Atlanta's John Marshall Law Journal Volume X

JOHN MARSHALL LAW JOURNAL

Volume X

2016-2017

Editor in Chief TYLER R. WATKINS

Executive Managing Editor SADIA ALI

Executive Articles Editor

Executive Comments Editor

Executive Legislative Editor

JOHN PADESKY

VICTORIA W HEELER

MICHAEL WYNTER

NAM NGUYEN

SHARON PHILLIPS

BRANDI SLUSS

STACEY B URKE

TARA LATIMER

WILLIAM B LACK

Line Editors

Symposium Co-Chairs SADIA ALI

STACEY BURKE

VICTORIA W HEELER

Staff Editors TARLA ATWELL

TERESA GOHLKE

TARA MUSCOE

TYLER BAUM

SHANTIA JONES

KRISTAN POLARD

RODREQUEZ BURNETT

BRIAN HEFLIN

ANDREW PUCKETT

AKIL DAN-FODIO

DEVIN HOROWITZ

AYRN SEDORE

GABRIEL D ANIEL

NATHALIE KANANI

LA’PORSCHA SMALLS

ELLEN DORSEY

MILDRED LETSU-TETTEH

JARVIS WILLIAMS

STEPHEN LOCKARD

KAMARIA W OMACK

Faculty Advisors JEFFERY A. VAN D ETTA LANCE MCMILLIAN

JOHN MARSHALL LAW JOURNAL

Volume X

2016-2017

TABLE OF CONTENTS ARTICLES A ROADMAP TO A STATEWIDE BUSINESS COURT MODEL IN GEORGIA JODY RHODES ........................................................................................................................... 1

MODERN PROTECTION OF BUSINESS INTERESTS THROUGH TRADE SECRET ENFORCEMENT AUDRA A. DIAL ........................................................................................................................ 19

ETHICAL IMPLICATIONS OF THE LIBERALIZATION OF THE LEGAL INDUSTRY IN MODERN BUSINESS DISCOVERY

ERIN CORKEN. ......................................................................................................................... 47

COMMENTS INTERPRETING THE 2011 GEORGIA RESTRICTIVE COVENANTS STATUTE: HOW TO FIX ITS AMBIGUITIES AND ALLOW THE BLUE PENCIL WHILE DETERRING THE IN TERORREM EFFECT

TYLER WATKINS ....................................................................................................................... 81

EXECUTIVE SUMMARIES HOUSE BILL 1: HALEIGH’S HOPE ACT TARLA ATWELL & SHANTIA JONES ............................................................................................ 108

HOUSE BILL 34: GEORGIA RIGHT TO TRY ACT ANDREW J. PUCKETT ............................................................................................................. 130

HOUSE BILL 152: MICHAEL’S LAW TARA E. LATIMER .................................................................................................................. 138

HOUSE BILL 205: DRIVERS' LICENSES; REQUIRE DRIVER WHO REFUSED BLOOD ALCOHOL CONCENTRATION TESTING TO INSTALL AND MAINTAIN IGNITION INTERLOCK DEVICES ON VEHICLE ; PROVISIONS RODREQUEZ BURNETT ........................................................................................................... 145

HOUSE BILL 229: DOMESTIC RELATIONS; GRANDPARENT RIGHTS TO VISITATION AND INTERVENTION TO GREAT-GRANDPARENTS AND SIBLINGS OF PARENTS; EXPAND TERESA GOHLKE ................................................................................................................... 162

HOUSE BILL 272: MINIMUM WAGE; PROVIDE FOR SUBSTANTIVE AND COMPREHENSIVE REFORM OF PROVISIONS REGARDING THE LAW; PROVISIONS STACEY BURKE ..................................................................................................................... 170

HOUSE BILL 792: FIREARMS; CARRYING, POSSESSION, AND USE OF ELECTROSHOCK WEAPONS BY PERSONS WHO ARE STUDENTS OR WHO ARE EMPLOYED AT A PUBLIC INSTITUTION

KRISTAN POLARD .................................................................................................................. 178

HOUSE BILL 808: COURTS; JUDICIAL QUALIFICATIONS COMMISSION; CREATE GABRIEL L. DANIEL ............................................................................................................... 183

HOUSE BILL 887: COURTS; PARENTAL RIGHTS; PRIORITIZE PLACEMENT OF A CHILD WITH AN ADULT OR FICTIVE KIN QUALIFIED TO CARE FOR SUCH CHILD

ELLEN D. DORSEY ................................................................................................................. 191

SENATE BILL 133: OPPORTUNITY SCHOOL DISTRICT; ESTABLISHMENT; PROVIDE FOR DEFINITIONS; SUPERVISION OF PUBLIC ELEMENTARY AND SECONDARY SCHOOLS THAT ARE FAILING

KAMARIA WOMACK ................................................................................................................ 206

SENATE BILL 304: COMPASSIONATE CARE FOR VICTIMS OF SEXUAL ASSAULT ACT BRANDI MUNROE SLUSS ......................................................................................................... 225

A ROADMAP TO A STATEWIDE BUSINESS COURT MODEL IN GEORGIA Jody Rhodes *

INT RODUCTION ......................................................................................................................................1 I.

THE BUSINESS COURT M ODEL: PROVIDING FAST RESOLUT ION OF COMPLEX COMMERCIAL LIT IGATION BY EXPERIENCED, SPECIALLY A SSI GNED JUDGES.................... 2 A. The Positive Impacts of Business Court Programs..................................................... 2 B. Metro Atlanta Business Case Division: An In-State Model....................................... 4

II.

SUCCESSFUL BUSINESS COURT PROGRAMS FROM OUT SIDE THE ST ATE ............................. 8 A. North Carolina Business Court ...................................................................................... 8 B. West Virginia Business Court....................................................................................... 10

III. A PAT H FORWARD: A PROPOSAL FOR A ST AT EWIDE REGIONAL A PPROACH IN GEORGIA.......................................................................................................................................12 A. B. C. D.

Establish Business Court Regions ............................................................................... 13 Designate Business Court Judges ................................................................................. 15 Establish Statewide Judges’ Co mmittee..................................................................... 16 Establish Centralized Administrative Office .............................................................. 16

CONCLUSION........................................................................................................................................18

INTRODUCTION Over the past two decades, states across the country have created specialized courts to handle complex commercial litigation matters. While several counties in the Metro Atlanta, Georgia, area—including Fulton County—have created ad hoc programs to more quickly adjudicate these complex cases, a consistent statewide approach has not yet been established.

This article sets forth the rationale for creating a statewide business court program in Georgia. Part I discusses the benefits and strengths of business courts in general and the Metro Atlanta Business Case Division *

Jody Rhodes currently serves as the Metro Atlanta Business Court Program Director and serves as law clerk to the four judges designated as business court judges in Fulton County. She is a graduate of University of Georgia School of Law. After law school, she practiced in the Atlanta offices of Alston & Bird, LLP.

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program specifically. Part II surveys other states’ programs that provide a model for statewide expansion by region. Finally, Part III proposes further expansion in Georgia by establishing seven regional business courts that allow voluntary participation of neighboring counties.

I. THE BUSINESS COURT MODEL: PROVIDING FAST RESOLUTION OF COMPLEX COMMERCIAL LITIGATION BY EXPERIENCED, SPECIALLY ASSIGNED JUDGES A. The Positive Impacts of Business Court Programs The most often cited benefits of business court programs are efficiency, the involvement of knowledgeable judges experienced in corporate legal issues, common law predictability, and access to improved technology and innovation. 1 These efficiencies all work together to minimize delay in the resolution of the cases pending before the court. Court delays have a real economic impact on the court system and the business community. While it is difficult to assess the cost of delays in the complex commercial litigation context, there can be no doubt that faster resolution of cases and specially set hearings and conferences reduce costs for Georgia businesses. A 2011 report sought to quantify the effect of court delays on Georgia’s economy.

The report estimated the gross economic impact of delays in civil and domestic relations court cases due to inadequate court funding to be between $337 million and $802 million each year. 2 Streamlining complex business court cases through the establishment of a business court can greatly reduce court delays that might negatively impact Georgia’s economy.

Likewise, businesses place value in a responsive and predictable legal environment. 3 Many scholars have posited that the large number of 1

See generally Tyler Moorehead, Business Courts: Their Advantages, Implementation Strategies, and Indiana’s Pursuit of Its Own, 50 IND. L. REV. 397, 400-02 (2016).

2 THE W ASHINGT ON ECONOMICS GROUP , INC., THE ECONOMIC IMPACT S ON T HE GEORGIA ECONOMY OF DELAYS IN GEORGIA’S ST AT E COURT S DUE T O RECENT REDUCT IONS IN FUNDING FOR T HE JUDICIAL SYST EM (last updated Jan. 24, 2011).

3 “As Lee Applebaum, a national expert on state business and complex litigation courts, explains: [C]ompetitive implications between cities and states are undeniable. The business court becomes a means to give businesses and their lawyers confidence that business and commercial disputes will be decided with informed and deliberate reasoning. This adds a component of stability to a state, region, or city that wants to keep or attract businesses. If a city or state has such a court, and its neighbor does not, that neighboring city or state may come to sense a potential disadvantage. The concentration of business courts along the East Coast may be

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corporations registered in Delaware can be attributed not only to their favorable corporate and tax codes but also to its robust court system. 4 The Metro Atlanta area continues to top the charts in corporate facility investment projects, and as more businesses expand their operations into the State of Georgia, it is critical to provide these businesses an efficient and Businesses that are not saddled with the predictable court system. 5 unknown costs of litigation are better situated to spend their money expanding their operations or work force.

The Georgia legal community is overwhelmingly in favor of specialized court programs. 6 In 2012-2013, the State Bar of Georgia, in partnership with the Supreme Court of Georgia, surveyed judges, court staff, clerks, members of the state bar, legislatures, the media, and others to solicit input about how to improve the courts. 7 In its 2014 report on its findings, the Commission reported that approximately 70% of the 435 respondents reported that development of case tracks “to separate routine cases from complex cases to speed disposition (sometimes called differentiated case management)” was “definitely” or “probably” worth considering. 8 Finally, a specialized business court is beneficial to the judicial system as a whole and assists judges in docket management. Regardless of county size, a “docket buster” case is inevitable, such as a large, relatively complex commercial litigation case with multiple parties, multiple attorneys, and seemingly constant discovery issues and other motions. While establishing a business court in each of Georgia’s 159 counties may not be practical, the superior and state court judges all carry significant criminal, civil, and explained, in some part, by this potential for competitive disadvantage.”

Joseph R. Slights III & Elizabeth A. Powers, Delaware Courts Continue to Excel in Business Litigation with the Success of the Complex Commercial Litigation Division of the Superior Court, 70 BUS. LAW . 1039, 1042–43 (2015) (citing Lee Applebaum, The “New” Business Courts: Responding to Modern Business and Commercial Disputes, BUS. L. TODAY, Mar./Apr. 2008, at 16).

4 See id. at 1047 (noting that 64 percent of Fortune 500 companies are incorporated in Delaware in part because of the quality of Delaware’s court system, its vast body of published case law, its sophisticated expert judges, and its expeditious resolution of cases).

5 See, e.g., Gary Daughters & Adams Bruns, The Top Metros of 2016 Come in All Sizes, SIT E SELECT ION (March 2017), http://siteselection.com/issues/2017/mar/topmetropolitans-of-2016.cfm (listing Atlanta-Sandy Spring-Roswell, GA as first in real GDP per capita and sixth in corporate facility investment projects among the metro areas in the U.S. with population over 1 million).

6 See generally HON. LAWT ON E. ST EPHENS, EMBRACING T HE COURT S OF T HE FUTURE, FINAL REPORT OF T HE NEXT GENERAT ION COURT S COMMISSION (2013), http://www.georgiacourts.org/sites/default/files/Next%20Generation%20Courts/next%20ge n%20report__0.pdf.

7 Id. at 2.

8 Id. at 8.

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family caseloads making it potentially difficult to dedicate significant time to even a rare complex commercial “docket buster” case that arises in their county. Practically speaking, these “docket busters” either create a pile-up of other cases in their stead or get delayed while other more time-sensitive matters, including criminal matters, are resolved. A dedicated business court alleviates this case management dilemma.

B. Metro Atlanta Business Case Division: An In-State Model In 2005, the Georgia Supreme Court approved the creation of the Fulton County Business Case Division, commonly known as the Fulton County Business Court, as a pilot program. 9 The purpose of the Business Court is to provide an efficient and effective forum with increased judicial case management and expertise in order to timely and justly resolve complex commercial and business cases. 10 The Business Court was created to hear cases involving the Uniform Commercial Code, Georgia business organization statutes (e.g., corporations, LLCs, partnerships), and other complex commercial or contractual claims with damages in excess of $1 million. 11 Qualification of a particular case is determined by majority vote of the current Business Court Committee, which is comprised of active judges. 12 The number of Fulton County Business Court judges grew from two senior judges at its inception to four judges, including three Fulton County Superior Court senior judges and one active Fulton County Superior Court judge. 13 All judges serving on the Business Court bench have ongoing education requirements related to commercial and business organization law. 14 9

See GA. UNIF. SUPER CT . R. 1.2(D) (allowing a majority of judges in a circuit to adopt pilot projects upon approval of the Supreme Court); see also GA SUPREME COURT , A PPROVAL OF A TLANTA JUDICIAL CIRCUIT RULE 1004, EST ABLISHING A BUSINESS CASE DIVISION OF T HE FULT ON SUPERIOR COURT , (June 3, 2005) [hereinafter RULE 1004], http://www.gasupreme.us/wp-content/uploads/2015/06/bus_court.pdf (approving Atlanta Judicial Circuit Rule 1004 establishing a Business Case Division of the Fulton Superior Court); GEORGIA SUPREME COURT , A T LANTA JUDICIAL CIRCUIT RULE 1004 M ET RO A T LANTA BUSINESS CASE DIVISION (July 14, 2016), https://fultoncourt.org/business/BusinessCourtRule1004_JULY2016_FINA L.pdf (approving the current version of Atlanta Judicial Circuit Rule 1004).

10 RULE 1004, supra note 9, ¶ 2.

11 Id. ¶ 4.

12 Id. ¶ 3; see FULT ON COUNTY SUPERIOR COURT, M ETRO A T LANT A BUSINESS COURT 2016 A NNUAL REPORT , 3 (2016) [hereinafter MABC 2016 A NNUAL REPORT ], https://fultoncourt.org/business/Business_Court_2016_Annual_Report.pdf .

13 See MABC 2016 A NNUAL REPORT , supra note 12, at 3.

14 Id.

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Cases may be considered for transfer upon motion of either party or at the request of the assigned superior court judge. 15 Cases transferred by party request are assessed a $1,000 transfer fee. 16 The majority of the requests to transfer come from the litigants. As the Court has become more established and known in the legal community, the number of requests from judges has decreased as the number of party requests has increased. For example, in 2012, 15 cases were identified by the assigned judge, while 11 cases were identified by the parties. 17 In 2016, only 1 case was identified by the assigned judge compared to 20 cases made by a party’s motion to transfer. 18 Several cases have been transferred to the Business Court because they are related to prior filed cases 19 and many attorneys seeking transfer are repeat users of the Business Court.

Over the life of the program, the Fulton County Business Court has accepted approximately 240 cases.

Transfer Requests (2006 - 2016): 20 Requests by Party Requests by Judge TOTAL REQUESTS Requests Declined Requests Withdrawn Requests Accepted

194 (62%) 115 (38%) 309 67 3 239

The Fulton County Business Court generally has about 30 pending cases at any given time. 21 While the Court does not handle a large number of cases each year, the Court does handle large complex cases with multiple corporate parties that are well represented by attorneys from firms around the nation.

15

RULE 1004, supra note 9, ¶ 6.

Id.; see Standing Order Regarding Transfer Fee Amount (Nov. 13, 2012), https://fultoncourt.org/business/StandingOrderTransferFees.pdf (establishing transfer fee in the amount of $1,000 until further notice but allowing a fee not to exceed $2,500 in accordance with Atlanta Judicial Circuit Rule 1004).

17 See FULT ON COUNT Y SUPERIOR COURT , BUSINESS COURT 2012 A NNUAL REPORT (2012) (maintained with the Metro Atlanta Business Court). Four of the cases, including three cases identified by judicial request, were denied transfer.

18 See MABC 2016 A NNUAL REPORT , supra note 12, at 5.

19 Id. 20 Id. 21 Metro Atlanta Business Court – Current Active Cases, SUP . CT . OF FULT ON COUNT Y., https://fultoncourt.org/business/business-cases.php (last visited Apr. 13, 2017).

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Business Court Activity 2016: 22 Total cases handled Cases closed or settled Specially set conferences or hearings In person conferences or hearings Orders issued

47 17 43 24 268

The majority of cases transferred to the Business Court are ultimately resolved by the parties.

Disposition of cases (2006 - 2016): 23 Dismissed with prejudice by parties Dismissed without prejudice Motion to Dismiss granted Motion for Summary Judgment granted Other (removal, arbitration, etc.)

