streets."

VIII. CONCLUSION

In Georgia, the red light camera law has not yet been challenged on privacy grounds. Moreover, Georgia's Attorney General, Thurbert E. Baker, also has not issued any official or unofficial opinions regarding privacy concerns surrounding the use of red light camera enforcement. 10 4 However, should Georgia's red light camera law ever face a challenge on privacy grounds, it is likely to survive the balancing test in which courts weigh the intrusion of a law enforcement practice on an individual's Fourth Amendment interests against its promotion of legitimate governmental interests. 10 5 As already mentioned above, in case of Georgia's red light camera's law, the test involves balancing Georgia's interest in preventing accidents caused by red light runners, the effectiveness of red light camera enforcement in achieving that goal, and the level of intrusion on an individual's privacy caused by the red light cameras.

While critics fear an erosion of privacy rights as more jurisdictions adopt red light camera legislation, the level of intrusion caused by Georgia's red light camera law on an individual's privacy is minimal. As explained above, the U.S. Supreme Court has held that motorists have a diminished expectation of privacy in automobiles and no reasonable expectation of privacy in license plates. Additionally, Georgia's red light camera law has provisions which safeguard an 102. No. 02-0006520, 2003 WL 21949593 (D.C. Super. June 12, 2003).

103. Id. at *7.

104. Official Website for the State of Georgia: Attorney General, Thurbert E. Baker, http://law.ga.gov/02/ago/home/0,2705,87670814,00.html (last visited Oct. 31, 2008).

105. Delaware v. Prouse, supra note 23, at 654.

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individual's privacy. Georgia law specifically prohibits red light cameras from capturing images of the driver or any passengers. Moreover, Georgia motorists have the option of avoiding intersections equipped with red light cameras. Under Georgia law, counties and municipalities using red light cameras are required to erect warning signs on roads approaching red light camera intersections and also on state routes leading into their jurisdiction.

There is also strong evidence to support that Georgia has an interest in preventing accidents caused by red light runners.

While critics claim that communities are not truly concerned with safety and instead misuse red light cameras to generate revenue, accident statistics clearly establish the existence of a red light running problem.

Furthermore, there is strong evidence to suggest that red light cameras are effective at changing driver behavior and as a result render intersections safer. This in turn, leads to a significant decline in the number of red light citations issued at monitored intersections over time, which undermines the cash-cow argument.

Having established that Georgia has a strong interest in intersection safety and that red light camera enforcement is indeed effective in achieving that goal, and, furthermore having established that the intrusion on an individual's privacy is minimal, it is evident that Georgia's interests in promoting intersection safety clearly outweigh the minimal intrusion on an individual's privacy caused by the use of red light cameras.

Therefore, Georgia's red light camera law is likely to survive any challenges based on privacy grounds. For these reasons, and especially in light of the fact that Georgia's red light camera law has demonstrably improved intersection safety, House Bill 31 should not be signed into law.

Randa Hafez*

* J.D. Candidate, May 2009, John Marshall Law School; B.B.A. Oglethorpe University, magna cum laude. I would like to thank my family and friends for their unconditional love, support and understanding during law school.

ADOPTION: How PROTECTING PRIVACY IS IN THE BEST INTEREST OF GEORGIA'S CHILDREN INTRODUCTION

In March 2008, the Georgia Court of Appeals, in In re Hadaway, was faced with the question of whether the sexual orientation of a putative adoptive parent can be considered as per se contrary to the best interest of a child, and thus, justify a categorical ban on adoption by homosexuals.' The Court left this question unanswered and decided the case on unrelated grounds.2 Banning adoption by homosexuals is controversial leading to a highly visible debate in the media and judicial arena alike. 3 In refusing to address the issue, the Georgia Court of Appeals left the law in a state of uncertainty, but this uncertainty will have to be addressed in the near future.

The "best interest of the child" (hereinafter the best interest standard) is the standard used in most statutes regarding the

1. In re Hadaway, 659 S.E.2d 863 (Ga. Ct. App. 2008).

2. Id. 3. Eight former members of Florida's State House and Senate, involved in enacting the ban on adoption by homosexuals signed a statement repudiating the ban. AMERICAN CIVIL LmERTIES UNION, PRESS RELEASE, available at (last visited http://www.aclu.org/lgbt/parenting/ 11856prs20020307.html March 13, 2009)(hereinafter "ACLU Press Release") ( signatories included former Senate President (and former U.S. Congressman) Harry Johnston; former House Speaker Tom Gustafson; former House members Elaine Bloom, Tony Fontana and Barry Kutun; and former Senators Sherrill "Pete" Skinner, Paul Steinberg and Sherman Winn). Furthermore, as I wrote this comment a trial judge in Florida ruled that Florida's ban on adoption by homosexuals was unconstitutional. Yolanne Almanzar, Florida Gay Adoption Ban Is Ruled Unconstitutional,N.Y. TIMES, November 26, 2008, at at available A21, Amanda http://Www. nytimes.com2OO8/1 1/26/us/26florida.html?_r=1; Ruggeri, Judge in Miami Rules Florida Ban on Gay Adoption Unconstitutional, WORLD REPORT, November 25, 2008, available at http://www.usnews.com/articles/news/national/2008/11/25/judge-in-miamirules-florida-ban-on-gay-adoption-unconstitutional.html.

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legal custody of a child.4 Georgia statutes apply the best interest standard in adoption contexts, 5 yet the law is unclear as to whether the standard is guided by the same limitations and considerations in non-adoption contexts. As a statutory standard, the best interest standard should be applied uniformly across adoption and non-adoption contexts. When the Georgia Court of Appeals chose to ignore this issue, it invited future litigation, creating disconnect in the application of the best interest standard.

In re Hadaway was the tip of the iceberg. The legal ramification of this decision is implicit approval for every trial judge in Georgia to choose, based on personal preference, whether to consider homosexuality per se contrary to the best interest of a child in the adoption context. If a judge chose to condition adoption on sexual orientation, he would find possible support in the Eleventh Circuit opinion of Lofton v. Secretary of the Dep't of Children and Family Servs., in which the court upheld Florida's statutory ban on adoption by homosexuals under the Federal Constitution.6 This practice of conditioning adoption on sexual orientation, while not publicized, already exists in Georgia.7 In re Hadaway provided the Court of Appeals with the opportunity to disavow the practice and harmonize the application of the best interest standard consistent with Georgia law, but the court declined to do so.

The issue remains, as a statutory standard should the best interest standard be interpreted differently in the adoption 4. In this paper "child custody" pertains to custody determinations between persons (between parents, parents and third parties, parents and adoptive parents, between non-parents). Custody determinations that are between the parents and the state, such as delinquency and deprivation proceedings, are not included. In those contexts the language changes to "needs of the child" or "safety" of the child but the application of this standard is functionally equivalent to the best interest standard in that the promotion of the child's welfare, safety, and development are paramount.

5. O.C.G.A. ยง 19-8-18(b) (2008), ("If the court is satisfied.. .that the adoption requested is for the best interest of the child it shall enter a decree of adoption ... ").

6. 358 F.3d 804 (1 1th Cir. 2004).

7. See Hadaway, 659 S.E.2d 863. Author is in part also basing this observation on experience with the Georgia Department of Family and Children Services as a social worker exposed to the State's adoption practices.

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context, such that adoption can be conditioned upon sexual orientation? The application of the best interest standard, including treatment of homosexuality, shall be addressed in Part I of this comment.

Not only is conditioning adoption on sexual orientation inconsistent with the best interest standard, such an approach is an unjustified invasion of the adoptive parent's right to privacy.

While the scope of privacy afforded to sexual conduct under the Federal Constitution is not well defined, sexual privacy is protected under Substantive Due Process.8 The Supreme Court expressly held in Lawrence v. Texas that a state must have a legitimate interest for intruding into a person's sexual privacy that is independent of social or moral disapproval of the person's sexual practices. 9 Despite the Eleventh Circuit's decision in Lofton, conditioning adoption upon sexual orientation is an intrusion into privacy in violation of Equal Protection. Even if it is arguable that conditioning adoption on sexual orientation does not violate the Federal Constitution, it does violate Equal Protection under the Georgia Constitution, which protects sexual privacy under a fundamental right to privacy. 10 Part II of this Comment will address the constitutional ramifications of conditioning adopting on sexual orientation.

I. BEST INTEREST OF THE CHILD IN CUSTODY AND ADOPTION PROCEEDINGS

A. Georgia and Eleventh Circuit Decisions Conditioning Adoption on Sexual Orientation under the Best Interest Standard 1. In re Hadaway and the Georgia Court of Appeals Treatment of the Case While Georgia law is clear that the best interest standard applies in the adoption context, it is unclear, however, whether 8. In Lawrence v. Texas the Supreme Court held that sexual privacy is protected under Substantive Due Process but did not articulate the scope of the protection or whether sexual privacy is protected via strict scrutiny or mere rational basis. 539 U.S. 558 (2003).

9. Id. 10. Powell v. State, 510 S.E.2d 18 (Ga. 1998).

11. See Hester v. Mathis, 248 S.E.2d 538 (Ga. Ct. App. 1978) (holding

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the standard is interpreted differently in the context of adoption. 12 This is the issue left unanswered by the Georgia Court of Appeals in In Re Hadaway."3 In Hadaway, the biological mother of a six-year-old girl formally transferred custody of her child to Ms. Hadaway and later decided it was in her daughter's best interest to remain with Ms. Hadaway permanently. 4 In accordance with Georgia law, 15 the Department of Family and Children Services conducted an investigation of Ms. Hadaway and her home, 16 noting that she then lived with her same-sex partner, but concluding the adoption was in the best interest of the child.'" However, when the judge read the report, he concluded that Ms. Hadway had misled the court in that she was attempting to adopt the child jointly with her partner contrary to Georgia Law.' 8 The judge entered an order declaring the adoption contrary to the child's best interest on the basis that Ms. Hadaway was engaged in a lesbian relationship and, that such was in contravention of Georgia law.' 9 The judge concluded that the child would "have

the purpose of a hearing upon an adoption petition is to determine whether the adoption is in the best inertest of the child); Kirkland v. Lee, 287 S.E.2d 365 (Ga. Ct. App. 1981) (stating that the best interest standard is a criterion in adoption cases); Brant v. Bazemore, 325 S.E.2d 905 (Ga. Ct. App. 1985) (holding that an adoption is to be approved or denied in accordance with the best interest of the child).

12. Emphasis added.

13. In re Hadaway, 659 S.E.2d 863, 863-67 (Ga. Ct. App. 2008). An appeal to the Georgia Supreme Court was not made.

14. Id. at 864.

15. O.C.G.A. ยง 19-8-16(a) (2008) (requires the court to order an investigation of the putative adoptive parent and their home).

16. Hadaway, 659 S.E.2d at 864.

17. Id. Under O.C.G.A. ยง 19-8-17(a)(5) (2008); (the Department is to note approval by determining "[w]hether or not the adoption is in the best interest

of the child...").

18. Hadaway, 659 S.E.2d at 864; O.C.G.A. ยง 19-8-3 (2008) (only married persons can jointly adopt a child, if a couple is not married only the petitioner will be the legal parent of the child, domestic partners will not have any legal relationship with the child).

19. Id; Brief for Appellant at 3, In re Hadaway, 659 S.E.2d 863 (Ga. Ct. App. 2008) (No. A07A1626), 2007 WL 4867255; Brief of Amici Curiae Child Welfare League of Am., et al., at 5, Hadaway, 659 S.E.2d 863 (No. A07A 1626), 2007 WL 4867259.

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a long-term exposure to the homosexual parent's lifestyle... and such exposure included "the dangers of isolation and stigma" from being raised by women ... who openly engage in a homosexual relationship. '21 The trial judge did not discuss any evidence or make any findings regarding any actual impact on the child related to Ms. Hadaway's homosexuality or how the child was actually functioning, despite the fact that the child had now lived with Ms. Hadaway for almost nine months.2 2 Rather, the judge treated Ms. Hadaway's homosexuality as per se contrary to the child's best interest. In addition to denying the adoption, the judge ordered the biological mother to resume custody of the child, which she did, under threat that if the mother did not "exercise continuous, good faith care, custody, and control of the said child, then the said child shall immediately be taken into shelter care and proceedings shall be initiated in the Juvenile Court" against the mother for child deprivation. 23 After being returned to the biological mother the child exhibited significant distress at being separated from Ms. Hadaway and the mother asked Ms. Hadaway to take the child back. 24 During the course of the proceedings, Ms. Hadaway moved from Wilkinson to Bibb County and upon resuming custody of the child, her attorney filed a new petition seeking legal custody of the child in Bibb County. 25 The judge in Wilkinson County held Ms. Hadaway and her attorney in contempt of court for filing the new petition.2 6 Ms. Hadaway's and her attorney's appeals were

20. Brief for Amici at 11-12, Hadaway,659 S.E.2d 863 (No. A07A1626), 2007 WL 4867259.

21. Brief for Appellant at 38-29, Hadaway, 659 S.E.2d 863 (No. A07A 1626), 2007 WL 4867255.

22. See Brief of Appellant at 2, 38-39, Hadaway, 659 S.E.2d 863 (No. A07A1626), 2007 WL 4867255; Brief of Amici at 5, 12, Hadaway, 659 S.E.2d 863 (No. A07A 1626), 2007 WL 4867259.

23. Hadaway, 659 S.E.2d at 865.

24. Id. It was the act of filing the new petition coupled with the fact that Ms. Hadaway has resumed physical custody of the child that served as the

basis for the contempt charge.

25. Id. 26. Id. at 864.

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consolidated.27 Both argued that the trial judge erred in finding them in contempt on the grounds that the order was not directed at them and that the underlying order, denying the petition for adoption and revoking custody, was void and clearly erroneous.2" The Court of Appeals only addressed the first argument, that the order was not directed at Ms. Hadaway or her attorney, and reversed the contempt charge. 9 The court made no mention of the trial court's treatment of homosexuality as per se contrary to the child's best interest. The only reference by the court of Appeals to the basis for denying the adoption petition is the statement that "the court found fault with Hadaway's filing for adoption as an individual when the home visitation report contained information about both Hadaway and her partner as if they were adopting as a couple, and for not disclosing that information in the adoption petition."30 In fact, a person reading the In re Hadaway case would not even know that Ms. Hadaway was a homosexual or that homosexuality served as the basis for denying the adoption.

When the Court of Appeals completely ignored the trial judge's application of the best interest standard, it avoided an uncertain area of the law: whether the best interest standard is or should be interpreted differently in the adoption context than in other contexts.

2. Lofton v. Secretary of Department of Children and Family Services and the Eleventh Circuit'sTreatment of the Case Rather than rely on the discretion of trial judges as Georgia does, Florida statutorily bans adoption by homosexuals.3" It does so while applying the best interest standard.32 As the facts from Lofton v. Secretary of the Dep't of Children and Family 27. Id. at 866.

28. Id. 29. Id. at 866-67.

30. Id. at 864.

31. The validity of this statute is currently unclear. A trial judge in Florida

struck down the statute as unconstitutional in August 2008, but the case has yet to reach the Florida Court of Appeals. In re Adoption of Doe, 2008 WL 5006172 (Fla. Cir. Ct.); FLA. STAT. ANN. ยง 63.042(3) (2003).

32. The judge is to approve the adoption if it "is in the best interest of the person to be adopted". FLA. STAT. ANN. ยง 63.142(4) (2008).

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Servs.,33 illustrate, even if the decision to condition adoption on sexual orientation was made by the legislature, the result is the same, the focus of the adoption shifts from the child to the putative adoptive parents.

In Lofton, the Eleventh Circuit Court of Appeals upheld Florida's express ban on homosexuals adopting.34 Steven Lofton, the named plaintiff in the case, is a registered pediatric nurse who has raised three foster children from infancy." Mr. Lofton sued to challenge the denial of his adoption application for one of these three children, called "John Doe. '3 6 When Doe was born, he tested positive for HIV and cocaine and was immediately placed in Florida's foster care system, which resulted in his placement with Mr. Lofton and his same-sex partner.3 7 Miraculously, when Doe was eighteen months old, he sero-reverted meaning he has since tested HIV negative.38 When Doe's HIV status changed, he became eligible for adoption, prompting Mr. Lofton to file an application for adoption which was denied based on his sexual orientation.3 9 When Lofton reached the Eleventh Circuit in 2004, Doe was thirteen years old and still living with Mr. Lofton. 40 Despite the fact that Mr. Lofton had raised Doe from infancy to thirteen years of age and that Doe considered Mr. Lofton and his partner his family, calling both men "dad", the court held that Florida could refuse to legally recognize this de facto family and deny Mr. Lofton permission to adopt Doe.41 Thus, the denial of the adoption is in the best interest of Doe and Doe can be adopted by a heterosexual stranger.

33. 358 F.3d 804 (11th Cir. 2004).

34. Id. at 815.

35. Id. at 807.

36. Id. (he is named "John Doe" to protect his identity).

37. Id. 38. Id. 39. Marisa Gonzalez, If You Can't Fix it You've Got to Stand it: Lofton v.

Secretary of Department of Children and Family Services and the Florida Adoption Statute's Discrimination Against Homosexuals and Foster Children, 7 WHITTER J.CHILD & FAM. ADVOC. 277, 298-99 (2008).

40. 359 F.3d at 807.

41. See id.

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B. Development and Application of the Best Interest Standardin Non-Adoption Context 1. Development of the Best Interest Standard in Georgia A fundamental rule of statutory construction is that statutory language, including standards, are to be interpreted in a manner consistent with statute's plain language and to effectuate legislative intent.42 The best interest standard has been interpreted, albeit in very vague language, as a child-centered approach to custody determinations.43 The court's focus is on the needs of the child, not the rights or interests of any putative custodians involved.' Despite the standard's proffered purpose, to focus solely on the needs of the child, public opinion and collective consciousness do infiltrate custody determinations in the adoption context.45 In order to analyze the application of the best interest standard in the adoption context, it is useful to understand the development of the standard in Georgia. The best interest standard was first applied in custody disputes between parents.4 6 O.C.G.A ยง 19-9-3, regulates custody disputes between parents, and provides, "It]he duty of the judge in all such cases shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child's welfare and happiness and to make his or her award accordingly. 47 Neither parent has a prima facie right to custody, nor are there any presumptions in favor of one parent: parents are initially on equal footing.4 8 The standard affords the judge broad discretion to consider any and all circumstances that impact the child. 49 The standard is fact sensitive and, as such, 42. Currid v. DeKalb State Court Probation Dept., No. S08G0322, 2009 WL 735641 (Ga. 2009) (citing Slakman v. Continental Cas. Co, 587 S.E.2d 240 (Ga. 2003)).

43. See Clark v. Wade, 544 S.E.2d 99, 102 (Ga. 2001).

44. See id.

45. See infra Part I-C. 46. O.C.G.A. ยง 19-9-3 (2008); Clark v. Wade, 544 S.E.2d 99, 102 (Ga. 2001).

47. O.C.G.A. ยง 19-9-3(a)(2) (emphasis added).

48. Id. ยง 19-9-3(a)(1).

49. The statute provides a non-exhaustive list of seventeen factors the judge can consider. The list is too extensive to be included here, but note that

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requires a case-by-case approach. However, inherent in this standard is one important limitation: the judge should consider circumstances that will impact the 50child directly; generalized views on social issues are irrelevant.

In custody disputes between parents and non-parents, the best interest standard was not applied until 1996.1 Prior to this, Georgia applied the "parental rights standard" and the "fitness standard" in custody disputes between parents and nonparents. 52 The focus was on biology to the exclusion of the needs of the child.53 A non-parent seeking custody had to establish that either: (1) a parent had lost their constitutionally 54 protected parental rights or (2) that the parent was unfit.

Neither doctrine addressed the needs of the child. Practically speaking, if a parent was alive and well and would not physically harm the child, all other factors were irrelevant.55 Factors such as minimal contact or lack of an actual relationship between the child and biological parent were shoved to the wayside.56 Not surprisingly, the application of these standards resulted in harsh and often unjust custody determinations.57 The inadequacy of these doctrines to address the needs of the child 58 led to the inclusion of the best interest standard in all seventeen factors focus on the interest of the child, not the interest of the parents in having custody. Id. at ยง 19-9-3(a)(3).

50. See id. ยง 19-9-3; see also Chapin v. Cummings, 12 S.E.2d 312 (Ga. 1940) ( "[T]he 'paramount interest of the child' shall not be taken to mean that the court would in any given contest simply determine where the child might have the better financial, educational, or even moral advantages."); See also GA. CONST. art. I, ยง 1, 25 (1983) (social status of citizen shall never be the subject of legislation).

51. Clark, 544 S.E.2d at 102.

52. Id. 53. Id. 54. Id. 55. See id.

56. See generally Clark, 544 S.E.2d at 103 (discussing the harsh results of doctrines pre-dating the best interest standard in a dispute between parents and non-parents).

57. Id. 58. Howell v. Gossett illustrates the traditional biology-as-paramount approach. In Howell, the Georgia Supreme Court removed custody from the child's stepfather upon the mother's death and awarded custody to the biological father, despite the fact that the stepfather had raised the child from

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O.C.G.A. ยง 19-7-1, which regulates custody disputes between parents and non-parents. 9 Under this code section a limited group of relatives can petition the court for custody of a child over a parent's objections.60 In upholding the constitutionally of ยง 19-7-1, the Georgia Supreme Court noted that the statute left three important presumptions intact: first, that a parent is fit to have custody; second, that a parent acts in the best interest of their child; and third, that it is in a child's best interest to have custody awarded to a parent. 6' A non-parent seeking custody over the objection of a parent will have to rebut these presumptions by clear and convincing evidence. 62 Rebutting these presumptions requires the non-parent to show that awarding custody to the parent will result in physical or emotional harm to the child.6 3

While at first glance it appears that the presence of a presumption in favor of parental custody alters the best interest standard, in a dispute between a parent and non-parent, the application of the standard is basically the same. 64 The focus is still on the interest of the child; evidence of physical or emotional harm to the child can rebut the presumption in favor of a parent.65 The focus is shifted from the child's biological infancy to age ten. The court's decision was based on the belief that custody should automatically vest in a fit biological parent, even one with a limited or non-existent relationship with the child. 214 S.E.2d 882 (Ga. 1975).

59. O.C.G.A. ยง 19-7-1(b.1) (2008); Clark,544 S.E.2d at 102.

60. O.C.G.A. ยง 19-7-1(b.1) (eligible relatives include adult siblings, grandparents, aunts, uncles, and adoptive parents). It is important to note that the statute only regulates custody; it does not sever the parent-child relationship via termination of parental rights. Termination of parental rights is a separate legal issue that is outside the scope of this paper. Even if custody is awarded to a non-parent, "the parent retains significant rights, including the right to visitation and to obtain custody under changed circumstances. When parental rights are not severed, federal constitutional law does not require a showing that the parent is unfit before custody may be awarded to a third party." Clark, 544 S.E.2d at 105.

61. Clark, 544 S.E.2d at 104.

62. Id. 63. Id. (emphasis added).

64. Note that the presumption in favor of a parent does not alter the best interest standard so much as it alters the burden of proof required to over come the presumption.

65. Clark, 544 S.E.2d at 104.

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relationship with the parent to the needs of the child.66 The same inherent limitation found in custody disputes between parents is present in the non-parent context: the judge must consider the direct impact that circumstances have on the child.6 7 In Stills v. Johnson, the Georgia Supreme Court expressly held that the best interest standard also governs disputes between non-parents, overruling precedent to the contrary. 68 "In a custody dispute between two non-parents, the standard must also be the best interest of the child. Otherwise the law would protect a child more in a custody dispute involving his or her own parent than in one involving non-parents. '69 The judge is not choosing between competing non-parents (or parents for that matter) interests in the child; the judge is choosing the custody arrangement that is in the best interest of the child.7" In order to ensure that a child is not less protected in the adoption context, the best interest standard must be guided by the same considerations and limitations as those present in a dispute between parents.7 ' The focus of the court's inquiry must be on the interests of the child; thus, the judge should consider factors that have an actual impact on the child. These include the child's emotional ties with the putative custodian, the capacity of the putative custodian to meet the physical and psychological needs of the child and the putative custodian's ability to support 72 the child's social and educational development.

2. Considerationof a Parent'sSexual Orientationin the NonAdoption Context under the Best Interest Standard Homosexuality of a parent presented a complex problem in application of the best interest standard in many states during the mid to late 1990's. 73 This is most likely because, unlike race, 66. Id. 67. See id.

68. Stills v. Johnson, 533 S.E.2d 695 (Ga. 2000).

69. Id. at 700.

70. See id. (emphasis added).

71. See id.

72. See O.C.G.A. ยง 19-9-3(a)(3) (listing factors that can impact a child).

73. In 1996 when Georgia first addressed consideration of a parent's homosexuality under the best interest standard only a minority of states required evidence of an adverse impact of a parent's homosexuality on the child before sexual orientation becomes an appropriate factor for the court to

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religion, and ethnicity, homosexuality has been labeled "immoral" and is often treated as representative of deviate sexual practices.74 The development of case law in a majority of states, including in Georgia, resulted in a de facto categoryimmoral sexual conduct-which was treated as per se contrary

to a child's best interest."

Homosexuality of a parent was problematic because orientation is not capable of objective measurement in the sense that emotional and financial stability are; sexual orientation cannot be analytically separated from the individual. 76 "[I]t might be argued that homosexual conduct in the home harms children and it is the homosexual conduct, rather than the status of being homosexual that is being highly frowned upon."7 7 Sexual conduct is inherently tied to sexual orientation, as they are two links in the same chain, the trait and the exercise of the trait.7 8 In reality "[t]he status of homosexuality exists in one place: the bedroom."7 9 However, in Georgia, prior to 1996, it was acceptable to condition custody on the sexual orientation of the parents irrespective of any sexual conduct.8 0 Thus the consider. In re R.E.W., 471 S.E.2d 6, 9 (Ga. Ct. App. 1996). See Chaffin v.

Frye, 119 Cal. Rptr. 22 (Cal. App. 2d 1975); D. H. v. J. H., 418 N.E.2d 286 (Ind. Ct. App. 1st Dist. 1981); Doe v. Doe, 452 N.E.2d 293 (Mass. App. Ct. 1983); Hall v. Hall, 291 N.W.2d 143 (Mich. Ct. App. 1980); DiStefano v.

DiStefano, 401 N.Y.S.2d 636 (N.Y. App. Div. 1978); Jacobson v. Jacobson, 314 N.W.2d 78 (N.D. 1981); Mohrman v. Mohrman, 565 N.E.2d 1283 (Ohio Ct. App. 1989); M. J. P. v. J. G. P., 640 P.2d 966 (Okla. 1982); Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. Ct. 1985).

74. See 24A AM. JUR.2d Divorce and Separation ยง 937 (2008), Homosexuality of Parent (stating that "[alithough amorality, immorality, sexual deviation, and aberrant sexual practices may not ipso facto render a parent unfit to have custody of a child, a parent's homosexuality may properly be considered. .. ").

75. Id.; In re R.E.W., 471 S.E.2d at 9. (Court noted that only a minority of states refused to condition custody on sexual orientation); See e.g. Truitt v.

Truitt, 431 N.W.2d 454, 458 (Mich. 1988) (noting that custody can be conditioned on the immorality of the parent); See also supra note 73.

76. Whether sexual orientation is an immutable characteristic in the same sense that race and gender are is beyond the scope of this comment.

77. Gonzalez, supra note 39, at 324.

78. See id.

79. Id. at 287.

80. See In re R.E.W., 471 S.E.2d at 7 (the trial judge based his denial of extended visitation upon the father's sexual orientation, not evidence of

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inquiry was not whether the putative custodian was engaged in any particular sexual conduct that threatened the welfare of the child, rather the inquiry ended with sexual orientation. This approach contradicts the major concerns expressed regarding parenting by homosexuals which centers on sexual conduct and sexual experience.8" Generally, Georgia, as well as other states, however, took custody away from homosexual parents based on either their orientation or their sexual conduct. Homosexuals were damned if they were celibate and damned if they weren't.

In 1996, the Georgia Court of Appeals, in In re R.E.W, joined the minority of jurisdictions holding that sexual conduct alone, even conduct considered immoral, cannot be the basis of a custody determination. 82 The court held that the "primary consideration in determining custody and visitation issues is not the sexual mores or behavior of the parent, but whether the child will somehow be harmed by the conduct ....83 Parental sexual

conduct is irrelevant unless and until there is some evidence of the conduct's adverse impact on the child.84 In In re R.E.W., a homosexual father living with his partner petitioned the court to expand his current visitation order to include unsupervised visitation with his child. 85 The trial court denied his petition, noting in the order that the judge "regularly disallowed" contact between children and parents if the parent is engaged in an "immoral" relationship, whether it was heterosexual or homosexual.86 The trial judge also noted that the child would be exposed to the nature of the father's homosexual relationship.87 The Court of Appeals reversed, holding that absent evidence the father's homosexuality would adversely impact the child it was

sexual conduct).

81. See infra Part II-B(2).

82. 471 S.E.2d at 6. The appellate court recognized that this was a case of first impression and adopted the minority view regarding the homosexuality of a parent. The Georgia Supreme Court denied certiorari over the passionate dissent of Justices Carley, Hines, and Hunstien. In re R.E.W., 472 S.E.2d 295 (Ga. 1996) (stating that the Court of Appeals adopted the "minority rule").

83. In re R.E.W., 471 S.E.2d at 9.

84. See id at 9.

85. 471 S.E.2d at 7-8.

86. Id. at 8.

87. Id.

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error to focus on the sexual conduct of the father.88 It reasoned that a parent's "undesirable" or "immoral conduct" might warrant restricting contact between a child and parent, "but only if it is shown that the child is exposed to the parent's undesirable conduct in such a way that it has or would likely adversely affect the child".8 9 Furthermore, exposure to sexual conduct would adversely affect a child regardless of whether the conduct so witnessed is heterosexual or homosexual in nature. 90 The court's holding, in effect, prohibits conditioning custody on sexual orientation alone. After In re R.E.W., sexual conduct can be considered, but only if there is an affirmative showing of a connection between parental sexual conduct and an adverse impact on the child. 91 This limitation was reaffirmed by the Georgia Supreme Court in Brandenburg v. Brandenburg, in 2001.92 In Brandenburg, the trial judge prohibited a father from exercising his visitation in the presence of his live-in girlfriend. 93 The court held that the trial court abused its discretion in prohibiting the father from exercising visitation in front of his live-in girlfriend absent evidence that exposure to the father's live-in girlfriend would aversely impact the children. 94 The court's holding, dealing with the cohabitation choices of heterosexual parents, arguably removes sexual orientation from consideration in custody determinations by expanding In re R.E.W. to apply to heterosexual sexual conduct also. 95 It is not sexual orientation, but sexual conduct that is a possible consideration of the court; however, even sexual 88. Id. (noting that the father would be expected to make sure his daughter was not exposed to sexual conduct regardless of the orientation of the participants).