Trial

103 40 10 22 23 5

An internal analysis of Fulton County Superior Court cases in 2012 verified that the Business Court is meeting its goal of resolving complex cases in a significantly shorter period. 24 This analysis compared a representative sample of general docket cases filed between 2005 to mid2012, judging complexity by number of docket entries to the Business Court cases of the same type. 25 The results show that a complex contract case can be resolved 65% faster in Business Court as compared to the general superior court docket and a complex tort case can be resolved 56% faster. 26 While the Business Court strives to resolve all pending motions in less than 30 days, the average time for disposition of motions in 2015 and 2016 was approximately 16 days. 27 Further, as of March 2017, the average age of all active cases pending in Business Court was 416 days 28 and the 22

MABC 2016 A NNUAL REPORT , supra note 12, at 6.

Id. 24 See FULT ON COUNT Y SUPERIOR COURT , BUSINESS COURT 2014 A NNUAL REPORT (2014), https://www.fultoncourt.org/business/Business_Court_2014_Annual_Report.pdf.

25 Id. 26 Id. 27 MABC 2016 A NNUAL REPORT , supra note 12, at 6 28 Id. (“Of the 6 cases pending for more than three years, 5 are stayed pending appeal.�).

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average age of all cases closed in 2016 was 488 days. 29 The Fulton County Business Court has enjoyed good reviews in the legal community. In a 2011 survey of attorneys who had utilized the Fulton County Business Court, 88% reported that they were satisfied or very satisfied with their experience and six percent responded neutrally. 30 Seventy-seven of 82 respondents listed fast and efficient adjudication as a positive of the Fulton County Business Court. 31 Recognizing the success of the Fulton County program, the Gwinnett County State and Superior Courts adopted the Fulton County Business Court program in July of 2016 and the court was officially renamed the Metro Atlanta Business Case Division. 32 To make sure that the user experience was the same regardless of the county in which a case was filed, Rule 1004 was restructured to allow counties neighboring Fulton County to adopt the Fulton County rule as written. 33 Gwinnett County Superior Court Judge Randy Rich and State Court Judge Joseph Iannazzone, Fulton County Superior Court Judge John J. Goger, and the Business Court Committee of the State Bar of Georgia spearheaded this amendment and Gwinnett County’s subsequent adoption of the Rule. This newly expanded program continues the Business Court Committee’s vision that businesses throughout the state would have access to a specialized business court to consistently and efficiently resolve complex commercial litigation issues. 34 The newly drafted rule was written to encourage other neighboring counties to join the program. Any county in the Metro Atlanta area may join the Metro Atlanta Business Court with the consent of the Business Court Committee by adopting Rule 1004 within its own Circuit. 35 As noted by Judge John J. Goger, the Chair of the Business Court Judges’ Committee: “This is only the beginning of enhancements to the Business Court program. Our intent is for other superior and state court systems in other regions of Georgia to emulate our regional Business Court model. We look forward to a rich partnership with Gwinnett County Courts and we are 29

Id. (“Of the 17 cases closed in 2016, 53% of the matters were disposed of within 12 months of transfer to Business Court. One case closed in 2016 had been pending 2,808 days. Excluding this outlier, the average case closed in 2016 had been pending 344 days.”).

30 FULT ON COUNT Y SUPERIOR COURT , 2011 BUSINESS COURT SAT ISFACT ION SURVEY RESULT S 1 (2011) https://fultoncourt.org/business/Business_Court_2011_Survey_Results.pdf.

31 Id. 32 RULE 1004, supra note 9.

33 Id. 34 See Press Release, Superior Court of Fulton County, Fulton County’s Business Court is Expanding Services to Gwinnett County (July 22, 2016), www.fultoncourt.org/temp/N-BusinessCourtExpandtoGwinnettCounty_end020817.pdf.

35 RULE 1004, supra note 9, ¶ 2.

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confident that the policies and procedures that we have jointly established will be adopted by other neighboring Metro Atlanta state and superior courts.”36 Case transfer requests from both Fulton and Gwinnett Counties are considered by the Judges’ Committee which consists of judges from both Gwinnett and Fulton Counties. Once a case is approved for transfer, it is assigned to a designated Business Court judge from the county in which the case originated. In Fulton County, the case is randomly assigned to one of the four Fulton County Business Court judges. Likewise, in Gwinnett County, a case is assigned to one of two Gwinnett County Business Court judges—Judge Rich or Judge Iannazzone. 37 II. SUCCESSFUL BUSINESS COURT PROGRAMS FROM OUTSIDE THE STATE A. North Carolina Business Court The North Carolina Business Court was established in 1995 and was one of the first courts of its kind. 38 The Business Court has four locations: Charlotte, Greensboro, Raleigh, and Winston-Salem. The Chief Justice of the North Carolina Supreme Court is authorized to designate superior court judges as special judges to serve as Business Court judges. 39 Each location has one Business Court judge.

Designation of a case as a complex business case is governed by North Carolina statute. 40 North Carolina allows any party to designate as a mandatory complex business case an action that involves issues related to corporate law, partnerships, LLCs, LLPs, securities law, antitrust law, state trademark and unfair competition law, intellectual property law, internet law, and tax law, along with any contract dispute where the amount in controversy is at least one million dollars. 41 The statute requires cases involving these issues with an amount in controversy equal to or exceeding 36

Press Release, supra note 34.

In Gwinnett County, both state and superior courts are participating. Though one Gwinnett County Business Court judge is from State Court and one is from Superior Court, a case is assigned randomly between the two regardless of whether the case was filed in State or Superior Court. See GA. CODE A NN. §15-1-9.1(b)(2)(E) (2016) (allowing state court judges to hear superior court cases upon determination by majority of judges of requesting court that permanent assistance of an additional judge is required).

38 CHIEF JUST ICE’S COMMISSION ON T HE FUT URE OF T HE NORT H CAROLINA BUSINESS COURT , FINAL REPORT AND RECOMMENDATION (2004), http://www.ncbusinesscourt.net/ref/Final%20Commission%20Report.htm.

39 N.C. SUP . & DIST . CT S. R. § 2-2.

40 See generally N.C. GEN. ST AT . § 7A-45.4 (2017).

41 N.C. GEN. ST AT . § 7A-45.4(a) (2017).

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five million dollars to be considered a mandatory complex business case. 42 In order to designate a case as a mandatory complex business case, a party must file a notice of designation in the superior court in which the case has been filed. The opposing parties, the Chief Business Court Judge, and Chief Justice of the North Carolina Supreme Court must then be served with the notice in order to obtain approval of the action as a mandatory complex business case. 43 A party may oppose designation by filing an objection with the Business Court. 44 If the parties do not designate a case as a mandatory complex business case, the assigned superior court judge may enter an order sua sponte staying the action until it has been properly designated. 45 Alternatively, the Chief Justice has discretion to designate any case as a complex business case and assign said case to a Business Court judge. 46 If the case is ultimately designated as a mandatory complex business case, the Business Court requires a fee of $1,100. 47 Once a case has been designated it will be assigned to a Business Court judge who will hear all further proceedings in the action. 48 However, because the Business Court is considered an administrative arm with no general jurisdiction, venue is not affected by designation. 49 Pre-trial motions and hearings are held in the Business Court courtroom assigned to the presiding Business Court judge, but jury trials must be held in the county where the case originated. 50 The parties may consent to a non-jury trial to be held in the Business Court. 51 Recently, the North Carolina Business Court began to require that all filings be made electronically through the Court’s electronic-filing system. 52 The Court transmits all orders, decrees, judgments, and other matters through the Court’s electronic-filing system as well. 53 However, the 42

N.C. GEN. ST AT . § 7A-45.4(b) (2017).

N.C. GEN. ST AT . § 7A-45.4(c) (2017).

44 N.C. GEN. ST AT . § 7A-45.4(e) (2017).

45 N.C. GEN. ST AT . § 7A-45.4(g) (2017).

46 See N.C. SUPER. & DIST . CT S. R. 2.1.

47 N.C. GEN. ST AT . A NN. § 7A-305(a)(2) (2017).

48 N.C. GEN. ST AT . § 7A-45.4(f) (2017).

49 Sony Ericsson Mobile Commc’ns. USA, Inc. v. Agere Sys., Inc., No. 06 CVS 17673, 2007 WL 2570180, at *15-17 (N.C. Super. Ct. Aug. 27, 2007); see N.C. GEN. ST AT .

A NN. § 7A-45.4(b) (2017).

50 Sony Ericsson Mobile Commc’ns. USA, Inc., 2007 WL 2570180, at *15-17; N.C. GEN. ST AT . A NN. § 7A-45.4(b) (2017); see N.C. GEN. ST AT . A NN. § 7A-45.4(b) (2017); see also N.C. BUS. CT . R. 6.2; Frequently Asked Questions, N.C. BUS. CT . [hereinafter FAQ], http://www.ncbusinesscourt.net/FAQ/business_court_frequently_asked_.htm (last visited March 7, 2017).

51 See FAQ, supra note 50.

52 See N.C. BUS. CT . R. 3.1 (amended January 1, 2017).

53 See N.C. BUS. CT . R. 3.8.

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Clerk of Court in the county of venue maintains the official file for the case, so within five days the parties must also file any material filed electronically with the Business Court with the Clerk of Court in the county of venue. 54 Likewise, the Business Court must file copies of orders, decrees, or judgments with the Clerk of Court of the county of venue. 55 As of December 31, 2016, the North Carolina Business Court had 204 pending cases in its four locations combined. 56 Of these cases, 194 were designated as mandatory cases under the statute. 57 In 2016, 148 cases from 32 of North Carolina’s 100 counties had at least one case assigned to business court. 58 Four counties contributed ten or more cases and only four other counties contributed more than three cases. 59 The average age of active cases as of December 31, 2016, was 503 days. 60 B. West Virginia Business Court West Virginia Code § 51-2-15(b), passed in 2010, recognizes the need for “a separate and specialized court docket to be maintained in West Virginia’s most populated circuit court districts with specific jurisdiction” over litigation involving highly technical commercial issues and disputes between businesses. 61 This statute authorized the West Virginia Supreme Court of Appeals to designate a Business Court Division “within the circuit court of any judicial district with a population in excess of sixty thousand according to the 2000 Federal Decennial Census.”62 The Business Division is managed under the processes set out in West Virginia Trial Court Rule 29, adopted and effective October 10, 2012 and amended June 13, 2014. 63 The Business Court is a division of West Virginia’s Circuit Courts. A central office at the Berkeley County Judicial Center handles the 54

See N.C. BUS. CT . R. 3.11.

See N.C. BUS. CT . R. 3.8; see also FAQ, supra note 50.

56 N.C. A DMIN. OFFICE OF T HE COURT S, 2017 REPORT ON T HE NORT H CAROLINA BUSINESS COURT 2 (2017), [hereinafter N.C. 2017 REPORT ), http://www.ncbusinesscourt.net/ref/2017%20Report%20on%20the%20NC%20Business%2 0Court%20(3-1-2017).pdf. Mecklenburg, Wake, Guilford, and Forsyth Counties were venue to the most business court designated cases (48, 36, 23, and 15 cases, respectively).

See id. at App. B. Not surprisingly, the four locations for North Carolina Business Courts are Charlotte in Mecklenburg County, Raleigh in Wake County, Greensboro in Guilford County, and Winston Salem in Forsyth County.

57 N.C. 2017 REPORT , supra note 56, at 3.

58 Id. at App. B. 59 Id. 60 Id. at 2.

61 W.VA. CODE § 51-2-15(a) (West, Westlaw through 2017 Regular Sess.).

62 W.VA. CODE § 51-2-15(b) (West, Westlaw through 2017 Regular Sess.).

63 W.VA. TRIAL CT . R. 29.01.

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administration of all business court cases. However, cases are heard throughout the state. 64 The state is divided into seven Business Litigation Assignment Regions. 65 There are currently seven active judges appointed as Business Division judges and each maintain their own general dockets. 66 Each judge serves the Business Litigation Assignment Region in which their circuit court sits. 67 The administration of the Business Court Division is conducted by an Executive Director, an assistant to the Executive Director, and a law clerk. 68 There are no mandatory business litigation cases and there is no amount in controversy requirement. 69 Cases where, “the principle claim or claims involve matters of significance to the transaction, operations, or governance between business entities; and the dispute presents commercial and/or technology issues in which specialized treatment is likely to improve the expectation of a fair and reasonable resolution of the controversy because of the need for specialized knowledge or expertise in the subject matter or familiarity with specific law or legal principles may be applicable…” are considered business litigation and are eligible for referral to the Business Court. 70 To have a case sent to the Business Court, the judge presiding over the case or any party files a motion to refer the case with the Chief Justice of the Supreme Court of Appeals. 71 The Chief Justice decides on the motion or directs the Business Court to have a hearing and make a recommendation before deciding on the motion. 72 The case is referred by the Chief Justice to the Business Court Division and the Division Chair assigns a presiding judge and a resolution judge. 73 The Division Chair considers “the locality, number of assignments, and expertise of the judges when receiving a new

64

Judge Christopher C. Wilkes, West Virginia’s New Business Court Division: An Overview of the Development and Operation of Trial Court Rule 29, 2013 W. VA. LAW ., 40, 41-43.

65 W.VA. TRIAL CT . R. 29.04(b).

66 See id.; see also W EST VIRGINIA BUSINESS COURT DIVISION, 2016 A NNUAL REPORT 7 (2016) [hereinafter WVBC 2016], http://courtswv.gov/lower-courts/business-courtdivision/pdf/2016AnnualReport.pdf.

67 WVBC 2016, supra note 66, at 2.

68 Id. 69 See W.VA. TRIAL CT . R. 29.

70 See W.VA. TRIAL CT . R. 29.04(a).

71 W.VA. TRIAL CT . R. 29.06.

72 Id. 73 Id.; see W.VA. TRIAL CT . R. 29.07; see also W.VA. TRIAL CT . R. 29.04(e) (“[The Resolution Judge is a] member of the Division assigned by order of the Division Chair…to mediate, arbitrate, or provide any other form of dispute resolution agreed to by the parties.”)

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referral.”74 The jurisdiction of the circuit courts is not affected by the creation of the Business Court and the Business Court has no original jurisdiction. 75 Instead, cases in the circuit court can be referred to the Business Court if they meet the requirements of Trial Court Rule 29. 76 Generally, the Business Court rules contemplate that the assigned Business Court judge will hear the case in the county where the case was filed. However, if the Business Court judge does not sit in the county where the case was filed, the Business Court Division Chair can seek permission from the Chief Justice to allow the Business Court judge to preside over the case in any county within the Business Litigation Assignment Region. 77 In 2016, twenty-seven motions to refer were filed while only seven of these motions were granted. 78 Since the program’s inception, a majority of the motions to refer originated in two counties—twenty-nine from Kanawha County and twelve from Harrison County—while only six other counties had more than three Motions to Refer. 79 The West Virginia Business Court Division operates as a “rocket docket” and aims to complete all business litigation within ten months of issuing a case management order. 80 There were seventeen total pending cases in the West Virginia Business Court Division as of December 31, 2016. 81 Of the forty-four cases resolved in the Division, over fifty percent were settled either before or after alternative dispute resolution (nine and eighteen cases, respectively). 82 Seven were dismissed on summary judgment. The average business court case age of the forty-four disposed cases was 392 days. 83

III. A PATH FORWARD: A PROPOSAL FOR A STATEWIDE REGIONAL APPROACH IN GEORGIA The regional business court models adopted by both North Carolina and West Virginia should serve as a roadmap for establishing statewide regional business courts in Georgia. The shared components of such a regional 74

WVBC 2016, supra note 66, at 7.

W.VA. TRIAL CT . R. 29.03; see Wilkes, supra note 64, at 43.

76 Wilkes, supra note 64, at 42.

77 Id. at 43.

78 WVBC 2016, supra note 66, at 6-7.

79 Id. at 8. West Virginia’s capital of Charleston is located in Kanawha County.

80 See W.VA. TRIAL CT . R. 29.08(g).

81 WVBC 2016, supra note 66, at 10.

82 Id. at 12.

83 Id. at 15.

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program include: (1) regional business courts in more populous counties with participation of neighboring counties; (2) a decision-making authority to oversee the program and guide its operations; (3) designated business court judges selected based on merit and interest from the active and/or senior judges from the participating counties within each region, and (4) centralized administrative and legal support staff.

Expanding (quite literally) on the efforts of Fulton and Gwinnett Counties, a statewide regional business court model in Georgia is well within reach. Considering the advantages and pulling from the experiences from within the state and beyond our borders, implementing these four components in Georgia would expand business court services to a majority of Georgia’s counties.

A. Establish Business Court Regions Seven regional business courts in Georgia’s most populous cities— Atlanta, Augusta, Columbus, Macon, Rome, Savannah, and Valdosta 84 — would be capable of providing business court services to a large number of Georgia counties. As borne out by the number of West Virginia and North Carolina counties with cases qualified for their business court programs, it is likely that only a handful of Georgia counties outside the counties housing the seven regional business courts will regularly have cases that qualify for transfer to the business court program. These regional business courts can be established by the superior court in each county where a business court will be located through pilot programs approved by the Supreme Court of Georgia pursuant to Uniform Superior Court Rule 1.2. 85 For the sake of uniformity, the proposed pilot program in each new region should be modeled off the existing Rule 1004 authorizing the Metro Atlanta Business court.

As in North Carolina and in West Virginia, the Metro Atlanta Business Case Division is a specialized division within the established court system. 86 Establishing one centralized and separate business court with general jurisdiction over all business court matters could conflict with

84

These cities are for the most part centered in Fulton, Richmond, Muscogee, Bibb, Floyd, Chatham, and Lowndes Counties, respectively.

85 See UNIF. SUP . CT . R. 1.2(B) (2009) (allowing courts to maintain practices and standing orders to regulate internal processes such as case management, court administration, case assignment, and specialty courts).

86 See GA. CONST . art. VI, § 1, para. I (amended 1990) (“The judicial power of the state shall be vested exclusively in the following classes of courts: magistrate courts, probate courts, juvenile courts, state courts, superior courts, Court of Appeals, and Supreme Court.”).

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Georgia law regarding jurisdiction and venue. 87 Alternatively, locating business courts in Georgia’s more populated counties allows for venue to remain in the county from which the case originated and eliminates the need for legislation or consent of all parties. The designated business court judge or judges for a region can be assigned a case from any county participating in that region’s business court program. 88 All pre-trial matters would be conducted through the regional business court and, once trial ready, the case would be tried by a jury in its county of venue.

In addition to these legal and practical advantages, a regional business court program has optical advantages. Regional business courts alleviate concerns with perceived regional bias. By using judges from the region, attorneys in that region may have familiarity and thus a level of comfort with local area judges.

Any burden to the parties arising from a regional approach would be minimal. Most pre-trial matters do not require the parties or their attorneys to travel to court. 89 As noted above, the Fulton County Business Court issued 268 orders in 2016 but only held twenty-four in person hearings and had no trials. Thus, there would not be burdensome travel requirements for judges, court staff, and the parties. Should the parties need to appear for a hearing, a regional approach limits travel to a neighboring county. The benefits enjoyed by the parties (i.e., specially set conferences, fast 87 Venue requirements are found in Article VI, Section II of the 1983 Georgia Constitution and determine the place of trial. The Georgia Constitution vests the power to change venue in the superior courts “to be exercised in such manner as has been, or shall be, provided by law.” GA. CONST . art. VI, § II, para. VIII. But see Duncan v. Medlin, 172 S.E.2d 572 (Ga. 1970) (regarding limitations to legislative venue enactments). The General Assembly has passed venue statutes, but none of the existing statutes would provide a basis for transfer of venue to the business case division. See, e.g., GA. CODE A NN. §§ 9-10-50 (allowing venue change to find impartial jury), 9-10-31.1 (2016) (allowing venue change for forum non conveniens). Or, venue is waivable, so in the instance where both parties consent to venue in the county of the business court, venue would be proper. GA. CODE A NN. § 9-11-12(h)(1) (2016).

88 A superior court judge’s jurisdiction is coextensive with the limits of the State. See Pendergrass v. Duke, 88 S.E. 198, 199 (Ga. 1916). A superior court judge can sit in a county outside his or her own county only when authorized to do so by Georgia law and with the permission of his or her own court and of the case’s originating court. GA. CONST . art. VI, § I, para. III. The Georgia Code allows superior court judges to be assigned to cases outside their home counties. GA. CODE A NN. § 15-1-9.1(b)(1)(D) (2016). Georgia case law also supports the assignment of a superior court judge to a particular and limited type of case. See Cobb Co. v. Campbell, 350 S.E.2d 466 (Ga. 1986) (uniformity of power of judges within a court not constitutionally required).

89 Rule 1004 specifically encourages telephone or video conferences to resolve discovery disputes; many motions can otherwise be resolved without the need for oral arguments and some discovery issues can be raised to the Court without the need for motion practice. See RULE 1004, supra note 9, ¶ 17-18.

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resolution of motions, judicial expertise, etc.,) far outweigh any travel burdens.

The regional business courts would not require exclusive courtrooms or office space so long as active judges who are designated as business court judges could use their courtrooms and chambers. Even if a regional business court used senior judges, courtroom space could be located on an as-needed basis. Practically speaking, the need for courtroom space is quite limited. Courtrooms are not heavily utilized as discovery and other pre-trial issues are often resolved by teleconference or on the motions and cases generally settle before trial. A regional program would of course require the cooperation of all participating counties to allow the use of their courtroom facilities on an as-needed basis for in-person hearings and trials.

B. Designate Business Court Judges Interested active or senior status judges from a county participating in a regional business court could be designated to serve as a business court judge. 90 A judicial selection procedure would need to be implemented for selecting and replacing the regional business court judges. Selection should be based on a willingness to serve and to participate in ongoing educational opportunities related to corporate law. To prevent judge shopping, at least two business court judges should serve in each regional business court and cases should be assigned randomly.

By way of example, if a regional business court is located in County A and neighboring Counties B, C, and D participate in that region’s business court, judges designated as business court judges could be active or senior status, and could come from any of the four counties. However, if a case was filed in County B, it would not necessarily be assigned to a designated business court judge from County B. The designated business court judges must be willing to hear cases from all four counties as needed. It may be preferable to designate business court judges from the counties housing the region’s business court. Practically speaking, these counties would have more judges from which to choose and most of the qualifying cases will likely come from those counties.

90

Under GA. CODE A NN. §15-1-9.1(a)(3) (2016), the term “judge” means both active and senior judges. See GA. CONST . art. VI, § I, para. III. Similarly, UNIF. SUP . CT . R. 18.2(C) states that the Chief Judge of any Superior Court of Georgia may request the help of senior judges from outside his or her county when “[a] majority of the judges of the requesting court determines that the business of the court requires the temporary assistance of an additional judge or additional judges.” (citing GA. CODE A NN. § 15-1-9.1(b) (2016)).

See Smith v. Langford, 518 S.E.2d 884 (Ga. 1999) (creation of the position of senior judge does not establish a separate judicial forum that would conflict with GA. CONST . art. VI, § I, vesting judicial power in designated courts).

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C. Establish Statewide Judges’ Committee A Business Court Judges’ Committee consisting of at least one judge from a county participating in a regional business court should be established. The Judges’ Committee, consisting of active judges, would be responsible for determining if a particular case qualified for inclusion in the program. The Committee would also be responsible for selecting judges to serve as business court judges. The Committee would implement and adjust policies and procedures, amend the business court case qualification criteria as necessary, and respond to concerns and needs within the various regions as they arise. They should also be responsible for tracking the efficiency and responsiveness of the regional business courts and tracking caseloads by region. The Judges’ Committee would work closely with central administration and would ensure that feedback was relayed from the regional business courts. The makeup and qualification for the committee and the number of judges to serve on the committee would likely need to be revisited as the program expanded to make sure that the Committee was adequately representative but not so large that it became ineffective.

D. Establish Centralized Administrative Office A centralized, statewide administrative office of the business court should be established to provide administrative services and serve as a legal resource to the seven regional business courts. The administrative office would track caseloads and expediency of motion resolution, provide reporting to the Judges’ Committee to ensure that goals are being met, maintain a database of business court opinions, publicize the business court program within the legal and business communities, and offer legal support to regional business court judges and their existing staff as a floating law clerk.

Centralized administration and legal support enables smaller counties to participate without incurring significant administrative expenses. A centralized administration can ensure that procedural rules stay consistent across the state to avoid a patchwork of contrary rules that may be confusing to litigants. The administrative office can also assist in making sure the criteria for accepting cases are consistent throughout the state.

Most, importantly, centralized administration is conducive to the development of a consistent body of substantive corporate law throughout the state for practitioners and the business community. A predictable business court program provides certainty (both procedurally and substantively) to businesses and corporate lawyers alike.

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The administrative office can be leanly staffed. In the Metro Atlanta Business Case Division, the Program Director additionally serves as law clerk to the four judges designated as business court judges in Fulton County. Gwinnett judges designated as business court judges have relied on their own staff to assist in business court cases. Under this proposed regional approach, active judges who serve as business court judges may prefer to use their current law clerks for support with limited assistance from a statewide law clerk. Senior judges generally do not maintain a law clerk upon taking senior status, and therefore senior judges designated as business court judges would necessarily rely on a law clerk serving the business court program from the administrative office. Therefore, the administrative office could initially operate with a Program Director, an administrative assistant, and an additional law clerk based on the level of participation and caseloads in the various regions.

One particular challenge under a regional business court model is the maintenance of documents and evidence. As discussed above, the cases would remain pending in their counties of origin. Thus, the Clerk of Court for the originating county would be responsible for maintaining the official docket. Under a regional approach enveloping separate counties, ensuring the regional business courts and the administrative office have access to all pleadings and evidence could pose a challenge.

One possible alternative is that the parties could file all documents of record with the clerk of the originating county, but additionally file in a separate business court online docket system. This would ensure that the Regional Business Case Division would promptly receive notice of any filings, and would have quick access to the files in the case of an emergency hearing. However, two filing systems could create uncertainty about the proper file date. A second alternative is to give access to the business court online docket system to each Clerk of Court and require them to upload any business case filings from their counties. The Clerks of Court must be willing to take on this effort. A third alternative would be for the business court online docket system to serve as the official record once the case is transferred until resolution of the case or trial, and then the entire record could be electronically transmitted back to its home court and the clerk of that county’s superior court. This method would be akin to sending a record on appeal to the Georgia Court of Appeals or sending a record between state and federal court upon removal or remand. Under any method, cooperation of the clerks of court is an absolute requirement, and an electronic filing and record system would be ideal.

Creation of a statewide administrative office for the business court program would be the biggest change from the existing Metro Atlanta Business Court program and would likely be the biggest expense. Expenses

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would include adequate office space, payroll expenses for the administrative staff, and maintenance of an online filing or docketing service. The transfer fees collected for business court cases are one obvious source of funding, but would not adequately cover all anticipated expenses. Each participating county would likely need to make a financial commitment to the program which could be adjusted based on participation levels from that county.

Ultimately, a steady funding source from the state would be ideal.

CONCLUSION Nearly every state in the country has recognized the benefits of a robust business court program. The Metro Atlanta Business Case Division established over ten years ago has enjoyed great success. Both the legal community and the business community have embraced the program.

Georgia can expand on its reputation as a successful place to do business by extending the business court program statewide. The regional approach employed by other states such as West Virginia and North Carolina provide a functional model for expansion of business court services throughout Georgia.

MODERN PROTECTION OF BUSINESS INTERESTS THROUGH TRADE SECRET ENFORCEMENT Audra A. Dial *

INT RODUCTION.....................................................................................................................................20 I.

TRADE SECRET DEFINED............................................................................................................. 21 A. Uniform Trade Secrets Act............................................................................................ 21 B. Georgia Trade Secrets Act ............................................................................................ 21 C. Defend Trade Secrets Act .............................................................................................. 22

II.

M ISAPPROPRIATION OF TRADE SECRET S................................................................................. 23 A. B. C. D.

Uniform Trade Secrets Act............................................................................................ 23 Defend Trade Secrets Act .............................................................................................. 24 Georgia Trade Secrets Act ............................................................................................ 26 Key Takeaways on Trade Secret Elements ................................................................. 27

III. JUDICIAL INTERPRETATION AND ENFORCEMENT OF TRADE SECRET S................................ 27 A. Interpretation of Trade Secrets .................................................................................... 27 B. Interpretation of “Reasonable Efforts” to Maintain Secrecy.................................. 28 C. Enforcing Trade Secret Rights in Court...................................................................... 29 i. Ex Parte Seizure ................................................................................ 30 ii. Identification of Trade Secrets ........................................................ 31 I V. PRACT ICAL ST RATEGIES FOR IDENT IFYING AND PROT ECTING TRADE SECRET S........................................................................................................................................33 A. B. C. D.

Trade Secret Identification through Audits................................................................ 33 Targeted Protection Strategies ..................................................................................... 34 Routinely Monitor Protection Strategies..................................................................... 35 Create Protocols for Employee Education ................................................................. 35

V . A DDITIONAL A VENUES OF PROTECTION FOR BUSINESS A SSET S......................................... 36

*

Audra Dial is the Managing Partner for Kilpatrick Townsend’s Atlanta office. Ms. Dial is an experienced litigator specializing in patent, trade secret and complex commercial litigation involving technology. She focuses her practice on complex federal court litigation involving trade secrets, patent disputes, restrictive employment covenants, and complex business disputes involving intellectual property. Ms. Dial has obtained favorable verdicts in many high-profile intellectual property disputes, including on behalf of several Fortune 500 companies. She has represented companies whose intellectual property was misused both domestically and abroad.

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A. Contractual Non-Disclosure Agreements .................................................................. 37 B. Computer Fraud and Abuse Act................................................................................... 39 i. Narrow View—Fourth and Fifth Circuits ..................................... 40 ii. Broad View—First, Fifth, Seventh, and Eleventh Circuits........ 43 CONCLUSION........................................................................................................................................46

INTRODUCTION Today’s businesses are fueled by more than just physical capital.

Increasingly, modern businesses rely on ideas—business plans, marketing strategies, new product ideas, processes, procedures, analytics, and customer data. These forms of intellectual capital provide economic value to companies and should be protected from use by others.

Increasingly, these assets are maintained in electronic form, making them vulnerable from attack. Whether the threat comes from a nefarious hacker, devious competitor, or careless employee, the most important business assets can be vulnerable, particularly when they are maintained electronically and when the measures to protect these assets are not carefully planned. With companies’ most important assets on electronic media, they must be vigilant and thoughtful in developing strategies to protect their critical business interests.

One of the most effective forms of protection for these intangible assets is the use of trade secret protection. This is true because trade secrets can be protected indefinitely, as opposed to patents which have a limited duration of protection, and because trade secrets can comprise a larger swath of important corporate information than can be protected through patent laws. Moreover, if this information is maintained in electronic form, the Computer Fraud and Abuse Act can be used in conjunction with trade secrets laws to further safeguard this information. Regardless of form, contractual restrictions on the use of confidential and proprietary information, even if they do not meet the statutory definition of a trade secret, are yet another important source of protection for modern business interests through non-disclosure agreements.

Part I will explain the definition and key elements of a trade secret under state and federal law. Part II will summarize how misappropriation is found under state and federal law. Part III will discuss how Georgia courts interpret what constitutes a trade secret and explain how to enforce these trade secrets in court. Part IV will give practical strategies on how to identify and protect trade secrets. Finally, Part V will discuss other contractual and statutory means to protect business assets that may be used in tandem with trade secret laws.

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I. TRADE SECRET DEFINED A. Uniform Trade Secrets Act Historically, trade secrets were creatures of state law modeled primarily after the Uniform Trade Secrets Act (the “UTSA”), 1 such as the Georgia Trade Secrets Act (the “GTSA”). 2 Courts interpreting the GTSA relied on the UTSA and the Restatement (Third) of Unfair Competition when interpreting what constitute “trade secrets” and what activities are considered misappropriation. 3 The UTSA defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process” that: (i) “derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”4 At its core, the UTSA definition of trade secrets encompasses a wide scope of information—from technical formulas (like the Coca-Cola formula) to manufacturing processes and business methods.

B. Georgia Trade Secrets Act Similar to the UTSA, the GTSA, adopted in 1990, defines a trade secret as: [I]nformation, 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 1

UNIF. TRADE SECRET S A CT (NAT ’L CONF. OF COMM’RS ON UNIF. ST AT E LAWS 1985) [hereinafter UTSA].

2 GA CODE A NN. §§ 10-1-761 to -767 (2017).

3 Essex Grp., Inc. v. Southwire Co., 501 S.E.2d 501, 503-04 (Ga. 1998).

4 UTSA, supra note 1, § 1(4).

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the public and which information: (a) [d]erives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can 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. 5 Interestingly, the GTSA is even more specific in its definition of a trade secret, encompassing the full scope of the UTSA while adding specific business assets such as “financial data, financial plans, product plans, or a list of actual or potential customers or suppliers….”6 These additions are further examples of general business assets that can qualify for trade secrets protection, but the statute is clearly not limited to only those specific examples, as the scope of the GTSA is equally as broad as the UTSA. C. Defend Trade Secrets Act On May 11, 2016, trade secrets law expanded with the enactment of the Defend Trade Secrets Act of 2016 (the “DTSA”). 7 The DTSA, modeled after the UTSA, allows for a federal cause of action for trade secret misuse while not preempting local state law, 8 thus serving as yet another tool a business can use to protect its trade secrets.

A trade secret, as defined by the DTSA, is: [A]ll forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if— 5

GA CODE A NN. § 10-1-761(d) (2017).

Compare UTSA, supra note 1, § 1(4) (defining trade secrets), with GA. CODE A NN. § 10-1-761(4) (2017) (adding “financial data, financial plans, product plans or a list of actual or potential customers or suppliers” to the definition of trade secrets).

7 18 U.S.C. § 1836 (2016).

8 Id. § 1836(b)(1).

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(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information. 9 Thus, under the DTSA, a trade secret has three elements: 1) it is a type of information; 2) it is secret; and 3) it has economic value as a result of its secrecy. As is evident from the DTSA definition, the litany of examples of information classified as a trade secret is nearly identical to the examples enumerated in the UTSA. This is not surprising as the DTSA was based on the UTSA language. However, as is evident from the GTSA, state trade secrets laws may contain more specific examples of the information that in fact qualifies as a trade secret in that particular state.