89. Id. (emphasis added).

90. Id. 91. See id. (the court expressly uses the term "only" when describing when parental immoral conduct can warrant restrictions on parent child contact).

92. 551 S.E.2d 721 (Ga. 2001).

93. Id. at 721.

94. Id. 95. See Brandenburg, 551 S.E.2d. at 721; See also Moses v. King, 637 S.E.2d 97, 101 (Ga. Ct. App. 2007) (noting in dicta that a parent's cohabitation with someone, regardless of that person's gender, is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct" and citing to Brandenburg for support).

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conduct is an inappropriate consideration unless there is evidence that such conduct does or will adversely impact the child.9 6 Sexual conduct and sexual orientation simply cannot be 97 treated as per se contrary to the best interests of the child.

C. Application of the Best Interest Standard in the Adoption Context The best interest standard is the primary focus of any adoption petition. "The purpose of the hearing, upon the petition of adoption, is to determine the disposition of that petition which is in the best interest of the child."9 Practically speaking, as is the case in the non-adoption context, the focus is on the child and factors that are considered irrelevant are not to be considered. 99 Simply stated, "[i]s the adopting parent worthy and able to care for the child" and "[i]s the adoption [in] the 1° best interest of the child?""

It is an abuse of discretion to base a denial of an adoption on factors that do not address the fitness of the adopting parent or actually impact the child.' For instance, in Hester v. Mathis, the Georgia Court of Appeals reversed the denial of an adoption petition, because the trial judge based its decision on irrelevant factors.0 2 The trial court denied the adoption because the adoption would terminate a family name, meaning that the family line would cease to exist. 0 3 The court held that it was an abuse of discretion for the trial judge not to limit its 96. In re R.E.W., 471 S.E.2d at 9 (holding that parental "immoral conduct might warrant limitations on the contact between parent and child" only if it's shown that the parental conduct has an adverse impact on the child).

97. See id.; See also Brandenburg, 551 S.E.2d at 721.

98. Hester v. Mathis, 248 S.E.2d 538, 539 (Ga. Ct. App. 1978).

99. See id.

100. Id. Later cases restate this limitation of the court's discretion in similar language and cite to Hester for support. See generally Brant v.

Bazemore, 325 S.E.2d 905, 906 (Ga. Ct. App. 1985) (citing Hester for support) (for the holding that the trial court "should only consider such evidence as is relevant to the issue" of adoption and not "erroneously"

interject the interests of others).

101. Hester, 248 S.E.2d at 539 (holding that the trial court "should only consider such evidence as is relevant to the issue" of adoption and not

"erroneously" interject the interests of others).

102. Id. 103. Id.

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consideration to the fitness of the adoptive parent and the interest of the child, rather than the interests of others or a general interest in a "family name and the heritage which accompanies it."' 1° The fact that the trial judge should not interject the interests of outsiders not affecting the child's welfare, 0 5 which would include even commonly held beliefs, into his disposition of an adoption petition contradicts the notion that societal views of homosexuality are a permissible consideration in an adoption. 10 6 Some might argue that homosexuality is tied to both the "fitness" of a putative adoptive parent, as well as the best interest of a child, which if true makes it an appropriate consideration at all times. This explanation, however, leads to contradictory results.

D. Reconciling the Best Interest Standardin the Adoption and Non-Adoption Contexts The Georgia Supreme Court explained that the purpose behind applying the best interest standard in disputes between non-parents, as well as those between parents, is to "ensure that children are treated fairly as individuals . *."..,All children have a constitutional right to be protected in their person and the state has "compelling interest in protecting the welfare of children."' 0 8 The court reasoned that if the best interest standard did not control in disputes between non-parents, children would be less protected than in a dispute between parents. 0 9 Thus, in a custody determination where the best interest standard is not applied, or applied incorrectly, children are treated unfairly; their interests are subordinated to the interests of others.

To illustrate the inherent contradiction between the applications of the best interest standard in the non-adoption and adoption context, consider the facts of In re Hadaway and Lofton discussed earlier.1 0 In both cases the deciding factor held

104.

105.

106.

107.

108.

109.

110.

Id. See Brant, 325 S.E.2d at 906.

See id.

Stills v. Johnson, 533 S.E.2d 695, 700 (Ga. 2000).

Clark v. Wade, 544 S.E.2d 99, 107 (Ga. 2001).

Stills, 533 S.E.2d at 700.

See supra Part I- A(1)-(2).

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to be contrary to the child's interest was the sexual orientation of the putative adoptive parent, not the actual emotional or physical condition of the child in the petitioners' care."1 ' There was no evidence of any direct impact the putative adoptive parent's sexual orientation actually had on the child; the only evidence relating to sexual conduct at all was the petitioners' sexual orientation. Yet, if these cases arose in the non-adoption context, sexual orientation would be irrelevant unless and until there was evidence of an adverse impact upon the child. These cases illustrate how the same standard can result in contradictory results if the standard is not applied uniformly in both the adoption and non-adoption contexts. 12 The adoption context is not sufficiently different to provide justification for interpreting the same statutory standard differently. There can hardly be a situation where the needs of the child should be more paramount than that of society, especially in situations where the child is currently a ward of the state. Unless courts apply the same best interest standard, children will be less protected in the adoption context, 13 contradicting the very purpose of the best interest standard.'

The inconsistency shows that the focus is on alleged societal interests rather than the interests of the child, which is the outcome the Georgia Supreme Court expressly avoided in Stillsthe unequal treatment of children in differing custody contexts. " 4 If children are to be at least as protected in adoption as they are in custody disputes, the standard must be applied in the same manner, requiring evidence of whether putative adoptive parent's conduct has or most likely will adversely impact the child. The homosexuality of a putative adoptive parent cannot be treated as per se contrary to the best interest standard without undermining the purpose of the standard- to focus on children first and always. The best interest standard

111. In re Hadaway, 659 S.E.2d 863 (Ga. Ct. App. 2008); Lofton v. Sec'y of the Dep't of Children and Family Servs., 358 F.3d 804 (11 th Cir. 2004).

112. Note that in this context uniform only applies to the applicable limitations of the best interest standard, not uniformity regarding results. The standard is meant to focus on the child involved in the present proceeding and as such results will and must vary according to the needs of the child before the court.

113. Emphasis added.

114. 533 S.E.2d at 700.

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necessitates a case-by-case determination of the child's needs, which is impossible if sexual orientation is a basis for denying an adoption.115 As a statutory standard, limitations that develop in one custody context should result in a correlative limitation in the standard's application in all contexts to which it applies. This will provide increased guidance for courts applying the standard and ensure that children are treated equally in various settings, a result that is consistent with the legislature's inclusion of the standard in adoption statutes. Moreover, interpreting the best interest standard to treat homosexuality as per se violative of the standard is an unjustified intrusion into the putative adoptive parents' right to privacy.

AND THE CONSTITUTIONAL RIGHT To PRIVACY UNDER THE GEORGIA AND FEDERAL CONSTITUTIONS

II. ADOPTION

A. ConditioningAdoption On Sexual OrientationAlters The Best Interest StandardIn A Manner That Infringes On The PutativeAdoptive Parent'sConstitutionalRight To Privacy Usually interaction between parental conduct and the application of the best interest standard does not necessitate a constitutional analysis regarding whether consideration of such conduct is violative of either the Federal or Georgia Constitution." 6 This is because, practically speaking, the standard is concerned with the impact parental conduct has on the child. As the Supreme Court stated in Palmore v. Sidoti, a state is under the "highest duty" in making custody

115. Because the best interest standard focuses on the individual child any custody determination is very fact specific and can only be reached on a case-by-case basis.

116. For instance in In re R.E.W and Brandenburg, the courts' holding in both cases resulted in increased protection for the parents' right to privacy.

The holding in In re R.E.W. resulted in increased protection of sexual orientation while Brandenburg, resulted in increased protection of choice of parental cohabitation. Neither case was tied to any constitutional rights parents have in their children. However, despite the right to privacy undertones neither court expressly addressed any constitutional rationale for the results it reached. See In re R.E.W., 471 S.E.2d 6 (Ga. Ct. App. 1996); See Brandenburg v. Brandenburg, 551 S.E.2d 721 (Ga. 2001).

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determinations." 7 If the application of the best interest standard does not infringe upon a putative custodian's constitutional rights, the issue is one of statutory construction; but if the application of the standard does infringe upon such rights, the issue becomes one with constitutional implications.

For instance, in Palmore, custody of a three-year-old child was removed from the mother, a Caucasian, after she married a black man.11 8 The trial judge cited the "damaging" impact that the stigma of being raised in an interracial home would have on the child as contrary to the best interest of the child. 1 9 The Supreme Court, acknowledging that the child would likely be exposed to social stigma which would have an impact on the child, held that the impact was insufficient to deprive the mother of custody.1 20 More important for this discussion is the fact that the Court did not condition its holding on the mother's constitutional rights as a parent; the Court's holding expressly held the custody determination violated the Fourteenth Amendment's prohibition on race-based discrimination. 12 1 The Court went on to opine that "[p]rivate bias may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."12 2 The impact of the mother's marriage on the child was not sufficient to enable Florida to condition custody on constitutionally protected rights, in this case the right to be free from race-based discrimination. Palamore, at a minimum, stands for the proposition that a state cannot violate a parent's (including step-parents) constitutional rights under the guise of the best interest standard without evidence of a sufficiently adverse impact on the child.2 3 Treating constitutionally protected conduct as per se contrary to the best interest of a child appears to run afoul of the Federal Constitution.

117. 466 U.S. 429, 433 (1984).

118. Id. at 432.

119. Id. at 431.

120. Id. at 432-33.

121. Id. at 433.

122. Id. 123. Some states had reached this conclusion regarding constitutionally protected conduct before the Supreme Court's decision in Palmore. See e.g.

Osier v. Osier, 410 A.2d 1027, 1031 (Me. 1980) (stating that when applying

the best interest standard the court should employ the "least possible intrusion upon the constitutionally protected interests of the parents").

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283

Sexual privacy is protected under both the Federal and Georgia Constitutions, l 4 thus, the question is not whether such a right exists, but whether a state can intrude upon that right in its adoption scheme. At first glance, it appears that privacy and adoption cannot exist concurrently. Adoption is a public act where the putative adoptive parent asks the government to intrude and investigate their lives. 125 However, asking the government for access to a privilege that is available to the general population should not necessitate sacrifice of a person's constitutional freedoms. 126 To hold otherwise would enable the government, by conditioning privileges upon constitutional sacrifice, to force conformity within society. Imagine if adoption was conditioned upon being a Protestant Christian. It would be no justification at all for the government to claim that, by petitioning to adopt, putative adoptive parents surrender their religious freedom. Those that currently conform to the government's standards will always have access to the privilege while the non-conformers' access is conditioned upon sacrifice.

Legally and logically, there is a difference between the government investigating a putative adoptive parent's private life with an eye towards the interests of the child and categorically excluding persons from adopting based on private sexual conduct. Only conduct that will adversely impact the child is a necessary or relevant consideration.' 27 The Federal Constitution protects sexual privacy under the Fourteenth Amendment through the Substantive Due Process Doctrine' 21 8 and, at a minimum, requires that the government's 124. Lawrence v. Texas, 539 U.S. 558, 565 (2003) (protecting sexual privacy under Substantive Due Process); Powell v. State, 510 S.E.2d 18, 24

(Ga. 1998) (sexual privacy is protected as a liberty interest under the Georgia Constitution).

125. Lofton v. Sec'y of the Dep't of Children and Family Servs., 358 F.3d 804, 810 (11th Cir. 2004).

126. See Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S.

136, 141 (1987) (holding that "Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior... the compulsion may be indirect, [but] the infringement upon free exercise is nonetheless substantial" and such conditioning violates the constitution).

127. See supra Part I-B. 128. Lawrence, 539 U.S. at 565.

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intrusion satisfy rational basis review. Even assuming arugendo that such an approach does not violate the Federal Constitution, it certainly violates the Georgia Constitution, which protects privacy as a fundamental right requiring strict scrutiny.

B. ConditioningAdoption on Sexual Orientationviolates Equal Protection under the Federal Constitution 1. StatutorilyBanning Adoption by HomosexualsConstitutional Challenges to Florida'sBan on Adoption

by Homosexuals as an Illustration Conditioning adoption upon sexual orientation likely violates equal protection under the Federal Constitution despite the fact that sexual privacy under the Federal Constitution is not as well defined as under Georgia law. 12 9 Currently, only Florida has enacted an express prohibition banning adoption by any homosexual, whether single or cohabitating with a domestic partner. 130 Because Georgia does not have a statutory ban on a homosexual adopting, this comment will focus on Florida's statutory adoption scheme to analyze the constitutionality of conditioning adoption on sexual orientation."' Whether sexual privacy is a fundamental right under the Federal Constitution, and thus protected via strict scrutiny, is beyond the scope of this comment. Rather, the premise from which this section begins is 129. The Courts of Appeals for the Fifth and Eleventh Circuits have reached contradicting results regarding the scope of sexual privacy afforded under the Federal Constitution. See Reliable Consultants, Inc. v. Phe, Inc., 517 F.3d 738, 744 (5th Cir. 2008) (holding that public morality cannot serve to unduly burden a constitutional right to engage in private intimate that is protected under Substantive due process under the Fourteenth Amendment); Lofton, 358 F.3d at 815-816 (noting that the effect of Lawrence v. Texas, was to establish a greater respect than previously existed in the law, but that the Court did not locate this right directly in the Constitution, it is a by-product of several constitutional principles and liberty interests).

130. FLA. STAT. ANN. ยง 63.042(3) (2003). Mississippi expressly prohibits couples of the same gender from adopting. MISS. CODE ANN. ยง 93-17-3(5) (2008); and Utah has only gone so far as to prohibit adoption by any single adult that is cohabitating with another person, regardless of gender. UTAH CODE ANN. ยง 78B-6-117(3) (1953).

131. Additionally, because Georgia and Florida are both in the Eleventh Circuit analyzing Florida's statutory ban is indicative of how a Georgia statute would fair under the Federal Constitution.

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that, at a minimum, sexual privacy is a substantive right protected under the Fourteenth Amendment. As such, the focus will be on whether intruding into the sexual privacy of one class, homosexuals, by conditioning adoption on sexual the Fourteenth orientation satisfies rational basis review under 13 2 Amendment's guarantee of Equal Protection.

In Lofton v. Secretary of the Dep't of Children and Family Servs., the Eleventh Circuit Court of Appeals applied only a rational basis review.' 33 The court found the prohibition rationally related to a legitimate state interest. 3 4 The statute was challenged on several grounds. Most important to this comment was the plaintiff's assertion that Florida's statute violated equal protection because it treated similarly situated persons differently; heterosexual singles are eligible to adopt while homosexual singles are not.'35 Florida's assertions and the Eleventh Circuit's reasoning for disallowing adoption into a homosexual household follow the same common themes present in the majority of research conducted to date on the issue.' 36 The research focuses on four main areas: first, whether children of lesbian and gay parents will experience more difficulties in the area of sexual identity than children of heterosexual parents; second, whether children raised by homosexual parents will have more difficulty in personality development in addition to sexual identity; third, is a common fear that children living with gay or lesbian parents will be more likely to be sexually abused by the parent or by the parent's friends or acquaintances; and finally, whether children 132. While Lawrence v. Texas expressly held that sexual privacy is

protected under the Substantive Due Process clause of the Fourteenth Amendment the Florida statute specifically names homosexuals as a class ineligible to adopt I approach this section via equal protection. Lawrence, 539 U.S. at 558; FLA. STAT. ANN. ยง 63.042(3).

133. 358 F.3d 804, 815 (11th Cir. 2004).

134. Id. 135. FLA. STAT. ANN. ยง 63.042(3).

136. Ellen C. Perrin, MD et al., Technical Report: Co-parent or SecondParent Adoption by Same-sex Parents, 109 PEDIATRICS 341 (Feb. 2002)

(noting the four main areas of concern regarding parenting by homosexuals); Resolution on Sexual Orientation, Parents, and Children, AMERICAN PSYCHOLOGICAL

ASSOCIATION

(July

2004)

available

at

http://www.apa.org/pi/lgbc/policy/parentschildren.pdf (last visited April 2, 2009) (hereinafter "APA Resolution") (same).

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of lesbian and gay parents will experience 13 7difficulty in understanding and exercising social relationships.

The main premise evident in the Eleventh Circuit's analysis is a state is reasonable in concluding that exposure to homosexual parenting undermines a child's development of sexual and gender identities. 3 s For instance, the court's first basis for upholding the ban is that Florida is reasonable in asserting its legitimate interest in placing children in families with married mothers and fathers.' 3 9 The state argues that dualgender parenting plays0 a "vital" role in shaping a child's sexual and gender identities.14 The court's second basis for upholding the ban is that Florida could "rationally conclude that homosexual and heterosexual singles are not similarly situated."' 141 The basis for the court's conclusion was twofold: first, heterosexual singles have the possibility of marrying in the future and, thus, provide a dualgender household, 142 and second, heterosexual parents, including single ones, can "relate" to the child as they transition ' 43 into "heterosexual adulthood."'

The court's analysis regarding a heterosexual parent's ability to marry in the future represents an ad hoc rationale that is not supported by Florida's statute or by the court's own reasoning.

First, the statute does not express any preference for married putative adoptive parents rather than single parents.144 Second,

as Judge Bracket opined in her dissent to the denial of a rehearing en banc to the Lofton case, "[e]valuations of prospective parents are based on present, not 'eventual' statuses and conditions."'' 45 Third, "experience leads one to believe that single heterosexuals who adopt are less likely to marry in the future, not more likely."' 146 Finally, the court takes the position that to argue a "rational basis does not exist for placing adoptive 137. Perrin, supra note 136; APA Resolution supra note 136.

138. See Lofton, 358 F.3d at 817-818.

139.

140.

141.

142.

143.

Id. at 818.

Id. Id. at 821-822.

Id. at 822.

Id.

144. See FLA. STAT. ANN. ยง 63.042(2)(b)-(c) (2003).

145. Lofton, 377 F.3d at 1297 (denial of rehearing en banc).

146. Id. at 1298.

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children in the mainstream of American family life" is irrational.'4 7 As Judge Bracket points out, if this was a supportable position there would be nothing preventing a court from placing children in Christian homes only, as Christianity is considered "mainstream," or placing white children only with white parents.14 8 The court treated the relationship between a homosexual and heterosexual parent as fundamentally different, or at least different enough, to treat the two types of parents legally separate. The court opined that "[iut is in the best interest [of a child] if his or her parents can personally relate to the child's problems and assist the child in the difficult transition to heterosexual adulthood."' 49 The court reasoned that a child will need a heterosexual adult to educate him or her about relationships with the opposite sex via stories of the adult's own adolescence. 15 0 The court went on to state that "it is perhaps more important for adopted children than other children to have a stable heterosexual household during puberty and the teenage years."'' The court does not explain why it is "more important" during puberty; however, it appears that the court assumes that a homosexual parent cannot educate a child about puberty and, thus, the child cannot become a heterosexual adult if raised by a homosexual parent. In effect, the court held that it was homosexuals are not suited to be reasonable to assume 5that 2 adoptive/legal parents.1 This assertion is seriously undermined by Florida's actual practices as homosexuals can become foster parents. Therefore, on a daily basis, homosexuals are assisting children in their "transition into heterosexual adulthood."' 5 3 Foster parents are responsible for the day-to-day care giving responsibilities of the children placed with them.' 54 They are the present parents in a 147. Id. at 1276 (emphasis added).

148. Id. at 1276.

149. Id. at 822.

150. Id. 151. Id. 152. Id. at 822-823.

153. Id. at 822.

154. Gonzalez, supra note 39, at 299 (Mr. Lofton testified that I have been his parent in every way. For example, every day I wake him up in the morning and help him get dressed and ready to go to school; I help him with

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foster child's life rather than the state, who is like an absent father that sends child support. The entire purpose of foster parents is to provide the love, affection, and nurturing that the intangible "state" cannot. Foster parents are required to educate and socialize the children living with them, not the state.' 55 Most importantly, as sad a fact as this might be, many children remain in foster care for years, especially if the child is older when taken into foster care. 156 Foster children are not packed up and taken to the local state office to learn about puberty or heterosexual adulthood, but do so through their foster parents.

The court simply ignores the practical application of Florida's ban in that homosexuals are de facto parents already through the foster care system where they are given the responsibilities of child rearing. The court further ignores the reality of foster care placement and adoption statistics. Approximately half of all foster parents in this country are not related to the children placed with them.'57 States overwhelmingly must rely on volunteers, not relatives, to provide homes for these children.'58 Moreover, the majority of children in foster care are adopted by their foster parents.' 59 Allowing children to be adopted by the foster parents that have been raising them makes sense; it is a legal recognition of a de facto family, yet Florida is the only state in the union that rebukes this approach. Rather than address the disparity between Florida's use of homosexual foster parents and banning of adoptions by homosexuals, the court dismissed the issue as nothing more than the executive 60 branch's "handiwork" and that it was "irrelevant." his homework when he comes home from school; we have a family dinner every night, cooked by Roger... I teach him manners, respect and other values that I consider important. I make sure he is safe. He calls me 'Dad.').

155. Id. 156. Thirteen percent of children in foster care remain in the system for over five years and children are known to remain in foster care from a prepuberty age through age eighteen. Children's Bureau, U.S. Dep't. of Health & Human Services, The AFCARS Report State Specific Adoption and Foster Care Data, http://www.acf hhs.gov/programs/cb/stats researchlafcars/tar/report 14.htm (last visited March 31, 2009).

157. Id. 158. See id.

159. Id. 160. Lofton v. Sec'y of the Dep't of Children and Family Servs., 358 F.3d

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Even legislators partly responsible for the enactment of Florida's ban on adoption by homosexuals in 1977 have acknowledged that they were "wrong" and that the "discriminatory" ban should be "overturned." 16 ' Former state House member Elaine Bloom stated that "[t]he hysteria of the times led us to do the wrong thing."' 162 The statements by former Florida Legislatures, made two years before the Eleventh Circuit decided Lofton, contradict the notion that they were thinking of the best interest of children when the ban was enacted. Rather, it appears the sole basis for the ban's enactment was fear and moral disapproval and, as the Supreme Court held in Lawrence v. Texas, a state cannot justify treating one group differently on the basis of social bias and moral disapproval of that group. 163 As one commentator, critical of the Eleventh Circuit's reasoning, stated "[t]he alleged 'issue' at hand is homosexuality, not the best interest of the child, and in Florida, this has become detrimental to both potential adoptive parents and to the thousands of children who will age out of the Florida foster care system without ever knowing the joy of having a legal parent."'' 64 2. Medical and Social Research Regarding Parentingby Homosexuals There is extensive overlap between the current research regarding parenting by homosexuals and the Eleventh Circuit's rationale in upholding Florida's ban on adoption by homosexuals. 65 The reasonableness of the Eleventh Circuit's decision to uphold a categorical ban on adoption by homosexuals has been greatly undermined by evidence causing strong opposition.

The leading professional child welfare and child health organizations oppose the categorical exclusion of putative adoptive parents on the basis of sexual orientation. 66 These 804, 824 (11 th Cir. 2004).

161. ACLU Press Release, Supra note 3.

162. Id. 163. 539 U.S. 558, 578 (2003).

164. Gonzalez, supra note 39, at 293.

165. See infra Part II-B(1).

166. The American Psychiatric Association, the American Psychological Association, the American Academy of Pediatrics, the American Academy

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organizations have released statements regarding their professional assessments of the research conducted to determine what impact, if any, parenting by homosexuals has on child development. In 2002, the American Psychiatric Association, which includes over 38,000 physician members, released a statement regarding its position on prohibiting homosexuals from adopting stating: Numerous studies over the last three decades consistently demonstrate that children raised by gay or lesbian parents exhibit the same level of emotional, cognitive, social, and sexual functioning as children raised by heterosexual parents. This research indicates that optimal development for children is based not on the sexual orientation of the parents, but on stable attachments to committed and nurturing adults. 167 Likewise, the American Psychological Association (APA), with over 150,000 professional members, as a result of its review of the relevant research, expressly opposes "any discrimination based on sexual orientation in matters of adoption..., 168 The APA released its official position statement in 2004 stating that "[r]esearch has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish."

Mental health professionals are not alone in concluding that research undermines any negative connection between a child's development and the sexual orientation of the person raising them. The American Academy of Pediatrics, with over 60,000 pediatrician members, issued a report in 2002 which of Child and Adolescent Psychiatry, the American Academy of Family Physicians, and the National Association of Social Workers have all released statements or reports opposing conditioning child custody or adoption on sexual

orientation.

See

THE AMERICAN

ADOPTION AND CO-PARENTING

POSITION

STATEMENT

PSYCHIATRIC

OF CHILDREN

(2002),

ASSOCIATION,

BY SAME-SEX COUPLES,

available

at

http://www.psych.org/Departments/EDU/Library/APAOfficialDocumentsan dRelated/PositionStatements/200214.aspx, (last visited November 12, 2008) (hereinafter Psychiatric Association Statement); See also APA Resolution, supra note 136 and accompanying text.

167. Psychiatric Association Statement, supra note 166.

168. APA Resolution, supra note 136.

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summarized its review of the relevant research: A growing body of scientific literature demonstrates that children who grow up with 1 or 2 gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.

Children's optimal development seems to be influenced more by the nature of the relationships and interactions within the family unit than by the particular structural form it takes.169 The findings of these child health and child welfare organizations170 severely undermine the reasonableness of conditioning adoption upon sexual orientation. Moreover, the research calls into question the assertion that a dual-gender household is "vital" for a child to develop their sexual identity. 7 ' As the Supreme Court has noted, the simple fact that Congress, or here a state legislature, has made findings of fact is not dispositive in and of itself. 172 "The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake,"'' 73 and as the Supreme Court held in Lawrence, sexual privacy is protected under the Federal

Constitution. 74 There is a limit to when the government can 7 disagree or ignore science and/or common knowledge.1 1 Rather than actually address the relevant research conducted 169. Perrin, supra note 136.

170. I do not attempt to include all statements of professional child health and child welfare organizations, it would become redundant and it is not the purpose of this article to conduct an independent review of the relevant research and literature regarding this issue.

171. Lofton v. Sec'y of the Dep't of Children and Family Servs., 358 F.3d 804, 818 (11 th Cir. 2004). Note that this assertion is also greatly undermined by the number of single parents in this country.

172. Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610 (2007).

173. Id. (citing Crowell v. Benson, 285 U.S. 22, 60, 52 S.Ct. 285, 76 L.Ed. 598 (1932)).

174. As stated earlier however, the scope of that protection is unknown and beyond the scope of this comment. See Lawrence v. Texas, 539 U.S. 558 (2003).

175. Stenberg v. Carhartsupports the proposition that medical certainty can reach a point where contrary views cannot be given legal weight. 530 U.S. 914, 937 (2000) (stating that "[w]here a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary").

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by the prominent child health and child welfare organizations, the Eleventh Circuit simply held Florida was reasonable in its disagreement with such research and it was reasonable to question the methodology of such research. Moreover, the only research actually cited by the Eleventh Circuit was of independent researchers who contradict the majority of child the lack of both heath and welfare professionals, despite 17 6 prominence and support for such research.

Both Florida's assertions and the Eleventh Circuit's treatment of the relevant research appear to be without merit and in defiance of the common understanding in the mental health and child welfare communities. It is hard to imagine, in light of the foregoing, how it is "reasonable" to ban adoption by homosexuals. It appears the real basis for the ban is moral disapproval of the homosexual lifestyle, a position admitted by persons partly responsible for the enactment of Florida's statutory ban.' 77 Interestingly, Florida applies the best interest standard, and its focus on general policy determinations, rather than evidence regarding how children are functioning, illustrates how the standard can generate contradictory results if it is not 178 limited.

As this comment was being written, a Miami-Dade Circuit Judge in Florida struck down Florida's ban on homosexual adoption as unconstitutional and approved an adoption by a homosexual foster parent of his two foster sons. 179 The Judge held that the ban violated Equal Protection under both the Federal and Florida Constitutions because the ban failed to provide even a rational basis for the categorical exclusion of homosexual putative adoptive parents. 8 ° The Judge reasoned

176. Lofton, 358 F.3d at 825 n.24-25.

177. Gonzalez, supra note 39, at 303-04 (stating that "the Florida adoption ban came into being as the result of widespread anti-gay hatred throughout the state").

178. Id. at 293 (commenting that "[t]he alleged "issue" at hand is homosexuality, not the best interest of the child, and in Florida, this has become detrimental to both potential adoptive parents and to the thousands of children who will age out of the Florida foster care system without ever knowing the joy of having a legal parent.").

179. In the Matter of the Adoption of John Doe, 2008 WL 5006172 (Fla.

Cir. Ct.).

180. Id. at 27.

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that ". . .developments in the fields of social science, psychology, human sexuality, social work and medicine, the existence of additional studies, the re-analysis and peer review of prior studies. . ." in addition to the endorsements of major child welfare organizations necessitate the conclusion that it 8is unreasonable to categorically ban adoption by homosexuals.' ' This recent decision further undermines the soundness of conditioning adoption upon sexual orientation and, thus, sexual privacy.

Even if it is arguable that conditioning adoption upon sexual orientation does not violate a putative adoptive parent's right to privacy under the Federal Constitution, it does violate Georgia's more protective right to privacy.

B. ConditioningAdoption on Sexual OrientationViolates Equal Protection under Georgia'sConstitution Conditioning adoption on the sexual orientation of an applicant raises a significant legal issue under Georgia law.

Georgia law treats sexual privacy as encompassed within the fundamental right to privacy protected under the Georgia Constitution.182 Thus, conditioning adoption on sexual orientation creates a classification that is directly based on a fundamental right, sexual privacy. "The Georgia equal protection clause, which is construed to be consistent with its federal counterpart, requires that the State treat similarly situated individuals in a similar manner." '8 3 If the classification at issue ". . .impedes the exercise of a fundamental right, it is tested under a standard of strict judicial scrutiny,"' 8 4 and the state's proffered classification must serve a compelling government interest. 85 Georgia was the first state to recognize a right to privacy inherent in its state constitution. 6 Since then, Georgia has mostly retained its pioneer status in developing a "rich appellate 181. Id. 182. Powell v. State, 510 S.E.2d 18, 24 (Ga. 1998).