II. MISAPPROPRIATION OF TRADE SECRETS A. Uniform Trade Secrets Act Under the UTSA, misappropriation of a trade secret can occur by the “acquisition of a trade secrets of another by a person who knows or has reason to know that the trade secret was acquired by improper means….”10 The UTSA defines “improper means” to “include[] theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means….”11 Misappropriation may also occur through: (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was 9

Id. § 1839(3).

UTSA, supra note 1, § 1(2).

11 Id. § 1(1).

10

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(I) derived from or through a person who had utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his [or her] position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. 12 At its core, misappropriation can be either misuse of a trade secret (using that information for a purpose other than the purpose for which the recipient received the information) or actual theft of the information.

Although trade secret misappropriation can involve third party hacking and active theft, trade secret misuse most often occurs as a result of a careless or disgruntled insider who negligently or purposefully takes confidential corporate information and decides to use it for a personal purpose that is adverse to the interest of the trade secret holder.

B. Defend Trade Secrets Act Just as with defining trade secrets, the DTSA definition of misappropriation mirrors that under the UTSA and the GTSA. Under the DTSA, misappropriation means: (A) acquisition of a trade secret by another person who knows or has reason to know that the trade secret was acquired by improper means; or (B) disclosure or use of a trade secret of another without express or implied consent by a person who— (i) used improper means to acquire knowledge of the trade secret; 12

Id. § 2(2)(ii).

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(ii) at the time of the disclosure or use, knew or had reason to know that the knowledge of the trade secret was— (I) derived from or through a person who had used improper means to acquire the trade secret; (II) acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit use of the trade secret; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or (iii) before a material change of the position of the person, knew or had reason to know that--(I) the trade secret was a trade secret; and (II) knowledge of the trade secret had been acquired by accident or mistake. . . 13 An important aspect of misappropriation is the acquisition or use of the trade secret by improper means. Under the DTSA, “‘improper means’ [] includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means; and does not include reverse engineering, independent derivation, or any other lawful means of acquisition….”14 Thus, an employee under a duty to maintain certain information as confidential pursuant to a non-disclosure agreement or general corporate confidentiality restrictions undertakes improper means when that employee uses such protected information in a manner beyond the confidentiality restrictions in place. This can be through active misuse to assist a competitive venture or through passive misuse by keeping confidential information after an employment relationship with the owner of the confidential information ends.

13 14

18 U.S.C. § 1839(5) (2016).

Id. § 1839(6).

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C. Georgia Trade Secrets Act Similarly, under Georgia law, misappropriation may occur by the “[a]cquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means….”15 Georgia’s statute defines “improper means” as “theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means.”16 Misappropriation may also occur through: (B) Disclosure or use of a trade secret of another without express or implied consent by a person who: (i) Used improper means to acquire knowledge of a trade secret; (ii) At the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was: (I) Derived from or through a person who had utilized improper means to acquire it; (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (iii) Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. 17 Just as with the DTSA and the UTSA, trade secret misappropriation in Georgia can occur from a careless employee who breaches a nondisclosure agreement or from a devious competitor who actively obtains the confidential information of its arch rival. In either circumstance, the GTSA 15

GA. CODE A NN. § 10-1-761(2)(A) (2017).

Id. § 10-1-761(1).

17 Id. § 10-1-761(2)(B).

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provides a trade secret holder with a remedy that can include injunctive relief and damages. 18

D. Key Takeaways on Trade Secret Elements As is clear from the DTSA, GTSA, and UTSA, a trade secret may forever maintain its protected status unless it becomes generally known to the public, is reverse engineered, or otherwise loses its secrecy. Because these assets are not time limited and because they can be much more esoteric than patent protected intellectual property, using trade secret protection to safeguard important business assets is critical. As a result, a trade secret is an important piece of intellectual property in one’s arsenal of protected assets.

All three elements of the trade secrets definition as well as the concepts of misappropriation and improper means have been the subject of much debate and analysis over the years as the courts wrestle with the contours of protectable trade secrets. It is therefore important to understand the case law that has interpreted these concepts to better understand what constitutes a trade secret and how to best protect it.

III. JUDICIAL INTERPRETATION AND ENFORCEMENT OF TRADE SECRETS A. Interpretation of Trade Secrets Consistent with the DTSA and the UTSA, the GTSA “defines trade secrets broadly to include non-technical and financial data that derives economic value from not being generally known and is the subject of reasonable efforts to maintain its secrecy.”19 Examples of protectable trade secrets under the GTSA include combinations of components, computer software, tangible customer lists, financial and business information and scientific data. 20 18

Id. §§ 10-1-762, 10-1-763.

Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1410 (11th Cir. 1998).

20 See, e.g., Camp Creek, 139 F.3d at 1410 (“information concerning the Inn’s occupancy levels, average daily rates, discounting policies, rate levels, long term contracts, marketing plans, and operating expenses” were eligible for protection under the GTSA); Union Carbide Corp. v. Tarancon Corp., 742 F. Supp. 1565, 1579-80 (N.D. Ga. 1990) (multiple dwell fluorination method, a method for treating plastic containers, was a trade secret until it was disclosed publicly in a patent application); Essex Grp., Inc. v. Southwire Co., 501 S.E.2d 501, 502 (Ga. 1998) (logistics system); Elec. Data Sys. Corp. v.

Heinemann, 493 S.E.2d 132, 134 (Ga. 1997) (software for a “capital asset tracking system” 19

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However, not all business assets rise to the level of trade secrets.

Examples of information that have been found to be ineligible are intangible customer lists, general customer information, generic sales methods, and general employee knowledge. 21 The key differentiator between a trade secret and confidential business information that does not meet the threshold for a trade secret is whether the information is capable of being clearly identified with specificity and is not capable of being obtained by a general review of publicly available information.

B. Interpretation of “Reasonable Efforts” to Maintain Secrecy Once a piece of intellectual property is determined to meet the initial standard to potentially qualify as a trade secret, the trade secret owner must determine if that asset has been the subject of “reasonable efforts” to maintain its secrecy to ensure that it would be afforded trade secrets protection. 22 The standard of “reasonable under the circumstances…does not require perfection.”23 The party protecting a trade secret need not erect an “impenetrable fortress,” but rather must take reasonable precautions to protect the information in light of existing conditions. 24 “[A]n owner of a trade secret will not lose the secret by disclosure if he creates a duty in some manner and places that duty upon another not to disclose or use the secret.”25 Examples of reasonable efforts include the following: •

Restricting access to documents and instructing employees not to bring documents outside of the employer’s facility; 26

and “a companion program for tax depreciation and tax asset value”); Hilb, Rogal & Hamilton Co. of Atlanta, Inc. v. Holley, 644 S.E.2d 862, 867 (Ga. Ct. App. 2007) (tangible customer lists).

21 See, e.g., Capital Asset Research Corp. v. Finnegan, 160 F.3d 683, 687 (11th Cir. 1998) (the process for developing a bid that consisted of using publicly available information “was the same basic method by which any informed buyer would prepare to submit an intelligent bid at any auction” and did not constitute a trade secret); Becham v.

Synthes (U.S.A.), No. 5:11-CV-73, 2011 WL 4102816, at *9 (M.D. Ga. Sept. 14, 2011) (“only tangible customer lists are protected,” not general customer information); Kitfield v.

Henderson, Black & Greene, 498 S.E.2d 537, 542 (Ga. Ct. App. 1998) (citations omitted) (“[A]ny personal or subjective knowledge or other skills gained by Hendricks while working for Kitfield do not come under the Trade Secrets Act. . . .”).

22 Finnegan, 160 F.3d at 686.

23 Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 725 (7th Cir. 2003) (citation omitted).

24 E.I. du Pont de Nemours & Co. v. Christopher, 431 F.2d 1012, 1017 (5th Cir. 1970).

25 Phillips v. Frey, 20 F.3d 623, 630 (5th Cir. 1994) (citing Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 474 (1974)).

26 See Stone v. Williams Gen. Corp., 597 S.E.2d 456, 459 (Ga. Ct. App. 2004).

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Using confidentiality agreements and security measures within the company’s office; 27 and Distributing information on a need-to-know basis to employees who had already signed confidentiality agreements. 28

However, courts have found the following steps to be insufficient to constitute reasonable efforts: • • • •

Using only a blanket confidentiality provision in an employee handbook; 29 Selling the product to the public without any confidentiality restrictions; 30 Maintaining the alleged trade secret on non-password protected computers that third-parties and employees could easily access; 31 and Allowing the information to be the subject of “wide distribution” to employees and customers. 32

The case law is clear that reasonable measures of security require something more than a generic confidentiality statement, but do not require that the potential trade secret be kept under lock and key to achieve protected status. To be sure that a company’s safeguards meet the reasonableness standard, it is important to ensure that the trade secrets are protected in a variety of ways, rather than relying on only one protection mechanism. A contract protecting the information should also be utilized; the more specific the contract is regarding the information it protects, then the more likely that use of that contract will meet the threshold for reasonableness.

C. Enforcing Trade Secret Rights in Court Once a trade secret holder believes that its trade secrets have been compromised, it should immediately seek relief in court. Doing so will 27

See Elec. Data Sys. Corp. v. Heinemann, 493 S.E.2d 132, 136 (Ga. 1997).

See Avnet, Inc. v. Wyle Labs., Inc., 437 S.E.2d 302, 304 (Ga. 1993).

29 See B & F Sys., Inc. v. LeBlanc, No. 7:07-CV-192, 2011 WL 4103576, at *25 (M.D. Ga. Sept. 14, 2011).

30 See Diamond Power Int’l, Inc. v. Clyde Bergemann, Inc., 370 F. Supp. 2d 1339, 1347-48 (N.D. Ga. 2005).

31 See Bacon v. Volvo Serv. Ctr. Inc., 597 S.E.2d 440, 443-44 (Ga. Ct. App. 2004).

32 See Servicetrends, Inc. v. Siemens Med. Sys., Inc., 870 F. Supp. 1042, 1047 (N.D. Ga. 1994).

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allow the trade secret holder to obtain immediate relief through the DTSA, if such extraordinary relief is needed, and the commencement of litigation will require the defendant to protect and preserve the information it is allegedly misusing or risk spoliation charges from the court. However, commencing litigation is not without risk, particularly if the trade secret holder does not have a clear understanding of the assets it is seeking to protect through the litigation. i. Ex Parte Seizure At the outset of the case, the DTSA provides trade secret owners with a powerful weapon to protect their misappropriated assets--an ex parte seizure order. 33 To obtain such an order, the trade secret holder must establish the general requirements for preliminary injunctive relief and show that: (I) an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate to achieve the purpose of this paragraph because the party to which the order would be issued would evade, avoid, or otherwise not comply with such an order; (II) an immediate and irreparable injury will occur if such seizure is not ordered; (III) the harm to the applicant of denying the application outweighs the harm to the legitimate interests of the person against whom seizure would be ordered of granting the application and substantially outweighs the harm to any third parties who may be harmed by such seizure; (IV) the applicant is likely to succeed in showing that— (aa) the information is a trade secret; and (bb) the person against whom seizure would be ordered— (AA) misappropriated the trade secret of the applicant by improper means; or 33

18 U.S.C. § 1836(b)(2)(A)(i) (2016).

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31 to

(V) the person against whom seizure would be ordered has actual possession of— (aa) the trade secret; and (bb) any property to be seized; (VI) the application describes with reasonable particularity the matter to be seized and, to the extent reasonable under the circumstances, identifies the location where the matter is to be seized; (VII) the person against whom seizure would be ordered, or persons acting in concert with such person, would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person; and (VIII) the applicant has not publicized seizure.�34

the requested

Using this remedy can afford the trade secret holder with a strong advantage going into litigation and will ensure that its trade secrets are protected during the pendency of the case. However, because this remedy requires that a trade secret holder have solid evidence of misuse and that the information it seeks to protect satisfies the trade secret elements, it may be difficult to use for trade secret holders who do not have that level of specificity about the information that was subject to attack. ii. Identification of Trade Secrets To effectively use the courts to enforce trade secret rights, a trade secret holder must know, with specificity, precisely what trade secrets were misused. A trade secret plaintiff can no longer rely on a general description of its trade secrets throughout the litigation. Courts are increasingly pressuring trade secret plaintiffs to have precision around their trade secrets 34

Id. § 1836(b)(2)(A)(ii)(I)-(VIII) (2016).

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early in a case in order for that litigation to proceed. Although this specific requirement is not included in the text of the DTSA, courts hearing trade secrets cases before the enactment of the DTSA enforced such a requirement on many trade secret plaintiffs, and it seems unlikely that the courts would back away from such a requirement in the future. Moreover, at least one jurisdiction has codified this requirement.

In the California Code of Civil Procedure, “before commencing discovery relating to the trade secret,” a trade secret plaintiff is required to “identify the trade secret with reasonable particularity….”35 This hurdle can be high, particularly for a trade secret owner who only generically described its trade secrets at the outset of a case. A trade secret holder in California should be wary to describe its trade secret with sufficient precision so as to meet this procedural threshold. However, the description should not be so specific that, upon further discovery, it becomes clear that the defendant did not misuse what was described, but rather misused other information of the plaintiff.

Trade secret owners are now required to explain early in litigation which documents identify the specific trade secrets and what specific information contained in those documents rises to the level of a trade secret.

Without this specificity, trade secret plaintiffs can face sanctions, including dismissal of their claims. 36 Other jurisdictions have imposed similar requirements on trade secret plaintiffs, even in the absence of a specific procedural rule similar to the California Code of Civil Procedure. 37 In SitUp Ltd. v. IAC/InterActiveCorp., the Court explained the reasoning behind this specificity requirement: If a particular piece of information, or a formula, is not entitled to trade secret protection because it is ‘so vague and 35

CAL. CODE CIV. PROC. § 2019.210 (2005).

See, e.g., N. Am. Lubricants Co. v. Terry, No. CIV S-11-1284 KJM GGH, 2011 WL 5828232, at *6 (E.D. Cal. Nov. 18, 2011) ("boilerplate list" of alleged trade secrets, including customer database, business model, and marketing materials was insufficient; to be sufficiently specific, trade secrets had to be "described with particularity (e.g. by author(s), date of creation, subject matter, basis for trade secret claim, etc.) or be removed from the response to [the] interrogatory"); DeRubeis v. Witten Techs., Inc., 244 F.R.D. 676, 681 (N.D. Ga. 2007) (ordering trade secret plaintiff to first identify its trade secrets with particularity before requiring defendant to respond to plaintiff's discovery requests).

37 See, e.g., Switch Comm’ns Grp. v. Ballard, No. 2:11-CV-00285-KJD-GWF, 2012 WL 2342929, at *5 (D. Nev. June 19, 2012); Ikon Office Sols. v. Konica Minolta Bus. Sols., No. 3:08-CV-539-RLV-DCK, 2009 WL 4429156, at *4 (W.D.N.C. Nov. 25, 2009); Dura Global Techs., Inc. v. Magna Donnelly, Corp., No. 07-CV-10945, 2007 WL 4303294, at *6 (E.D. Mich. Dec. 6, 2007); Automed Techs., Inc. v. Eller, 160 F. Supp. 2d 915 (N.D. Ill. 2001); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 148 F. Supp. 2d 1326 (S.D. Fla. 2001); Engelhard Corp. v. Savin Corp., 505 A.2d 30 (Del. Ch. 1986).

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indefinite’ at the time it is divulged, then it cannot be granted protection as a trade secret by a court during litigation if it is ‘vague and indefinite.’ Specificity is required at the moment of divulging so that the party to whom the secret is revealed understands the contours of the secret information and does not inadvertently or purposefully transgress its boundaries.

Similarly, specificity is required before the court so that the defendant can avail himself adequately against claims of trade secret misappropriation, and can divine the line between secret and non-secret information, and so that a jury can render a verdict based on a discriminating analysis of the evidence of disclosure and misappropriation. 38 Thus, it is of critical importance that a trade secret holder understands with precision what information it has that rises to the level of trade secrets before it seeks to enforce its rights in court.

IV. PRACTICAL STRATEGIES FOR IDENTIFYING AND PROTECTING TRADE SECRETS In order to prevent the need for litigation, trade secret holders should exercise care to evaluate their most important business assets and proactively develop protection strategies before they fall victim to attack.

Naturally, the first step in this process is determining which of the company’s assets would rise to the level of trade secrets via a trade secrets audit.

A. Trade Secret Identification through Audits Trade secret audits are an essential first line of defense to identify and classify a company’s most important assets and determine which are candidates for trade secrets protection. Because different divisions within a company use and develop information assets differently, it is important to have a cross-functional group involved in this identification. For example, having team members from legal, information technology, new product development, marketing, compliance, human resources, and risk management would enable a company to have a more comprehensive assessment of the most valuable knowledge assets the company has.

Once that cross-functional group has been identified, it is important for those team members to be tasked with considering the company’s most 38

No. 05 CIV.9292 (DLC), 2008 WL 463884, at *11 (S.D.N.Y. Feb. 20, 2008).

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important assets. Asking the right questions will help identify the trade secrets that need to be protected. These questions should include: • • • • •

What is the information that the company does not want in the hands of its competitors?

Who has access to the company’s most important information and how is it currently protected?

Do company employees with access to important information have a convenient way to report suspicious activities involving the use of this information?

Is this information marked and maintained in a restricted manner?

Are company employees aware of their obligations to maintain the secrecy of this information?

B. Targeted Protection Strategies

Once a company’s trade secrets have been identified, it is essential to develop protection strategies that both fit the nature of the trade secrets while still remaining reasonable. Protection strategies cannot follow a onesize-fits-all approach and must be tailored to the type of information being protected. Thus, a company should develop a comprehensive protection strategy for its trade secrets based on their value to the organization. Storing trade secrets in the cloud, for example, is highly risky, particularly because most companies do not thoroughly vet the cloud provider storing their assets. In addition, limiting access to those high value intellectual property assets only to relevant employees is another easy way to protect this information. Equally important is changing an employee’s access rights when his or her job functions change and removing their access to trade secret information when such access is no longer necessary to perform their job duties. Moreover, marking trade secret information with confidentiality designations and using additional layers of security for access to electronic files are other low cost protection strategies to consider. Some other strategies can include: • • •

Drafting confidentiality and non-disclosure agreements for all employees; Reiterating employee’s confidentiality and non-disclosure requirements in an employee handbook and annual training sessions; Using an exit interview checklist to remind departing employees of their confidentiality obligations and inquire whether they have returned all company information in their possession before departure;

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Distributing/allowing access to trade secret information only to those employees that need to know; Using copy protection, embedded codes, and key stroke software to trace copies/access to trade secrets; Marking information as “confidential” and including this notation as a warning before such information is accessed electronically; Assigning employee passwords to electronic information and revoking such access when the employee’s job functions change such that they no longer need access to that information; Keeping files of protected information under lock and key; and Disabling USB drives in computers for those employees with access to trade secrets.

C. Routinely Monitor Protection Strategies

Once a company has developed a plan to protect its trade secrets, the next step is to be constantly vigilant and routinely monitor those protection strategies to ensure that all employees are effectively using them. Requiring clear accountability for compliance is important so that individuals take personal responsibility for ensuring the measures are working. When a company routinely monitors the protection of its knowledge assets, a leaky pipeline (such as a careless or disgruntled employee) can be quickly identified and addressed. Although routine monitoring requires another step in the process of protection, it is an important and relatively low cost measure to implement, and because it is ongoing, it can quickly identify a problem before millions of dollars of knowledge assets walk out the door.

D. Create Protocols for Employee Education Threats to intellectual property from outside hackers have been highly publicized, but careless employees are equally likely to be the culprits when it comes to intellectual property loss. In a 2012 survey conducted by Harris Interactive, respondents overwhelmingly admitted that they believed it was acceptable to take confidential information from their place of employment. 39 Oftentimes, employees believe (wrongly) that information they created while employed is theirs to take with them forever, regardless of where that information ends up or whether their future 39

See Dino Londis, Employees Remove Confidential Data at an Alarming Rate, INFORMAT ION W EEK (Apr. 2, 2012, 1:18 PM), http://www.informationweek.co m/desktop/employees-remove-confidential-data-at-analarming-rate/d/d-id/1103674.

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employer may be a competitor of their current one. Without strong safeguards to protect and monitoring access to a company’s confidential information, trade secrets and other highly confidential information can simply walk out the door with a click of a button. Moreover, careless employees could take corporate information for personal use on a home computer and then forget to delete it once they complete their project. This could result in the employee’s continued possession of confidential corporate material in perpetuity and could jeopardize the protected status of that information and make more likely to be subject to misuse in the future.

During the onboarding process, it is important to remind new employees about their obligations not to bring another company’s confidential information with them and to educate them on the policies for the protection of knowledge assets of their current employer. Afterwards, regular training is also important, as most employees’ memories of their new employee orientation tend to fade over time.

It is important to remind employees about their obligations upon their departure via exit interviews and reminders about their ongoing confidentiality obligations. This can help ensure that departing employees do not inadvertently misuse or disclose confidential information after their departure. Many companies allow the use of personal electronics (mobile phones, laptop computers, etc.) for work purposes, and upon departure companies should ask about the employee’s use of such personal devices and ensure that those devices no longer contain corporate information on them. For certain employees who were directly involved with developing or using trade secrets, it may even be appropriate to use software that can inspect or wipe their mobile device before they leave their employment.

Additionally, requiring all departing employees to sign an affidavit or certification of the return of corporate information before their departure is another way to reinforce the importance of their ongoing confidentiality obligations. Using these protocols during the onboarding and departure processes can help ensure that employees are more aware of the importance of protecting trade secrets and the role that each employee plays in ensuring that key corporate information is protected.

V. ADDITIONAL AVENUES OF PROTECTION FOR BUSINESS ASSETS In addition to using trade secrets protection to safeguard a company’s most valuable assets, contractual requirements such as nondisclosure agreements and statutes protecting the use of electronic information, such as the Computer Fraud and Abuse Act, should also be included in an arsenal of intellectual property protection. In many instances, companies seek to protect critical information that is important to the

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business, but some of that information may not meet the definition of a trade secret. Moreover, even if it does meet the trade secret requirements, if the information is maintained electronically and the misuse occurs through the use of a computer, the Computer Fraud and Abuse Act can serve as a powerful supplement to trade secret misappropriation claims. Legal elements of both avenues of protection will be discussed below.

A. Contractual Non-Disclosure Agreements Most states allow non-disclosure agreements (“NDA”) as a reasonable restriction on a party’s use of sensitive and confidential information, with the exception of California and North Dakota (both of whom have much stricter standards for NDAs). 40 NDAs generally may place restrictions on a receiving party’s use and ability to disclose certain confidential information that meets statutory definitions. Standard terms within an NDA include the following: (a) a definition of the confidential information protected by the NDA (which definition should be narrowly tailored to the nature of the information subject to protection); (b) the obligations of the party receiving the confidential information under the NDA (including the activities that a party cannot undertake with the confidential information in their possession); (c) any exceptions or exclusions relating to confidential information (e.g., information that becomes part of the public domain); and (d) time limitations for the NDA obligations (the time limitations should be tied to the nature of the information being protected and the time limitation for non-trade secret information should not be indefinite).

With regard to these standard provisions, certain trends have arisen as the best practices for NDAs. First, it is important to give proper scope to the definition of confidential information subject to the NDA. Generic, catchall language is disfavored, as the more precise the definition is, the more likely that it will be enforceable should a dispute arise as to a party’s duties under the NDA. Moreover, as a recipient of confidential information under a NDA, a company should resist generic definitions because such 40

CAL. BUS. & PROF. CODE § 16600 (2008); N.D. CENT . CODE § 9-08-06 (2017).

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vague terms make it much harder to understand what information is truly the subject of the agreement.

Second, specificity as to permissible uses of the confidential information is equally important. A blanket restriction on the use of confidential information is unhelpful in guiding the receiving party’s conduct. Instead, provisions with more specificity as to the recipient’s ability to use the information and the circumstances under which the recipient cannot disclose the information are more likely to be enforced.

Finally, the time limitations imposed by the NDA should be consistent with the need for confidentiality inherent in the information subject to protection. For example, confidential business plans that describe forecasts for the next two years should be protected only for the time that the information is going to be in use. Once that two-year period expires, it is difficult to argue that those plans remain confidential. Some trade secret information is of such high secrecy and importance that its confidentiality is indefinite (for example, the Coca-Cola formula), but most general business information is not as timeless and therefore duration limits should be used.

Without them, a court could determine that the agreement is unenforceable because it is overly broad in its restrictions.

In May, 2011, Georgia enacted a comprehensive new law regarding restrictive covenants, which also applies to NDAs executed after May 11, 2011. 41 Importantly for NDAs, this statute has three significant implications relating to the scope of the NDA, the duration of the NDA and the court’s ability to interpret the NDA. Each of these changes will be addressed below.

First, the law allows NDAs to protect some publicly available information as long as the NDA also protects legitimately confidential material. 42 Under prior Georgia law, an NDA would have been invalidated if it were overly broad in scope such that it covered any information that was otherwise publicly available even if it also covered legitimately confidential materials. Now, Georgia law allows NDAs to cover a broader scope of protected material, and the existence of publicly available information within the scope of the NDA will not automatically void it. 43 Second, the law allows NDAs to protect confidential information for a potentially indefinite duration. 44 Under previous Georgia law, restrictions on the disclosure of confidential information had to be limited to a reasonable period of time and therefore could not be unlimited in time.

Now, NDAs have more flexibility in duration, but the length of an NDA 41

GA. CODE A NN. §§ 13-8-50 to -59 (2017).

Id. § 13-8-53(c)(1).

43 See id. § 13-8-53(d).

44 Id. § 13-8-53(e).

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should still track the type of confidential information being protected. The new law also removes any geographic restrictions that were in place in previous Georgia law.

Finally, and perhaps most significantly, courts now can blue pencil agreements. 45 Under previous Georgia law, any flaw in drafting a NDA or other restrictive covenant was fatal to the entire agreement. The new law allows courts to modify provisions within the NDA by either removing the unenforceable provisions or rewriting them to fit within the statute’s guidelines for enforceability. In doing so, Georgia courts must aim to protect a party’s “legitimate business interests.”46 B. Computer Fraud and Abuse Act Congress passed what would become the Computer Fraud and Abuse Act (the “CFAA”) in 1984. 47 The statute was the first piece of federal legislation to address computer crime and originally was intended to be an anti-hacking statute. 48 It changed over time and in 1994 was amended to permit civil actions by persons who suffered “damage or loss by reason of a violation” of the statute. 49 It was amended again in 1996 to protect a broader scope of digital information and to expand the definition of a “protected computer.”50 Today, the CFAA defines protected computer broadly to include any computer “which is used in or affecting interstate or foreign commerce or communication,” which means that any computer connected to the Internet qualifies for protection. 51 Under the CFAA, a person who “intentionally accesses a protected computer without authorization or exceeds authorized access, and thereby obtains . . . information” has committed a violation. 52 The statute provides a civil remedy allowing the victim of a CFAA violation “to obtain compensatory damages and injunctive relief.”53 To obtain relief under the CFAA, a plaintiff must demonstrate that it suffered damage of at least $5,000, a threshold easily met considering that “conducting a damage assessment, and restoring the data, program, system or information to its 45

Id. § 13-8-53(d).

GA CODE A NN. § 13-8-51(9) (2017).

47 Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, H.R.J. Res. 648, 98th Cong. § 2102 (1984).

48 Id. 49 Computer Abuse Amendments Act of 1994, H.R. 3355, 103rd Cong. § 290001 (1994).

50 Economic Espionage Act of 1996, H.R. 3723, 104th Cong. § 201 (1996).

51 18 U.S.C. § 1030(e)(2) (2016).

52 18 U.S.C. § 1030(a)(2)(C) (2016).

53 Id. § 1030(g).

46

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condition prior to the offense” can be included in the calculation. 54 Moreover, a recoverable loss under the CFAA includes “the cost of responding to an offense” and “any revenue lost, cost incurred, or other consequential damages incurred because of an interruption of service.”55 Adding a CFAA claim to a trade secret misappropriation complaint provides the court with federal question jurisdiction (which it would not otherwise have unless the trade secret case were brought under the DTSA) and allows for the protection of important electronic information that may not rise to the level of a trade secret. However, the federal circuit courts of appeal are split on how broadly to interpret the CFAA, which means that the utility of a CFAA claim is highly dependent on the location of the complaint.

Courts across the country have attempted to construe the purpose of the CFAA and the meaning of key elements without consensus. Some courts view the CFAA narrowly, with an opinion that because the statute was initially designed to prevent hacking, it should be limited to conduct that is similar to hacking and not be extended to conduct that is merely the misuse of a company’s computer for immoral purposes (e.g., accessing a company’s electronic information to use it to start a competitive business).

However, other jurisdictions view the statute more broadly and enforce the CFAA against such activity in addition to against hackers. A brief discussion of the circuit split follows. i. Narrow View—Fourth and Ninth Circuits The Fourth and Ninth Federal Circuit Courts of Appeal have taken the view that the CFAA was designed to prevent hacking and should be so limited. In these circuits, the courts have determined that disloyal employees should not be facing penalties under the CFAA, particularly because the CFAA contains both civil and criminal components. For example, in WEC Carolina Energy Solutions, LLC v. Miller, the Fourth Circuit was faced with a common fact pattern—former employees who left their positions to join a competing company. 56 During their employment, they had been provided with access to the company’s computers, which contained “numerous confidential and trade secret documents,” including pricing terms, information on pending projects, and other technical information. 57 The plaintiff had written policies prohibiting the use of company computers for personal business and prohibited downloading 54

Id. Id. 56 687 F.3d 199, 206-07 (4th Cir. 2012).

57 Id. 55

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company information onto personal computers. 58 Importantly, the policies did not forbid these employees from using the electronic information to which they had access. 59 While still employed by the plaintiff, but planning to depart for its competitor, the defendants downloaded confidential information from the company’s servers, sent them by email to personal email addresses, and downloaded confidential information to a personal computer. 60 The defendants then used those materials during their new employment with the plaintiff’s competitor and were subsequently sued by the plaintiff. 61 The district court dismissed the CFAA claims because the plaintiff’s computer policies only limited the “use of information, not access to that information.”62 Because the employees had been allowed to access the electronic information that they downloaded for personal use, the court reasoned that their conduct did not meet the statute’s requirements that the actions have been “without authorization” or have exceeded their “authorized access.”63 On appeal, a unanimous three-judge panel affirmed the dismissal of the CFAA claim. 64 The court concluded that the phrases “without authorization” and “exceeds authorized access” as used in the CFAA meant that an employee cannot either “gain admission to a computer without approval” or gain information that is found “outside the bounds of his approved access.”65 The court declined to extend the CFAA to restrict “the improper use of information validly accessed.”66 Because the defendants were accessing information they had been authorized to obtain, even though they were accessing it for a disloyal purpose, the court reasoned there could be no CFAA violation. 67 Construing the statute as one “meant to target hackers,” the court held that interpreting the CFAA more broadly could transform it “into a vehicle for imputing liability to workers who access computers or information in bad faith, or who disregard a use policy.”68 The Ninth Circuit reached a similar concern when deciding the fate of defendant David Nosal, a former employee of the executive search firm 58

Id. at 202.

Id. 60 Id. 61 Id. 62 WEC Carolina Energy Sols., LLC v. Miller, No. 0:10-CV-2775-CMC, 2011 WL 379458, at *5 (D.S.C. Feb. 3, 2011).

63 Id. 64 Miller, 687 F.3d at 207.

65 Id. at 204.

66 Id. 67 Id. at 207.

68 Id. 59

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Korn/Ferry International. 69 In Nosal, Mr. Nosal had persuaded current employees of his former employer to download confidential information from their employer’s computer and transfer the information to help him start a business competitive with Korn/Ferry International. 70 The employees who obtained the information for Mr. Nosal had legitimate access to the electronic information they obtained for him, but of course, they were obtaining it in violation of the company’s internal computer use policies that forbid the unauthorized use or disclosure of Korn/Ferry International’s internal information. 71 Interestingly, as opposed to in Miller, the federal government filed criminal charges against Mr. Nosal, accusing him of “aiding and abetting the Korn/Ferry employees in ‘exceed[ing their] authorized access’ with intent to defraud.”72 The district court dismissed the CFAA allegations, finding that the statute was not intended to be interpreted so broadly as to prevent disloyal employees from misusing their employer’s electronic information and the case was appealed to the Ninth Circuit. 73 The Ninth Circuit’s en banc decision affirmed the district court’s finding and held that “the plain language of the CFAA ‘target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.’”74 The court (similar to the Fourth Circuit) looked at the CFAA’s original intent—to prevent hacking—and concluded that the phrase “exceeds authorized access” applied to internal hackers only (such as an employee who “hacks” into areas of the company’s electronic systems to which he does not have access). 75 The court reasoned that a broad interpretation of the CFAA could mean that routine, benign violations of a company’s computer use policies, such as “g-chatting with friends, playing games, shopping or watching sports highlights” could subject that employee to criminal liability under the CFAA. 76 Thus, the Ninth Circuit concluded that “exceeds authorized access” in the CFAA was “limited to violations of restrictions on access to information and not restrictions on its use.”77 District courts in other circuits have likewise interpreted the CFAA narrowly. 78 69

See United States v. Nosal, 676 F.3d 854, 862-63 (9th Cir. 2012).

Id. at 856.

71 Id. 72 Id. 73 Id. 74 Id. at 863 (quoting Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz.

2008)).

75 Nosal, 676 F.3d at 863.

76 Id. at 860.

77 Id. at 863-64.

78 See, e.g., Ajuba Int’l, LLC v. Saharia, 871 F. Supp. 2d 671, 867 (E.D. Mich. 2012); 70

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ii. Broad View—First, Fifth, Seventh, and Eleventh Circuits In other circuits, including the Seventh and Eleventh Circuits, the disloyal employee who obtains access to his company’s electronic information and misuses it in violation of his company’s computer use policies is liable for a CFAA violation. This is because courts in these circuits view unauthorized access to encompass activity that goes against the employer’s rules regarding computer use.