183. Id.; See GA. CONST. art. I, ยง 1, 11 (1983).

184. City of Atlanta v. Watson, 475 S.E.2d 896, 899 (Ga. 1996).

185. Powell, 510 S.E.2d at 24.

186. Pavesich v. New England Life Ins., 50 S.E.2d 68 (Ga. 1905); Powell, 510 S.E.2d at 21 (stating that Georgia was the first "court of last resort in this country recognized the right of privacy").

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' jurisprudence in the right to privacy."187 As the Georgia Supreme Court opinioned in Powell v. State, " it is clear from the right of privacy appellate jurisprudence... that the 'right to be let alone' guaranteed by the Georgia Constitution is far more extensive that the right of privacy protected by the U.S.

Constitution ...

188

In Powell v. State, the Georgia Supreme Court held that under the Georgia Constitution the right of sexual privacy is a fundamental right encompassed within the broader right to privacy. 189 It is limited to sexual conduct that is performed in private, between consenting adults, is not coerced, and for noncommercial purposes. 190 The court reasoned that it could not "think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual

187. Powell, 510 S.E.2d at 21. Following Pavesich Georgia has expanded the right to privacy to include freedom from "the publicizing one's private affairs with which the public has no legitimate concern." Gouldman-Taber Pontiac, Inc. v. Zerbst, 100 S.E.2d 881, 882 (Ga. 1957), and the "the right to define one's circle of intimacy." Macon-Bibb County & Sewerage Auth. v.

Reynolds, 299 S.E.2d 594, 596 (Ga. Ct. App. 1983).

188. 510 S.E.2d at 22; See State v. Miller, 398 S.E.2d 547 (Ga. 1990) (holding Georgia Constitution provides broader protection than the First Amendment); Green v. State, 398 S.E.2d 360 (Ga. 1990) (holding Georgia Constitution grants a broader right against self-incrimination than the federal constitution); Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989) (holding Georgia Constitution provides a more extensive guarantee against cruel and unusual punishment than does the federal constitution); Colonial Pipeline Co. v.

Brown, 365 S.E.2d 827 (Ga. 1988) (holding Georgia Constitution's excessive fines clause is more expansive than the Eighth Amendment); D.B. v. Clarke County Bd. of Educ., 469 S.E.2d 438 (Ga. Ct. App. 1996) (holding Georgia Constitution's guarantee of a free education is broader than that provided by the U.S. Constitution). See also Grissom v. Gleason, 418 S.E.2d 27 (Ga. 1992), where the Georgia Supreme Court observed that Georgia's equal protection clause might be interpreted to offer greater rights than the equal protection clause found in the federal constitution.

189. 510 S.E.2d at 24. In Powell, the Court struck down Georgia's sodomy statute as unconstitutional intrusion upon the right of privacy before the U.S. Supreme Court reversed Bowers v. Hardwick, the case that upheld Georgia's sodomy statute as non-violative of the Federal Constitution. Id.; See Bowers v. Hardwick, 478 U.S.186 (1986).

190. See id.; See generally In re C.P., 555 S.E.2d 426 (Ga. 2001).

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activity." 19' The court expressly rejected the proposition that "the furtherance of 'social morality,"' [and] giving 'due regard to the collective will of the citizens of Georgia,' is a constitutional basis for legislative control of the noncommercial, unforced, private sexual activity of those legally capable of consenting to such activity."' 92 Furthermore, the court's repeated references to Bowers v. Hardwick, which expressly deals with homosexual conduct, supports the position that sexual privacy, protected under the Georgia Constitution, extends to homosexuality.'93 In Lawrence v. Texas, a case dealing specifically with homosexuality, the U.S. Supreme Court held that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason" for attempting to prohibit the practice. 194 In effect, this is what conditioning adoption on sexual orientation accomplishes. If a person will refrain from homosexual conduct, thus refrain from being a homosexual,195 then they can adopt a child. While Lawrence is unclear regarding the scope of protection afforded sexual privacy under the Federal Constitution, it is clear that a State must have more than moral disapproval of the group or 96 practice to justify infringing upon a person's sexual privacy., Considering that Georgia already recognizes sexual privacy as a fundamental right, then any review of an adoption scheme that is conditioned upon sexual orientation should go much further than the rationale employed in Lawrence.

Consider the result if adoption was conditioned on all single 191. Powell, 510 S.E.2d at 24.

192. Id. at 24-25 ( the court noted that the state "has a role in shielding the public from inadvertent exposure to the intimacies of others, in protecting minors and others legally incapable of consent from sexual abuse, and in preventing people from being forced to submit to sex acts against their will").

193. The Court cites Bowers v. Hardwick specifically for the proposition that protection of privacy under the Georgia Constitution is "far more extensive" than that afforded by the Federal Constitution. Id. at 331; see Bowers v. Hardwick, 478 U.S. 186 (1986).

194. 539 U.S. 558, 578 (2003).

195. How a person can refrain from their sexual orientation, much like refraining from their race, appears impossible, however this point is beyond the scope of this comment.

196. See Lawrence, 539 U.S. at 578.

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putative adoptive parents refraining from sexual activity.

Heterosexual and homosexual singles would be treated similarly, thus equal protection would not be implicated.

However, such a prohibition would infringe upon all applicants right of sexual privacy, a fundamental right, and as such the prohibition would be analyzed under Georgia's substantive due process and still require strict scrutiny. 9 However, if adoption is conditioned on sexual orientation, then similarly situated 198 heterosexuals would be treated differently under Georgia law; they could exercise their right of sexual privacy while the homosexual applicants cannot. Conditioning adoption upon sexual orientation creates a class, and since the classification at issue impedes a fundamental right under Georgia's Constitution, strict scrutiny applies. Therefore, the State must have a compelling interest and the classification must be narrowly tailored to that interest- the promotion of child welfare. 199 Because "social morality" alone is not sufficient to justify this classification, z°° the State must look elsewhere to justify a classification based on sexual orientation. It is clear that the state has a compelling interest in promoting the welfare of children,20 1 however this alone is insufficient; the classification chosen here, sexual orientation, must be narrowly tailored to the promotion of child welfare.

There is simply not enough evidence of a connection between the sexual orientation of a parent and a child's development to warrant the use of such a classification in the adoption context.0 2 If the state were found to have a compelling justification for the classification, then the same justification should be compelling in the non-adoption context. Thus, sexual

197. See generally Barnhill v. State, 575 S.E.2d 660 (Ga. 2003) (under

substantive due process the infringement of a fundamental right must be narrowly tailored to serve a compelling state interest).

198. Georgia law provides that "any adult" can adopt, this means that single adults can adopt a child. O.C.G.A. § 19-8-3(a) (2008).

199. See Powell v. State, 510 S.E.2d 18, 25 (Ga. 1998); See Clark v.

Wade, 544 S.E.2d 99, 107 (Ga. 2001).

200. Powell, 510 S.E.2d at 25.

201. Clark, 544 S.E.2d at 107.

202. See infra Part 11-B(2) (discussing the research and official positions of child health and child welfare organizations regarding parenting by homosexuals).

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orientation could serve as the basis for removing custody from biological parents. This is, of course, contrary to Georgia law. 2°3 Both the adoption and non-adoption contexts involve the promotion of a child's welfare; both purportedly focus on what serves the best interest of a child, so what works for adoption should work for custody and vise versa.

CONCLUSION

Georgia should not attempt to follow in Florida's footsteps and statutorily ban adoption by homosexuals. First, because of the fundamental importance placed on privacy in Georgia and second, because Georgia also needs the continued assistance of homosexual foster parents. In order to avoid any constitutional infirmity in the adoption context, courts need to apply the best interest standard uniformly among the adoption and nonadoption contexts. As a matter of statutory construction, if a limitation develops in the non-adoption context, unless that limitation is specifically tied to that context, it should correlate with a similar development in the adoption context. The best interest standard is a single standard guiding custody determinations; it should not be interpreted differently in the adoption context.

Georgia's right to privacy, encompassing sexual privacy, is protected in the non-adoption context by requiring evidence of an adverse impact on a child before custody can be based on such conduct. The best interest standard should be interpreted to include this limitation in the adoption context. By focusing on sexual conduct that adversely impacts a child rather than sexual orientation, application of the best interest standard likely avoids constitutional infirmity under both the Georgia and Federal Constitutions.

It will not be difficult to determine the existence of, or absence of evidence that will adversely impact a child in the adoption context, despite the private nature of sexual conduct.

Georgia law already requires a thorough investigation into the home life of a putative adoptive parent. Putative adoptive parents open their homes, lives, and finances for review when applying to adopt in this State. Any evidence of sexual conduct

203. See supra Part I-B(2).

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that would likely adversely impact a child should be readily apparent during this evaluation period. However, if there is any concern that this process is insufficient, additional criteria can easily be added to the investigatory procedure.

If the proffered purpose of the best interest standard is the welfare of children, the first step is to ensure that in any given situation, the focus remains on the child. The standard mandates a case-by-case approach where the needs of the child are paramount and general societal opinions and political agendas must take a back seat.

Katie Andrews Smith*

* J.D. Candidate, May 2009, John Marshall Law School, Atlanta; B.A., Georgia State University, summa cum laude. I would like to thank Professors Kamina Pinder, Heather Scribner, and Daniel Piar for their invaluable advice. Sincere thanks to my husband, Jimmy Smith, for his unwavering support and encouragement throughout this process.

SELECTED LEGISLATION AND SPONSOR RATIONALES

2008 LEGISLATIVE SESSION HOUSE BILL 68:1 EXCEPTIONS TO GEORGIA COASTAL PROTECTION ACT

Amending O.C.G.A. ยง 12-5-295 FIRST SIGNATURE:

Rep. Terry Barnard (166th).

House Bill 68 added an exemption to the Georgia Coastal Protection Act for communal boat docks built by up to four riparian land owners, all of whom must covenant not to build single-family docks on their respective properties. The Bill also requires single-family and communal dock owners to maintain their docks and exempts such repairs from the permit requirement, provided the maintenance or restoration protects the dock's original design.

SUMMARY:

STATUS:

Enacted July 1, 2008.

TEXT OF HOUSE BILL

68

ยง1 Article 4 of Chapter 5 of Title 12 of the Official Code of Georgia Annotated, relating to coastal waters, beaches, and sand dunes, is amended in Code Section 12-5-295, relating toapplicability of the Coastal Marshlands Protection Act, by revising paragraph (7) and adding a new paragraph as follows: "(7) The building of a private dock exclusively for the noncommercial use of the owner or his or her invitees and constructed on pilings, the walkways of which are above the marsh grass not obstructing tidal flow, by: (A) The owner of a lot on which a detached single-family residence is located on high land adjoining such dock; or (B) The owner of a lot having at least 50 front feet of land abutting the marshlands which contains high land suitable for the construction of a detached single-family residence and where the construction of such a residence is not prohibited.

The lot owner shall and is authorized to maintain the structure in good condition and repair the same as necessary, and the use of repair or replacement materials comparable in quality to the original authorized materials shall be sufficient for such purposes; each of which is (7.1) The building of a single private dock by the owners of up to four adioinine lots,

1. H.B. 89, 149th Gen. Assem., Reg. Sess. (Ga. 2008).

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riparian and would qualify for an exemption as provided in paragraph (7) of this Code section. for the exclusive noncommercial use of such owners or their invitees and constructed as a single walkway on pilings above the marsh grass not obstructing tidal flow and in a size to be determined by the department taking into consideration the number of adjoining lots utilizing the dock; provided, however, that the exemption provided by this paragraph shall apply only if each of the owners of such adioining lots has entered into a binding covenant that runs with the land, in favor of the state, which covenant prohibits the building of any future private dock on his or her lot unless the dock exempted pursuant to this paragraph is removed or converted to a single-family private dock which would qualify for an exemption as provided in paragraph (7) of this Code section. The granting of the exemption provided by this paragraph shall be the state's consideration for the covenant of each such lot owner. The lot owners shall and are authorized to maintain the structure in good condition and repair the same as necessary, and the use of repair or replacement materials comparable in quality to the original authorized materials shall be sufficient for such purposes; or" ยง2 Said article is further amended by revising Code Section 12-5-329, relating to automatic repeal of the Georgia Coastal Management Act, as follows: "12-5-329.

Unless reestablished r ntin-uzd by theGznzra! AeRzably, this part Shall Stand rzpealed init entirety en july ,2009 Reserved." ยง3 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Terry Barnard, of the 166th district, introduced House Bill 68 to make it easier for adjoining land owners to band together and build single, communal docks, which disturb less marshland than the multiple single-family docks. 2 Additionally, Rep. Barnard introduced the Bill to create a statute formally recognizing a landowner's duty to repair and maintain their dock.3 Rep. Barnard explains that although a landowner's duty to repair his or her dock is mandated by the U.S. Army Corps of Engineers, there was4 previously no state statute formally recognizing this duty.

5 House Bill 68 amended the Georgia Coastal Protection Act. The Act generally requires prospective developers to obtain a permit from the Coastal Marshlands Protection Committee prior to altering marshland or engaging in any construction activities within the marshland area. The Committee evaluates proposed 2. Telephone Interview with Rep. Terry Barnard, H. District No. 166 (Nov. 7, 2008).

3. Id. 4. Id. 5. Ga. Gen. Assem., H.B. 68 as passed available at http://www.legis.ga.gov/legis/2007_08/search/hb68.htm (last visited Mar. 9, 2008); see also O.C.G.A. ยง 12-5-280 (2008).

6. O.C.G.A. ยง 12-5-286 (2008).

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construction, development, and maintenance projects to assess the effect such projects would have on the coastal marshland area. Ultimately, whether a permit is denied or approved was determined by a balancing of the public interest and the environmental impact the project is likely to have upon the coastal marshland area.7 O.C.G.A. § 12-5-295 of the Georgia Coastal Protection Act sets out a list of exceptions to the permit requirement, including an exemption for the construction of single-family docks by individual private landowners. 8 Prior to House Bill 68, there9 was no exception for the construction of communal docks.

House Bill 68 augmented O.C.G.A. § 12-5-295, by providing an exemption for adjoining landowners seeking to construct a communal dock.' 0 As amended, paragraph 7 of O.C.G.A. § 12-5-295 provides that up to four adjoining private landowners may collectively build a communal dock; the Department of Natural Resources retains the authority to determine the appropriate size of the communal dock; and landowners must share the responsibilities of maintaining and repairing the communal dock.' 1 Landowners must have 50 feet of water-front land to qualify for a communal dock. 12 The Department of Natural Resources may refer to the landowner's property deed to determine whether this prerequisite is met.' 3 The U.S. Army Corps of Engineers limits the size of docks, whether a single-family dock or a communal dock, to no more than 20 feet-by-20 feet, with a walkway that is no more than 6 feet wide. 14 Paragraph 7, as amended, states that the exemption for communal docks is conditioned upon all of the adjoining lot owners entering into a binding covenant running with their land in favor of the state, which would prevent the lot owners, and any subsequent owners, from building a private dock on his or 7. Id. 8. O.C.G.A. § 12-5-295 (2008).

9. H.B. 68 as passed.

10. H.B. 68 as passed; O.C.G.A. § 12-5-295 (2008).

11. H.B. 68 as passed; O.C.G.A. § 12-5-295 (2008).

12. Telephone Interview with Rep. Terry Barnard, H. District No. 166 (Jan. 14, 2009).

13. Id. 14. Id.

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her lot.15 If the communal dock is removed or converted to a single-family dock, however, the land owners are free to build their own docks.

In addition to the exemption for communal docks, House Bill 68 includes a maintenance requirement that applies to singlefamily and communal docks.' 6 Under this provision, landowners seeking to repair or maintain their existing docks are exempt from the permit application process. In fact, by exempting repair and maintenance projects, landowners may maintain their docks and make repairs as needed without having to seek a permit, provided that the repairs conform to the dock's original blueprint. 17 Overall, Rep. Barnard asserts that the impetus for the Bill was to streamline the permit application process by making it easier for multiple private landowners to collaborate to build a communal dock.' 8 Because allowing multiple landowners to ban together will reduce construction, Rep. Barnard expects the communal docks to have less of 19an environmental impact on surrounding coastal marshland area.

LEGISLATIVE GENEALOGY

After its first and second reading, the House assigned, the Bill to the House Natural Resources and Environment Committee on January 23, 2007.20 The Committee favorably reported the Bill to the House on February 27, 2008.21 The House passed the Bill on February 29, 2008, 22 after adopting a substitute bill offered on the House floor. The substitute bill increased the number of adjoining land owners who can build a 15. H.B. 68 as passed; see also O.C.G.A. ยง 12-5-295 (2008).

16. Telephone Interview with Rep. Terry Barnard, H. District No. 166 (Jan. 14, 2009).

17. Id. 18. Telephone Interview with Rep. Terry Barnard, H. District No. 166

(Nov. 7, 2008).

19. Id. 20. State of Ga. Final Composite Status Sheet H.B. 68, Jan. 22 & 23 (May 21, 2008) available at http://www.legis.ga.govlegis/2007_08/composite/ HComposite.pdf (last visited Mar. 9, 2008) [hereinafter H.B. 68 FinalStatus Sheet].

21. H.B. 68 Final Status Sheet, supra note 29, Feb. 27 (2008).

22. H.B. 68 FinalStatus Sheet, supra note 29, Feb. 29 (2008).

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communal dock from three to four and added that the Department of Natural Resources is to determine the communal dock's size based on the number of adjoining lots.2 3 However, the Department's determination must comply with the U.S. Army Corps of Engineers mandate that no dock be more than 24 20 x 20 feet wide, with a walkway no more than 6 feet wide.

The Senate read and referred the Bill to the Senate Natural Resources Committee. The Senate Committee amended the Bill by adding the covenant requirement, 25 and favorably reported the Bill to the Senate on March 20, 2008. The Senate approved the Bill on March 31, 2008,26 but not before removing all language regarding boat docks, and replacing it with a provision that would have banned development on certain parts of Jekyll Island.2 7 Days later the House rejected the Senate version, necessitating a House-Senate conference committee. 28 The conference committee accepted the version of House Bill 68 proposed by the Senate Natural Resources Committee and added the maintenance requirement. 29 The Senate and House adopted the conference committee's report on April 4, 2008,30 and Governor Sonny Perdue signed the Bill into law on May 6, 2008. 1 PREPARED BY:

Cherri L. Shelton

23. Id. 24.

25.

26.

27.

28.

29.

30.

31.

Telephone Interview supra note 18.

H.B. 68 FinalStatus Sheet, supra note 25, Mar. 20, 2008.

H.B. 68 FinalStatus Sheet, supra note 29, Mar. 31, 2008.

See H.B. 68 SCSFA See H.B. 68 FinalStatus Sheet, supra note 29, Apr. 2, 2008.

Compare H.B. 68 CCR with H.B. 68 SCS. See H.B. 68 as passed; H.B. 68 FinalStatus Sheet, supra note 29.

H.B. 68 Final Status Sheet, supra note 29, May 6, 2008.

HOUSE BILL

89:1 BUSINESS SECURITY AND EMPLOYEE PRIVACY

Creating O.C.G.A. § 16-11-113 and O.C.G.A § 16-11-135 and Amending O.C.G.A. § 16-11-126, O.C.G.A. § 16-11-127, O.C.G.A. § 16-11-127.1, O.C.G.A § 16-11-129, and O.C.G.A. § 51.1-29.2 FIRST SIGNATURE:

Rep. Timothy Bearden (68th)

CO-SPONSORS: Rep. Billy Home (71st), Mark Hatfield (177th), Gene Maddox (172nd), Tommy Smith (168th), and Ed Setzler (35th) SUMMARY: House Bill 89 resulted in several changes to Georgia's gun laws. The Bill will addresses conveying a firearm, transporting loaded firearms, carrying concealed weapons in specific locations. It also amends who may carry weapons in schools and at school functions. The Bill provides procedures to expedite the issuance of gun licenses. The Bill prohibits specific actions of public and private employers regarding their employees. Finally, the Bill expands the immunity provisions for those voluntarily assisting others in certain emergencies.

STATUS:

Enacted May 14, 2008.

TEXT OF HOUSE BILL

89

§ 1.

This Act shall be known and may be cited as the "Business Security and Employee Privacy Act."

§ 2.

Part I of Article 4 of Chapter II of Title 16 of the Official Code of Georgia Annotated, relating to dangerous instrumentalities and practices, is amended by adding a new Code section to read as follows: "16-11-113.

Any person who attempts to solicit, persuade, encourage, or entice any dealer to transfer or otherwise convey a firearm other than to the actual buyer, as well as any other person who willfully and intentionally aids or abets such person, shall be guilty of a felony. This Code section shall not apply to a federal law enforcement officer or a peace officer, as defined in Code Section 16-1-3, in the

1. H.B. 89, 149th Gen. Assem., Reg. Sess. (Ga. 2008).

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performance of his or her official duties or other person under such officer's direct supervision." ยง 3.

Part 3 of Article 4 of Chapter 11 of Title 16 of the Official Code of Georgia Annotated, relating to the carrying and possession of firearms, is amended by revising Code Section 16-11-126, relating to the offense of carrying a concealed weapon, as follows: "16-11-126. (a) A person commits the offense of carrying a concealed weapon when such person knowingly has or carries about his or her person, unless in an open manner and fully exposed to view, any bludgeon, metal knuckles, firearm, knife designed for the purpose of offense and defense, or any other dangerous or deadly weapon or instrument of like character outside of his or her home or place of business, except as permitted under this Code section. (b) Upon conviction of the offense of carrying a concealed weapon, a person shall be punished as follows: (I) For the first offense, he or she shall be guilty of a misdemeanor; and (2) For the second offense, and for any subsequent offense, he or she shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than two years and not more than five years. (c) This Code section shall not permit, outside of his or her home, motor vehicle, or place of business, the concealed carrying of a pistol, revolver, or concealable firearm by any person unless that person has on his or her person a valid license issued under Code Section 16-11-129 and the pistol, revolver, or firearm may only be carried in a shoulder holster, waist belt holster, any other holster, hipgrip, or any other similar device, in which event the weapon may be concealed by the person's clothing, or a handbag, purse, attach case, briefcase, or other closed container. Carrying on th. perar. ihr. eoneraled m~annre Bthar than, as p~vdF on this qubspatiarn shall not be peirmfittad Mi~dShall h via!atiat-, -f h'-C.e S.eCtie. Any person having been issued a license to carry a concealed weapon pursuant to Code Section 16-11-129 shall be permitted to carry such weapon, subject to the limitations of this part, in all parks, historic sites, or recreational areas as defined by Code Section 12-3-10 and in all wildlife management areas. (d) This Code section shall not forbid the transportation of any firearm by a person who is not among those enumerated as ineligible for a license under Code Section 16-11-129, provided the firearm is enclosed in a case, unloaded, and separated from its ammunition. (e) This Code section shall not forbid any person who is not among those enumerated as ineligible for a license under Code Section 16-11129 from transporting a loaded firearm in any private passenger motor vehicle in. aa apr. rnanaar and filly expesed to Niew:or in the glava emartfnent, aarnaala, or sirnimlar aanatiae a h vh pa~wided, hewe'ar, that an), person in possesion of a Nalid permit iSSuad PUru1Ans to Code -Sartiar 11 129 may e", a handgun in any leRatiar, inl R iaaaRF -Phiaa. (e-(fD On and after October 1, 1996, a person licensed to carry a handgun in any state whose laws recognize and give effect within such state to a license issued pursuant to this part shall be authorized to carry a handgun in this state, but only while the licensee is not a resident of this state; provided, however, that such lieensehelder license holder shall carry the handgun in compliance with the laws of this state." ยง 4.

Said partis further amended by revising Code Section 16-11-127, relating to carrying deadly weapons to or at public gatherings, as follows: "16-11-127. (a) Except as provided in Code Section 16-11-127.1, a person isshall be guilty of a misdemeanor when he or she carries to or while at a public gathering any explosive compound, firearm, or knife designed for the purpose of offense and defense. (b) For the purpose of this Code section, 'public gathering' shall include, but shall not be limited to, athletic or sporting events, churches or church functions, political rallies or functions, publicly owned or operated buildings, or establishments at which alcoholic beverages are sold for consumption on the premises and which derive less than 50 percent of their total annual gross food and beverage sales from the sale of prepared meals or food. Nothing in this Code section shall otherwise prohibit the carrying of a firearm in any other public place by a person licensed or permitted to carry such firearm by this part. (c)(1) This Code section shall not apply to competitors participating in organized sport shooting events.

(2) Law enforcement officers, peace officers retired from state local or federal law enforcement agencies, judges, magistrates, constables solicitors-general, and district attorneys may carry pistols in publicly owned or operated buildings; provided, however, that a courthouse security plan adopted in

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accordance with paragraph (10) of subsection (a) of Code Section 15-16-10 may prohibit the carrying of a pistol. (d) It is shall be an affirmative defense to a violation of this Code section if a person notifies a law enforcement officer or other person employed to provide security for a public gathering of the presence of such item as soon as possible after learning of its presence and surrenders or secures such item as directed by the such law enforcement officer or other person employed to provide security for a such public gathering. (e) A person licensed or permitted to carry a firearm by this part shall be permitted to carry such firearm, subject to the limitations of this part, in all parks, historic sites, and recreational areas, including all publicly owned buildings located in such parks, historic sites, and recreational areas and in wildlife management areas, notwithstanding Code Section 12-3-10, in wildlife management areas notwithstanding Code Section 27-3-1.1 and 27-3-6. and in public transportation notwithstanding Code Sections 16-12-122 through 16-12-127: provided, however, that a person shall not carry a firearm into a place prohibited by federal law. (f) A person licensed or permitted to carry a firearm by this part shall not consume alcoholic beverages in a restaurant or other eating establishment while carrying a firearm. Any person violating this subsection shall be guilty of a misdemeanor."

ยง 5.

Said part is further amended in Code Section 16-11-127.1, relating to carrying weapons within school safety zones, at school functions, or on school property, by striking "or" at the end of paragraph (16), by replacing the period with "; or" at the end of paragraph (17), and by adding a new paragraph to subsection (c) to read as follows: "(18) Constables of any county of this state." ยง 6.

Said part is further amended by revising subsection (d) of Code Section 16-11-129, relating to a license to carry a pistol or revolver and temporary renewal permits, and by adding a new subsection to said Code section to read as follows: "(d) Investigation of applicant; issuance of license; renewal.

(1) For both license applications and requests for license renewals, the judge of the probate court shall within two business days following the receipt of the application or request direct the law enforcement agency to request a fingerprint based criminal history records check from the Georgia Crime Information Center and Federal Bureau of Investigation for purposes of determining the suitability of the applicant and return an appropriate report to the judge of the probate court. Fingerprints shall be in such form and of such quality as prescribed by the Georgia Crime Information Center and under standards adopted by the Federal Bureau of Investigation. The Georgia Bureau of Investigation may charge such fee as is necessary to cover the cost of the records search.

(2) For both license applications and requests for license renewals, the judge of the probate court shall within two business days following the receipt of the application or request also direct the law enforcement agency to conduct a background check using the Federal Bureau of Investigation's National Instant Criminal Background Check System and retum an appropriate report to the probate judge.

(3) When a person who is not a United States citizen applies for a license or renewal of a license under this Code section, the judge of the probate court shall direct the law enforcement agency to conduct a search of the records maintained by the United States Bureau of Immigration and Customs Enforcement. As a condition to the issuance of a license or the renewal of a license, an applicant who is in nonimmigrant status shall provide proof of his or her qualifications for an exception to the federal firearm prohibition pursuant to 18 U.S.C. Section 922(y).

(4) The law enforcement agency shall *ofy report to the judge of the probate court within 60 30 days, by telephone and in writing, of any findings relating to the applicant which may bear on his or her eligibility for a license or renewal license under the terms of this Code section. When no derogatory information is found on the applicant bearing on his or her eligibility to obtain a license or renewal license, a report shall not be required. The law enforcement agency shall return the application and the blank license form with the fingerprint thereon directly to the judge of the probate court within such time period. Not later than 60 ten days after the date of the application the judge of the probate court receives the report from the law enforcement agency concerning the suitability of the applicant for a firearms license, the iudge of the probate court shall issue the such applicant a license or renewal license to carry any pistol or revolver i-o unless facts establishing ineligibility have been reported ad-i or unless the judge determines the such applicant has not met all the qualifications, is not of good moral character, ed h emplied or has failed to comply with all any o the requirements

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contained in this Code section. The Judge of the probate court shall date stamp the report from the law enforcement agency to show the date on which the report was received by the 'udge of the probate court." "(j) When an eligible applicant who is a United States citizen fails to receive a license, temporary permit, or renewal license within the time period required by this Code section and the application or request has been properly filed, the applicant may bring an action in mandamus or other legal proceeding in order to obtain a license, temporary license, or renewal license, and such applicant shall be entitled to recover his or her costs in such action, including reasonable attorney's fees." ยง 7.