The Seventh Circuit first adopted this broader view in International Airport Centers, LLC v. Citrin, a case involving a defendant who quit his job and started a business in competition with his former employer. 79 Before he returned his company laptop, he deleted all of the electronic information on it, including information that would show that he had collected information from his employer in order to start his competitive venture. 80 His former employer brought claims against him for a CFAA violation. 81 On appeal, Judge Posner wrote for the Seventh Circuit that the defendant breached his duty of loyalty to his employer and that when he terminated his relationship with his employer, his authority to access the company’s electronic information was also terminated. 82 When he deleted the electronic files on his computer, he had no authorization because he acted after quitting his job and was no longer an authorized user, thereby violating the CFAA. 83 In other words, an employee who breaches a contract of employment with her employer (thereby terminating her authority to use the company’s electronic information) may be found to violate the CFAA if she later accesses and uses the company’s electronic information.

Similarly, a Social Security Administration employee was found to have violated the CFAA by accessing the administration’s computer systems for improper purposes—to obtain information about his ex-wife and a former roommate for non-administration business. 84 The Major, Lindsay & Africa, LLC v. Mahn, No. 10 CIV. 4329 (CM), 2010 WL 39596009, at *6 (S.D.N.Y. Sept. 7, 2010); Orbit One Commc’ns, Inc. v. Numerex Corp., 692 F. Supp. 2d 373, 385 (S.D.N.Y. 2010); ReMedPar, Inc. v. AllParts Med., LLC, 683 F. Supp. 2d 605, 609 (M.D. Tenn. 2010); Black & Decker (US), Inc. v. Smith, 568 F. Supp. 2d 929, 933-36 (W.D. Tenn. 2008); Am. Family Mut. Ins. Co. v. Rickman, 554 F. Supp. 2d 766, 771 (N.D. Ohio 2008).

79 440 F.3d 418, 419 (7th Cir. 2006).

80 Id. 81 Id. 82 Id. at 420-21.

83 Id. 84 United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010).

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administration had clear computer use policies prohibiting its employees from using the computer system to obtain personal information from the database without a legitimate business reason. 85 Although the defendant “accessed only databases that he was authorized to use as a TeleService representative,” the Eleventh Circuit found that he exceeded his authorized access when he obtained personal information about other individuals for non-business reasons. 86 The Fifth Circuit has also taken a broad view of the CFAA, holding that even authorized access to information may not be unlimited, particularly when the defendant uses that access “in furtherance of or to perpetrate a crime.”87 In United States v. John, a bank employee conspired to charge unauthorized amounts to various customer accounts. 88 The defendant had access to customer account information because of her role as a bank employee and used that information to make fraudulent charges. 89 She was convicted of two counts of “exceeding authorized access” to a protected computer under the CFAA. 90 On appeal, she argued that she had legitimate access to the computers and account information by virtue of her role as a bank employee and therefore her use did not exceed her authorized access. 91 The Fifth Circuit disagreed and found that the bank’s computer use policies expressly limited her access to legitimate, business purposes and using the bank’s customer information to commit fraud fell outside the scope of permitted uses. 92 Therefore, her participation in a fraudulent scheme exceeded her permissible access to the bank’s electronic information. Because she was aware of the bank’s computer use policies and knowingly accessed the customer account information in violation of those policies, a CFAA violation was appropriate. 93 The First Circuit has also found that the CFAA should be read broadly to stop nefarious former employees. 94 In EF Cultural Travel BV v.

Explorica, Inc., a group of employees separated from their employer to join a competitor. 95 While employed by the competitor, the former employees decided to undercut their former employer’s prices and designed a computer program to “mine” their former employer’s website in order retrieve its 85

Id. at 1260.

Id. at 1263.

87 United States v. John, 597 F.3d 263, 271 (5th Cir. 2010).

88 Id. at 269.

89 Id. 90 Id. at 269-70.

91 Id. at 271.

92 Id. at 272.

93 John, 597 F.3d at 272.

94 See EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001).

95 Id. at 579.

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pricing. 96 In designing this program, the former employees used their insider knowledge of their former employer’s website, internal codes used for the company’s offerings, and other proprietary information they learned as employees of the company. 97 Because the former employees were bound by confidentiality agreements that prohibited the use or disclosure of any confidential or proprietary information, their design and use of a computer program to retrieve their former employer’s pricing information could be a violation of the CFAA. 98 Even though they were accessing information on a public website, because they were using their insider knowledge of the former employer’s computer setup, they “exceeded [their] authorization by providing proprietary information and know-how to [create the computer program at issue].”99 District courts in the Fifth, Seventh, and Eleventh Circuits have generally followed the broad view, recognizing that when an employee (or former employee) violates the terms of a computer use policy and engages in an impermissible use of electronic information, that employee is deemed to have engaged in an unauthorized access of company information in violation of the CFAA. 100 The federal circuits are divided as to whether to interpret the CFAA as a remedy for disloyal employee conduct or to limit it only as a remedy for hacking. Although the CFAA can be a powerful tool to use in conjunction with a trade secrets claim that involves electronic information, it may not be useful in a jurisdiction that follows the narrow approach unless the access to the electronic information was done in a way similar to hacking. Employers should draft computer usage policies as specifically as possible to attempt to use the CFAA’s protections in the event a rogue employee uses the employer’s electronic information in a disloyal and improper way.

96

Id. Id. at 582-83.

98 Id. at 583-84.

99 Id. at 583.

100 See, e.g., Barnstormers, Inc. v. Wing Walkers, LLC, No. EP-10-CV-261-KC, 2011 WL 1671641, at *10 (W.D. Tex. May 3, 2011); Meats by Linz, Inc. v. Dear, No. 3:10-CV1511-D, 2011 WL 1515028, at *3 (N.D. Tex. Apr. 20, 2011); Deloitte & Touche LLP v.

Carlson, No. 11-C0327, 2011 WL 2923865, at *4 (N.D. Ill. July 18, 2011); Jarosch v. Am. Family Mut. Ins. Co., 837 F. Supp. 2d 980, 1021 (E.D. Wis. 2011); Amedisys Holding, LLC v. Interim Healthcare of Atlanta, Inc., 793 F. Supp. 2d 1302, 1315 (N.D. Ga. 2011); Motorola, Inc. v. Lemko Corp., 609 F. Supp. 2d 760, 767-68 (N.D. Ill. 2009).

97

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CONCLUSION Modern business assets consist of a large variety of information, most of which is valuable intellectual property of a company. Whether they are confidential business plans, marketing strategies, or business processes and pricing metrics, these assets are critical to the success of a business and should be protected from attack. Trade secrets laws offer a first line of defense for businesses to protect this important information, particularly because these laws are broad enough to encompass a wide variety of intellectual property. Moreover, the use of non-disclosure agreements and other contractual limitations on the use of trade secrets and even general, confidential business information can strengthen a company’s arsenal of protection. Finally, if the information is maintained electronically, then the Computer Fraud and Abuse Act can be yet another line of defense for companies seeking to bolster the legal avenues of protection for their important business assets.

Effective use of these legal remedies requires that a company first identify and categorize its critical assets to determine which should be classified as trade secrets. Once the assets have been identified and the trade secrets have been isolated, a company should convene a multi-disciplinary team to identify and create unique protection strategies to safeguard that information. For example, a company may determine that its most important information needs to be maintained in a stand-alone computer or in a separately secured network drive to which only certain employees have access while other confidential information is protected through confidentiality legends and general confidentiality policies. Crafting specific strategies for each category of asset is important so that the strongest protection mechanisms are in place for the most important and highly valuable assets. Finally, a routine reminder to employees about their obligations to maintain the secrecy of corporate information and an ongoing audit of the security measures that are in place are important steps to ensuring that the protection mechanisms are effective and robust.

Employing these best practices will help ensure that a company’s modern business assets are protected with a variety of safeguards, and if these assets are the subject of an attack, these protection mechanisms will be critical facts to establish in the ensuing legal battle with the trade secret thief.

ETHICAL IMPLICATIONS OF THE LIBERALIZATION OF THE LEGAL INDUSTRY IN MODERN BUSINESS DISCOVERY How the Increased Use of Non-Attorneys and Non-Attorney Owned Suppliers Impacts Legal Ethics.

Erin Corken *

INT RODUCTION: THE LIBERALIZATION OF THE LEGAL INDUST RY ................................................ 48 I.

THE INCREASED USE OF NON-ATTORNEYS AND NON-ATTORNEY OWNED SUPPLIERS.... 49 A. Allowed in Other Places................................................................................................ 49 B. Already Happening Here............................................................................................... 50 C. The Last of the Luddite Lawyers .................................................................................. 52

II.

THE RECENT SAGA OF LEGAL PROCESS OUT SOURCING....................................................... 55 A. 2002 - 2008: Rise of the LPO Industry and Best Practices..................................... 55 i. Best Pract ices ABA Formal Opin ion 08-451 ............................... 59 ii. The Seven C’s of Legal Outsourcing Ethics................................. 60 B. 2008 - 2012: Cutting Costs ........................................................................................... 63 C. 2012 - Present: Increased Use of Non-Attorneys and Non-Attorney Owned Suppliers and the Future of Legal Services .............................................................. 66

III. IMPACT ON LEGAL ET HICS......................................................................................................... 68 A. Law-Related Services..................................................................................................... 68 B. What Can Go Wrong? .................................................................................................... 70 CONCLUSION...................... ................................................................................................................. 72 A. What Can We Do? .......................................................................................................... 72 B. Continued Increase in Technological Advances........................................................ 74

*

Erin Corken is an attorney, consultant and law professor. She has consulted with hundreds of attorneys and thousands of law firms. She teaches about e-discovery, legal technology, and data privacy and security. Ms. Corken obtained her B.F.A. in Electronic Media from the University of Cincinnati’s College Conservatory of Music. She obtained her J.D. from the University Of Cincinnati, College Of Law. Upon graduating from law school she served as law clerk to the Honorable Stephen M. McNamee at the United States District Court, District of Arizona.

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INTRODUCTION: THE LIBERALIZATION OF THE LEGAL INDUSTRY Today there is an ongoing debate regarding the liberalization of the legal industry through non-attorney ownership of law firms and nonattorney provision of legal services. 1 As this discourse rages in the United States, new laws permitting non-attorney ownership of firms in the United Kingdom and elsewhere are allowing firms to thrive. 2 However, this is not the first topic in the expanded liberalization of the legal industry3 that has been a hot issue in recent times.

The first type of liberalization of the legal industry that occurred, still an issue of debate today, is the increase of multijurisdictional practice (“MJP”) and the opening of global borders to foreign attorneys and law firms. It no longer makes sense for multinational corporations to hire different legal representation each time they do business in a different corner of the world.

However, traditionally clients have not had a choice as most jurisdictions have restricted the practice of law to locally working attorneys of their own state.

We are seeing increased global deregulation of MJP restrictions and many are being relaxed if not eliminated altogether. Several jurisdictions are not only allowing for more pro hac vice appearances, but are also allowing foreign law firms to come in and set up shop as either partially or completely foreign owned.

As with MJP, this same type of deregulation is occurring with regard to non-attorney ownership of firms and non-attorney provision of legal services, particularly those related to electronic discovery (“e-discovery”).

Indeed, more and more legal services are already being performed by nonattorneys. This increase has many effects on the legal industry and the practice of law. This article will focus on the continued development of the provision of legal services by non-attorneys and how that impacts attorney ethics.

1

See Ock Hyun-Ju, Market Liberalization Keeps Law Firms on Their Toes, THE KOREA HERALD (Aug. 17, 2015), http://www.koreaherald.com/view.php?ud=20150817000996; Jung Suk-yee, Legal Service Market Opening to Bring Both Opportunities and Challenges, BUSINESS KOREA (Oct. 26, 2016), http://www.businesskorea.co.kr/english/news/politics/16300-legal-service-marketlegal-service-market-opening-bring-both-opportunities-and.

2 Victor Li, Non-Lawyer Ownership Laws in UK Allow Some Firms to Thrive, ABA LAW JOURNAL (Aug. 10, 2016, 01:30 PM), http://www.abajournal.com/news/article/nonlawyer_ownership_laws_in_uk_allow_some_f irms_to_thrive.

3 See Hyun-Ju, supra note 1; Suk-yee, supra note 1.

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I. THE INCREASED USE OF NON-ATTORNEYS AND NON ATTORNEY OWNED SUPPLIES. A. Allowed in Other Places.

Many places in Europe allow non-attorneys and non-attorney owned companies to perform legal services. 4 This has not always been permitted, recently there has been a wave of deregulation allowing legal services previously only authorized to be performed by attorneys to be performed by non-attorneys. For example, in England and Wales the Legal Services Act of 2007 allows external investment, such as private equity or venture capital, to be injected into legal businesses by outside investors; it lets nonattorneys become partners in law firms 5 and it permits the setting up of new types of legal businesses known as “alternative business structures” (“ABS”). 6 ABS allow non-attorneys to own and run legal businesses. 7 Consumer banks are already providing legal services such as probate, conveyance services, and litigation out of their branches. 8 Our legal system in the US is derived from the British system. If this is the natural evolution of that system based upon current market forces, then why wouldn’t we have reason to believe our system will follow suit and evolve similarly? Richard Susskind OBE, 9 the most quoted authority on recent changes in the legal profession, thinks it will and that it is only a matter of time. 10 Many agree and some further argue that it is in many ways already happening here.

4

See Memorandum from the ABA Comm’n on the Future of Legal Servs., Issues Paper Regarding Alternative Business Structures (Apr. 8,2016), http://www.americanbar.org/content/dam/aba/images/office_president/alternative_business _issues_paper.pdf (Listing additional jurisdictions outside of the United States that permit some type of ABSs: Australia, Scotland, Italy, Spain Denmark, Germany, the Netherlands, Poland, Spain, Belgium, Singapore, New Zealand, and some Canadian provinces).

5 RICHARD SUSSKIND, TOMORROW ’S LAWYERS 6-7 ( 2013).

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

9 Susskind is a British author, speaker, and independent adviser to international professional firms and national governments. He has specialized in legal technology since the early 1980s, has authored several books on the subject including The End of Lawyers and Tomorrow’s Lawyers. He has a doctorate in law and computers from Oxford University, has worked on legal technology for over thirty years, and is currently a law professor, a legal advisor to law firms, corporations, and governments around the world and the IT Adviser to the Lord Chief Justice of England and Wales. Richard Susskind: Biography, SUSSKIND, http://www.susskind.com/ (last visited Apr. 2, 2017).

10 RICHARD SUSSKIND & DANIEL SUSSKIND, THE FUT URE OF T HE PROFESSIONS (2016).

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B. Already Happening Here.

Two places in the United States, Washington and Washington D.C., currently allow ownership by non-attorneys. 11 Additionally, the Federal government and a growing number of states including New York, Arizona, California, and Nevada have authorized legal services providers (“LSPs”) other than attorneys to help address the unmet need for legal services. Other states, like Oregon, Minnesota, Colorado, Connecticut, Florida, Michigan, New Mexico, and Utah are considering doing the same. 12 Further, many law firms in the United States have non-attorneys in key positions with remuneration tied to firm performance. 13 Though this is technically not an ownership interest in a firm by a non-attorney, this type of compensation structure is similar to some type of equity structure reminiscent to an ownership interest.

The most prevalent ways that non-attorneys and non-attorney owned companies are already performing legal services in the United States is the increased amount of services being outsourced compared to in the past and the rise of commercial non-attorney owned companies providing legal services to the public, 14 such as Legal Zoom. 15 At some time or another, law firms of all sizes have outsourced legal 11

Debra Cassens Weiss, Should Nonlawyers be Allowed to Own Law Firms? ABA Commission Revisits the Issue, ABA JOURNAL (Apr. 25, 2016, 5:45 AM) http://www.abajournal.com/news/article/should_nonlawyers_be_allowed_to_own_law_fir ms_aba_commission_revisits_the_i. The benefits of which include increased capital for law firms, increased access to justice, the ability for firms to strengthen their management teams with non-lawyers who could operate with more flexibility, and one stop shopping for clients with multidisciplinary practices such as the “Big 4” accounting and consultancy firms. See Catherine Ho, Can Someone Who is Not a Lawyer Own Part of a Law Firm? In D.C., Yes., THE W ASH. POST (Apr. 8, 2012) https://www.washingtonpost.com/business/capitalbusiness/can-someone-who-is-not-alawyer-own-part-of-a-law-firm-in-dc-yes/2012/ 04/ 06/gIQAnrvd4S_story.html?ut m_term=.

762dfc79a541 (explaining that the District of Columbia has been the only jurisdiction in the United States that allows law firms to share fees and profits with non-lawyers).

12 Memorandum from ABA Comm’n on the Future of Legal Servs., Issues Paper Concerning New Categories of Legal Servs. Providers (Oct. 16, 2015), https://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_s ervices_completed_evaluation.pdf.

13 Louise Lark Hill, Ownership of Law Firms: Protecting the Interest of Clients or Protecting the Interest of Lawyers?, 42 CAP . U. L. REV. 907, 943 (2014) (discussing proponents of nonlawyer ownership).

14 Memorandum from ABA Comm’n on the Future of Legal Servs., Issues Paper Concerning Unregulated LSP Entities (Mar. 31, 2016) https://www.americanbar.org/content/dam/aba/images/office_president/final_unregulated_l sp_entities_issues_paper.pdf.