Said part is further amended by adding a new Code section to read as follows: "16-11-135. (a) Except as provided in this Code section, no private or public employer, including the state and its political subdivisions, shall establish, maintain, or enforce any policy or rule that has the effect of allowing such employer or its agents to search the locked privately owned vehicles of employees or invited guests on the employer's parking lot and access thereto. (b) Except as provided in this Code section, no private or public employer, including the state and its political subdivisions, shall condition employment upon any agreement by a prospective employee that prohibits an employee from entering the parking lot and access thereto when the employee's privately owned motor vehicle contains a firearm that is locked out of sight within the trunk, glove box, or other enclosed compartment or area within such privately owned motor vehicle, provided that any applicable employees possess a Georgia firearms license. (c) Subsection (a) of this Code section shall not apply: (1) To searches by certified law enforcement officers pursuant to valid search warrants or valid warrantless searches based upon probable cause under exigent circumstances; (2) To vehicles owned or leased by an employer; (3) To any situation in which a reasonable person would believe that accessing a locked vehicle of an employee is necessary to prevent an immediate threat to human health, life, or safety; or (4) When an employee consents to a search of their locked privately owned vehicle by licensed private security officers for loss prevention purposes based on probable cause that the employee unlawfully possesses employer property. (d) Subsections (a) and (b) of this Code section shall not apply: (1) To an employer providing applicable employees with a secure parking area which restricts general public access through the use of a gate, security station, security officers, or other similar means which limit public access into the parking area, provided that any employer policy allowing vehicle searches upon entry shall be applicable to all vehicles entering the property and applied on a uniform and frequent basis; (2) To any penal institution, correctional institution, detention facility, diversion center, jail, or similar place of confinement or confinement alternative; (3) To facilities associated with electric generation owned or operated by a public utility; (4) To any United States Department of Defense contractor, if such contractor operates any facility on or contiguous with a United States military base or installation or within one mile of an airport; (5) To an employee who is restricted from carrying or possessing a firearm on the employer's premises due to a completed or pending disciplinary action; (6) Where transport of a firearm on the premises of the employer is prohibited by state or federal law or regulation; (7) To parking lots contiguous to facilities providing natural gas transmission, liquid petroleum transmission, water storage and supply, and law enforcement services determined to be so vital to the State of Georgia, by a written determination of the Georgia Department of Homeland Security, that the incapacity or destruction of such systems and assets would have a debilitating impact on public health or safety; or (8) To any area used for parking on a temporary basis. (e) No employer, property owner, or property owner's agent shall be held liable in any criminal or civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession, or use of a firearm, including, but not limited to, the theft of a firearm from an employee's automobile, pursuant to this Code section unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer's premises. Nothing contained in this Code section shall create a new duty on the part of the employer, property owner, or property owner's agent. An

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employee at will shall have no greater interest in employment created by this Code section and shall remain an employee at will. (f) In any action relating to the enforcement of any right or obligation under this Code section, an employer, property owner, or property owner's agent's efforts to comply with other applicable federal, state, or local safety laws, regulations, guidelines, or ordinances shall be a complete defense to any employer, property owner, or property owner's agent's liability, (g) In any action brought against an employer, employer's agent, property owner, or property owner's agent relating to the criminal use of firearms in the workplace, the plaintiff shall be liable for all legal costs of such employer, employer's agent, property owner, or property owner's agent if such action is concluded in such employer, employer's agent, property owner, or property owner's agent's favor. (h) This Code section shall not be construed so as to require an employer, property owner, or property owner's agent to implement any additional security measures for the protection of employees, customers, or other persons. Implementation of remedial security measures to provide protection to employees, customers, or other persons shall not be admissible in evidence to show prior negligence or breach of duty of an employer, property owner, or property owner's agent in any action against such employer, its officers or shareholders, or property owners. (i) All actions brought based upon a violation of subsection (a) of this Code section shall be brought exclusively by the Attorney General. (j) In the event that subsection (e) of this Code section is declared or adjudged by any court to be invalid or unconstitutional for any reason, the remaining portions of this Code section shall be invalid and of no further force or effect. The General Assembly declares that it would not have enacted the remaining provisions of this Code section if it had known that such portion hereof would be declared or adjudged invalid or unconstitutional. (k) Nothing in this Code section shall restrict the rights of private property owners or persons in legal control of property through a lease, a rental agreement, a contract, or any other agreement to control access to such property. When a private property owner or person in legal control of property through a lease, a rental agreement, a contract, or any other agreement is also an employer, his or her rights as a private property owner or person in legal control of property shall govern." ยง 8.

Title 51 of the Official Code of Georgia Annotated, relating to torts, is amended by revising Code Section 51-1-29.2 as follows: "51 -1-29.2.

Any natural person and any association, fraternal organization, private for profit entity, not for profit entity, religious organization, or charitable organization and the officers, directors, employees, and agents of such associations, organizations, and entities, when such persons, associations, organizations, or entities are working in coordination and under the direction of an appropriate state agency, who voluntarily and without the expectation or receipt of compensation provides services or goods in preparation for, anticipation of,or during a time of emergency and in a place of emergency as declared by the Governor for the benefit of any iflidsne4 natural person or his or her property to prevent or minimize harm to such natural person or to prevent, minimize, and repair injury and damage to such person's property resulting from biological, chemical, or nuclear agents; terrorism; pandemics or epidemics of infectious disease; or catastrophic acts of nature, including, but not limited to, fire, flood, earthquake, wind, storm, or wave action, or any other occurrence which warrants the declaration of a state of emergency or disaster by the Governor pursuant to Code Section 38-3-51 or by a federal agency shall not be civilly liable to any individual natural person receiving such assistance as a result of any act or omission in rendering such service if such natural person, association, organization, or entity was acting in good faith and unless the damage or injury was caused by the willful or wanton negligence or misconduct of such natural person, association, organization, or entity.

Nothing in this Code section shall be construed to amend. repeal, alter, or affect in any manner any other provision of law granting immunity or limiting liability. Nothing in this Code section shall be construed to abrogate the sovercien immunity of this state as to all actions executed by any party under this Code section." ยง 9.

All laws and parts of laws in conflict with this Act are repealed.

No. 1]

2008 Legislative Initiatives FIRST SIGNATURE'S RATIONALE

Rep. Timothy Bearden, of the 68th, a former police officer, introduced House Bill 89 to protect the Second Amendment rights of Georgians and to "allow our law abiding citizens to protect themselves not only when they are at home but also ,,2 when they are conducting their daily business.

LEGISLATIVE GENEALOGY

Initially, House Bill 89 was a short bill only seeking to expand the locations in which licensed gun owners could carry loaded firearms within passenger vehicles. The first reading of House Bill 89, occurred on January 22, 2007. 3 The second reading occurred on January 23, 2007, and the House assigned the Bill to the House Judiciary (Non-Civil) Committee. 4 The House Judiciary (Non-Civil) Committee reported favorably on House Bill 89 on January 30, 2007.6 The third reading of the Bill occurred on February 12, 2007.6 Rep. Bearden presented the Bill and questions followed. The House then passed and adopted the Bill by a vote of 130 to 38.8 The Senate read and referred House Bill 89 to the Senate Judiciary Committee on February 13, 2007. 9 The Senate Judiciary Committee favorably reported the Bill on March 20, 2007. The Senate read the Bill for a second time on March 20, 2007. On March 29, 2007, the Senate removed House Bill 89 2. Press Release from Rep. Tim Bearden available at http://www.legis.state.ga.uslegis/2007_08/house/bios/BeardenTim/press/Gu nReform.html 3.

Ga. Gen. Assem., H.B. 89, available at http://www.legis.state.ga.us/legis/2007_08/sum/hb89.htm. [hereinafter H.B. 89 Status].

4. Id.

5. Id. 6. Id. 7. Video Recording of Ga. House Proceedings, February 12, 2007 available at http://www.georgia.gov/00/ article/ 0,2086,4802_6107103_72682804,00.html [hereinafter House Video (2/12/2007)].

8. H.B. 89 Status, supra note 3.

9. Id.

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from the General Calendar and committed the Bill to the Senate Rules Committee pursuant to Rule 2-1.10-(b).l ° The Senate Rules Committee greatly expanded the bill and then, favorably reported House Bill 89 by Substitute on April 16, 2007. After the legislative session resumed in 2008, the Senate recommitted House Bill 89 on January 14, 2008. On January 16, 2008, the Senate Rules Committee favorably reported House Bill 89. The third reading of the Bill occurred in the Senate on January 17, 2008. The Senate Finance Committee Chair, Sen. Chip Rogers, of the 21st , presented the Substitute of House Bill 89 to the Senate. 11 He began by thanking the Lt. Governor, the Georgia Chamber of Commerce, the National Rifle Association and GeorgiaCarry.Org. 12 Sen. Rogers stated that the Bill "boils down to making sure Georgia individuals can exercise their Second Amendment Rights." The Senate passed and adopted House Bill 89 by Substitute on January 17, 2008, by a vote of 41 to 15.14 On January 31, 2008, by a vote of 111 to 58, the House agreed to the Senate Substitute as amended by the House. 15 On February 1, 2008, the Senate rejected the House amendment to the Substitute. The House and Senate Conference Committees were appointed on February 1, 2008 and February 5, 2008, respectively. Both the Senate, by a vote of 40 to 15, and the House, by a vote of 108 to 57, adopted the Conference Committee Report on April 4, 2008. On April 14, 2008, the House sent House Bill 89 to the Governor, who signed the Bill on May 14, 2008.16 A. Specific Provisions and Modifications of House Bill 89 House Bill 89, as passed and adopted by the House on February 12, 2007, consisted only of what is now a portion of

10. Id. 11. Video Recording of Ga. Sen. Proceedings, January 17, 2008, available at http://www.georgia.gov/00/article/0,2086,4802_6107103_ 1037442,00.html [hereinafter Senate Video (1/1 7/2008)].

12. Id. 13. Id. 14. Id.; H.B. 89 Status, supra note 3.

15. H.B. 89 Status, supra note 3.

16. Id.

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Section 3 of the final Bill. 17 The amendment sought to allow non-licensed gun owners to transport loaded firearms anywhere in a private passenger motor vehicle.' 8 Existing law required non-license holders to transport loaded firearms in vehicles either in full view or in the glove compartment, console, or similar compartment. As presented by Rep. Bearden, the amendment "does one important thing: It allows law abiding citizens to place a '1firearm anywhere in their vehicle they think 9 is the safest place."

Several representatives objected to this provision on various grounds. Both Rep. Stephanie Benfield, of the 85th, and Rep. Michele Henson, of the 87th , expressed concern that the change would put law enforcement in danger. They noted that a letter from the Georgia Association of Chiefs of Police voiced strong opposition to the Bill. However, the Chair of the House Judiciary (Non-Civil) Committee, Rep. David Ralston, of the 7th , objected that no one from the Georgia Chiefs of Police Association came before the Committee to testify. 2 ' He said the Bill is an insignificant change that simply extends to your automobile what you can do in your home.

Others objected that the change would put minorities at a greater risk of mistakes by law enforcement. 23 Rep. Randal Mangum, of the 94th , noted that one can be "guilty of driving while black" in some areas. 24 Rep. Carolyn Hugley, of the 133rd, stated that the change would implant a "culture of fear" for our officers and asked, "What does a law abiding citizen look like? ' 25 She said a balance is2 6needed to protect both law enforcement and everyday citizens.

Rep. Benfield was especially concerned about the safety of children. 27 She listed several specific instances of accidental 17.

18.

19.

20.

21.

22.

23.

Id. House Video (2/12/2007), supra note 7 (remarks by Rep. Bearden).

Id. Id. (remarks by Rep. Stephanie Benfield and Rep. Michele Henson).

Id. (remarks by Rep. David Ralston).

Id. Id. (remarks by Rep, Randal Mangham and Rep. Carolyn Hugley).

24. Id. (remarks by Rep. Mangham).

25. Id. (remarks by Rep. Hugley).

26. Id. 27. Id. (remarks by Rep. Benfield).

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shootings after young children found guns in cars. Proponents of the Bill countered that guns can be just as accessible to children under the old law and that irresponsible parents can be prosecuted for child endangerment and other crimes.

Section 2 of the Act makes it a felony for those who are not law enforcement officers to persuade any dealer to convey a firearm to someone other than the actual buyer. 29 Known as the "Bloomberg" amendment, this provision was created in response to New York City Mayor Michael Bloomberg's activities in Georgia: Mayor Bloomberg sent private detectives 30 to Georgia, "tricked some dealers" and sued them.

In addition, House Bill 89 changed prior law to allow license holders, unless prohibited by federal law, to carry concealed weapons in all parks, historic sites, or recreational areas, wildlife management areas, and on public transportation.3 1 Rep. Bearden commented that 37 states allow concealed weapons in state parks and 43 states allow concealed weapons on public transportation. 32 Rep. Bobby Reese, of the 98th , noted that Meredith Emerson, who was kidnapped in a state park and 33 brutally murdered, could be alive today if she had had a gun.

Rep. Bearden said that under existing law, a license holder with a gun could serve 20 years in prison for carrying a gun while walking past a bus stop; and a license holder with a gun in an 34 airport lot would violate the highjacking code in Georgia.

According to Rep. Bearden, the legislature intended the term "public transportation" to include airports. 35 Rep. Bearden believes that, as a matter of principal, any dispute over this meaning 36 should be appealed to the Supreme Court if necessary.

28. Id. (remarks by Rep. Kevin Levitas and Rep. Alan Powell).

29. H.B. 89.

30. Video Recording of Ga. House Proceedings, January 31, 2008 available

at

http://www.georgia.gov/

00/article/0,2086,4802_6107103_103744292,00.html [hereinafter House Video (1/31/2008)] (remarks by Rep. Bearden).

31. H.R. 89.

32. House Video (1/312008), supra 41 (remarks by Rep. Bearden).

33. Id. (remarks by Rep. Bobby Reese).

34. Id. (remarks by Rep. Bearden).

35. Telephone Interview with Rep. Tim Bearden, House District 68 (November 12, 2008) [hereinafter Bearden Interview].

36. Id.

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MARTA bus drivers opposed the Bill, obtaining more than 1,000 signatures on a petition to demand bulletproof vests in the event of the Bill's passage. 37 On public safety grounds, many others also opposed this provision and House Bill 89 generally, including Shirley Franklin, Mayor of Atlanta; Dianne Harnell Cohen, Commissioner of the City of Atlanta Department of Parks, Recreation and Cultural Affairs; Benita West, President, Amalgamated Transit Union Local 732; Benjamin R. DeCosta, Aviation General Manager, Hartsfield-Jackson Atlanta International Airport.38 Section 4(b) of the Bill amended prior law to allow license holders to carry firearms into restaurants which derive 50% or more of their total annual gross food and beverage sales from the sale of prepared meals or food.3 9 Section 4(e) makes it a

misdemeanor for a license holder to drink alcohol while carrying a firearm in a restaurant. The Georgia Restaurant Association opposed this provision on several grounds: (1) the fear of employees and the dining public, (2) restaurant's exposure to legal liability, (3) public confusion about the legal distinction between a restaurant and a bar, (4) the lack of meaningful deterrence for drinking alcohol while carrying a gun in a restaurant, (5) the Equal Protection clauses under the U.S. and Georgia Constitutions, (6) the dispelling of inaccurate information about Georgia laws compared to other states and 41 property (7) private by point.rihts. GeorgiaCarry.Org rebuked the point criticism

37. David Norcross, et. al., What Do You Think? FirearmsBill: Sign or at 2008 available May 11, J.-CONST., ATLANTA

Veto ?,

http://www.ajc.com/search/content/metro/northfulton/stories/2008/05/1 I/ WhatDoYouThink.html.

50. Transcript of Mayor Franklin's Press Conference Opposition to HB89, April 24, 2008, availableat http://www.GorgiaCarry.Com/

press-release/TranscriptMayorjFranklinPresser.pdf.

39. H.R. 89 40. Id.

41. Letter from Charles Hoff, Taylor, Busch, Slipakoff & Duma, Counsel for the Georgia Restaurant Association to Gov. Sonny Perdue (April 11, 2008)

available

at

http://www.GeorgiaCarry.Com/press-

release/restaurantletter.pdf.

42. Letter from John R. Monroe, Counsel for GeorgiaCarry.Org to available at 29, 2008) (April Perdue Sonny Governor http://www.GeorgiaCarry.Com/press-release/Gov%20Perdue%204-29-

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The House passed the Senate Substitute amendment on January 31, 2008, after making additional changes to Section 4 that did not survive in the final bill. First, the amendment changed the term "public gatherings" to "prohibited buildings." 43 Rep. Bearden explained that the public gathering law was a Jim Crow law passed to disarm blacks. 44 Enacted in 1870, the General Assembly passed the law in response to the Camilla Massacre, during which a white posse ambushed and killed black marchers who were protesting against the ejection of blacks from the General Assembly. 4 Second, the House amendment allowed license holders to carry guns to or while at churches and church functions and in publicly owned or operated buildings. 4 6 Although these changes were omitted from the final Bill, Rep. Bearden expects future legislation to expand the places where Georgians can carry guns. 47 Section 6 of the Bill made changes to expedite the issuance of licenses by placing new and reduced time limits on probate judges and law enforcement in the process of awarding licenses. 48 The Senate Substitute required probate judges to issue a license within 45 days of the application, even if the judge had not received the report from law enforcement.4 9 The House worked with probate judges to offer an amendment that gives probate judges ten days after receiving the report from law enforcement to issue the license.5 ° Section 7 of House Bill 89 is known as the "parking lot" provision. 5 ' The genesis of this provision was Senate Bill 43, sponsored Sen. Rogers. 52 first reading of Senate Bill 43 occured onby January 24, 2007,The and the Senate referred to the Bill 08.pdf.

43. H.B. 89 Status, supra note 3.

44. House Video (1/31/2008), supra note 41 (remarks by Rep. Bearden).

45. Id. 46. H.B. 89 Status, supra note 3.

47. Bearden Interview, supra note 46.

48. H.B. 89.

49. House Video (1/31/08) (remarks by Rep. Bearden).

50. Id. 51. Video Recording of Ga. Senate Proceedings, April 4, 2008, available

at http://www.georgia.gov/00/article/0,2086,4802_6107103_103744254,00 52.

Ga. Gen. Assem., S. 43, available at http://www.legis.state.ga.us/legis/2007_08/sum/sb43.htm. [hereinafter S. 43 Status].

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to the Senate Judiciary (Non-Civil) Committee. With minor changes, the Committee favorably reported on Senate Bill 43 on February 29, 2007. The second reading of the Bill took place on February 10, 2007 and the Senate recommitted the Bill on January 14, 2008. 53 The Senate then included a modified version of Senate Bill 434 in the language of the Senate Substitute to House Bill 89.1 With limited exceptions, Senate Bill 43 sought to prevent employers from prohibiting employees from keeping firearms in their locked vehicles in employer parking lots.5 To explain the provision's purpose, Sen. Rogers used a hypothetical example of a young lady, a Kmart employee, who obtains a restraining order against a man who threatened her. 56 Under existing law, her stalker could bring a gun into the Kmart parking lot, but the young lady could not. Sen. Rogers stated that peogle 7 should not have to choose between their safety and their jobs.

The National Rifle Association backed the parkin8 lot provision, but business interests strongly opposed the Bill. As a result, the provision in House Bill 89 is much more favorable to property owners than the Senate Bill 43 version. 59 House Bill 89 prohibits, with exceptions, public and private employers from searching the locked privately owned vehicles of employees. 60 The Bill also forbids, with exceptions, public and private employers from prohibiting licensed employees from keeping guns locked in enclosed compartments in their cars.

Additionally, Section 7(k) of House Bill 89 provides that private property owners and lessees have the authority to 6 guns on their parking lots. 1 prohibit In the Senate Substitute to House Bill 89, Section 7(k)

53. Id. 54. Senate Video (1/17/2008), supra note 17.

55. S. 43 Status, supra note 54.

56. Senate Video (1/17/2008), supra note 17 (remarks by Sen. Rogers).

57. Id. 58. Andrea Jones, Feuds, Deals and a Few Hisses: The Bills, ATLANTA J.-CONSTIT., April 5, 2008 availableat http://www.ajc.com/search/content/ metro/stories/2008O4/O5/gunsO4O5.html.

59. Id. 60. H.B. 89.

61. Id.

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applied only to property owners, not lessees. 62 On the Senate floor on January 17, 2008, Sen. David Adelman, of the 42nd, offered an amendment to add lessees. 63 Sen. Adelman explained that the addition of lessees is consistent with the intent to favor private property rights. He further noted that most retail businesses operate on leased property. Sen. Dan Moody, of the 56th , expressed concern that the addition of lessees gives the lessee greater rights than the property owner. 64 Sen. Adelman countered that the property owner can always restrict the lessee's rights in the lease agreement. 65 The amendment failed in the Senate by a vote of 17 to 29. However, lessees were included in the final Bill. 67 Receiving little controversy, section 8 expanded the immunity provisions68 for those voluntarily assisting others in certain emergencies.

House Bill 89 passed in the Senate by a vote of 40 to 15, and in the House, by a vote of 108 to 57, on April 4, 2008. Gov. Perdue signed the bill on May 14, 2008.69 PREPARED

BY: Tracie K. Henderson

62. H.B. 89 Status, supra note 3.

63. Senate Video (1/17/2008), supra note 17 (remarks by Sen. Adelman).

64. Id. (remarks by Sen. Moody).

65. Id. (remarks by Sen. Adelman).

66. Id. (vote) 67. H.B. 89.

68. Id. 69. Id.

HOUSE BILL 13251: DOMESTIC RELATIONS AND INTERNATIONAL MARRIAGE BROKERS

Amending O.C.G.A. Title 19, entitled "Domestic Relations; internationalmarriagebrokers; provide regulation."

FIRST SIGNATURE: Rep. Stephanie Benfield (85th) CO-SPONSORS: Rep. Sharon Cooper (41st), Rep. Alan Powell (29th), and Rep. Ed Setzler (35th) SUMMARY: House Bill 1325 seeks to provide guidance, procedures, and regulations concerning international matchmaking organizations and international marriage brokers.

In part, the Bill seeks to regulate international matchmaking organizations and marriage brokers by requiring detailed information from persons using these services. Furthermore, the Bill provides enforcement methods and penalties for noncompliance.

STATUS: Not enacted in 2008.

TEXT OF HOUSE BILL

1325

ยง 1.

The General Assembly finds that international marriage brokers is a growing industry in Georgia whereby foreign nationals are introduced to Georgia citizens for the purpose of facilitating dating and marriage. The General Assembly further finds that this state has an interest in ensuring that minors are not brought into the United States by international marriage brokers. The General Assembly further finds that this state has an interest in providing foreign nationals with information regarding the criminal and marital history of a prospective spouse, the illegality of domestic violence in the United States, and the resources available in Georgia to victims of family violence, sexual assault, and human trafficking. ยง2.

Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by adding a new chapter to read asfollows: "CHAPTER 16 19-16-1.

As used in this chapter, the term: (1)'Client' means a Georgia resident, including a lawful permanent resident of the United States, who contracts with an international marriage broker for its services.

(2) 'Criminal history information' means: (A) Any court ordered restriction on physical contact with another person, including any temporary or

1. H.B. 1325, 149th Gen. Assem., Reg. Sess. (Ga. 2008).

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permanent restraining order or civil protection order; (B) Complete criminal history record information maintained by the Georgia Crime Information Center based on the fingerprints voluntarily provided or the consent of the client in accordance with Code Section 35-3-34; (C) A complete transcript of a background check conducted by the Federal Bureau of Investigation based upon a submission of fingerprint impressions; (D) A complete transcript of a search for the client on any publicly available criminal or civil registry, including, but not limited to, the state sexual offender registry maintained by the Georgia Bureau of Investigation; (E) Any disciplinary actions imposed by amilitary tribunal; and (F) Any court ordered requirement or voluntary agreement that the client attend a family violence intervention program, anger management program, or other similar program.

(3) 'International marriage broker' means an international marriage broker or international matchmaking organization which is a corporation, partnership, sole proprietorship, or other legal entity, whether or not organized under the laws of the United States or any state, that does business in the United States and for profit offers to clients dating, matrimonial, or matchmaking services, or social referrals involving citizens of a foreign country or countries who are not residing in the United States, by: (A) An exchange of names, telephone numbers, addresses, or statistics; (B) Selection of photographs; or (C) A social environment provided by such broker in a country other than the United States.

The term shall not include a traditional matchmaking organization of a religious nature that otherwise operates in compliance with the laws of the countries of the recruits of such organization and the laws of the United States, any organization that does not charge a fee to any party for the service provided, or an entity that provides dating services if the entity's principal business does not provide international dating services between United States citizens or United States residents and foreign nationals and the entity charges comparable rates and offers comparable services to all individuals it serves regardless of the individual's gender or country of citizenship.

(4) 'Marital history information' means: (A) Current marital status; (B) An accounting of previous marital relationships, how many and how the previous marriages were terminated and the date of such of termination; and (C) Whether the client has previously sponsored a person from a foreign country to whom the client has been engaged or married.

(5) 'Personal contact information' means, but shall not be limited to, the recruit's name, address, telephone number, and e-mail address.

(6) 'Recruit' means a person who is 18 years of age or older, not a citizen or resident of Georgia or of the United States, and who is recruited by an international marriage broker for the purpose of providing matrimonial services.

19-16-2. (a) Each international marriage broker shall: (1) Obtain the client's criminal history information and require the client to provide the client's criminal history information, in writing and signed by the client under penalty of perjury; (2) Require the client to provide the client's marital history information, in writing and signed by the client under penalty of peijury; (3) Pay the costs incurred to obtain a certified translation of the client's criminal history information and marital history information into the recruit's native language and provide all of the information received to the recruit prior to referring any personal contact information of the recruit to the client; (4) Not provide any individual or entity, including, but not limited to, a client with the personal contact information, photograph, or general information about the background or interests of any recruit or any individual under the age of 18; and (5) Provide the recruit with information in his or her native language that explains: (A) The client's responses to questions regarding the client's criminal history information and marital history information may not be accurate; (B) The fiancee visa application process and marriage-based immigration status; (C) The illegality of domestic violence in the United States; (D) The assistance available to victims of family violence, sexual assault, and human trafficking in this state;

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(E) The availability of protective orders, free legal advice, immigration resources, shelters, and the state-wide 24 hour domestic violence hotline; and (F) The rights of victims of domestic violence, sexual assault, and human trafficking in this state including, but not limited to, the right to petition for residence independent of and without the knowledge, consent, or cooperation of the spouse; and (6) Obtain the consent of the recruit to provide the recruit's personal contact information to a client and maintain records reflecting such consent. (b) The information provided pursuant to paragraphs (1)and (2) of subsection (a) of this Code section shall have been obtained by the international marriage broker within six months of the date the international marriage broker provides such information to the recruit, and if more than six months have elapsed since obtaining such information, the international marriage broker shall obtain updated information on and from the client.

19-16-3.

The State Commission on Family Violence shall issue materials which include the information required by this Code section and each international marriage broker shall provide such materials to the recruit.

19-16-4.

Any person who suffers damages as a result of an international marriage broker's actions or inaction in violation of this chapter has a cause of action against such international marriage broker for damages and for any other relief a court of competent jurisdiction deems appropriate, including, but not limited to, compensatory and punitive damages and recovery of litigation expenses and reasonable attorney's fees." ยง 3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Re. Stephanie Benfield, of the 85th, introduced House Bill 1325. Representative Benfield introduced the Bill to give law enforcement and prosecutors more control and power over International Marriage Brokerage firms, and to increase the amount of personal information that persons using these firms must provide. 3 Shelly Senterfitt, a lobbyist for domestic violence, approached Rep. Benfield with the idea for this legislation, advocating several reasons.4 First, one of the three largest international marriage brokerage firms is located in the Atlanta area.5 Further, many of the women who are brought to America via international marriage brokerage firms find themselves in abusive situations. 6 Finally, Rep. Benfield cited a Georgia incident where a young Russian woman who used an international marriage brokerage firm found herself in such an

2. H.B. 1325, Ga. Gen. Assem., Reg. Sess. (Ga. 2008).

3. Interview with Representative Stephanie Benfield, Sponsor of Georgia House Bill 1325 (October 20, 2008).

4. Id. 5. Id. 6. Id.

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abusive situation that she murdered her husband. 7 Rep. Benfield acknowledged that House Bill 1325 met resistance from law enforcement and prosecutors due to lack of time and resources to prosecute many of the potential cases. 8 Additionally, Rep. Benfield noted that by the time House Bill9 1325 had been amended it was very late in the session.

Because of such time constraints, it was difficult to respond to 10 industry concerns and amend House Bill 1325 accordingly.

Rep. Benfield stated that she most likely plans to re-introduce House Bill 1325 in the 2009 session. 1 House Bill 1325 has yet to be re-introduced. 12 LEGISLATIVE GENEALOGY

House Bill 1325 was first read on February 26, 2008.13 A second reading occurred on February 27, 2008. The Bill was subsequently amended by adding provisions that allowed the recruits personal information to be provided to a client so long as the agency obtains consent of the recruit. The legislation defines recruit as, "a person who is 18 years of age or older, not a citizen or resident of Georgia or of the United States, and who is recruited by an international marriage broker for the purpose 15 of providing matrimonial services".

Furthermore, House Bill 1325 was amended to expand the scope of the definition of 'criminal history information." 6 The definition was expanded to include any disciplinary actions by a military tribunal, and a related court ordered or voluntary agreement to attend anger management programs, violence 7. Id. 8. Id. 9. Id. 10. Id. 11. Id. 12. Ga. House Daily Composite Status Sheet (March 23, 2009) available at http://www.legis.ga.govlegis/2009-10/composite/HComposite.pdf.

13. Video Recording of H. Proceedings (Feb. 26, 2008), http://www.georgia.gov/00/article/0,2086,4802_6107103_10374292,00.html 14. Video Recording of H. Proceedings (Feb. 27, 2008), http://www.georgia.gov/00/article/0,2086,4802_6107103_10374292,00.html 15. H.B. 1325.

16. Id. 17. Id. 18. Id.

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intervention programs or similar programs. 17 House Bill 1325 was amended to include a definition for 'personal contact information' and to remove a provision which limited the amount of civil penalty for violation of the chapter to $20,000.18 Rep. Benfield stated that House Bill 1325 was amended due to industry concerns. 19 The House Judiciary Non-Civil Committee favorably reported the amended version of House Bill 1325, but the Bill never passed the full house.2 Law enforcement expressed concerns over time and difficulty of enforcing the Bill due to a shortage of agents if it became law. 2 1 Additional concerns were voiced regarding a lack of time in the 2008 22 session to amend House Bill 1325 any further.

PREPARED

BY: Jake Stone

19. Id. 20. Interview with Representative Stephanie Benfield, H. District No. 85 (October 20, 2008) [hereinafter Benfield Interview].

21. Id. 22. State of Ga. Final Composite Status Sheet, H.B. 1325, Jan. 27, 2005 (May 11, 2005).

23. Id.

SENATE BILL 1:1 SEXUAL OFFENDERS

Amending O.C.G.A. § 42-1-12 & O.C.G.A. § 42-1-15 FIRST SIGNATURE: Sen.

Eric Johnson (1st).

Co-SPONSORS: Sen. Tommie Williams (19th), Sen. William

Hamrick (30th), and Sen. John Wiles (37th).

SUMMARY: Senate Bill 1 amended restrictions placed on where registered sex offenders can live, work, loiter and volunteer. It also criminalized the intentional photographing of minors by registered sex offenders when done without parental consent.

STATUS: Enacted on May 13, 2008.

TEXT OF SENATE BILL

1

§ 1.

Article 2 of Chapter 1 of Title 42 of the Official Code of Georgia Annotated, relating to the Sexual Offender Registration Review Board, isamended by repealing in its entirety Code Section 42-1-15, relating to the restrictions on registered offenders residing, working, or loitering within certain areas, the penalties for violations, and civil causes of action. § 2.

Said article is further amended by revising paragraph (3) of subsection (a) of Code Section 42-1-12, relating to the State Sexual Offender Registry, as follows: "(3) 'Area where minors congregate' shall include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries, and public and community swimming pools." § 3.

Said article is further amended by revising subsection (a) of Code Section 42-1-12, relating to the State Sexual Offender Registry, by adding a new paragraph to read as follows: "(10.1) 'Day-care center' shall have the same meaning as set forth in paragraph (4) of Code Section 2 20-1 A-2.

1. S.B. 1, 149th Gen. Assem., Reg. Sess. (Ga. 2008).

2. In the 2009 session, Sen. Seth Harp, of the 29th, introduced S.B. 157.

This Bill would change certain provisions of the sex offender law, including, but not limited to, residency restrictions placed on sex offenders. See S.B. 157, 150th Gen. Assem., Reg. Sess. (Ga. 2009). S.B. 157 would revise the meaning of child care facility in O.C.G.A. § 42-1-12, stating that "such term shall not include private, in-home child day care which is not licensed by this state." See id. As of the date of publication, S.B. 157 had passed from the Senate to the House, where it was withdrawn and recommitted at the end of

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ยง 4.

Said article is further amended by adding a new Code section to read as follows: "42-1-15. (a) As used in this Code section, the term: (1) 'Individual' means a person who is required to register pursuant to Code Section 42-1-12.

(2)'Minor' means any individual who is under 18 years of age.

(3) 'Photograph' means to take any picture, film or digital photograph, motion picture film, videotape, or similar visual representation or image of a person. (b) No individual shall reside within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points. (c)(1) No individual shall be employed by or volunteer at any child care facility, school, or church or by or at any business or entity that is located within 1,000 feet of a child care facility, a school, or a church. Such distance shall be determined by measuring from the outer boundary of the property of the location at which such individual is employed or volunteers to the outer boundary of the child care facility, school, or church at their closest points.

(2) No individual who is a sexually dangerous predator shall be employed by or volunteer at any business or entity that is located within 1,000 feet of an area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property of the location at which the sexually dangerous predator is employed or volunteers to the outer boundary of the area where minors congregate at their closest points. (d) No individual shall intentionally photograph a minor without the consent of the minor's parent or guardian. (e) Notwithstanding any ordinance or resolution adopted pursuant to Code Section 16-6-24 or subsection (d) of Code Section 16-11-36, it shall be unlawful for any individual required to register pursuant to Code Section 42-1-12 to loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or area where minors congregate. (f)(1) If an individual owns real property and resides on such property and a child care facility, church, school, or area where minors congregate thereafter locates itself within 1,000 feet of such property, or if an individual has established employment at a location and a child care facility, church, or school thereafter locates itself within 1,000 feet of such employment, or if a sexual predator has established employment and an area where minors congregate thereafter locates itself within 1,000 feet of such employment, such individual shall not be guilty of a violation of subsection (b) or (c) of this Code section, as applicable, if such individual successfully complies with subsection (g) of this Code section.

the 2009 session. See Ga. Senate Daily Composite Status Sheet, S.B. 157, Apr. 3, 2009 (Apr. 3, 2009).

3. S.B. 157, introduced in 2009, would also amend O.C.G.A. ยง 42-1-15 by adding a definition for the term "volunteer" which was not defined in the code section revised in 2008 by S.B. 1: "'Volunteer' means to engage in an activity in which one could be and ordinarily would be employed with or without compensation, including, but not limited to, being involved with or assisting with minors as a teacher or teaching assistant or with minors who are not supervised by someone other than a sexual offender provided, however, such term shall not be construed to preclude participating in activities limited to persons who are 18 years of age or older or being a participant in worship services or engaging in religious activities that do not include supervising, teaching, directing or otherwise participating with minors who are not supervised by someone other than a sexual offender."

See S.B. 157, as passed Senate, available at http://www.legis.ga.gov/legis/2009_10/sum/sb157.htm (last visited Apr. 8, 2009).

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(2) An individual owning real property and residing on such property or being employed within 1,000 feet of a prohibited location, as specified in subsection (b) or (c) of this Code section, shall not be guilty of a violation of this Code section if such individual had established such property ownership or employment prior to July I, 2006, and such individual successfully complies with subsection (g) of this Code section. (g) If an individual is notified that he or she is in violation of subsection (b) or (c) of this Code section, and if such individual claims that he or she is exempt from such prohibition pursuant to subsection (f) of this Code section, such individual shall provide sufficient proof demonstrating his or her exemption to the sheriff of the county where the individual is registered within ten days of being notified of any such violation. For purposes of providing proof of residence, the individual may provide a driver's license, government issued identification, or any other documentation evidencing where the individual's habitation is fixed. For purposes of providing proof of property ownership, the individual shall provide a copy of his or her warranty deed, quitclaim deed, or voluntary deed, or other documentation evidencing property ownership. For purposes of providing proof of employment, the individual may provide an Internal Revenue Service Form W-2, a pay check, or a notarized verification of employment from the individual's employer, or other documentation evidencing employment. Such employment documentation shall evidence the location in which such individual actually carries out or performs the functions of his or her job. Documentation provided pursuant to this subsection may be required to be date specific, depending upon the individual's exemption claim. (h)(1) Any individual who knowingly violates subsection (d) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature.

(2) Any individual who knowingly violates any other any provision of this Code section, except subsection (d) of this Code section, shall be guilty of a felony and shall be punished by imprisonment for not less than ten nor more than 30 years. (i) Nothing in this Code section shall create, either directly or indirectly, any civil cause of action against or result in criminal prosecution of any person, firm, corporation, partnership, trust, or association other than an individual required to be registered under Code Section 42-1-12." ยง5.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Eric Johnson, of the 1st, introduced the initial version of Senate Bill 1 during the 2007 session in response to an incident involving a girl who was photographed while working at a coffee shop in his district.4 A man used a cell phone camera to5 take her picture and made harassing comments while doing so.

Upset by the man's actions, the girl called her mother. 6 Using his license plate number, the mother discovered the man was a registered sex offender in Massachusetts.7 In response to her complaint, police informed the mother that it was not illegal for 4. Video Recording of Sen. Proceedings, Feb. 12, 2007 (remarks by Sen. Eric Johnson), available at http://www.georgia.gov/00/article/

0,2086,48026107103_72682316,00.html

(last visited Apr. 9, 2009); see

also Bryan Brooks, Legislative History, Senate Bill 1: Amending O.C.G.A. ยง

16-12-100.4, 1 J. 5. Id. 6. Id. 7. Id.

MARSHALL

L.J. 337, 337-339 (2008).

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the man to photograph the girl.8 The mother contacted Sen. Johnson, who proposed the Bill as an effort to stop registered sex offenders from taking steps that might lead to stalking or the posting of minors' photographs on Internet websites. 9 Senate Bill 1 stalled in 2007, but in 2008 it was revived and House Bill 908 was grafted into it.

House Bill 908:10 In the 2008 session, Rep. David Ralston, of the 7th, introduced House Bill 908 in order to bring a section of Georgia's sex offender laws into compliance with a Georgia Supreme Court decision from November 2007.11 O.C.G.A. ยง 42-1-15 barred offenders from living within 1,000 feet of a childcare facility, school or other protected facility. 12 The Court held the residency restriction to be an unconstitutional taking as applied to the offender who bought a house in compliance with the residency restriction, only to have a day care later locate within 1,000 feet of his residence, forcing him to move.13 Concerned the decision made the sex offender laws/residency restrictions unenforceable, Rep. Ralston proposed amending O.C.G.A ยง 42-1-15 so that offenders who owned property and resided on it could stay if a protected facility later moved within the proscribed distance (i.e. "move-to-the-offender" exception).14 Additionally, House Bill 908 provided that offenders could remain in their homes if they could prove the y presently resided at and owned the home before July 1, 2006. 5 8. Id. 9. Id. 10. H.B. 908, 149th Gen. Assem., Reg. Sess. (Ga. 2008).

11. Video Recording of Ga. H. Judy. (Non-Civil) Comm. Meeting, Dec. 18, 2007 (remarks by Rep. David Ralston), available at http://www.legis.ga.govlegis/2007_08/house/Committees/judiciaryNonCivil /judyncArchives.htm (last visited Apr. 9, 2009)[hereinafter Video Recording of H. Judy NC 12/18/07].

12. O.C.G.A. ยง 42-1-15 (2006).

13. Mann v. Georgia Department of Corrections, 653 S.E.2d 740 (Ga. 2007).

14. Video Recording of Ga. H. Judy. (Non-Civil) Comm. Meeting, Jan. 16, 2008 (remarks by Rep. David Ralston), available at http://www.legis.ga.govlegis/2007_O8/house/Committees/judiciaryNonCivil /judyncArchives.htm (last visited Apr. 9, 2009) [hereinafter Video Recording of H. Judy NC 1/16/08].

15. H.B. 908, availableat http://www.legis.ga.gov/legis/2007_O8/sum hb908.htm (last visited Mar. 9, 2009); see Video Recording of Sen.

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The Bill contained no exemption for renters; Rep. Ralston contended that proof of rental was more difficult to establish than ownership, since ownership is evidenced in writing, while 6 rental agreements can be oral and more difficult to ascertain.'

Although the employment restriction as applied to the particular offender (who was a business owner) by O.C.G.A. ยง 42-1-15 was not held unconstitutional in the Court decision, House Bill 908 also amended employment restrictions by adding a similar move-to-the-offender exception. 17 Also, the bill added public libraries to the list of areas where minors congregate. 18 This addition was made because a sex offender was caught using the Internet at a public library.' 9 The Bill also changed the prior law by banning volunteers at certain protected Proceedings, Apr. 4, 2008 (remarks by Sen. Eric Johnson), available at http://www.georgia.gov/00/article/0,2086,4802 6107103103744254,00.html (last visited Mar. 9, 2009) [hereinafter Video Recording of Senate 4/4/08].

16. Video Recording of H. Judy NC 1/16/08 (remarks by Rep. David Ralston), supra note 14.

17. Video Recording of H. Judy NC 12/18/07 (remarks by Rep. David Ralston), supra note 11; see also Mann, 653 S.E.2d at 746 (addressing appellant's status as a business owner: ".. nothing in the statute prohibits a registered sex offender from owning a business or entity within the 1,000foot buffer zone around child care facilities, schools and churches, as long as that ownership does not involve the sex offender's physical presence at the business or entity so as to enable the sex offender to come into contact with any children who may be attending the child care facility, school or church.

Appellant's property interest in the business in which he owns a half-interest is considerable. However, nothing in O.C.G.A. ยง 42-1-15(b)(1) compels appellant to divest himself of that ownership interest in the business or to relocate the business in order to maintain his interest in it. Although the statute's work restriction does directly deprive appellant of his right to work at the physical location of the business, there was no showing that appellant's property interest in the business depends on his physical presence; that the tasks he performs on site at the restaurant cannot be performed economically by others; and that other tasks he performs cannot be handled with comparable economic efficiency at a site outside any buffer zone").

18. Video Recording of H. Judy NC 1/16/08 (remarks by Rep. David Ralston), supra note 14.

19. Staff Report, Offender Residency Restrictions Pass House, ROME NEWS-TRIB., Jan. 29, 2008, available at http://news.mywebpal.com/partners/680/public/news872412.html (last visited Mar. 6, 2009).

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facilities, and it clarified how the distance was measured from an offender's property to the protected facility. Provisions of House Bill 908 were incorporated into Senate Bill 1.

LEGISLATIVE GENEALOGY

L Priorto Incorporationof House Bill 908 into Senate Bill 1 Senate Bill 1. Senate Bill 1 was first read January 22, 2007 and referred to the Senate Judiciary Committee. 2 1 As originally drafted, the Bill made it illegal for an individual required to register as a sex offender to photograph any minor, either 22 intentionally or accidentally. 2 The Senate Judiciary Committee amended the Bill to require that the photograph be taken intentionally and without parental or guardian consent. 2 3 The Judiciary Committee favorably reported the Bill to the Senate by substitute on February 2, 2007, and the Senate approved the Bill by a vote of 54-0 on February 12, 2007. 24 The Bill received its first and second reading in the House on February 13 and 14, 2007.25 Once assigned to the House Judiciary (Non-Civil) Committee, the Committee amended the Bill by removing the parental/guardian consent language, and instead required the photograph be taken intentionally and for 26 indecent purposes. 6 The Committee favorably reported the Bill 20. Video Recording of H. Judy NC 1/16/08 (remarks by Rep. David Ralston), supra note 14; see O.C.G.A. ยง 42-1-15 (2006) (S.B. 1 included

language describing how to measure the 1,000-foot boundaries in the paragraphs regarding employment and volunteering. The previous law had included the measurement instructions in the paragraph regarding measuring from protected facilities to residences only).

21. State of Ga. Final Composite Status Sheet, S.B. 1, Jan. 22, 2007 (May 21, 2008) [hereinafter S.B. 1 FinalStatus Sheet]; see also Brooks, supra note 4, at 338-339.

22. S.B. 1, as introduced, available at http://www.legis.ga.gov/legis/ 2007_08/sum/sbl.htm (last visited Mar. 9, 2009). at available Substitute, 1, Senate Comm.

23.

S.B. http://www.legis.ga.gov/legis/2007_08/sum/sbl.htm (last visited Mar. 9,

2009).

24. S.B. 1 Final Status Sheet, supra note 21, Feb. 2, 2007; Ga. S. Voting Record, S.B. 1, Feb. 12, 2007.

25. S.B. 1 Final Status Sheet, supra note 21, Feb. 13 & 14, 2007.

26. S.B. 1, House Substitute, available at http://www.legis.ga.gov/legis/ 2007_08/sum/sbl.htm (last visited Mar. 9, 2009).

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on April 17, 2007. 27 Near the end of the 2007 session, the Bill was recommitted because Sen. Johnson disagreed with the changes to the Bill, and there was insufficient time to address them before the 2007 session ended.28 House Bill 908. In the 2008 session, House Bill 908 was read for the first and second times on January 15 and 16, 2008.29 On January 16, 2008, the Bill was favorably reported, and it was read for the third time and passed the House 141-29 on January 29, 2008.30 On January 30, 2008, the Senate read the Bill for the first time.3 1 The Bill was referred to the Senate Judiciary Committee on January 30, 2008.32 I. After incorporationof House Bill 908 into Senate Bill 1 By mutual agreement, Sen. Johnson and Rep. Ralston determined it would be efficient for the Bills to be merged, as each dealt with restrictions and penalties to be imposed on registered sex offenders. 33 On March 18, 2008, Senate Bill 1, with House Bill 908's language engrafted, was favorably reported in the House. 34 On April 2, 2008, the Bill was read for the third time in the House and passed by a Rules Committee substitute 133-32. 35 This version of the Bill contained a penalty provision that made a violation of any section of O.C.G.A. ยง 42-1-15 a felony. 36 Sen. Johnson amended the Bill on the Senate floor so that a violation of the photographing restriction 27. Georgia Gen. Assem., Legislation Search: S.B. 1, Bill Summary, available at http://www.legis.ga.gov/legis/20O7_08/sum/sb 1.htm (last visited March 9, 2009).

28. Interview by Bryan Brooks with Melanie Stockwell, Chief of Staff for Sen. Johnson, S. District No. 1 (Feb. 26, 2008); see also Brooks, supra note 4 at 339.

29. State of Georgia Final Composite Status Sheet, H.B. 908, Jan. 15 & 16, 2008 (May 21, 2008) [hereinafter H.B. 908 FinalStatus Sheet].

30. H.B. 908 Final Status Sheet, supra note 29, Jan. 16 & 29, 2008; Ga. H. Voting Record, H.B. 908, Jan. 29, 2008.

31. H.B. 908 Final Status Sheet, supra note 29, Jan. 30, 2008.

32. Id. 33. Telephone Interview with Melanie Stockwell, Chief of Staff for Sen. Johnson, S. District No. 1 (Nov. 12, 2008).

34. S.B. I Final Status Sheet, supra note 21, Mar. 18, 2008.

35. S.B. 1 Final Status Sheet, supra note 21, Apr. 2, 2008; Ga. H. Voting Record, S.B. 1, Apr. 2, 2008.

36. S.B. 1 Final Status Sheet, supra note 21, Apr. 2, 2008.

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would be a misdemeanor of a high and aggravated nature, while a violation of the remaining provisions remained a felony punishable by not less than 10 years in prison. 37 On April 4, 2008, the Senate voted 41-8 to pass Senate Bill 1.38 The same afternoon, the House aproved Senate Bill 1 as amended by the Senate, voting 131-22. On April 11, 2008, the Bill was sent to the Governor, who signed it on May 13, 2008.40

III. Developments After Passageof Senate Bill 1 In October 2008, the Georgia Supreme Court held that a provision of O.C.G.A. ยง 42-1-12 was unconstitutionally vague as it applied to homeless sex offenders. 4 ' In response to the holding, Senate Bill 157, introduced in the 2009 session, would allow a homeless sex offender to identify as his/her address the can place where he/she sleeps, such as a shelter or structure that 42 This description. be located by a street address or another description included, but was not limited to, motels, hotels, buildings, parked vehicles, apartments and homeless shelters.43 Senate Bill 157 also would add a new code section (O.C.G.A. ยง 42-1-16) allowing a Superior Court to release certain individuals from the law's residence requirements.44 This provision would apply to those individuals who do not pose a substantial risk of perpetrating any future dangerous sexual offenses and either (1) reside in a nursing home, residential care facility for the elderly, or hospice facility; (2) were totally and permanently disabled; or (3) were otherwise seriously physically incapacitated due to illness or injury.45 In the 2009 session, Senate Bill 157 passed from the Senate to the House, 37. Video Recording of Senate 4/4/08 (remarks by Sen. Eric Johnson),

supra note 15.

38. Ga. S. Voting Record, S.B. 1, Apr. 4, 2008.

39. Ga. H. Voting Record, S.B. 1, Apr. 4, 2008.

40. S.B. 1 FinalStatus Sheet, supra note 21, Apr. 11 & May 13, 2008.

41. Santos v. State, 668 S.E.2d 676(Ga. 2008) (holding that "statutory requirement of registering a change of residence was unconstitutionally vague as applied to homeless sex offenders who possessed no street or route address for their residence").

42. S.B. 157 as passed Senate.

43. Id.

44. Id. 45. Id.

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where it was withdrawn and recommitted at the end of the 2009 session.46 As of the date of this summary, litigation filed in 2006 in federal court is ongoing challenging certain provisions of Georgia's sex offender law, including, but not limited to, the school bus stop provision, the impact of the residency restrictions upon renters, and the volunteer provision's impact upon participation in religious activities.47 In 2008, the plaintiffs amended the complaint to include the language of Senate Bill 1 as enacted, in order to assert that the Takings Clause claim (addressed in Mann) likewise applied to renters (as opposed to property owners only). 48 On March 30, 2009, an Order was issued granting a motion for a preliminary injunction that enjoined and restrained enforcement of the restriction preventing sex offenders from engaging in volunteer activities at churches. 49 The Court also denied the Defendants' Motion to Dismiss Claims for Alleged Taking of Property, and discovery was reopened for a period of 90 days. 50 PREPARED

BY: Tanya McAdams

46 See Ga. Senate Daily Composite Status Sheet, S.B. 157, Apr. 3, 2009

(Apr. 3, 2009).

47. Whitaker v. Perdue, No. 4:06-CV-0140 CC (N.D. Ga. June 20, 2006).

This litigation was filed on behalf of the plaintiffs by the Southern Center for Human Rights and the American Civil Liberties Union. As of the date of publication, the school bus stop provision, as well as the volunteer provision

as applied to volunteering activities at churches, is not being enforced pending the outcome of the court case. See Stephen Gurr, Ruling Lets Sex Offenders Volunteer in Churches, GAINESVILLE TIMES, Mar. 31, 2009, available at http://www.gainesvilletimes.com/news/archive/16868/.

48. Telephone Interview with Sarah Geraghty, Senior Attorney for the Southern Center for Human Rights (Feb. 26, 2009); see "Overview of Whitaker v. Perdue" prepared by the Law Office of the Southern Center for Human Rights (on file with John Marshall Law Journal).

49. Order at 18, Whitaker, 4:06-CV-0140 (Mar. 30, 2009).

50. Id.

2009 LEGISLATIVE SESSION HOUSE RESOLUTION 5:1 PARAMOUNT RIGHT TO LIFE

Amending Article I, Section I of The Constitutionof the State of Georgia FIRST SIGNATURE: Rep. Martin Scott (2nd).

CO-SPONSORS: Rep. Charlice Byrd (20th), Rep. Melvin Everson (106th), Rep. James Mills (25th), Rep. Rick Crawford (16th) and Rep. Tom Rice (51 st).

SUMMARY: House Resolution 5 proposes to amend Article I, Section I of the Constitution of the State of Georgia to provide that the paramount right to life is vested in each human being from the moment of fertilization without regard to age, race, sex, health, function, or condition of dependency.

STATUS: Not enacted during the 2009 session.

TEXT OF HOUSE RESOLUTION 5 ยง 1.

Article 1, Section I of the Constitution is amended by re-designating Paragraph XXIX as Paragraph XXX and inserting a new Paragraph XXIX to read as follows: "Paragraph XXIX. Paramount right to life. (a) The rights of every person shall be recognized, among which in the first place is the right of every innocent human being to life. The right to life is the paramount and most fundamental right of a person. (b) With respect to the fundamental and inalienable rights of all persons guaranteed in this Constitution, the word 'person' applies to all human beings, irrespective of age, race, sex, health, function, or condition of dependency, including unborn children at every state of their biological development, including fertilization. (c) Nothing in this Paragraph shall be construed to limit the right of the State of Georgia to use capital punishment to enforce the laws of this state. (d) Nothing in this Paragraph shall be construed to limit the right of the State of Georgia to allow and regulate the use of advance directives or living wills. (e) Nothing in this Paragraph shall be construed to limit the right of the State of Georgia to allow and regulate the use of contraceptives." ยง 2.

The above proposed amendment to the Constitution shall be published and submitted as provided in Article X, Section 1, Paragraph i of the Constitution. The ballot submitting the above proposed amendment shall have written or printed thereon the following:

1. H.R. 5, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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332 )YES ( )NO

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Shall the Constitution of Georgia be amended so as to provide that the paramount right to life is vested in each human being from the moment of fertilization without regard to age, race, sex, health, function, or condition of dependency?"

All persons desiring to vote in favor of ratifying the proposed amendment shall vote "Yes." All persons desiring to vote against ratifying the proposed amendment shall vote "No." If such amendment shall be ratified as provided in said Paragraph of the Constitution, it shall become a part of the Constitution of this state.

FIRST SIGNATURE'S RATIONALE

Rep. Martin Scott, of the 2nd district, introduced House Resolution 5 to amend the Georgia State Constitution to establish a paramount right to life from the moment of fertilization.2 The resolution deals with unborn fetuses, the elderly and those unable to provide their own independent care.3 During a House Judiciary Committee meeting, Rep. Scott argued that the paramount right to life is the most important right conferred upon citizens because without the right to life, no other rights matter.4 Rep. Scott first introduced this legislation as House Resolution 536 in the 2007-2008 legislative session. Rep. Scott presented his arguments in favor of the Resolution on February 18, 2008 at a House Judiciary sub-committee meeting. The language of House Resolution 5 is identical to the language of House Resolution 536 which Rep. Scott argued before the subcommittee in the prior legislative session.

In hearings before the House Judiciary sub-committee considering House Resolution 536, Rep. Scott offered some insight into his rationale for the legislation. Rep. Scott stated that in Roe v. Wade, Justice Harry Blackmun opined that "if this suggestion of personhood [of the pre-bom] is established, the [abortion rights] case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the Fourteenth 2. Id. 3. Video Recording of Ga. H. Judy. Comm. Meeting, Feb. 18, 2008 available at http://www.legis.ga.govlegis/2007_08/house/Committees/

judiciary/judyArchives.htm [hereinafter Video Recording of H. Judy Mar. 13, 2007].

4. Id. 5. Video Recording of H. Judy Mar. 13, 2007, supra, note 3.

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Amendment." 6 By introducing House Resolution 5, Rep. Scott aims to make Justice Blackmun's statement a reality within the current law in Georgia by establishing that personhood be defined at the moment of fertilization.7 According to Rep. Scott, the proposed amendment intends to protect the dignity of human life even for the unborn.8 Although House Resolution 5 is not a direct facial attack on Roe, the purpose of the legislation is to provide a foundation for future legislative, judicial, or executive action.9 The issue of legal personhood, if left unaddressed, potentially may cause further unintended consequences when dealing with other related legal issues. 0 Rep. Scott intends to change hearts with this proposed amendment rather than to legislate with a heavy hand or criminalize abortion."l Moreover, in Rep. Scott's view, the current political leanings of Georgians increase the possibility of the voters approving this amendment if given the opportunity."2 Neither the federal congress nor the republican administrations that have come and gone have acted to repress this trend; therefore Rep. Scott felt the only action that can be taken is through state legislative initiatives such as House Resolution 5.13

Rep. Scott's final argument rested on similar provisions of Georgia law. The State of Georgia previously passed legislation such as the Unborn Victims of Violence Act14 and food and water provisions for advanced directives.1 5 House Resolution 5 6. Id. (citing Roe v. Wade, 410 U.S. 113, 156 (1973)).

7. Video Recording of H. Judy Mar. 13, 2007, supra note 3.

8. Id.

9. Id. 10. Id. For example, a related issue not addressed specifically in this legislation is in vitro fertilization, where doctors harvest and fertilize embryos, then place them in storage. Currently, the law creates a question as to whether these fertilized embryos are to be considered under custody laws or personal property laws. According to Rep. Scott, defining personhood at the moment of fertilization will help answer those questions.

11. Id. 12. Id. 13. Id.

14. O.G.C.A. ยง16-5-80 (2008).

15. O.C.G.A. ยง31-32-11 (2008).

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would further Georgia's already established interest in securing 6 the paramount right to life.1 LEGISLATIVE GENEALOGY

Rep. Scott filed the paramount right to life resolution, House Resolution 5, in the 2007-2008 legislative session as House Resolution 536.17 Rep. Scott is the primary sponsor for both House Resolution 536 and House Resolution 5. The House Judiciary sub-committee ultimately tabled the resolution during the 2007-2008 session, but not before it held extensive hearings on the resolution. Rep. Scott re-filed the legislation in the 20092010 legislative session with nearly identical language. The only change made to the re-filed legislation was deletion of the word "inviolable" contained in section l(a) of HR 536.8

I. Considerationof House Resolution 536 by the 2007-2008 Legislative Session When Rep. Scott introduced House Resolution 536, it was the nation's first paramount right to life legislation.' 9 The House assigned the Resolution to the judiciary committee. The first House reading of the Resolution occurred on March 20, 2007, and the second House reading occurred on March 27, 2007.0 On February 18, 2008 and February 20, 2008, the House Judiciary sub-committee heard arguments in favor of and in opposition to House Resolution 536.21 Rep. Edward Lindsey, of the 54th district, served as the sub-committee chairman at the February 20, 2008 hearing. Rep. Lindsey began the hearing noting that this proposed amendment would generate a very emotional and lengthy debate. Rep. Scott spoke first at the hearing, giving his argument in favor of the proposed 16. Video Recording of H. Judy, supra note 3. Rep. Scott asserted, "Now is the time. Georgia is the place. Let us vote. Let them live."

17. H.R. 536, 149th Gen. Assem., Reg. Sess. (Ga. 2008).

18. H.R. 536.

19. Karen Kassel Hutto, Abortion Debate: GeorgiaStrives to Become First Official "Pro-Life" State with "Personhood"Initiative, CHRISTIAN LIVING MAGAZINE, March/April Ed., availableat http://www.gofishproductions.net/title/study-notesfile/289/garighttolife.pdf

20. H. R. 536.

21. Video Recording of H. Judy, supra note 3.

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resolution, and the sub-committee members followed with questions.22 Rep. Lindsey questioned the fact that many pro-life special interest groups and organizations do not support this proposed amendment. Rep. Scott responded that just as many pro-life groups support the resolution as those who do not.23 Rep. Scott's Counsel, Mr. Gibb, further responded that the pro-life groups who are in opposition only disagree on the timing of the resolution, that is, they do not feel that the time is right to challenge the Roe 24 and Casey25 decisions because Justice Kennedy would potentially be the swing vote and it is uncertain how the United States Supreme Court would ultimately decide this issue right now.26 Rep. Lindsey was the first to raise the issue of how the language in this proposed amendment would impact existing law in Georgia. Several other sub-committee members raised similar concerns which included the impact on several areas of law, including tort liability law, property law and inheritance law. Rep. Scott and his counsel acknowledged that there will be some impact on current Georgia law.27 Rep. Scott also conceded that he intended the resolution to have some effect on existing law. However, where there are unintended consequences or conflicts with existing Georgia law, he is committed to working with the sub-committee to resolve any such conflicts by modifying the language of the amendment.28 Rep. Lindsey further questioned how the United States Supreme Court would view this amendment in light of existing federal law regarding abortion. Counsel Gibbs responded that the balancing of Georgia's right to define "personhood" against the federal laws that are already in place will establish a Roe challenge on a federal level.29

22.

23.

24.

25.

26.

27.

28.

29.

Id. Id. Roe v. Wade, 410 U.S. 113 (1972).

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Video Recording of H. Judy, supra note 3.

Id. Id. Id.

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Rep. Lindsey also was the first of many to question whether this legislation provided exceptions for the victims of rape and incest who have become impregnated by their attacker. Rep. Scott responded that under the current language of House Resolution 536, there would be no provision or exception that 30 would allow an abortion in the case of an incest or rape victim.

Rep. Mary Margaret Oliver, of the 83rd district, asked Rep. Scott when life begins. Rep. Scott responded that he is not coming from a theological perspective; his argument is legal and scientific. However, Rep. Oliver further questioned why Rep. Scott quoted the bible. This line of questioning continued throughout the hearing. Rep. Scott did state that the legal and scientific arguments inextricably are woven with theological perspectives so far as every person comes to the table with their religious presuppositions. Rep. Scott stated that source after source establishes that life begins at conception. However, he added that we, as a society, know more now, when life, medically, begins than we did in 1973 when the Supreme Court decided Roe.3 ' Rep. Oliver questioned how the proposed amendment would affect existing laws regarding advanced directives and living wills and the rights associated with them. Rep. Scott conceded that this area of the law would need further legislative clarification, because these rights would be questioned under the current language of the resolution. Rep. Oliver stated that if life begins at fertilization, it would be virtually impossible to permit certain forms of contraception. Rep. Scott responded that the legislature should deal with that issue as it arises.32 Rep. Barry Flemming, of the 117th district, questioned whether this proposed amendment would provide for a "life of the mother exception". Rep. Scott responded that House Resolution 5 does not threaten the mother's life because Georgia has existing laws regarding standards of care and priority of life that require legislators to make these decisions.33 Rep. Flemming proposed adding clause (f) to section 2 of the proposed legislation to make an exception for the mother's right 30.

31.

32.

33.

Id. Id. Video Recording of H. Judy Mar. 13, 2007, supra note 3.

Id.