15 LEGAL ZOOM, https://www.legalzoom.com/about-us (last visited Apr. 2, 2017).

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services, but the amount of outsourcing today is unprecedented. 16 The fast pace of recent technological advancements has spurred dramatic changes in the market, resulting in the increasing involvement of non-traditional unregulated LSP entities that deliver legal or law-related services. 17 One study showed that between 1998 and 2013 law office employment actually shrunk while all other legal services grew 8.5 percent annually and 140 percent over the whole period. 18 Another 2014 study reported that the Online Legal Services Industry, which includes virtual law firms and legal service companies, though non-existent in 2004, grew at an annualized rate of 10.9 percent between 2009 and 2014 and is projected to grow another 7.7 percent by 2019. 19 It is likely that the majority of the growth in the Online Legal Services Industry is from legal service companies and not virtual law firms, as further evidenced by the astounding increase in investment in legal service technologies companies that went from $66 million in 2012 to $458 million in 2013. 20 At the time of the 2014 study, the Online Legal Services Industry was valued at approximately $4.1 billion. 21 Other estimates around that same time valued the total United States legal market around $400 billion. 22 Therefore, as much as 10 percent of the entire United States legal market was outsourced to non-attorneys, and this amount does not include the new market of commercial non-attorney owned companies providing legal services to the public like Legal Zoom.

Legal Zoom was founded in 1999 and currently has over 3.6 million customers. 23 They offer web-based products, focusing on estate planning, business formation, and intellectual property protection, and have an "independent attorney network" for customers to get personalized legal advice to address their individual needs. 24 Because they are not the employers of the “independent attorney network,� which is basically a referral service, they are not operating like a law firm in the United States.

However, they began operating as a full-fledged law firm in the United Kingdom in 2016, and are currently working with regulators in the United States to help find more ways to increase consumer access to the law. 25 16

Memorandum, supra note 14, at 3.

Id.at 3-4.

18 Id.at 3.

19 Id. 20 Daniel W. Linna Jr., What We Know and Need to Know About Legal Startups, 67 S.C. L. REV. 389, 389-91 (2016).

21 Memorandum, supra note 14.

22 Linna Jr., supra note 20, at 391.

23 LEGAL ZOOM, supra note 15.

24 Id. 25 Id. 17

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Although some attorneys are still skeptical about the investment in law firms by non-attorneys, 26 it does seem more than inevitable. Traditionally, attorneys are not known for being the first to readily accept change and new things. 27 While many attorneys are forward thinking and innovative, the profession overall is known for being more resistant to change than most. 28 This phenomenon was obvious recently with the hesitation of many attorneys to accept and begin using new technology. 29 C. The Last of the Luddite Lawyers.

Many attorneys have advanced skills and experience with technology, but in general, the legal profession has traditionally resisted technological changes and other innovations. 30 This resistance to accepting new technology has led to the coining of the term luddite lawyer.

The Luddites were English textile workers and self-employed weavers who in the 19th Century protested new technology that enabled automation by destroying the machinery. 31 The term luddite now broadly means someone who is opposed to technological change. 32 In economics, there is a concept known as the Luddite Fallacy. 33 It is the unwarranted fear that new technology introduced to an industry will reduce the labor force in that industry. 34 In reality, when new technology enables tasks that were previously performed by labor to be automated or 26

Alison Frankel, Lawyers Remain Deeply Skeptical of Non-Lawyers Investing in Law Firms, REUT ERS (May 9, 2016), www.blogs.reuters.com/alisonfrankel/2016/05/ 09/ lawyers-remain-deeply-skeptical-of-non-lawyers-investing-in-lawfirms/.

27 Andrew Humphrey, The Case for the Private Practice of Law, LINKEDIN (Aug. 18, 2014), https://www.linkedin.com/pulse/20140818184047-29863227-the-case-for-theprivate-practice-of-law.

28 Micah Ascano, How to Change a Stubborn Lawyer, LAW TECHNOLOGY TODAY, (June 17, 2014), http://www.lawtechnologytoday.org/2014/06/how-to-change-a-stubbornlawyer/ (last visited Apr. 12, 2017); Ctr. For Urban Transp., Resistance to Change, UNIVERSIT Y OF W ISCONSON M ILWAUKEE, https://www4.uwm.edu/cuts/bench/change.htm (last visited Apr. 12, 2017).

29 Mary Juetten, What's Up with the Pace of Legal Technology Adoption?,GLSA https://glsa.memberclicks.net/what-s-up-with-the-pace-of-legal-technology-adoption (last visited Apr. 12, 2017).

30 Comm’n on the Future of Legal Servs., Report on the Future of Legal Service in the United States,, A M. BAR A SS’N 9 (Aug 2016), www.americanbar.org/content/dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf.

31 Tejvan Pettinger, The Luddite Fallacy, ECON. HELP (Jan. 15, 2014), www.economicshelp.org/blog/6717/economics/the_luddite_fallacy/.

32 Id. 33 Id. 34 Id.

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eliminated, the cost of production falls, thereby lowering the competitive price and increasing the equilibrium supply point, theoretically resulting in the need to employ more people doing more sophisticated tasks. 35 Essentially, technical advancements lead to promotions for everyone in the long term.

So, does it make sense that lawyers are afraid of this? That might be why Susskind calls it “irrational rejectionism.”36 He defines “irrational rejectionism” as the “dogmatic and visceral dismissal of a technology of which the sceptics have no direct personal experience.” 37 The attorneys who are the most resistant to using new technology are usually the ones who have never tried it. 38 However, irrational rejectionists who deny change will likely become extinct in the very near future while entrepreneurial and creative lawyers who embrace new technology will create fresh opportunities that will enable the declining legal industry to prosper and survive. 39 This is important because it is only the beginning. The future will be even more disruptive than it has been, with even more advanced technology introduced into not only the legal industry, but also the entire world.

It is estimated that within the next ten to twenty years, and likely much sooner following Moore’s law (which predicts that computing will increase in power while simultaneously growing exponentially cheaper and smaller) the average desktop computer will have the same processing power as the human brain. 40 When this happens, and quantum computing becomes a reality, computers will actually solve complex problems and the legal profession, along with the rest of the world, will be irreversibly changed. 41 We are already seeing the first signs of these changes in e-discovery with 35

HARRY JEROME & NAT ’L BUREAU OF ECON. RESEARCH, M ECHANIZATION IN INDUST RY 32-35 (1934), http://www.nber.org/chapters/c5241.pdf.

36 SUSSKIND, supra note 5, at 12.

37 Id. 38 Michael Rynowecer, Every Firm Can Beat the Spike in Attorney Resistance to Change, LINKEDIN (June 11, 2015), https://www.linkedin.com/pulse/every-firm-can-beatspike-attorney-resistance-change-rynowecer.

39 See Mary Juetten, Examining Legal Tech Adoption, Part I, LAW TECH. TODAY (Sep. 28, 2015), http://www.lawtechnologytoday.org/2015/09/examining-legal-tech-adoptionpart-i/. Cf. Jonathan Keane, Can technology bring lawyers into the 21st Century?, BBC (Feb. 16, 2016), http://www.bbc.com/news/business-35459433.

40 Max Plenke, Scientists Think They Know the Exact Year Computers Will Render the Human Brain Obsolete, M IC NET WORK (JUL. 29, 2015), https://mic.com/articles/123027/ moores-law-explained-co mputers-more-powerfu l-thanhuman-brains#.ZBF0qPQuQ. 41 Davide Castelvecchi, Quantum Computers Ready to Leap Out of the Lab in 2017, NAT URE (JAN. 3, 2017), http://www.nature.com/news/quantum-computers-ready-to-leapout-of-the-lab-in-2017-1.21239; Susskind, supra note 6, at 49.

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machine learning and other types of technology assisted review (“TAR”). 42 One of the most well-known types of TAR is predictive coding. Just a few years ago attorneys were afraid to use it because they did not trust its accuracy, and many attorneys are still very distrustful of it. But, as United States Magistrate Judge Andrew Peck, who authored the seminal decision on allowing predictive coding, makes clear in a later decision, “predictive coding is no longer an ‘unproven technology,’ [it] is ‘black letter law,’ and should be recognized as ‘an acceptable way to search for relevant ESI in appropriate cases.’”43 Before being afraid of TAR, attorneys were afraid to use email. Instead of using email smartly and implementing best practices and procedures to protect client information, many attorneys stubbornly refused to adopt it.

We see similar attitudes today, with attorneys ignoring the need to consider how social media and even cell phone data affects their cases.

There are, fortunately, several signs that the legal profession is accepting change, embracing technology, and preparing for the future. An amendment to the American Bar Association (the “ABA”) Model Rules of Professional Conduct Rule 1.1 (Competence), has made it clear that to be competent, attorneys must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”44 There have also been recent amendments to the Federal Rules of Civil Procedure regarding e-discovery, and most promisingly, the establishment of the ABA’s Commission on the Future of Legal Services, discussed below.

I have personally observed this change in attitudes. When I first started teaching and consulting, lawyers and law students knew little about technology and were very hesitant to embrace it. I had to teach basic things like what a file type was and the difference between .pdf and .xlsx files. In my online classes, many students would not know how to submit an assignment in a drop box. Lawyers I met with pompously dismissed the idea that they would see any changes as the result of new technology in their lifetimes and even just a few years ago thought the idea of autonomous cars (self-driving vehicles) was something pulled out of science fiction.

Well, its science but it’s not fiction.

This shift in the acceptance of technology is likely due, in large part, to those of us, like Richard Susskind, who have been preaching the importance 42

See Paul Lippe, What We Need to Know About Watson, Esq., 67 S.C. L. REV. 419

(2016).

43

Breaking News: Judge Peck Does It Again, Issues New Predictive Coding Case, RECOMMIND (Mar. 3, 2015), http://www.recommind.com/blog/breaking-news-judge-peckissues-new-predictive-coding-case/.

44 M ODEL RULES OF PROF’L CONDUCT r. 1.1 cmt. (A M. BAR A SS’N 2017).

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of embracing technology for years. 45 I agree with Susskind’s observations in one of his more recent publications where he notes that in the past few years the position of most legal practitioners has shifted. 46 Now most have moved from the first stage of acceptance, where they declare that “this is worthless nonsense”, to the second and third stages where they think, “this is interesting” and “true but unimportant.” 47 Some are even finally in the stage where they proclaim, “I always said so.” Soon there will likely be many more accepting that technology not only has changed, but also will continue to change the legal profession.

II. THE RECENT SAGA OF LEGAL PROCESS OUTSOURCING. A. 2002 – 2008: Rise of the LPO Industry and Best Practices.

Technology and invention have always advanced the evolvement of the legal industry and civilization. Recently however, with the dawning of the information age that we are currently experiencing, the advancements resulting from new technology are unheard of. The world has been changing faster than it ever has in the past and entire new industries have developed. In the practice of law, we saw the development of the legal process outsourcing (“LPO”) industry as a result of the abrupt and unanticipated need for increased legal outsourcing.

Outsourcing has occurred in legal practice for years. Types of outsourcing engagements have ranged from bringing in temporary secretaries and receptionists to fill in for employees on leave, to hiring third parties to perform back office administrative tasks such as payroll. 48 But, until recently legal outsourcing was an ancillary market for other types of businesses, not an industry in itself. Secretaries and receptionists were hired from staffing agencies who provided similar talent for all types of industries, not just the legal industry. Similarly, back office functions like payroll were outsourced to payroll companies that provided that same service to anyone.

It was not until the early 2000’s with the explosion of big data, that legal outsourcing increased so much that an entire industry developed. The rise of the LPO industry was the direct result of the increase in the amount of 45

Some examples of legal technology evangelists include D. Casey Flaherty, Jason Baron, and The Sedona Conference.

46 RICHARD SUSSKIND, THE END OF LAWYERS? RET HINKING T HE NATURE OF LEGAL SERVICES XVII (2010).

47 Id. 48 Steven C. Bennett, The Ethics of Legal Outsourcing, 36 N. KY. L. REV. 479, 480 (2009).

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discovery work law firms had to perform. 49 Traditionally, law firms have performed most legal work themselves.

Occasionally, in order to manage overflow, they would outsource legal work such as legal research, contract review, and document review in discovery.

Typically, when documents were collected during the discovery process, partners would assign new associates to read the documents to determine whether any were relevant to the case. 50 Occasionally, on very big cases where there was not enough time for the associates to read all of documents, firms would have to hire attorneys on a temporary basis to assist in reading the documents.

Then in the early 2000’s, when electronic data proliferated in unparalleled amounts due to the development and use of technology like Microsoft Office and email, there was so much more that had to be reviewed that more often than not firms could not handle the work internally. As Debra Lyn Bassett wrote in her article E-Pitfalls: Ethics and E-Discovery, “the sheer number of email transmissions, and the relative permanency of those transmissions, complicate[d] discovery. With the average user processing at least seventy-five email messages per day, the number of messages that may need to be retained and reviewed for potential responsiveness to a document request…quickly [became] overwhelming.”51 Consequently, firms needed to hire more attorneys on a contract basis than ever before and because of the boom in the market that resulted from the upsurge, the legal staffing industry exploded. The staffing agencies and the law firms who typically marked up the charges billed for the contract attorneys were seeing substantial increases in revenue. It was extraordinary.

I cannot stress enough how much of an increase there was in the amount discovery and how quickly it happened. All of a sudden, starting in 2002 and continuing through 2008, the discovery industry (which became known as the Electronic Discovery industry to better describe the new role of technology in the process) was in the days of wine and roses.

As a result, the LPO Market burgeoned. Existing staffing agencies grew, new companies developed, and there was an increased need for appurtenant services to process and manage all of the additional data.

In the past, discovery outsourcing also included some ancillary back office tasks such as photocopying, messenger, and other basic services. 52 Then, when the e-discovery market exploded it propelled the market for the 49 50

SUSSKIND, supra note 47, at xxxi.

Debra Lyn Bassett, E-Pitfalls: Ethics and E-Discovery, 36 N. KY. L. REV. 449, 462

(2009).

51 52

Id. at 469.

Bennett, supra note 48, at 481.

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ancillary services to new heights as well, and everyone wanted a piece of the pie.

New companies sprouted up, but firms also started performing the new ancillary services in order to increase their billable hours. Staffing agencies, eager to get in on the game, also started providing ancillary e-discovery services alongside companies who traditionally provided similar services for hard copy discovery (like photocopying).

From 2002 to 2008 things were going well. There was more and more data to be reviewed and more and more money being made by firms, staffing agencies, and new and old companies in the industry. The only problem was that people were getting greedy.

In part because of a need to meet the increased demand, LPO companies looked outside of the United States for people to perform the discovery work. United States firms and attorneys felt threatened by this and did not want to see their potential revenue go out of the country and into someone else’s hands. As a result, they began putting pressure on regulators to respond to the increased number of foreign actors in the industry. 53 One of their main concerns was, as James I. Ham wrote in his article Ethical Considerations Relating to Outsourcing of Legal Services by Law Firms to Foreign Service Providers: Perspectives from the United States, that: Unlike many industries that outsource, lawyers in the United States are subject to unique professional responsibility regulations. In sending legal work overseas, United States law firms are handing over work to individuals who are not subject to the disciplinary authority of state or local bar associations, may have limited legal training, and do not necessarily have any legal responsibility to abide by United States laws and ethical rules applicable to lawyers. Without properly structuring an outsourcing or off-shoring arrangement to address such issues, an improper outsourcing arrangement could lead to serious legal ethics violations and a new variety of disciplinary action against attorneys. 54 United States regulators agreed and in response decided to provide some guidance.

53

Carole Silver, What We Don't Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 A KRON LAW REV. 1009, 1011-12 (2010).

54 James I. Ham, Ethical Considerations Relating to Outsourcing of Legal Services by Law Firms to Foreign Service Providers: Perspectives from the United States, 27 PENN ST AT E INT’L LAW REV. 323 (2008).

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Many states have their own specific rules for outsourcing, 55 but general guidance was provided in 2008 when the ABA issued Formal Opinion 08451 to clarify that it is okay for attorneys to outsource. They said “[t]here is nothing unethical about a lawyer outsourcing legal and nonlegal services”56 and provided the following clarification and guidance: A lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client under Model Rule 1.1. In complying with her Rule 1.1 obligations, a lawyer who engages lawyers or nonlawyers to provide outsourced legal or nonlegal services is required to comply with Rules 5.1 and 5.3. She should make reasonable efforts to ensure that the conduct of the lawyers or nonlawyers to whom tasks are outsourced is compatible with her own professional obligations as a lawyer with “direct supervisory authority” over them.

In addition, appropriate disclosures should be made to the client regarding the use of lawyers or nonlawyers outside of the lawyer’s firm, and client consent should be obtained if those lawyers or nonlawyers will be receiving information protected by Rule 1.6. The fees charged must be reasonable and otherwise in compliance with Rule 1.5, and the outsourcing lawyer must avoid assisting the unauthorized practice of law under Rule 5.5. 57 This meant that lawyers had to do four things to comply with their ethical obligations when outsourcing: 1) be competent and adequately supervise providers following Rule 5.1 and Rule 5.3; 2) make appropriate disclosures to clients; 3) charge reasonable fees in compliance with Rule 1.5; and 4) be certain not to assist in the unauthorized practice of law under Rule 5.5.