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to life. 34 Rep. Scott explained that such an exception had already been considered, but that the legislative counsel had determined that it was unnecessary and advised against it. 35 However, Rep. Scott stated that he would be willing to consider adding clause (f) upon hearing additional testimony and the sub-committees opinion.36 Rep. Scott responded in the same manner when questioned about an exception for the life of another baby sharing the womb that may be in jeopardy.37 Rep. Rich Golick, of the 34th district, questioned the process of in vitro fertilization (IVF) as it relates to fertilized embryos placed in storage. Rep. Golick was concerned with the cost of this storage and how this amendment treats these fertilized embryos which the amendment defines as a legal people. Rep. Scott informed the sub-committee of "snowflake adoption," otherwise known as the adoption of fertilized embryos.3 8 Further, Rep. Scott stated that this proposed amendment would ensure reasonable care when creating fertilized embryos.39 A panel of law school professors spoke before the subcomittee giving their professional opinions about the legal consequences of the proposed resolution.4" Professor David Oedel, 4' Professor Eric Segall,42 Professor Dan Coenen,n3 and Professor Daniel F. Piar4 all appeared before the subcommittee.

Professor Coenen discussed the consequences that may arise under the language of this proposed amendment. 45 For example, Georgia's basic statutory language currently governs abortion in

34. Id. 35. Id. 36. Video Recording of H. Judy Mar. 13, 2007, supra note 3.

37. Id. 38. Nightline Christian Life, http://www.nightlight.org/snowflakeadoption.htm (last visited April 6, 2009).

39. Video Recording of H. Judy, supra note 3.

40. Id. 41. Professor of Law, Mercer University School of Law. 42. Professor of Law, Georgia State University.

43. University Professor, University of Georgia.

44. Dean of Scholarship and Professor of Law, Atlanta's John Marshall Law School.

45. Video Recording of H. Judy, supra note 3.

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two ways.4 6 First, it regulates the conditions under which a doctor may perform an abortion, and second, it criminalizes abortions not performed in compliance with these statutory regulations. 7 By defining "personhood' at the moment of fertilization, the proposed amendment would eliminate the first governing principal as abortions would no longer be regulated; abortions would be prohibited as the fetus would have the status of a person and would be protected under the 14th Amendment.4 8 The only governing statute remaining regarding abortion in Georgia would be the criminal penalty, which would also violate the Constitution of the United States.4 9 Professor Segall told the sub-committee that this proposed amendment clearly violates the paramount and supreme law created by the Roe 50 and Casey5 1decisions. Professor Segall stated that the Bill is a "flagrant and clear violation of federal law."52 He further discussed of the dangers of turning over all of these decisions and legal issues to the exclusive hands of the judiciary to determine.5 3 Once the General Assembly passes a constitutional amendment, it is difficult to change consequences that occur as result of the practical implementation of that amendment. 4 Professor Coenen also pointed out this proposed legislation may, in effect, eliminate in vitro fertilization

programs .55 Professor Daniel Piar stated that this is a "fantasy" challenge to Roe because this would not be the test case for which the Supreme Court of the United States would choose to grant a 46. Id.; see also O.C.G.A. ยง 16-12-140 (a) (2008) (Except as otherwise provided in Code Section 16-12-141, a person commits the offense of

criminal abortion when he administers any medicine, drugs, or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion. (b) A person convicted of the offense of criminal abortion shall be punished by imprisonment for not less than one nor more than ten years.).

47. Id. 48.

49.

50.

51.

52.

Id. Video Recording of H. Judy, supra note 3.

Roe v. Wade, 410 U.S. 113 (1972).

Planned Parenthood v. Casey, 505 U.S. 833(1992).

Id.

53. Id. 54. Id. 55. Id.

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writ of certiorari.56 Professor Piar asserted that this resolution is irrational and chaotic, and the fact that a clause (f) is even being considered further demonstrates this point.57 Professor Piar stated that the additions of the exception clauses, (c) death penalty, (d) advance directives and living wills, and (e) contraceptives, do not solve the problems which they intend to remedy. 8 Further, the provisions are "cobbled together" in a manner that would cast doubt on the credibility of the law in Georgia should this proposed amendment pass.5 9 All of the four law professors agreed that the legislation violates Georgia's one-subject rule regarding legislation. 60 It would, therefore, be unlikely that the legislation would reach a federal constitutional challenge. Professor Odel stated that there are a plethora of issues contained in the language of this legislation, likely not even addressing abortion. 6 1 Further, problems could arise from federal preemption in determining which constitutional rights are superior. 6 Rep. Flemming questioned the group of law school professors as to what would be a more effective legislative measure for challenging abortion.63 Professor Coenen said that taking legislative measures that would make it more difficult to secure an abortion would be more effective than the current proposed amendment. 64 Professor Odel suggested that incremental changes would be more effective than the overly broad language used in this proposed amendment.65 Ultimately, the sub-committee voted in a 4-3 decision to table the legislation. Rep. Scott re-filed the proposed amendment in the 2009-2010 legislative session as House Resolution 5.66 56. Video Recording of H. Judy, supra note 3.

57. Id. 58. Video Recording of H. Judy, supra note 3.

59. Id. 60. GA. CONST. art. III, ยง 5, 3 ("No bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof.")

61. Video Recording of H. Judy, supra note 3.

62. Id. 63. Id. 64. Id. 65. Video Recording of H. Judy, supra note 3.

66. Steven Ertelt, Georgia House Panel Kills Personhood Bill

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B. Considerationof House Resolution 5 by the 2009-2010 Legislative Session Approximately nine months after the hearing on House Resolution 536, House Resolution 5 was re-introduced with identical language except for the deletion of the word "inviolable" as explained above.6 7 The current version of House Resolution 5 does not contain a clause (f) and does not provide exceptions for the life of the mother or another baby sharing the womb with which Rep. Flemming was concerned.

House Resolution 5 was pre-filed with the House in the 20092010 legislative session on November 18, 2008.68 House Resolution 5 was assigned to the Judiciary Committee, and the first House reading of House Resolution 5 occurred on January 16, 2009 followed by the second House reading on January 26, 2009.69 There has been no further activity on House Resolution 5 70 PREPARED

Protecting

Unborn

on

Abortion,

Feb.

20,

BY: Aimee Faught

2008,

available

at

http://www.lifenews.com/state2923.html

67. H.R. 5.

68. State of Ga. Final Composite Sheet, H.R. 5, available at: http://www.legis.ga.gov/legis/2009-1 0/composite/HComposite.pdf.

69. Id. 70. Id.

HOUSE BILL 10:1 GEORGIA CRIME INFORMATION CENTER; PROVIDE ACCESS TO CRIMINAL HISTORY; CHANGE PROVISIONS

Amending O.C.G.A. §35-3-34 and §35-3-35 FIRST SIGNATURE: Rep. Kevin Levitas (82nd).

CO-SPONSORS: Rep. Matt Ramsey (72nd), Rep. Alan Powell (29th), Rep. Willie Talton (145th), Rep. Larry O'Neal (146th) and Rep. Mark Hatfield (177th).

SUMMARY: House Bill 10 seeks to amend O.C.G.A. §§ 35-3-34 and 35-3-35, relating to the Georgia Crime Information Center, to provide private individuals, businesses, public agencies and political subdivision access to an individual's Georgia criminal history records without the individual's consent or fingerprints.

Additionally, House Bill 10 adjusts the fees associated with these records and includes provisions to ensure the Bill is consistent with the Official Code of Georgia.

STATUS: Not enacted during the 2009 session.

TEXT OF HOUSE BILL 10 § 1.

Article 2 of Chapter 3 of Title 35 the Official Code of Georgia Annotated, relating to the Georgia Crime Information Center, is amended by revising Code Section 34-3-34, relating todisclosure and dissemination of criminal records to private persons and businesses, as follows: "35-3-34. (a) The center shall be authorized to: (1)Make Georgia criminal history records maintained by the center available to private persons and businesses under the following conditions: (A) Private individuals and businesses requesting Georgi criminal history records shall, at the time of the request, either provide the fingerprints of the person whose records are requested er-pFevide a signed eansent of the persen whose rads &Fe rqeted ona fzrmfl PF@Serrbd by the :zrnter whizb. shall iRAlude such pers..'

full name1

, address, A.

ial s.

Urity

Un..- F, and date of birh

in

such

manner as prescribed by the center, which may include electronic imaging of a person's fingerprints, or provide sufficient information to identify the individual whose Georgia criminal history is beine requested; (B) The center may shall not provide records of arrests, charges, and sentences for crimes relating to first offenders pursuant to Article 3 of Chapter 8 of Title 42 in cases where offenders have been exonerated and discharged without court adjudications of guilt, except as specifically authorized by

1. H.B. 10, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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Code Section 35-3-34.1 or other law; and (C) The center shall not provide records of juveniles adjudicated delinquent or records otherwise protected from disclosure pursuant to law; and ()(D) When the identifying information provided is sufficient to identify persons whose records are requested eleesrenieally, the center may disseminate electronically Georgia criminal history records 4f in state felony)aavietions. plas, and ...... without(i) Fingerprint fingerprint comparison, or (i-)--nsen consent of the person whose records are requested; es (2) Make Georgia criminal history records of the defendant or witnesses in a criminal action available to counsel for the defendant upon receipt of a written request from the defendant's counsel under the following conditions: (A) Such request shall contain the style of the case and the name and identifying information for each person whose records are requested. Such request shall be submitted to the center; (B) In cases where the court has determined the defendant to be indigent, any fees authorized by law shall be waived; and (C) Disclosure of criminal history information to the defendant's counsel as provided in this paragraph shall be solely in such counsel's capacity as an officer of the court. Any use of such information in a manner not authorized by law or the courtin which such action is pending where the records were disclosed shall constitute a violation of Code Section 35-3-38; and (3) Charge fees for disseminating records pursuant to this Code section which will raise an amount of revenue whieh thatapproximates, a ;.arly f a. practicable, the diret and indi-zet costs to the state for providing such disseminations. (b) In the event that an employment decision is made adverse to a person whose reerd records was were obtained pursuant to this Code section, the person will shall be informed by the business or person making the adverse employment decision of all information pertinent to that decision. This disclosure shall include information that A-rerd -as records were obtained from the center, the specific contents of the such reoErd records, and the effect the-reeard such records had upon the decision. Failure to provide all such information to the person subject to the adverse decision shall be a misdemeanor. (c) Neither the center, its employees, nor any agency or employee of the state shall be responsible for the accuracy of information nor have any liability for defamation, invasion of privacy, negligence, or any other claim in connection with the any dissemination pursuant to this Code section and shall be immune from suit based upon any such claims. (d) Local criminal justice agencies may disseminate Georgia criminal history records; without fingerprint comparison, or prior contact with the center, or consent of the person whose criminal records are requested to private individuals and businesses under the same conditions as set forth in paragraph (1) of subsection (a) of this Code section and may charge fees as needed to reimburse such agencies for their direct and indirect costs related to the providing of such disseminations. Such agencies shall have the same immunity as provided in subsection (c) of this Code section. (d. 1)Rese~ed.

1 (d.2) ' .han idefntifyinlg i4OfarlatiOB Pravided iS SUffiaiefnt ta idantify PerSGrSa Wh.taarareefdsAaa Feueted.

laal

rif.inal ju.tia. ageneies May diSSa in.. at

e..Rl.. i al NAG..'

FA.... .tat..

een'ietirns, pleas, and sentenae 'ithout: (1)Finga"rint e apria. ; (2) PF*OF aantaat w.ith the aanter; Cr (3)C r, nt Of.the PeFSOn.h.r...... . d.. are eq:uested.

Su. infomation may be diainatad to rifate individual and busines .......... .p.ifidin

supaf.agea.h (a)(1)(B) Pf this Cd

aatia.. opn

Of in

f...y

n......dit....o

payment of the fee f.r.the r.u..t And

w*hen tha ragqueat is Faa upen a feam firesribad by the eaatar. Suab agenaiaa may aharga anid rPAti fees as neeaded tA r~iAIa~R Suab ageneies for the di~eet and inldiraat aat af Pra'.idiflg sue' infer-matien and ;hall hpave the qama immrunity theraf8F pa Pr,idad in subetion (a) of tliia Cada (.4(LegNo fee charged pursuant to subsection (d) of this Code section may shall exceed $20.00 per person whose criminal history record is records are requested or shall be charged to any person or entity authorized prior to January 1, 1995, to obtain information pursuant to this Code section without payment of such fee.

(44)M The center shall place a high priority on inquiries from any nuclear power facility requesting a criminal history and shall respond to such requests as expeditiously as possible, but in no event shall a response be made more than two business days following receipt of the request.

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(e-).(l) The GOOrGiCfl .. i .Matir..... t center shall be authorized to provide criminal history records, wanted person records, and involuntary hospitalization records information to the Federal Bureau of Investigation in conjunction with the National Instant Criminal Background Check System in accordance with the federal Brady Handgun Violence Prevention Act, 18 U.S.C. Section 921, et seq.

(2) The records of the Georgia CrimAe infrmatie. Center center shall include information as to whether a person has been involuntarily hospitalized. Notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the Geergie Crime Infa,"zatioa Center center shall be provided such information and no other mental health information from the involuntary hospitalization records of the probate courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by the Probate Judges Training Council and the Georgia Bureau of Investigation to preserve the confidentiality of patients' rights in all other respects. Further, notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the center shall be provided information as to whether a person has been adjudicated mentally incompetent to stand trial or not guilty by reason of insanity at the time of the crime, has been involuntarily hospitalized, or both from the records of the clerks of the superior courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by The Council of Superior Court Clerks of Georgia and the Georgia Bureau of Investigation to preserve the confidentiality of patients' rights in all other respects.

After five years have elapsed from the date that a person's involuntary hospitalization information has been received by the Georgia Crime 14f.rmatiOR Center center, the center shall purge its records of such information as soon as practicable and in any event purge such records within 30 days after the expiration of such five-year period. ({XhI The council isshall be empowered toadopt rules, regulations, and forms necessary to implement this Code section. The council shall promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided in accordance with this Code section." ยง 2.

Said article is further amended by revising Code Section 35-3-35, relating to disclosure and dissemination of records to public agencies and political subdivisions, as follows: "35-3-35. (a) The center shall be authorized to: (1)Make Georgia criminal history records maintained by the center available to public agencies, political subdivisions, authorities, and instrumentalities, including state or federal licensing and regulatory agencies or their designated representatives, under the following conditions: (A) Public agencies or political subdivisions shall, at the time of the request, either provide the fingerprints of the person whose records are requested in such manner prescribed by the center, which may include the electronic imaging of a person's fingerprints, Cr P..ide a .. igned... f the . perzan W.hOza reCG~ds arc raquestad an. a form PFOeaibed by the eenter whieli shall ineluda ua per.on'

full

am..

, .. ddr....,

......... i

urity

..u..b,

and date

f NirtM; proided, h....., that the

PFO~iaiBAn 8f "Si paragraph Shall supersedean~y ether provision ralating to the subfiiae at fingerpriRt te thOcaeter or provide sufficient information to identify the individual whose Georgia criminal history is being requested; (B) The center may shall not provide records of arrests, charges, or sentences for crimes relating to first offenders pursuant to Article 3 of Chapter 8 of Title 42 in cases where offenders have been exonerated and discharged without court adjudications of guilt, except as specifically authorized by Code Section 35-3-34.1 or other law; ad (C) The center shall not provide records of 'uveniles adiudicated delinquent or records otherwise protected from disclosure pursuant to law; and (D) When the identifying information provided is sufficient to identify persons whose records are requested eleee.ie.lly, the center may disseminate electronically Georgi criminal history records of in state flny ...... ....... , pl..'... ad sentenc without (i) Fingerpint finzerprint comparison, or (ii)-)Consen consent of the person whose records are requested; (1.14 Mlake eriminal history FacardF, maintained by the aarnteF available to an), eaunty board a n regisatra . taa y .board . af gistfatian ad lati a... The making f an app!iatia fa .for r rgitratiOn Shall a dowined 1A .hp ......... f the p r.n a...g the appliatir t r...... .... r.ard to the county board 8f regiStrrS er aunty baard of rgisat:t ad eleet*n .Sue . ,d ah.s h l be requested far die sole purpace of 'eifieatieii Of iLf "artiflc f F.A.idd on vatar ragistatian eards by regitratir. applicaft;

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0-L21 Make Georgi criminal history records maintained by the center and national criminal history records maintained by the Federal Bureau of Investigation, obtained by the center, available to the governing authority of any county or municipality; for any applicant or licensee in a specified occupation for which such local governing authority has adopted an ordinance or resolution requiring such applicants or licensees in a particular occupation or profession regulated by the governing authority to be fingerprinted as a condition of submitting an application or obtaining or renewing a license. The center shall establish a uniform method of obtaining criminal history records required under this paragraph. Such uniform method shall require the submission to the center of two complete sets of fingerprints and the records search fee. Upon receipt thereof, the center shall promptly transmit one set of fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall retain the other set and promptly conduct a search of its own records and records to which it has access. After receiving the fingerprints and fee, the center shall notify the requesting local government authority in writing of any derogatory finding, including, but not limited to, any criminal record data regarding the fingerprint records check or if there is no such finding.

Nothing in this paragraph shall prevent the local governing authority from obtaining national criminal history records directly from the Federal Bureau of Investigation, if an ordinance or resolution requiring the fingerprints of an applicant or licensee of a particular occupation or profession regulated by the local governing authority has been adopted by such governing authority of the county or municipality; and 94L3 Charge fees for disseminating records pursuant to this Code section which will raise an amount of revenue -hieh that approximates, as nearly as praatieable, thedirect and indircat costs to the state for providing such disseminations. (b) In the event an employment or licensing decision is made adverse to a person whose Fec-Fd-was records were obtained pursuant to this Code section, the person wig shall be informed by the public agency, political subdivision, authority or instrumentality, or licensing or regulatory agency making the adverse e..plymesi decision of all information pertinent to that decision. This disclosure shall include information that a reeord was records were obtained from the center, the specific contents of the-.eeefd such records, and the effect thOeeerd such records had upon the decision. Failure to provide all such information to the person subject to the adverse decision shall be a misdemeanor. (c) Neither the center, its employees, nor any agency or employee of the state shall be responsible for the accuracy of information disseminated nor have any liability for defamation, invasion of privacy, negligence, nor or any other claim in connection with any dissemination pursuant to this Code section and shall be immune from suit based upon such claims. (d) Local criminal justice agencies may disseminate Georgia criminal history records without fingerprint comparison, prior contact with the center, or consent of the person whose criminal records are requested to public agencies, political subdivisions, authorities, and instrumentalities, including state or federal licensing and regulatory agencies, under the same conditions as set forth in paragraph (1) of subsection (a) of this Code section and may charge fees as necessary to reimburse such agencies for their direct and indirect costs associated with providing such disseminations. Such agencies shall have the same immunity as provided in subsection (c) of this Code section. (d.1) Whf. idiatifyif.g infO.atiOn Pr...idad is s"ffii ;nt to identify pe.Fsanw.ac ....... ar. ÂŁ'.Aue, .local i-.ae y bef tial agaree aieatmay dieminata rimiral eeBErd hiatiy afiR tate flnY eeavation, pla, ad setenee witheuti (1) Fingerprint e pra. ; (2) Pri6r cantabt With thea er ^ntar; (3) Consent af the pefsaa W.haaa raaard ara ragueated.

Stab. infaRmnatian mnay he disseminated to entities to whieh sueh reeOFEIS may be made available urnda aubacation (d) of thi; COda... tiAnund..the a:itians speeifid insubparagraph (a)(1)(B) Af this Coda. .tia upon payment Of the fee (F thO. .ue.t and wan the raqueat ismlade upan a farm PFOaaribed by the eenter. Sueh ageneiea may eaarga and rP.AtiR fees as needed ta raifnburac aueh agarnaie feir the dircat andI indircat ata of praeviding quah ifar Anir.ad ghall have the same imauitf~ly tharafar aa grG%'idOEd iR. ubsetiar. (e) ef this Cada acatiap. (d-2fe No fee charged pursuant to subsection (d) of this Code section may shall exceed $20.00 per person whose criminal history regeed-is records are requested or shall be charged to any person or entity authorized prior to January 1, 1995, to obtain information pursuant to this Code section without payment of such fee. (e)Mf The council is shall be empowered to adopt rules, regulations, and forms necessary to implement this Code section. The council shall promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided in accordance with this Code section."

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ยง 3.

All laws and parts of laws in conflict with this Act are repealed

FIRST SIGNATURE'S RATIONALE

Rep. Kevin Levitas, of the 82nd district, introduced House Bill 10 in response to recent increases in career shoplifting and thefts of metal.2 According to Rep. Levitas, these crimes have caused millions of dollars of losses to Georgia businesses and citizens, but the current laws would not allow the Georgia Crime Information Center ("GCIC") to release criminal histories on these offenses to the loss management officers or private citizens trying to mitigate or prevent such losses.3 Rep. Levitas intended House Bill 10 to be a follow up to O.C.G.A. ยง 10-1-357, a law addressing metal thefts which the General Assembly enacted in 2007.' This law allows prosecutors to seek felony convictions for metals thefts by assessing the costs of the thefts to include restoring property to its pre-theft condition instead of including only the cost of the metal, which, in most cases, would lead to only misdemeanor convictions.' Rep. Levitas views House Bill 10 as the next step in the prevention of, and punishment for, loss caused by career shoplifting and metal theft because House Bill 10 would allow businesses and private individuals to gain access to a person's criminal history without that person's consent or fingerprints.6 LEGISLATIVE GENEALOGY

Rep. Levitas pre-filed House Bill 10 on November 17, 2008. 7 The first reading of the Bill took place on January 16, 2009, and the House referred the Bill to the Judiciary Non-Civil 2. Interview with Rep. Kevin Levitas, H. Dist. No. 82 in Atlanta, Ga. (Mar. 12, 2009) [hereinafter Levitas Interview].

3. Id. 4. Id. 5. O.C.G.A. ยง 10-1-357 (2007).

6. Levitas Interview, supra note 2; Ga. Gen. Assem., H.B. 10, O/fulltext/hblO.htm. availableat http://www.legis.state.ga.us/legis/2009_l

at available 10, H.B. Assem., Gen. 7. Ga. http://www.legis.ga.gov/legis/2009_10/sum/hbl0.htm (last visited Mar. 12, 2009).

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Committee.8 The second reading of House Bill 10 occurred on January 26, 2009. 9 The Judiciary Non-Civil Committee did not discuss House Bill 10 prior to cross-over day on March 12, 2009.10 Rep. Levitas anticipates the Judiciary Non-Civil Committee will begin discussions of House Bill 10 in the summer of 2009. 1 He also predicts that, before the Bill can pass, its scope will be narrowed to dispense with the consent or fingerprints requirement for only those criminal histories that pertain to shoplifting or metal thefts.

PREPARED

8. Id. 9. Id. 10. Levitas Interview, supra note 2.

11. Id.

BY: Amelia A. Ragan

HOUSE BILL

16:' ELECTRONIC TRACKING WITHOUT CONSENT

Creating O.C.G.A.ยง 16-11-62.1 and O.C.G.A. ยง 17-5-22.1; FIRST SIGNATURE: Rep. Kevin Levitas (82nd).

CO-SPONSORS: Rep. John Lunsford (l10th), Rep. Joe Wilkinson (52nd), Rep. Sean Jerguson (22nd), Rep. Mike Glanton (76th), and Rep. Mike Cheokas (134th).

SUMMARY: House Bill 16 seeks to amend Titles 16 and 17 of the Georgia Code by adding new code sections that place limitations on the use of electronic tracking devices without an

individual's consent. These proposed provisions of House Bill 16 prohibiting electronic monitoring of individuals without their consent are not intended to apply to law enforcement, military law enforcement personnel or caregivers and guardians in certain circumstances of necessity.

STATUS: Not enacted during the 2009 session.

TEXT OF HOUSE BILL

16

ยง 1.

Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended by adding a new Code section to read as follows: "16-11-62.1. (a) As used in this Code section. the term 'tracking device' means any device that reveals its location or movement by the transmission of electronic signals. (b) Except as otherwise provided in this Code section, no person shall use a tracking device to determine the location or movement of another person without such other person's consent. (c) Official law enforcement agencies shall be specifically authorized to use tracking devices pursuant to Code Section 17-5-22.1. (d) This Code section shall not apply: (1)When the owner or lienholder of a vehicle has consented to the use of a tracking device with respect to such vehicle: (2) When the lessor or lessee of a vehicle and the person operating such vehicle have consented to the use of a tracking device with respect to such vehicle: (3) To official actions of an official law enforcement agency acting in a law enforcement capacity; (4) To actions of United States military law enforcement personnel in the performance of their official duties: (5) To actions of a parent, legal guardian, or person in loco parentis with respect to determining the

1. H.B. 16, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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location or movement of a child or other person with whom such parent, legal guardian, or person in loco parentis has such legal relationship: (6) To actions of a family member or caregiver with respect to determining the location or movement of a patient or family member with a diagnosis by a licensed physician of Alzheimer's disease vascular dementia. Pick's disease. Creutzfeldt-Jakob disease, Parkinson's disease, or Lewy body dementia; (7) To actions of a facility licensed pursuant to Title 31 with respect to determining the location or movement of a patient when such device is deemed medically necessary by the patient's physician; (8) To actions of a private detective who is licensed pursuant to Chapter 38 of Title 43 while in the performance of duties that are authorized for such detective; or (9) To the provision of a commercial service, such as mobile telephone service or vehicle safety or security service, which allows the provider of such service to determine the location or movement of a device provided to a customer of such commercial service for the purpose of providing such commercial service. (e) Notwithstanding subsection (d) of this Code section, no person shall be required to be implanted with a tracking device pursuant to this Code section. (f)Any person violating this Code section shall upon conviction be guilty of a misdemeanor: provided, however, that it shall not be a violation of this Code section to use a tracking device to determine the location or movement of another person without such other person's consent if such person is an occupant of a vehicle where use of such tracking device is permissible according to the provisions of subsection (d) of this Code section." ยง2.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new Code section to read as follows: "17-5-22.1. (a) As used in this Code section, the term 'tracking device' means an electronic or mechanical device which, when placed or installed upon a person or object, permits other persons to remotely determine or track the position and movement of such person or obiect, but the term shall not include: (1) Devices, such as a cellular telephone or other personal electronic device, which include as an incidental feature the capability of determining the location of such devices by utilizing a global positioning satellite system: or (2) Devices which are installed or utilized with the knowledge and consent of the owner or user of the device or. in the case of a minor, with the knowledge and consent of his or her parent or guardian. (b)Upon the written application of any certified peace officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws and otherwise as authorized in Code Section 175-20 under oath or affirmation, a iudge of any court in this state authorized to issue search warrants pursuant to Code Section 17-5-21 may issue a search warrant authorizing the installation, use, and removal of a tracking device subiect to the following conditions: (1) The application shall be made before a &udgeof the superior court with the authority to issue warrants within the geographic iurisdiction where such tracking device is to be installed (2) The application shall set forth facts sufficient to establish probable cause to believe that a particular crime has been committed, is being committed, or will be committed and that the person or obiect to be tracked is involved, was involved, or will be involved in the commission or facilitation of such crime: (3) The application shall set forth facts sufficient to establish probable cause to believe that the use of a tracking device will result in the prevention of a criminal offense under investigation, the seizure of evidence relevant to the investigation or prosecution of a criminal offense, or the whereabouts of a fugitive from iustice or a suspect, victim, or witness relating to a criminal offense; (4) The application shall particularly describe the person or obiect upon which a tracking device is to be installed (5) A tracking device authorized by this Code section shall be installed within ten days after the issuance of the warrant and shall be installed within the geographic iurisdiction of the issuing iudge. If the tracking device is not installed within that time, the warrant shall be returned to the issuing iude as unserved. The date and time of installation shall be recorded and included in the return made to the issuing iudge; (6)(A) A search warrant issued pursuant to this Code section shall authorize the use of a tracking device for a reasonable period of time, not to exceed 45 days, except as provided in subparagraph (B) of this paragraph, measured from the date such tracking device is installed upon the person or obiect to be tracked.

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(B) Upon written application for extension and upon a finding of eood cause, the issuing *udge may authorize one or more extensions for a reasonable period of time, not to exceed 45 days each: (7) When the period of time authorized for the use of a trackine device or the last extension thereof has expired, monitoring of such tracking device shall be discontinued immediately; (8) Within ten days after the period of time authorized for the use of a tracking device or the last extension thereof has expired, the officer executing the warrant shall make a return thereof to the issuing iudge. The return shall specify the date and time such tracking device was installed and the address or location of installation of such tracking device, the date and time that monitorine was discontinued, and a general summary of the movements of the obiect or person tracked during the duration of the surveillance: (9) Within ten days after the period of time authorized for the use of a tracking device or the last extension thereof has expired, the officer executing a search warrant issued pursuant to this Code section shall serve a copy of such warrant on the person who was tracked or whose property was tracked. Service shall be accomplished by delivering a copy to such person or by leaving a copy at such person's residence or usual place of abode with an individual of suitable age and discretion who resides at that location or by mailing a copy to such person's last known address. Upon the request of the state or the officer executing the warrant, the issuing iudge may delay notice for a reasonable time provided, however, that where such notice is delayed, such notice shall be served no later than ten days after issuance of an arrest warrant, indictment, or accusation based wholly or in part upon information derived from the use of a tracking device: (10) A tracking device installed and used under the authority of a warrant issued pursuant to this Code section may be used within the jurisdiction of the issuing court as well as outside such jurisdiction if such tracking device was installed within the iurisdiction of the issuing court: and (11) The warrant and any extension thereof, the application upon which the warrant and extensions if any, were issued, the affidavit supporting the warrant and extensions, if any, the return, and any request for and order granting a delay in the serving of notice shall be filed with the clerk of the court of the issuing iudge or with the court if so ordered, at the time the return is made or when the warrant has been returned not executed; provided, however, that the issuing iudge may order that such documents be sealed while an investigation remains ongoing until such time that an arrest warrant, indictment, or accusation based wholly or in part upon information derived from the use of the tracking device is issued. (c)(1) Any investigative or law enforcement officer, specially designated in writing for such purpose by the Attorney General or by a district attorney, who reasonably determines that: (A) An emergency situation exists that involves: (i) Immediate danger of death or serious bodily injury to any person; or (ii) Conspiratorial activities characteristic of organized crime that requires the installation and use of a tracking device before an order authorizing such installation and use can. with due diligence, be obtained: and (B) There are grounds upon which a search warrant pursuant to subsection (b) of this Code section could be issued to authorize such installation and use, may have installed and use a tracking device if. within 48 hours of the time the tracking device is installed, an order approving the installation or use is issued in accordance with subsection (b) of this Code section.

(2) In the event that an application for a search warrant made pursuant to this subsection is granted, then the tracking device shall be installed and used in accordance with the provisions of subsection (b) of this Code section.

(3) In the event that an application for a search warrant made pursuant to this subsection is denied or in any event where the installation or use of the tracking device is terminated without a search warrant having been issued, any tracking information or other surveillance effected pursuant to this subsection shall be confidential and shall not be disclosed or be admissible in any court of this state except to prove violations of this Code section." ยง3.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply with respect to conduct on and after that date.

ยง 4.

All laws and parts of laws in conflict with this Act are repealed.

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FIRST SIGNATURE'S RATIONALE

Rep. Kevin Levitas, of the 82nd, introduced House Bill 16 in response to a news report in which Gwinnett County District Attorney Danny Porter expressed concern over the current law regarding electronic tracking devices. Presently, it is not a crime for an individual to place a tracking device on another person's vehicle. Rep. Levitas was troubled when he learned of the current state of the law and felt that the invasive nature of being able to track the movement of other people was unwarranted.

Rep. Levitas stated that the current law was not in the best interest of the people of Georgia.2 LEGISLATIVE GENEALOGY

Rep. Levitas pre-filed House Bill 16 on November 17, 2008, hoping to raise awareness of the proposed Bill and to receive feedback from law enforcement and other industries. Initially, three major industries expressed concern to Rep. Levitas about House Bill 16: private investigators, high risk auto financers, and nursing facilities housing Alzheimer's patients. Other House Representatives conveyed trepidation about law enforcement abuse and wanted to add a provision to House Bill 16 that would require law enforcement to obtain a search warrant before placing tracking devices on vehicles. Finally, multiple representatives suggested that language be added to House Bill 16 to prohibit insertion of sub-dermal tracking devices, which are tracking devices placed under the skin.3 Rep. Levitas worked with individuals from the high risk auto finance industry, the private investigation industry, and nursing home facilities to amend House Bill 16 to include provisions that exempt use of electronic tracking devices by these particular industries. Additionally, Rep. Levitas included a prohibition on sub-dermal devices in the revised version of House Bill 16.'

2. Interview with Rep. Kevin Levitas, H. Dist. No. 82 (February 26, 2009) [hereinafter Levitas Interview].

3. Id. 4. Interview with Rep. Kevin Levitas, H. Dist. No. 82 (March 14, 2009) [hereinafter Levitas Interview 2].

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House Bill 16 was amended a second time to expand the scope of whom, and under what conditions, a family member or caregiver may use electronic surveillance equipment to track individuals with certain enumerated conditions.' Furthermore, House Bill 16 was amended to provide that the bill does not apply to facilities licensed under Title 3 16, if the patient's doctor deems such tracking necessary. 7 Additionally, House Bill 16 was amended to include a provision that states it is not illegal to track an individual if that person is an occupant of a vehicle where use of electronic tracking is permissible.' Rep. Levitas stated that the provision concerning the use of electronic tracking by the private investigators generated concern about possible abuse.9 Consequently, Rep. Jacobs suggested the floor amendment to strike this provision.1" On March 12, 2009, the House passed House Bill 16 by a vote of 155 to 8.11 Although the House passed House Bill 16, Rep. Levitas feels that striking the private investigator provision from the Bill would lead to House Bill 16 stalling in the Senate. 2 In the Senate, Senator Bill Hamrick sponsored House Bill 16, and the Senate read and referred on March 17, 2009.11 The Senate Committee on Special Judiciary introduced and adopted a substitute to House Bill 16 on March 26, 2009.11 The substitute made substantial changes to the House Bill 16 including a provision that reintroduces the private investigator provision. Additionally, the substitute to House Bill 16 amends

5. Ga. Gen. Assem., H.B. 16, available at http://www.legis.state.ga.us/legis/2009_10/versions/hbl6_HB_16_CSFA_7. htm (last visited Mar. 23, 2009).

6. O.C.G.A. §§ 31-1-1-46-5 (2007) (setting forth the rules and regulations governing health-related issues in the state of Georgia).

7. Ga. Gen. Assem., H.B. 16, available at http://www.legis.state. ga.us/legis/2009_10/versions/hbl6HB_16CSFA_7.htm.

8. Id. 9. Levitas Interview 2, supra note 10.

10. Id. 11. Ga. Gen. Assem., H.B. 16 availableat http://www.legis.ga.govl legis/2009_10/sum/hbl6.htm (last visited Mar. 26, 2009).

12. Levitas Interview 2, supra note 10.

13. Ga. Gen. Assem., H.B. 16, available at http://www.legis.state.ga. us/legis/2009_10/versions/hbl6HB_16_CSFA_7.htm.

14. HB 16, supra note 17.

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Title 17 by adding a new code section, O.C.G.A. ยง 17-5-22.1, to define the term 'tracking device' and explain how such devices may be used, and a sub-section that provides the necessary guidance and procedures concerning the use of tracking devices in emergency situations. Moreover, the substitute sets forth regulations controlling the application, issuance and use of a warrant to use electronic tracking devices by law enforcement.

The Senate tabled House Bill 16 on April 1, 2009. On the last day of session, the Senate revisited House Bill 16 and passed the Bill by a vote of 39-10.15 At 11:57 PM on the final day of the session, the House voted not to suspend House Rule 146.6,16 and consequently, there was no time to vote on House Bill 16 prior to the end of the session."i PREPARED BY:

Jake Stone

15. Georgia Senate Session Day 40: Live Broadcast (Georgia Legislative Network internet broadcast Apr. 3, 2009), archived at: http://www.georgia.gov/00/article/0,2086,4802_6107103_129987583,00.htm 1 (go to April 3, 2009, (III).

16. Rules, Ethics, and Decorum of the House of Reps., R. 146.6 (Ga. House of Reps. 2009), availableat http://www.legis.ga.gov/ legis/2009_10/house/downloads/Rules2009.pdf (providing that "All reports of committees of conference shall be printed and distributed to the Representatives at least one hour prior to consideration of the same unless such requirement is dispensed with by a majority vote of all members elected to the House.").

17. Supra note 15.

HOUSE BILL 171:1 PUBLIC RECORD DISCLOSURE

Amending O.C.G.A. § 50-18-72 FIRST SIGNATURE:

Rep. Judy Manning (32nd).

House Bill 171 amends O.C.G.A. § 50-18-72 so that the Georgia Open Records Act does not require disclosure of information which individuals provided to local government for purposes of neighborhood watch or public safety notification programs.

SUMMARY:

STATUS:

Not enacted in 2009 Legislative Session.

TEXT OF HOUSE BILL

171

§ 1.

Article 4 of Chapter 18 of Title 50 of the Official Code of Georgia Annotated, relating to inspection of public records, is amended by revising paragraph (11.2) of subsection (a) of Code Section 50-18-72, relating to when public disclosure is not required, as follows: "(11.2) Records that would reveal the names, home addresses, telephone numbers, security codes, e-mail addresses, or any other data or information developed, collected, or received by counties or municipalities in connection with neighborhood watch or public safety notification programs or with the installation, servicing, maintaining, operating, selling, or leasing of burglar alarm systems, fire alarm systems, or other electronic security systems; provided, however, that initial police reports and initial incident reports shall remain subject to disclosure pursuant to paragraph (4) of this subsection;". § 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Judy Manning, of the 32nd district, introduced House Bill 171 during the 2009 session in response to commercial entities using Georgia's Open Records Act 2 to obtain individuals' e-mail addresses from local government agencies for solicitation purposes. 3 The entities obtained e-mail addresses 1. H.B. 171, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

2. O.C.G.A. §§ 50-18-70-77 (2008) [hereinafter Georgia Open Records Act].

3. See Video Recording of Governmental Affairs Comm. Meeting, Mar. 3, 2009, available at http://www.legis.state.ga.us/legis/2009_10/house/ Committees/govAffairs/gahgaff.htm (last visited Mar. 24, 2009) [hereinafter GAC Meeting].

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of individuals who had registered with the Cobb County Police Email Notification System (PENS), a public safety e-mail notification program.4 Residents complained to county officials when they began receiving unsolicited e-mails.5 The Bill adds ''e-mail addresses" and information gathered in connection "with neighborhood watch or public safety notification programs" to the list of public records exempted from disclosure under Georgia's Open Records Act by O.C.G.A. § 50-18-72(11.2)(a). 6 LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on January 28, 2009, and the House assigned the Bill to the House Governmental Affairs Committee.7 On January 29, 2009, the Bill was read for the second time.8 The original bill added a section to O.C.G.A. § 50-18-72(11), which is a list of public records exempted from disclosure under Georgia's Open Records Act.9 The new section, (11.4), would have added personal information obtained by local governments in the course of individuals "applying, inquiring into, or receiving local government services or inquiring into or participating in local government programs" to the list of public records exempted from disclosure. ° The Committee determined this language was too broad. " The language of the Bill was edited to add specific exclusions under section (11.2)(a) rather than add an entire new section under section (11).12 The House 4. Id. 5. Id. 6. Ga. House Daily Composite Status Sheet, H.B. 171, Mar. 3, 2009 (Mar. 10, 2009), availableat http://www.legis.state.ga.us/legis/ 2009_10/sum/hbl7 .htm (hereinafter H.B. 171 Daily Status Sheet].

7. H.B. 171 Daily Status Sheet, supra note 6, Jan. 28, 2009.

8. H.B. 171 Daily Status Sheet, supra note 6, Jan. 29, 2009.

9. Ga.

Gen.

Assem.,

H.B.

171,

as

introduced,

available at

http://www.legis.ga.gov/legis/2009-10/sum/hb 171.htm (last visited Apr. 1,

2009) [hereinafter H.B. 171 as introduced]; see also Georgia Open Records Act, supra note 2.

10. H.B. 171 as introduced,supra note 9.

11. GAC Meeting, supra note 3.

12. Compare H.B. 171 as introduced, supra note 9 with H.B. 171

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Governmental Affairs Committee favorably reported House Bill 171 on March 3, 2009.13 On March 5, 2009, Rep. Manning presented the Bill to the full House, reading the Bill for the third time.1 4 Rep. Manning explained that the Bill allows counties and cities to prevent parties from using the Georgia Open Records Act to obtain private information gathered in connection with neighborhood watch or public safety notification programs.' 5 It does not prevent police reports or accident reports from being obtained through the Georgia Open Records Act. No questions were asked about the Bill. The House passed House Bill 171 16 with 156 votes in favor and none opposed.

The Senate read the Bill on March 9, 2009. Following the reading, the Senate referred the Bill to the Senate Committee on Government Oversight. 7 The committee favorably reported the bill on March 26, 2009, and a second reading occurred in the Senate on that date. No further action on House Bill 171 occurred after that date.

PREPARED

BY: Angela Thomas

HCS, availableat http://www.legis.ga.gov/legis/2009_10/sum/hbl71.htm.

13. H.B. 171 Daily Status Sheet, supra note 6, Mar. 3, 2009.

14. H.B. 171 Daily Status Sheet, supra note 6, Mar. 5, 2009.

15. Video Recording of House Proceedings (Mar. 5, 2009) (remarks by Rep. Judy Manning), available at http://www.georgia.gov/00/article/

0,2086,4802_6107103_129987579,00.html (last visited Mar. 20, 2009).

16. H.B. 171 Daily Status Sheet, supra note 6, Mar. 5, 2009; Ga. H. Voting Record, H.B. 171, Mar. 5, 2009.

17. H.B. 171 Daily Status Sheet, supra note 6, Mar. 9, 2009.

HOUSE BILL

273:1 GEORGIA PRESCRIPTION MONITORING ACT

Creating O.C.G.A. ยง 16-13-120 FIRST SIGNATURE:

Rep. Ron Stephens (164th).

CO-SPONSORS: Rep. Earl Carter (159th), Rep. Buddy Harden (147th), Rep. Butch Parrish (156th).

House Bill 273 amends Chapter 13 of Title 16 of the Official Code of Georgia Annotated by adding a new article authorizing the implementation of a statewide electronic database system to monitor the prescribing and dispensing of certain controlled substances. Under the Bill, dispensers are required to submit information electronically including the patient's name, address, and date of birth. Additionally, House Bill 273 also requires that pharmacists and other licensed dispensers submit information pertaining to the type of drug prescribed as well as the frequency at which such prescriptions are made. The Bill provides that, once submitted, information contained in the database is exempt from disclosure under the Georgia Open Records Act. SUMMARY:

STATUS: Not enacted during the 2009 session.

TEXT OF HOUSE BILL

273

ยง 1.

Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to controlled substances, is amended by adding a new article to read as follows: "ARTICLE 6 16-13-120.

This article shall be known and may be cited as the 'Georgia Prescription Monitoring Program Act.' 16-13-121.

This article is intended to improve the state's ability to identify and stop diversion of prescription drugs in an efficient and cost-effective manner that will not impede the appropriate medical utilization of licit controlled substances or other licit drugs with potential for abuse while minimizing impact on pharmacy operations.

16-13-122.

As used in this article, the term:

1. H.B. 273, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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(1) 'Agency' means the Georgia Drugs and Narcotics Agency.

(2) 'Board' means the Georgia State Board of Pharmacy.

(3) 'Controlled substance' has the same meaning given such term in paragraph (4) of Code Section 1613-21.

(4) 'Dispenser' means a person that delivers a Schedule 1I, Ill, IV, or V controlled substance to the ultimate user but shall not include: (A) A licensed pharmacy of a hospital that dispenses such substances for the purpose of inpatient or outpatient hospital care, a licensed pharmacy of a hospital or retail pharmacy of a hospital that dispenses prescriptions for controlled substances at the time of dismissal or discharge from such a facility, or a licensed pharmacy of a hospital or retail pharmacy of a hospital that dispenses such substances for long-term care patients or inpatient hospice facilities; (B) An institutional pharmacy that serves only a health care facility, including, but not limited to, a nursing home, an intermediate care home, a personal care home, or a hospice program, which provides inpatient care and which pharmacy dispenses such substances to be administered and used by a patient on the premises of the facility; (C) A practitioner or other authorized person who administers such a substance; or (D) A pharmacy operated by, on behalf of, or under contract with the Department of Corrections for the sole and exclusive purpose of providing services in a secure environment to prisoners within a penal institution, penitentiary, prison, detention center, or other secure correctional institution. This shall include correctional institutions operated by private entities in this state which house inmates under the Department of Corrections.

A hospital, clinic, or other health care facility may apply to the board for an exemption to be excluded from the definition of this term for purposes of compliance with this article if compliance would impose an undue hardship on such facility. The board shall provide guidelines and criteria for what constitutes an undue hardship which shall include criteria relating to the amount of indigent patients served and the lack of electronic capability of the facility.

(5) 'Patient' means the person or animal who is the ultimate user of a drug for whom a prescription is issued or for whom a drug is dispensed.

(6) 'Prescriber' means a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise authorized under the laws of this state to prescribe, distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state.

(7) 'Schedule II, 111,IV, or V controlled substance' means a controlled substance that is classified as a Schedule I1, Il, IV, or V controlled substance under Code Section 16-13-26, 16-13-27, 16-13-28, or 16-13-29, respectively, or under the Federal Controlled Substances Act, 21 U.S.C. Section 812.

16-13-123. (a) The board and agency may apply for available grants and accept any gifts, grants, or donations to assist in developing and maintaining the program established by this article. (b) The board shall be authorized to grant funds to dispensers for the purpose of covering costs for dedicated equipment and software for dispensers to use in complying with the reporting requirements of this article. Such grants shall be funded by gifts, grants, donations, or other funds appropriated for the operation of the prescription monitoring program established under the provisions of Code Section 16-13-124. The board shall be authorized to establish standards and specifications for any equipment and software purchased pursuant to a grant received pursuant to this article. Nothing in this article shall be construed to require a dispenser to incur costs to purchase equipment and software to comply with this article.

16-13-124. (a) The board shall establish and maintain a program for the monitoring of prescribing and dispensing of all Schedule II, Ill, IV, or V controlled substances. (b) Each dispenser shall submit to the board by electronic means information regarding each prescription dispensed for a Schedule II, I1l, IV, or V controlled substance. The information submitted for each prescription shall include, but not be limited to: (1) United States Drug Enforcement Administration (DEA) permit number or approved dispenser facility identification number; (2) Date prescription filled; (3) Prescription number; (4) Whether prescription is new or a refill; (5) National Drug Code (NDC) for drug dispensed;

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(6) Quantity dispensed; (7) Number of days' supply of the drug; (8) Patient's name; (9) Patient's address; (10) Patient's date of birth; (11) Approved prescriber identification number; (12) Date prescription issued by prescriber; and (13) Other data elements consistent with standards established by the American Society for Automation in Pharmacy, if designated by regulations of the board. (c) Each dispenser shall submit the information in accordance with transmission methods and frequency requirements established by the board but no less often than weekly and shall report, at a minimum, prescriptions dispensed up to the day prior to data submission. (d) The board may issue a waiver to a dispenser that is unable to submit prescription information by electronic means acceptable to the board. Such waiver may permit the dispenser to submit prescription information by paper form or other means, provided all information required in subsection (b) of this Code section is submitted in this alternative format subject to the frequency requirements of subsection (c) of this Code section. Requests for waivers shall be submitted in writing.

16-13-125. (a) Prescription information submitted to the board shall be confidential and shall not be subject to open records requirements, as contained in Article 4 of Chapter 18 of Title 50, except as provided in subsections (c) and (d) of this Code section. (b) The board shall establish and maintain strict procedures to ensure that the privacy and confidentiality of patients and prescribers and patient and prescriber information collected, recorded, transmitted, and maintained pursuant to this article are protected. Such information shall not be disclosed to persons except as otherwise provided in this article and only in a manner which in no way would conflict with the requirements of the federal Health Insurance Portability and Accountability Act of 1996, P.L. 104-191. This may include, but not be limited to, restricting access only to those individuals and entities which clearly demonstrate a need to know such information. (c) The board shall review the prescription information and if there is reasonable cause to believe a violation of law or breach of professional standards may have occurred, the board shall notify the appropriate law enforcement or professional licensing, certification, or regulatory agency or entity and shall provide prescription information to such agency or entity which may be necessary for an investigation. (d) The board shall be authorized to provide data collected pursuant to this article to the following persons or under the following circumstances: (1) Persons authorized to prescribe or dispense controlled substances for the purpose of providing medical or pharmaceutical care for their patients; (2) Upon the request of a person about whom the information requested concerns or upon the request on his or her behalf by his or her attorney; (3) The Composite State Board of Medical Examiners or any licensing board whose practitioners have the authority to prescribe or dispense controlled substances; (4) Local, state, and federal law enforcement, regulatory, or prosecutorial officials engaged in the administration, investigation, or enforcement of the laws governing licit drugs and who are involved in a bona fide, specific drug related investigation involving a designated case; (5) Upon the lawful order of a court of competent jurisdiction; and (6) Personnel of the agency for purposes of administration and enforcement of this article, Article 2 of this chapter, the 'Georgia Controlled Substances Act,' or any other applicable state law. (e) The board may provide data to public or private entities for statistical, research, or educational purposes after removing information that could be used to identify prescribers or individual patients or persons who received prescriptions from dispensers. (f) The board may provide data to a prescription monitoring program of another state if the confidentiality, security, and privacy standards of the requesting state are determined by the board to be equivalent to those of the board. (g) Any person who receives data or reports relating to this article from the board shall not provide such data or reports to any other person except by order of a court of competent jurisdiction or as otherwise permitted pursuant to this article.

16-13-126.

The agency shall be authorized to contract with another state agency or with a private vendor, as

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necessary, to ensure the effective operation of the prescription monitoring program established pursuant to this article. Any contractor shall be bound to comply with the provisions regarding confidentiality of prescription information in Code Section 16-13-125 and shall be subject to the penalties specified in Code Section 16-13-130 for unlawful acts.

16-13-127.

The board shall provide notice and information to all prescribers and dispensers in this state as to the intent of this article, the program established pursuant to this article, and instructions on how to submit prescription information to the board via electronic means.

16-13-128. (a) There is established a Prescription Monitoring Program Advisory Committee for the purposes of consulting with and advising the board and the agency on matters related to the establishment, maintenance, and operation of the prescription monitoring program established pursuant to this article.

This shall include, but not be limited to, data collection, regulation of access to data, evaluation of data to identify benefits and outcomes of the program, communication to prescribers and dispensers as to the intent of the program and how to use the data base, and security of data collected. (b) The advisory committee shall consist of five members, appointed by the board, which may include individuals representing pharmacies, dentistry, and medical professionals. The board shall be authorized, but not required, to make such appointments from recommendations submitted by the Medical Association of Georgia, the Georgia Dental Association, the Georgia Pharmacy Association, and the Georgia Society of Health System Pharmacies. Each member of the advisory committee shall serve a two-year term and until the appointment and qualification of such member's successor. (c) The advisory committee shall elect a chairperson and vice chairperson from among its membership to serve a term of one year. (d) The advisory committee shall meet at the call of the chairperson or upon request by at least three of the members and shall meet at least one time per year. Three members of the committee shall constitute a quorum. (e) The members shall receive no compensation or reimbursement of expenses from the state for their services as members of the advisory committee.

16-13-129.

The board shall promulgate rules and regulations setting forth the procedures and methods for implementing this article.

16-13-130. (a) A dispenser who willfully and intentionally fails to submit prescription monitoring information to the board as required by this article or willfully and intentionally submits incorrect prescription information shall be guilty of a misdemeanor and punished by imprisonment for a period not to exceed 12 months or a fine not to exceed $1,000.00, or both. (b) An individual authorized to have prescription monitoring information pursuant to this article who willfully and intentionally discloses such information in violation of this article shall be guilty of a felony and punished by imprisonment for a period not to exceed ten years or a fine not to exceed $10,000.00, or both. (c) An individual authorized to have prescription monitoring information pursuant to this article who willfully and intentionally uses such information in a manner or for a purpose in violation of this article shall be guilty of a felony and punished by imprisonment for a period not to exceed ten years or a fine not to exceed $10,000.00, or both. (d) The penalties provided by this Code section are intended to be cumulative of other penalties which may be applicable and are not intended to repeal such other penalties.

16-13-131.

Nothing in this article shall require a dispenser or prescriber to obtain information about a patient from the prescription monitoring program established pursuant to this article. A dispenser or prescriber shall not have a duty and shall not be held liable for damages to any person in any civil, criminal, or administrative action for injury, death, or loss to person or property on the basis that the dispenser or prescriber did or did not seek or obtain information from the prescription monitoring program. A dispenser or prescriber acting in good faith shall be immune from any civil, criminal, or administrative liability that might otherwise be incurred or imposed for requesting or receiving information from the prescription monitoring program.

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ยง2 This Act shall become effective on July 1,2009.

ยง3 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Ron Stephens, of the 164th district, introduced House Bill 273 in response to the 2007 death of Chris Benoit, a professional wrestler and steroid user who killed his wife, his 7 year-old son, and then himself. 2 While there is no evidence that steroids played a role in the murder-suicide, the doctor who prescribed steroids to Benoit was subsequently charged with illegally dispensing drugs and pleaded guilty. 3 House Bill 273 is an effort to prevent illegal drug abuse and related deaths. 4 The Bill is also designed to help eliminate drug shopping, the negative impact on families and the endangerment of others posed by drug abusers.' The scope of House Bill 273 is limited in the sense that the Bill would only apply to prescriptions for lawful drugs that have a potential for abuse.6 House Bill 273 also limits public access to any private information collected by the state. While House Bill 273 is primarily directed towards private practitioners, the Bill provides an exemption for entities such as nursing homes and hospitals.7 According to Rep. Stephens, the rationale behind this exemption is that the possibility of abusing drugs through these avenues is unlikely given that nursing homes and hospitals already have preventive measures in place to regulate the prescription of licit drugs. During the time that House Bill 273 2. Telephone Interview with Rep. Ron Stephens, H. Dist. No. 164 (Nov. 14, 2008) [hereinafter Stephens Interview].

3. See Andria Simmons, Late Wrestler's Doctor to Change Plea in Drug Case, ATLANTA J. CONST., Jan. 17, 2009, available at

http://www.ajc.com/metro/content/metro/stories/2OO9/O1/1 7/wrestlerdead_01 17.html (last visited Mar. 30, 2009); Ben Smith, Pro Wrestler's Doctor Changes Plea to Guilty, ATLANTA J. CONST., Jan. 29, 2009, available at

http://www.ajc.com/news/content/metro/stories/2009/01/29/astin-steroids-pl ea.html%3Fcxntlid%3Dinformartr (last visited Mar. 30, 2009).

4. Id. 5. Id. 6. Id.

7. Id.

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has been under review, the American Cancer Society has expressed an interest in amending the Bill to insure that the Bill will not prohibit people from getting their prescriptions on time.

While the Georgia Drugs and Narcotics Agency already has legal authority to access individuals' private information if it suspects drug abuse, the existing process is largely manual and paper-based. House Bill 273 streamlines this process by authorizing the use of a statewide electronic database to replace the current paper-based procedure.

LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 3, 2009, and the House assigned the Bill to the House Health and Human Services Committee.9 On February 4, 2009, the Bill was read for the second time.10 No further action occurred on House Bill 273 during the 2009 legislative session. II PREPARED

Drug

BY: Cherri L. Shelton

8. See Andria Simmons, Late Wrestler's Doctor to Change Plea in Case, ATLANTA J. CONST., Jan. 17, 2009, available at

http://www.ajc.com/metro/content/metro/stories/2009/01/17/wrestlerdead_01 17.html (last visited Mar. 30, 2009).

9. Ga. House Daily Composite Status Sheet, H.B. 273, Feb. 3, 2009 (Mar. 9, 2009).

10. Ga. House Daily Composite Status Sheet, H.B. 273, Feb. 4, 2009 (Mar. 9, 2009).

11. .

Ga.

Gen.

Assem.,

H.B.

273,

http://www.legis.ga.gov/legis/2009_10/sumlhb273.htm

2009).

available

at

(last visited Apr. 5,

388:1 THE OPTION OF ADOPTION ACT Creating O.C.G.A. § 19-8-40 et seq. and Amending O.C.G.A. § 15-11-28, O.C.G.A. § 19-8-26, O.C.G.A. § 29-2-22 and O.C.G.A. § 495-12 HOUSE BILL

FIRST SIGNATURE:

Rep. James Mills (25th).

CO-SPONSORS: Rep. Melvin Everson (106th), Rep. Jerry Keen (179th), Rep. Ben Harbin (118th), Rep. Len Walker (107th) and Rep. Ed Setzler (35th).

SUMMARY: House Bill 388 is also known as the "Option of Adoption Act." This bill seeks to amend Chapter 8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption, by creating the "Option of Adoption Act". House Bill 388 provides that a legal custodian of an embryo may relinquish rights to that embryo. The Bill also provides that a child born as a result of such relinquished embryo shall be the legal child of the recipient of the embryo and provides for an expedited order of parentage. Additionally, House Bill 388 seeks to amend the Official Code of Georgia so as to ensure consistency with the provisions of this Bill.

STATUS:

Passed the Senate and House.

TEXT OF HOUSE BILL 388 § 1.

This Act shall be known and may be cited as the "Option of Adoption Act."

§ 2.

Chapter 8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption, is amended by designating the existing chapter as Article I and adding a new article to read as follows: "ARTICLE 2 19-8-40.

As used in this article, the term: (1) 'Embryo' or 'human embryo' means an individual fertilized ovum of the human species from the single-cell stage to eieht-week development.

1. H.B. 388, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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363

transfer of rights to an embryo' means the relinquishment of (2) 'Embryo relinquishment' or 'legal and responsibilities by the person or persons who hold the legal rights and responsibilities for an rights embryo and the acceptance of such rights and responsibilities by a recipient intended parent.

(3) 'Embryo transfer' means the medical procedure of physically placing an embyo into the uterus of a female.

(4) 'Legal embryo custodian' means the person or persons who hold the legalrights and responsibilities for a human embyo and who relinquishes said embryo to another person or persons.

(5) 'Recipient intended parent' means a person or persons who receive a relinquished embryo and who rights and responsibilities for such embryo and any child that may be bom as a result accepts full legal of embryo transfer.

19-8-41. embryo custodian may relinquish all riehts and responsibilities for an embryo to a recipient (a) A legal intended parent prior to embryo transfer. A written contract shall be entered into between each legal embryo custodian and each recipient intended parent prior to embryo transfer for the legal transfer of rights to an embryo and to any child that may result from the embryo transfer. The contract shall be embryo custodian for such embryo and by each recipient intended parent in the signed by each legal presence of a notary public and a witness. Initials or other desienations may be used if the parties embryo custodian of notice desire anonymity. The contract may include a written waiver by the legal adoption or other parentage proceeding which may follow. and service in any legal (b) If the embryo was created using donor gametes, the sperm or oocyte donors who irrevocably relinquished their rights in connection with in vitro fertilization shall not be entitled to any notice of the embryo relinquishment, nor shall their consent to the embryo relinquishment be required. embryo custodian pursuant to subsection (a) of this (c) Upon embryo relinquishment by each legal transfer of rights to an embryo shall be considered complete, and the embryo Code section, the legal transfer shall be authorized. (d) A child born to a recipient intended parent as the result of embryo relinquishment pursuant to child of the recipient intended subsection (a) of this Code section shall be presumed to be the legal embryo custodian and each recipient intended parent has entered into a parent: provided that each legal written contract.

19-8-42. (a) Prior to the birth of a child or followine the birth of a child, a recipient intended parent may petition the superior court for an expedited order of adoption or parentage. In such cases, the written contract embryo custodian and each recipient intended parent shall be acceptable in lieu of a between each legal surrender of rights. (b) All petitions under this article shall be filed in the county in which any petitioner or any respondent resides. proceeding for (c) The court shall give effect to any written waiver of notice and service in the legal adoption or parentage. (d) In the interest of Justice, to promote the stability of embryo transfers, and to promote the interests of children who may be born following such embryo transfers, the court in its discretion may waive such technical requirements as the court deems Just and proper.

19-8-43.

Upon a filing of a petition for adoption or parentage and the court finding that such petition meets the criteria required by this article, an expedited order of adoption or parentage shall be issued and shall be a final order. Such order shall terminate any future parental rights and responsibilities of any past or embryo custodian or gamete donor in a child which results from the embryo transfer and present legal shall vest such rights and responsibilities in the recipient intended parent."

ยง 3.

Code Section 15-11-28 of the Official Code of Georgia Annotated, relating to jurisdiction of the juvenile court, is amended by revising subparagraph (a)(2)(C) asfollows: "(C) For the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child, other than that in connection with adoption proceedings under Article 1 of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child;" ยง4.

Code Section 19-8-26 of the Official Code of Georgia Annotated, relating to how surrender of parental

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rights is executed, is amended by revising subsection (c) as follows: "(c) The surrender of rights by a parent or guardian pursuant to paragraph (1) of subsection (e) of Code Section 19-8-5 shall conform substantially to the following form: SURRENDER OF RIGHTS FINAL RELEASE FOR ADOPTION NOTICE TO PARENT OR GUARDIAN: This is an important legal document and by signing it you are surrendering all of your ight, title, and claim to the child identified herein, so as to facilitate the child's placement for adoption. You are to receive a copy of this document and as explained below have the right to withdraw your surrender within ten days from the date you sign it.

I, the undersigned, being solicitous that my (male) (female) child, bom (insert name of child), on (insert birthdate of child), should receive the benefits and advantages of a good home, to the end that (she) (he) may be fitted for the requirements of life, consent to this surrender.

I, the undersigned, (insert relationship to child) of the aforesaid child, do hereby surrender the child to (insert name, surname not required, of each person to whom surrender is made), PROVIDED each such person is named as petitioner in a petition for adoption of the child filed in accordance with Article 1 of Chapter 8 of Title 19 of the Official Code of Georgia Annotated within 60 days from the date hereof. Furthermore, I promise not to interfere in the management of the child in any respect whatever; and, in consideration of the benefits guaranteed by (insert name, surname not required, of each person to whom surrender is made) in thus providing for the child, I do relinquish all right, title, and claim to the child herein named, it being my wish, intent, and purpose to relinquish absolutely all parental control over the child.

It is also my wish, intent, and purpose that if each such person is not named as petitioner in a petition for adoption as provided for above within the 60 day period, other than for excusable neglect, or, if said petition for adoption is filed within 60 days but the adoption action is dismissed with prejudice or otherwise concluded without an order declaring the child to be the adopted child of each such person, then I do hereby surrender the child as follows: (Mark one of the following as chosen) __ I wish the child returned to me, and I expressly acknowledge that this provision applies only to the limited circumstance that the child is not adopted by the person or persons designated herein and further that this provision does not impair the validity, absolute finality, or totality of this surrender under any circumstance other than the failure of the designated person or persons to adopt the child and that no other provision of this surrender impairs the validity, absolute finality, or totality of this surrender once the revocation period has elapsed; or __ I surrender the child to (insert name of designated licensed child-placine agency), a licensed child-placing agency, for placement for adoption; or __ I surrender the child to the Department of Human Resources, as provided by subsection (k) of Code Section 19-8-5, for placement for adoption; and (insert name of designated licensed child-placing agency) or the Department of Human Resources may petition the superior court for custody of the child in accordance with the terms of this surrender.

Furthermore, I hereby agree that the child is to be adopted either by each person named above or by any other such person as may be chosen by the (insert name of designated licensed child-placing agencv) or the Department of Human Resources and I do expressly waive any other notice or service in any of the legal proceedings for the adoption of the child.

Furthermore, I understand that under Georgia law an agent appointed by the court is required to conduct an investigation and render a report to the court in connection with the legal proceeding for the legal adoption of the child and I hereby agree to cooperate fully with such agent in the conduct of this investigation.

Furthermore, I hereby certify that I have received a copy of this document and that I understand I may only withdraw this surrender by giving written notice, delivered in person or mailed by registered mail or statutory overnight delivery, to (insert name and address of agent of each person to whom surrender is made) within ten days from the date hereof; that the ten days shall be counted consecutively beginning with the day immediately following the date hereof; however, if the tenth day falls on a Saturday, Sunday, or legal holiday then the last day on which the surrender may be withdrawn shall be the next day that is not a Saturday, Sunday, or legal holiday; and I understand that it may NOT be withdrawn thereafter.

Furthermore, I hereby certify that I have not been subjected to any duress or undue pressure in the execution of this surrender document and do so freely and voluntarily.

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Witness my hand and seal this __ -_ (SEAL) (Parent or guardian)

day of

-

365

,

Unofficial witness Sworn to and subscribed before me this day of Notary public (SEAL) My commission expires

ยง 5.

Code Section 29-2-22 of the Official Code of Georgia Annotated, relating to authority of a guardian, is amended by revising paragraph (4) of subsection (a) as follows: "(4) Execute a surrender of rights to enable the adoption of the minor pursuant to the provisions of Article I of Chapter 8 of Title 19 or the adoption laws of any other state; and" ยง 6.

Code Section 49-5-12 of the Official Code of Georgia Annotated, relating to licensing and inspection of child welfare agencies, is amended by revising paragraphs (1) and (2) of subsection (q) as follows: "(1) Adopt a child or children from receiving or accepting a child or children in the individual's home in anticipation of filing a petition for adoption under Article I of Chapter 8 of Title 19; or (2) Have that individual's child or children placed for adoption from placing that individual's child or children in the home of an individual who is not related to the child or children in anticipation of the individual's initiation of adoption proceedings pursuant to Article I of Chapter 8 of Title 19." ยง 7.

All laws and parts of laws in conflict with this Act are repealed..

FIRST SIGNATURE'S RATIONALE

Rep. James Mills, of the 25th district, introduced the embryo

adoption measure, House Bill 388, to address the 20,000 or more frozen embryos in Georgia that donors have no intention of using.2 Rep. Mills stated, "I do not believe that an embryo, especially a frozen embryo, should be compared to a Popsicle or an ice cube in the refrigerator ....

I believe there are two

different values. Clearly you cannot adopt a Popsicle. I think there should be a mechanism by which you can adopt an embryo." 3 Rep. Mills, the Bill's author, presented the Option of Adoption Act as a safeguard against an embryo donor who may later claim the child born from that embryo.4 He stated: 2. Walter C. Jones, Embryo Bills Look at Legal Limitations, AUGUSTA

Mar. 4, 2009, http://chronicle.augusta.com/stories/2009/03/04/met_ 513488.shtml (last visited Apr. 5, 2009) (statement by Rep. James Mills).

CHRON.

3. Id. 4. Audrey Barrick, Ga. House Passes Nation's FirstEmbryo Adoption Bill, THE CHRISTIAN POST, Apr. 4, 2009, http://christianpost.com/Society/

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Under Georgia's current laws, a woman could implant an embryo and carry it to term, only to have the biological parents reassert their parental rights when she goes into labor. That's not fair, and it's a risk that most people are unwilling to take. The Option of Adoption Act would fix that problem and protect a woman's parental right should she choose to adopt and implant an embryo.'

According to the language of House Bill 388, an embryo should be afforded "rights and responsibilities" that are owed to it under Georgia Law. An embryo is no longer treated as being "donated" by its genetic parent.6 Rep. Mills stated that "gametes, cars, old clothes and other property are 'donated,' not children... they are adopted." 7 House Bill 388 also clarifies that an embryo's life begins from fertilization at "a single-celled" stage to eight week development. 8 One of the major effects of this legislation is that the term "legal embryo custodian" would replace "embryo donor" throughout the proposed code section dealing with embryo adoption. 9 Rep. Mills also addressed what this resolution seeks to provide to families. 10 "Human embryo adoption is a great way to give infertile couple[s] another option in their quest to become parents. I hope that this legislation gives them the confidence to choose this form of adoption."' 1I

Ethicsjrights/2009/04/ga-house-passes-nation-s-first-embryo-adoption-bill04/index.html (last visited Apr. 5, 2009).

5. House Passes Option for Adoption Act, available at http://theboiledpeanut.com/wordpress/?p=1201 (last visited Apr. 5, 2009) (statement made by Rep. James Mills) (hereinafter "House Passes Option for Adoption Act").

6. Daniel Becker, Georgia Passes First Adoption Law , THE VOICE MAGAZINE.COM, available at http://www.thevoicemagazine.com/headlinenews/525-georgia-passes-nations-first-embryo-adoption-law.html.

7. Id. 8. Id. 9. Id. 10. House Passes Option for Adoption Act, available at http://theboiledpeanut.com/wordpress/?p=1201 (statement by Rep. James Mills) (hereinafter "House Passes Optionfor Adoption Act").

11. Id.

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Rep. James Mills, of the 25th district, proposed House Bill 388 as the Option for Adoption Act.' 2 The first reading of House Bill 388 occurred on February 11, 2009, and the second reading in the House occurred on February 12, 2009.13 On March 9, 2009, the House Judiciary Committee favorably reported House Bill 388 . On March 12, 2009, the third House reading occurred.' 5 On that same day, the House 16passed House Bill 388, and the Senate read and referred the Bill.

House Bill 388, providing for the adoption of embryos by defining them as a "child", would be the nation's first embryo adoption legislation. 7 The Option of Adoption Act would provide procedures for embryo adoption so that the genetic18 donors can relinquish their rights to embryos before birth.

Once the genetic donors have signed a written surrender of parental rights, an embryo could be transferred to its adoptive parents according to Georgia adoption laws. 19 This Bill also ensures that the adoption of human embryos will not be analyzed by the courts under the guise of contract or property law.20 House Bill 388 helps to clarify the rights of genetic and adoptive parents.2 ' House Bill 388 would change Georgia law by adding "human embryo" to the definition of "child."22 This bill provides further explanations regarding the legal status of embryos for the 12. Ga. Gen. Assem., H.B. 388, available at http://www.legis.state.ga.us/legis/2009_10/sum/hb388.htm (last visited Apr. 5, 2009).

13. Id. 14. Id. 15. Id. 16. Id. 17. House Passes Optionfor Adoption Act, supra note 5.

18. Id. 19. Id. 20. Georgia House Passes HB 388: Nation's First Embryo Adoption Bill, available at http://www.christiannewswire.com/news/380319719.html.

21. Id. 22. Ga. Gen. Assem., H.B. 388, available at http://www.legis.state.ga.us/legis/2009_10/versions/hb388_Sen-ctee-subL C_29_3869S_7.htm (last visited Apr. 5, 2009).

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purposes of adoption. 3 Some notable definitions found in the version of House Bill 388 offered by the Senate Judiciary Committee are as follows: (1) defining "embryo" or "human embryo" as an individual fertilized ovum of the human species, from fertilization to eight week development; (2) defining "embryo transfer" as to mean the relinquishment of rights and responsibilities by the genetic parent or parents or gamete donor of a human embryo and the acceptance of said rights and responsibilities by the adopting parent or parents; (3) the relinquishment of rights of a human embryo by genetic parents shall take place before implantation; (4) a written surrender of rights shall be obtained from the genetic mother and father unless the embryo was derived from donor gametes; and (5) a taxpayer shall not be allowed an exemption for a dependent as a deduction in computing Georgia taxable income until and unless such human embryo is born. 24 Both houses amended House Bill 388 before passing the Bill.2 5 As initially proposed, Section 2 of the Bill addressed only

the general intent of the legislation regarding the adoption of embryos. 6 That version of Section 2 stated, "The General Assembly's purpose in enacting this Act is to clarify the rights of genetic and adoptive parents, to apply established procedures in adoption law to embryo adoption, to clarify the legal status of children placed for adoption as embryos, and to promote the best interests of the child."27 The statement of general intent was removed, and the version of Section 2 of House Bill 388 which passed outlines with specificity how the Bill will amend the existing code as it relates to adoption law because it seeks to designate the existing code on adoption as "Article 1" and add a new "Article 2" to deal with embryo adoption. 8 Because a new article was proposed to be added to Chapter 8 of Title 19, several provisions were added to clarify references to the existing Chapter 8 of Title 19 by adding "Article 1" before 23. Id. 24. Id.

25. Id. 26. Ga. Gen. Assem., H.B. 388, available at http://www.legis.state.ga.us/legis/2009-10/versions/hb388_LC370843_a_ 2.htm (last visited Apr. 5, 2009).

27. Id. 28. Id.

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those references.

The most notable changes between the original version and the version of House Bill 388 which both houses passed were regarding the level of specificity to the existing code. 29 The current version provides more detail by addressing each area of current law that will need to be amended to accommodate the legal adoption of an embryo.30 Unlike the proposed version of the bill, the current version of House Bill 388 includes a for Adoption Notice to "Surrender of Rights Final 31 Release form.

Guardian" or Parent On March 12, 2009, the House passed House Bill 388 by a vote of 96 to 66 that fell mostly, but not entirely, along party lines.3" Most Republicans voted for the Bill, and most Democrats voted against it.33 Some opponents characterized the bill as a back door attempt to outlaw abortion.34 In addition, Rep. Bobby Franklin, of the 43rd district, argued that the bill amounts "to openly trafficking (embryonic) humans to the adoption market."3 Rep. Mike Jacobs, of the 80th district, a cosponsor of the Bill, responded to both arguments. 36 "There is no hidden agenda here;" said Rep. Jacobs, "this is a good profamily bill. 37 On March 12, 2009, the third House reading occurred.3 8 On the same day the House passed House Bill 388 and the Senate read and referred the Bill.3 9 On March 30, 2009, the Senate Committee favorably reported on the Bill, and the second senate

29. Id. 30. Id. 31. Id. at available 388 H.B. Assem., Gen. 32. Ga. http://www.legis.state.ga.us/legis/2009_1O/sum/hb388.htm.; see also Smith, supra note 4.

33. Id. 34. Id. 35. Id. 36. Id. 37. Id. at available 388, H.B. Assem., Gen. 38. Ga. http://www.legis.state.ga.us/legis/2009_10/fulltext/hb388.htm (last visited Apr. 5, 2009).

39. Id.

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reading occurred.4 ° On April 1, 2009, the third Senate reading occurred, and the senate passed the Bill with a senate committee amendment.41 On April 3, 2009, the House agreed to the Senate amendment to Section 2 of the proposed Bill under the proposed addition of Article 2 to O.C.G.A. § 19-8-43.42 The previous language included only "past and present legal custodian", whereas in the senate committee substitute the term "or gamete donor" 43 has been added.'

PREPARED

BY: Aimee Faught

40. Id. 41. Id. 42. Id. 43. Available at http://www.medterms.com/script/main/art.asp?articlekey=3540 (Gamete: The sperm or the egg. Each human gamete normally has 23 chromosomes, the haploid number of chromosomes, half the number of chromosomes contained in most types of cells in the body).

44. Ga. Gen. Assem., H.B. 388, availableat http://www.legis.state.ga.us/legis/2009-10/sum/hb388.htm.

SENATE BILL

64:' HIV TESTING OF INCARCERATED INDIVIDUALS PRIOR TO RELEASE

Creating O.C.G.A. ยง 42-5-52.2 FIRST SIGNATURE: Sen.

Kasim Reed (35th).

CO-SPONSORS: Sen. Renee Unterman (45th), Sen. Gloria Butler

(55th), Sen. Freddie Sims (12th), Sen. Horacena Tate (38th) and Sen. Valencia Seay (34th).

SUMMARY: Senate Bill 64 mandates HIV testing for inmates prior to their release if they have been incarcerated for at least one year and have not previously tested positive for HIV. The bill also requires the state to provide information to those who test HIV positive regarding living with HIV after their release.

STATUS: Passed the Senate and the House.

TEXT OF SENATE BILL 64 ยง 1.

Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, relating to conditions of detention generally, is amended by adding a new Code section to read as follows: "42-5-52.2. (a) For purposes of this Code section, 'HIV' means HIV as defined by Code Section 31-22-9.1. (b) The department shall implement an HIV testing program whereby any state inmate who has been in the custody of a state penal institution for one year or longer and who has not previously tested positive for HIV shall be tested for HIV within 30 days prior to his or her expected date of release from the custody of the department. (c) Each person tested as provided in subsection (b) of this Code section shall be notified by the department in writing of the results of such testing prior to his or her release. Prior to the release of any person testing positive for HIV, the appropriate information as required by Code Sections 24-9-47 and 31-22-9.2 or other law shall be provided by the department to the Department of Human Resources.

Prior to the release of any person testing positive for HIV. the department shall also provide to such person in writing contact information regarding medical, educational, and counseling services available through the Department of Human Resources. Any person testing positive for HIV shall be provided instruction relating to living with HIV, the prevention of the spread of such virus, and the legal consequences of infecting unknowing partners. (d) The department shall seek state and federal grants or other possible sources of revenue for the purpose of funding a program of HIV testing authorized by this Code section. In addition, the department is authorized to accept gifts, subiect to the approval of the board, for the purpose of funding such program. (e) The department shall consolidate inmates who have tested positive for HIV in a manner that most

1. S.B. 64, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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efficiently provides education, counseling, and treatment for such persons. (f)The provisions of this Code section shall not be construed to limit the provision for HIV testing in Code Section 42-9-42.1 ."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Kasim Reed, of the 35th district, introduced Senate Bill 64 to provide notice to inmates infected with HIV prior to their discharge from the state's penal institutions.2 Although Georgia requires individuals to be HIV tested upon committal to a penal institution, there is no corresponding requirement for testing inmates prior to their release to provide notice to those inmates who contracted HIV during incarceration. 3 The Senator was motivated by the concern that many individuals leave Georgia's penal institutions unaware of the fact that they are HIV positive, and after their release, unknowingly infect their partners with the virus. 4 The Senator's hope was that, provided with 2. Telephone Interview with Kindra Baer, Legislative Aid for Sen. Reed, S. District No. 35 (Feb. 6, 2009) [hereinafter Baer Interview, 2/6/09]; see also Video Recording of State Institutions and Property (House) Comm.

Meeting, Mar. 23, 2009 (remarks by Sen. Kasim Reed), available at http://www.legis.state.ga.us/legis/2009-10/house/Committees/statelnstitution s/sipArchives.htm (last visited Apr. 4, 2009) [hereinafter Video Recording of House Committee 3/23/09].

3. See O.C.G.A. ยง 42-5-52.1 (2008) (regarding testing of inmates when initially incarcerated). This section authorizes the Commissioner to apply to the superior court for an order authorizing the use of reasonably necessary measures to require submission to the HIV test for any inmate who refuses to cooperate with the HIV test under that code section. By contrast, Senate Bill 64 is silent on what procedures would be implemented in the event an inmate refused to submit to the test; likewise, the Bill does not describe the type of test to be utilized (e.g. oral fluid or blood). Additionally, O.C.G.A. ยง 42-942.1 (2008) authorizes the Parole Board to require inmates to submit to HIV testing (or obtain results from a previously administered test) and to consider the result as a factor in determining whether to grant clemency, a pardon, parole or other relief to the inmate. However, the test result may not be the sole basis for determining whether to grant or deny such relief. Furthermore, the Board is authorized to impose conditions upon any person granted such relief who is determined to be HIV positive; these conditions may include those implemented to prevent the spread of HIV by the person granted such relief.

4. Baer Interview, 2/6/09, supra note 2; see also Video Recording of

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knowledge of their condition and counseling, 5infected individuals would not pass the virus on to their partners.

LEGISLATIVE GENEALOGY

The first reading of Senate Bill 64 occurred on January 29, 2009, and the Senate referred the Bill to the State Institutions and Property Committee. 6 The Committee amended the bill, dictating that the testing would not be implemented until the General Assembly appropriated money for it, or the Department of Corrections obtained funding from other sources.7 On March 3, 2009, the Committee favorably reported the Bill to the Senate, and it was read a second time on March 4, 2009. On March 10, 2009, the third reading of the Bill occured, and the Senate approved the Committee substitute by a vote of 41-7. 9 The Bill received its first reading in the House on March 12, 2009 and its second reading on March 17, 2009. 10 The House Committee on State Institutions and Property amended the bill

House Committee 3/23/09, supra note 2 (remarks by Sen. Kasim Reed).

5. Id.; see also Press Release, Sen. Reed's Bill to Combat HIV Passes Committee, Georgia Senate Press Office, Mar. 5, 2009, available at http://senate-press.corn/sen-reed%e2%80%99s-bill-to-combat-hiv-passesconmittee.html (last visited Mar. 11, 2009).

6. Ga. Senate Daily Composite Status Sheet, S.B. 64, Jan. 29, 2009 (Apr. 1, 2009), availableat http://www.legis.ga.gov/legis/2009-10/ composite/SComposite.pdf [hereinafter S.B. 64 Daily Status Sheet].

7.

See Ga. Gen. Assem., S.B. 64, SCS available at http://www.legis.ga.gov/legis/2009_10/versions/sb64_Committee-subLC_3 5_1369S_4.htm (last visited Apr. 9, 2009) [hereinafter S.B. 64 SCS]; Telephone Interview with Kindra Baer, Legislative Aid for Sen. Reed, S. District No. 35 (Mar. 6, 2009); see also Zornes, Carl, Senate Passes Bill Requiring HIV Testing in Prisons,Georgia Public Broadcasting News, Mar. 10, 2009, available at http://gpbnews.blogspot.com/2009/03/senate-passesbill-requiring-hiv.html (last visited Mar. 11, 2009) (stating that the tests, which cost approximately $4.00 each, would not be required unless the state decided to fund them).

8. S.B. 64 Daily Status Sheet, supra note 6, Mar. 3-4, 2009 (Apr. 1, 2009).

9. S.B. 64 Daily Status Sheet, supra note 6, Mar. 10, 2009 (Apr. 1, 2009); Ga. S. Voting Record, S.B. 64, Mar. 10, 2009.

10. S.B. 64 Daily Status Sheet, supra note 6, Mar. 12 & 17, 2009 (Apr. 1, 2009).

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to include the legal definition of HIV. 1 Also, the House Committee decreased the timeframe that the HIV testing would be conducted from between 60 and 120 days to 30 days prior to the expected date of release. 12 This change was made in order to give the Department of Corrections more flexibility in administering the tests, while simultaneously insuring that the 13 tests would be given as close to the release date as possible.

Additionally, the Committee amended the Bill to direct the Department of Corrections to notify the Department of Human Resources prior to the release of an inmate who tested positive for HIV. 14 Also, the Bill requires the Department of Corrections to inform, in writing, HIV positive inmates about educational, counseling and medical services available through the Department of Human Resources, through which HIV positive inmates can instructed onto living with HIV, prevention of spreading the disease, as well as the legal consequences of infecting unknowing partners.' 5 The amended Bill also instructs the Department of Corrections to consolidate inmates who tested positive in a manner that would provide for the most efficient counseling, education and treatment.16 Finally, the House Committee placed on the Department of Corrections an affirmative duty to seek sources of revenue, including federal grants, state grants and gifts, in order to fund the HIV testing program under this code section. 1 7 The Committee favorably reported the House substitute Bill on March 25, 2009.18 On April 1, 2009, the House postponed consideration of the Bill I1.S.B. 64, HSS, available at http://www.legis.ga.gov/legis/2009_IO/ versions/sb64_LC_35_1499S hss_7.htm (last visited Apr. [hereinafter S.B. 64 HSS]; See O.C.G.A. ยง 31-22-9.1 (2008).

4,

2009)

12. Compare S.B. 64 SCS, supra note 7 with S.B. 64 HSS, supra note 11.

13. Video Recording of House Committee 3/23/09, supra note 2 (remarks

by Committee members and Alan Adams, Director of the Office of Health Services, Georgia Department of Corrections).

14. Compare S.B. 64 SCS, supra note 7 with S.B. 64 HSS, supra note 11;

see O.C.G.A. ยง 24-9-47 (2008) (regarding disclosure of AIDS confidential information); O.C.G.A. ยง 31-22-9.2 (2008) (regarding report of positive HIV tests by health care providers).

15. Compare S.B. 64 SCS, supra note 7 with S.B. 64 HSS, supra note 11.

16. Id. 17. Id. 18. S.B. 64 Daily Status Sheet, supra note 6, Mar. 25, 2009 (Apr. 1,

2009).

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375

until April 3, 2009, when it was read for the third time. 19 The House passed the bill on April 3, 2009 by a vote of 163 to 4.2o The Senate voted to adopt the House substitute on April 3, 2009 by a vote of 46 to 3.21 PREPARED

BY: Tanya McAdams

19. S.B. 64 Daily Status Sheet, supra note 6, Apr. 1 & 3, 2009 (Apr. 3, 2009).

20. S.B .64 Daily Status Sheet, supra note 6, Apr. 3, 2009 (Apr. 3, 2009); Ga. H. Voting Record, S.B. 64, Apr. 3, 2009.

21. S.B. 64 Daily Status Sheet, supra note 6, Apr. 3, 2009 (Apr. 3, 2009); Ga. S. Voting Record, S.B. 64, Apr. 3, 2009.

SENATE BILL 124:1 NEw EXCEPTION TO OPEN RECORDS ACT

Amending O.C.G.A. ยง 50-18-72 FIRST SIGNATURE: Sen.

Bill Heath (31st).

CO-SPONSORS: Sen. Jim Butterworth (50th), Sen. Cecil Staton

(18th), Sen. Jack Murphy (27th) and Sen. Bill Jackson (24th).

SUMMARY: O.C.G.A. ยง 50-18-72 currently provides in part that social security numbers must be redacted from public records subject to disclosure under the Georgia Open Records Act, unless the party requesting the record is with the news media.

Senate Bill 124 would remove this exception for the news media, ending their ability to obtain social security numbers through Georgia Open Records Act requests.

STATUS: Not enacted during the 2009 session.

TEXT OF SENATE BILL

124

ยง 1.

Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure is not required and disclosure of exempting legal authority, is amended by revising paragraph (11.1) of subsection (a) as follows: "(11.1) An individual's social security number and insurance or medical information in personnel records, which may shall be redacted from such records prior to disclosure of any record requested pursuant to this article;" ยง 2.

Said Code section is further amended by revising subparagraph (a)(1 1.3)(A) as follows: "(1 1.3)(A) An individual's social security number, mother's birth name, credit card information, debit card information, bank account information, financial data or information, and insurance or medical information in all records, and if technically feasible at reasonable cost, day and month of birth, which shall be redacted prior to disclosure of any record requested pursuant to this article; pevided hewe'zeF, that SUzh iniffzrmatiR S11211 RAt hP radA0.tad 49Mra SU1b FAzords if the PeFSR e . .tt requestin.g .uh reeerd ...

U.. tS S-194. *4f9MI-oR :^n a %'ritingsigned undar oath by. u h peroor or a per-son lgally auth..iz.d to repreoent suoh entity 'hieh siates that ouch poFSn oreoRtity i gatha..g iAfo"n-aA* a representati'e of A na',' media organization for use in connection 'ith news gathering and r...ti.g; and P.O..idd, further, that .u.h aeeess shall be limited to s--ia, s--urity .umber and day .. and . th of bifth; and Pro.. id.d, f-rthr, that this Hews Me*adia organ:zaen ... ptio, fOr aoA-Aq t. .A... o .urity,..umb.. and day and m.nth of bith a the .d.. OthOr tet.d iAfatin !;Al fOth. ir. thi Subparagraph shall net apply to ta.rs, empleyes ef a public seheol, or publie mplaye as set forth in pa-,ag"aph (13.1) of this subsection. For purpeses Of thif; Supfagraph,

1. S.B. 64, 150th Gen. Assem., Reg. Sess. (Ga. 2009).

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2009 Legislative Initiatives

the te-m 'publi emrpleyee' maneas afiy neneleeted empleyee ef the State of GeEzrgia eFits ageneie, depannients, OFair~e__ any ty or munieipality of: its agarnoies, depaftments, or

ยง 3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Bill Heath, of the 31st district, introduced Senate Bill 124 to prevent the potential misuse of social security numbers by the media and the general public.2 The Bill seeks to accomplish this by eliminating the news media exception, which currently permits news media organizations to access an individual's social security number via public documents subject to disclosure under the Georgia Open Records Act.' The Georgia Open Records Act generally provides that documents and other records generated by state and local governments are public records and, as such, subject to inspection by the public.4 However, O.C.G.A. ยง 50-18-72 sets out a list of exceptions where certain public records are either altogether exempt from inspection or certain information contained within a public record must be redacted prior to disclosure.' If enacted, Senate Bill 124 would make the redaction of an individual's "social security number, mother's birth name, credit card information, 2. Telephone Interview with Brandi Johnson, Legislative Assistant to Sen. Bill Heath, Sen. District No. 31 (Feb. 27, 2009).

3. Id. 4. O.C.G.A. ยง 50-18-70 (2008).

5. O.C.G.A. ยง 50-18-72 (2008). The news media exception found in Paragraph (I1.3)(A) permits news media organizations to obtain an individual's social security number, among other information, for news gathering and reporting purposes. This provision further stipulates that the news media organization must make a written request for such information that is signed under oath by a person legally authorized to represent the organization. The written request must also state that the person or entity is gathering information as a representative of a news media organization for use in connection with news gathering and reporting. Paragraph (11.3)(A) of the code section states that the news media exception does not apply to teachers, employees of a public school, or public employees. The term, "public employees" is defined by the code as meaning "any non-elected employee of the State of Georgia or its agencies, departments, or commissions or any county or municipality or its agencies, departments, or commissions." Paragraph (1 1.3)(C) provides for penalties if the SSN is used for any purpose other than news reporting.

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debit card information, bank account information, financial data or information, and insurance or medical information" mandatory for all individuals' records whether the record6 is obtained for news reporting or any other authorized purpose.

The Georgia First Amendment Foundation ("Foundation") opposes Senate Bill 124 on the grounds that it decreases access to public records and eliminates the media's ability to engage in certain types of investigative reporting.7 For instance, the Foundation claims Senate Bill 124 would limit the media's ability to conduct an investigation of school bus drivers with DUI histories.'

LEGISLATIVE GENEALOGY

The first reading of Senate Bill 124 before the Senate occurred on February 10, 2009. 9 The Senate then referred Senate Bill 124 to the Senate Committee on Government Oversight.' 0 On February 19, 2009, the Senate Committee favorably reported the bill. A second reading occurred on February 24, 2009. The third reading before the Senate occurred on March 4, 2009, and the Senate passed the Bill the same day.

On March 5, 2009, the first reading before the House occurred, and the House assigned the Bill to the House Committee on Judiciary. The second reading before the House occurred on March 9, 2009. No further action on Senate Bill 124 occurred during the 2009 session."I PREPARED

BY: Cherri L. Shelton

6. Ga. Gen. Assem., S.B. 124, available at http://www.legis.state.ga.us/legis/2009-10/fulltext/sb124.htm.

7. Georgia First Amendment Foundation 2009-10 Legislative Watch, available at http://www.gfaf.org/legislativewatch.html (last visited Mar. 9, 2009).

8. Id. 9. Ga. Senate Daily Composite Status Sheet, S.B. 124, Feb. 10, 2009 (March 20, 2009), availableat http://www.legis.ga.govlegis/2009_O/ composite/SComposite.pdf[hereinafter S.B. 124 Daily Status Sheet].

10. S.B. 124, supra note 12.

11. Ga. Gen. Assem., S.B. 124, availableat http://www.legis.ga.gov/ legis/2009_1 0/sum/sb 124.htm (last visited April 5, 2009).