This can be condensed into four general areas: 1) Competence (includes providing adequate supervision following Rules 5.1 and 5.3).

2) Consent (includes getting client consent when necessary after making disclosure when appropriate).

3) Costs (charging reasonable fees in compliance with Rule 1.5).

55

Ken Sanchez, The Ethics of Outsourcing Legal Services, THE LGBT BAR (August 46, 2016).

56 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 08-451 (2008) 57 Id.

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4) Certainty (being certain to not assist in the unauthorized practice of law under MRPC 5.5).

The opinion said that, “There is no unique blueprint for the provision of competent legal services. Different lawyers may perform the same tasks through different means,” and provided some direction on what attorneys could do to meet their ethical obligations when outsourcing. 58 i.

Best Practices ABA Formal Opinion 08-451.

The opinion recommended the following best practices: • Consider conducting reference checks; • Interview the principal lawyers; • Assess educational backgrounds; • Inquire into hiring practices; • Evaluate the quality and character of the employees likely to have access to client information; • Consider investigating the security of a provider’s premises, computer network, and perhaps even its recycling and refuse disposal procedures; • Pay a personal visit to the intermediary’s facility, regardless of its location or the difficulty of travel, to get a firsthand sense of its operation and the professionalism of the lawyers and non-lawyers it is procuring; and • When engaging lawyers trained in a foreign country, assess whether the system of legal education under which the lawyers were trained is comparable to that in the United States. 59 In addition to the four ethical duties outlined by 08-451 that an attorney must fulfill to outsource services, there are three additional general ethical duties (that most agree and some states require attorneys fulfill) when outsourcing services, such as that attorneys protect client confidences, check conflicts, and take extra precautions regarding communications. 60 This can be condensed into 3 general areas:

58

Id. at 2.

Id. at 3.

60 Sanchez, supra note 55, at 5.

59

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1) Confidentiality 2) Conflicts 3) Communication Together, with the four general areas of duties derived from 08-451, there are seven main general areas of ethical duties that must be complied with when outsourcing. ii. The Seven C’s of Legal Outsourcing Ethics.

1) 2) 3) 4) 5) 6) 7) 1) • • • • • • •

2) • 61

Competence Consent Costs Certainty Confidentiality Conflicts Communication

Competence: Ensuring tasks are delegated to people who possess the required skills; 61 Establishing practices and procedures for supervision; 62 Requesting to see a sample work product; 63 Reviewing ethical standards of the people to whom the work is being outsourced; 64 Ensuring that non-attorneys “do not perform activities that require the independent judgment/participation of the lawyer;”65 Ensuring that all conduct is consistent with ethical rules; 66 Ensuring the lawyer is readily available to answer questions about the work; 67 Consent: Obtaining advanced informed consent of the client where required:68

Id. at 6.

Id. at 16.

63 Id.at 17.

64 Id. 65 Id.at 18.

66 Id. 67 Bennett, supra note 48, at 482.

62

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3) •

•

4) • • • • •

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o When the role of foreign/non-lawyers is significant; 69 o When the client expects the firm will handle the matter alone; 70 o When billing other than cost pass-through; 71 o When clients’ confidences are shared; 72 Formalizing the consent in writing, if necessary:73 o It is likely not necessary when there is close supervision; 74 Costs: Not charging an unconscionable fee; 75 o Not charging overhead or only charging costs and reasonable overhead, depending on the jurisdiction; 76 o Not charging more than once for the same services; 77 Considering using a retainer agreement stating how cost will be allocated; 78 Certainty: Retaining complete responsibility for the work; 79 Using professional skill and judgment to set the scope for the work; 80 Vetting the work to ensure quality; 81 Reviewing and approving all client deliverables; 82 Requiring to be copied on all communications between the LPO and the client; 83

Sanchez, supra note 55, at 15.

Id. 70 Id. 71 Id. 72 Id. 73 Id. at 16.

74 Ham, supra note 54, at 340.

75 Sanchez, supra note 55, at 14.

76 Ham, supra note 54, at 340.

77 Sanchez, supra note 55, at 18.

78 Outsourcing Legal Tasks: Five Potential Ethical Violations to Avoid, A MERICANDISCOVERY, http://www.americandiscovery.com/resources/industryinsights/2016/01/outsourcing-legal-tasks-five-potential-ethical-violations-to-avoid/ (last visited May 8 2017).

79 Sanchez, supra note 55.

80 Id. 81 Id. 82 Outsourcing Legal Tasks, supra note 78.

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61

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5) • •

• • • • • • • 6) • • • •

83

Confidentiality: Using written confidentiality agreements; 84 Using a 3 tier system for non-disclosure agreements that includes agreements between: 1. The client and the provider; 2. The provider and its employees; 3. The client and the provider’s employees; 85 Using LPOs that have a similar culture of confidentiality to that of the firm; 86 Understanding the difference between confidentiality rules in different jurisdictions, if applicable; 87 Instructing foreign professionals on the duty to maintain confidentiality; 88 Obtaining sufficient assurances in the transfer of digital information; 89 Considering restricting access to sensitive client information; 90 Limiting the vendor’s access to information to only the information necessary to complete the work for the particular client; 91 Not providing access to information about other clients of the firm; 92 Conflicts: Using industry standard conflicts checks; 93 Determining whether services have been provided to adverse parties; 94 Ensuring no conflicts; 95 Inquiring as to the vendor’s conflict-checking procedures and about how it tracks work performed for other clients by asking the following:

Id. Sanchez, supra note 55.

85 Id. 86 Id. 87 Id. 88 Id. 89 Id. 90 Id. 91 Bennett, supra note 48, at 487.

92 Id. 93 Sanchez, supra note 55.

94 Id. 95 Id. 84

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•

•

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o Does the LPO keep records of existing and former clients; o How does the LPO track work performed for other clients; o Does it check for conflicts of each employee; o Does it turn down work if there is a conflict; 96 Inquiring whether the vendor is performing, or has performed, any services for parties adverse to the lawyer’s client; 97 Pursuing further inquiry as required; 98 Reminding the vendor, preferably in writing, of the need to safeguard the confidences and secrets of the vendor’s other current and former clients; 99 Determining whether the vendor has the ability to screen off matters when there is a conflict by establishing insurmountable information or communication barriers; 100 Inquiring about the vendor’s willingness to make binding representations as to the absence of conflicts in taking on the work; 101 Communication: Regularly and periodically communicating with the provider; 102 and Obtaining informed consent from client to disclose privileged and confidential information to third-party vendors. 103

Then when the economy crashed in 2008, things changed.

B. 2008 – 2012: Cutting Costs.

Well, not everything changed. The best practices outlined above are the ones generally still recommended for attorneys to follow when outsourcing.

However, now attorneys were not outsourcing because there was too much work to be done internally, they were outsourcing because there was no work to be done internally, as their in-house colleagues found themselves under pressure to cut costs.

Corporate general counsels used to be insulated from corporate 96

Outsourcing Legal Tasks, supra note 79.

Bennett, supra note 48, at 485.

98 Id. 99 Id. 100 Id. at 486.

101 Id. 102 Sanchez, supra note 55.

103 Id. 97

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cutbacks. Prior to the 2008 economic downturn, corporate executives were afraid of the consequences of not following the advice of their general counsels. Since the 2008 decline, they are still afraid of the consequences, but they are more afraid of lost revenue that could lead to the end of the company. 104 It used to be that when corporations made cut backs, executives would go to the general counsel to ask them to reduce costs and the general counsels would respond by saying that they needed to continue their current expenses in order to protect the company and the executives. After 2008, the executives responded that it was no longer only a question of the executives and company being protected, now it was also a question of whether the company would survive at all if they did not make cut backs across the board. Budgets were so tight that there was no exception for the legal departments anymore.

Now, when general counsels found themselves in the unfamiliar position of having to cut back, it made sense to start by cutting back on one of their greatest expenses, what they were paying to outside counsel. 105 Most legal work firms were doing for their corporate clients stopped. That included what they were doing in-house at the firm and what they were outsourcing. Firms were being pressured by clients not to do any work that was not absolutely necessary and to charge them less for any work that continued.

After firms started cutting back, from 2008 to 2012, we saw previously unimaginable changes at firms. Firms began slashing overhead by eliminating redundant employees. They stopped having a receptionist on every floor to greet visitors. They began doubling up on the use of administrative assistants and other support personnel. They stopped wining and dining and, in many cases, even recruiting summer associates. They even revoked offers to incoming associates and started to trim their current ones. Several firms, who did not make such changes and even some that did make similar changes, did not survive. There simply wasn’t any revenue coming in from their main corporate clients any more.

This was especially harsh because right before this happened (with the explosion of big data, the beginning of e-discovery; and the rise of the LPO industry) firms had been experiencing one of the greatest booms in revenue they had ever known. Almost as suddenly as it began, it ended.

The e-discovery and LPO industries were affected like the rest of the legal market. Cut backs were made and several companies went under. But at the same time, more companies were started than ever before. When the 104

Silvia Hodges Silverstein, What We Know and Need to Know About Legal Procurement, 67 S.C. L. REV. 485, 486 (2016).

105 Ham, supra note 54.

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economy downturned in 2008 and firms made cutbacks, everyone who was downsized needed new employment and many thought the previously booming e-discovery industry was a good opportunity. Industry insiders knew better, but those not in the know just went where the money used to be. It seemed like every former firm associate and partner decided to go into the e-discovery business and as a result, almost as quickly as the industry burgeoned, it became over-saturated, and now the supply of e-discovery services staggeringly outweighs demand.

Although legal outsourcing during this time (like all legal work) was drastically reduced, it did not go away. In fact, attorneys were encouraged to outsource more than ever, although for a new reason. In the past, attorneys outsourced to meet demand. Now they were outsourcing to cut costs. 106 Outsourcing allowed firms to dramatically downsize their overhead by paying for work as needed, instead of paying salaries to employees with nothing to do. 107 With a new focus on the use of outsourcing in the legal industry, attorney ethical obligations regarding outsourcing were once again in the spotlight. In response, the ABA conducted a three year study on the effect of increased globalization, technology, and the resulting increased outsourcing. 108 They considered issues like fees, competence, scope of practice, confidentiality, conflicts of interest, safeguarding client property, adequate supervision of lawyers and nonlawyers, unauthorized practice of law, and independence of professional judgment. 109 As a result of the study, the ABA decided to make some amendments to Model Rules of Professional Conduct “to provide guidance regarding the ethical implications of retaining lawyers and non-lawyers outside the firm to work on client matters (i.e. outsourcing)”110 The changes made were to the comments of three rules, not to any of the actual rules themselves. 111 Here are the changes:

106

A.B.A. Comm'n on Ethics 20/20, Resolution 105C, 2 - 3 (Aug. 2012).

Outsourcing Legal Tasks, supra note 78.

108 Legal Outsourcing and the New Amendments to the Aba Model Rules, THOMSON REUT ERS, http://legalsolutions.thomsonreuters.com/law-products/news-views/corporatecounsel/legal-outsourcing-and-the-new-amendments-to-the-aba-model-rules (last visited Apr. 2, 2017).

109 Resolution 105C, supra note 107, at 3.

110 Id. 111 Debra Cassens Weiss, Changes to Model Ethics Rules Clarify Lawyers’ Obligations When Using Outsourcing, ABA JOURNAL, (Aug. 06, 2012, 08:05 PM ), http://www.abajournal.com/news/article/changes_to_model_ethics_rules_clarify_lawyers_ obligations_when_using_o/.

107

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A new comment to Rule 1.1 on lawyer competence says a lawyer should ordinarily obtain informed consent from the client before retaining outside lawyers, and the lawyer should reasonably believe the outside services will contribute to the competent and ethical representation of the client. The reasonableness of the decision to retain the outside lawyers will depend on factors such as their education and experience, the nature of the services they will be performing, and the legal ethics rules in their jurisdictions … A new comment to Rule on 5.3 on responsibilities regarding non-lawyer assistance says a lawyer may hire non-lawyers outside the law firm, but the lawyer must make reasonable efforts to ensure that the engagement is compatible with legal ethics obligations. A new comment to Rule 5.5 clarifies that lawyers cannot engage in outsourcing when doing so would facilitate the unauthorized practice of law. 112 C. 2012 – Present: Increased Use of Non-Attorneys and Non-Attorney Owned Suppliers and The Future of Legal Services.

Since the 2012 amendments, legal outsourcing has become not only acceptable, but expected. Although not impossible, it seems unlikely that we will ever go back to the days of unfettered spending by law firms. Even the ABA agrees and is actively looking toward the future.

In August 2014, the ABA established the Commission on the Future of Legal Services to, inter alia, “[e]xamine and, as appropriate, propose new approaches to legal services delivery that are not constrained by traditional models and are rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all.”113 The ABA recognizes and acknowledges that: Technology, globalization and other forces continue to transform how and why and by whom legal services are accessed and delivered. Familiar and traditional practice structures are giving way in a marketplace that continues to evolve. New providers are emerging, online and offline, to offer a range of services in dramatically different ways. The legal profession, as the steward of the justice system, has reached an inflection point. Without significant change, the 112 113

Id. Report on the Future of Legal Servs. in the United States, supra note 30.

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profession cannot ensure that the justice system serves everyone and that the rule of law is preserved. Innovation, and even unconventional thinking, is required. 114 From 2014 to 2016, the ABA Commission on the Future of Legal Services (the “Commission”) scrutinized the strengths and weaknesses of the legal profession and the justice system and examined evolving delivery models for legal services. 115 They developed recommendations, and in 2016, issued a report. 116 The report addresses various topics regarding the future of the legal profession, including many that were addressed in prior issues papers such as alternative business structures, 117 unregulated LSP entities, 118 legal checkups, 119 new categories of legal services providers, 120 and the future of legal services. 121 In the report, the Commission does not take a definitive stance on whether to allow non-attorney ownership of firms in the United States, but it did recognize in the report findings that, “some have argued that the prohibition on partnership and co-ownership/investment with nonlawyers is … inhibiting useful innovations” that would provide greater access to, and enhance the delivery of legal services. 122 Also, as mentioned above in the report, the Commission recognized that legal services are already being provided in the US by non-lawyers. 123 It identified six types of currently existing non-lawyer LSPs including: 1) Federally-Authorized LSPs such as accredited representatives within DHS who are not licensed lawyers but who represent aliens in immigration proceedings; individuals who are not licensed to practice law who represent claimants before the EEOC in mediations and some non-attorney patent agents who are authorized to practice before the PTO on a limited basis; 114

Id. at 8.

Id. at 1.

116 Id. 117 Memorandum, supra note 4.

118 Memorandum, supra note 14.

119 Memorandum from ABA Comm’n on the Future of Legal Servs., Issues Paper Concerning Legal Checkups, (March 22, 2016) https://www.americanbar.org/content/dam/aba/images/office_president/legal_checkup_issu es_paper_final_3_march%2022.pdf.

120 Memorandum, supra note 14.

121 Memorandum from ABA Comm’n on the Future of Legal Servs., Issues Paper on the Future of Legal Services (Nov. 3, 2014) https://www.americanbar.org/content/dam/aba/images/office_president/issues_paper.pdf 122 Report on the Future of Legal Services in the United States, supra note 31, at 16.

123 Id. at 20.

115

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2) Courthouse Navigators who in New York and Arizona assist unrepresented litigants, who are appearing in housing court in nonpayment, civil, and debt proceedings; 3) Courthouse Facilitators in California as well as Washington State who provide unrepresented individuals with information about court procedures and legal forms in family law cases; 4) Limited Practice Officers in Washington State who select and complete real estate closing documents; 5) Limited License Legal Technicians in Washington State who are the first independent paraprofessionals in the United States that are licensed to provide some legal advice; and 6) Document Preparers in Arizona, California, and Nevada who provide the public with experienced professionals who are authorized to prepare legal documents. 124 The report also recognizes that liberalizing lawyer regulation to permit equity sharing with nonlawyers in order to compensate or incentivize technology and innovation is a potential regulatory opportunity, and that permitting nonlawyers, while holding them to the same standards as attorneys, is a potential preventative law opportunity. 125 These acknowledgements by the Commission through the report further establish that the continued liberalization of the legal market seems inevitable. It is likely that at some point non-attorney ownership of law firms will be allowed in the United States. But even if it never is, the increase in the performance of legal work by non-attorneys has already been clearly established.

III. IMPACT ON LEGAL

ETHICS.

A. Law-Related Services.

Since legal services are being provided by non-attorneys in greater quantities, it is trickier for attorneys to meet all of their ethical obligations when outsourcing because so many more people and new types of services 124

Memorandum, supra note 14.

Report on the Future of Legal Services in the United States, supra note 30, at Appendix 3.

125

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are involved. 126 These new types of services make it harder to determine what ediscovery tasks are considered part of practicing law. Each jurisdiction has its own definition of what is considered the practice of law and whether it includes providing legal services. As Deborah L. Rhode writes in her article, What We Know and Need to Know About the Delivery of Legal Services By Nonlawyers, usually the laws are broad and ambiguous and: A number of jurisdictions simply prohibit without defining the practice of law by non-lawyers. Others take a circular approach: the practice of law is what lawyers do.

Some list conduct that is illustrative, such as legal advice, legal representation, and preparation of legal instruments, and then conclude with some amorphous catch-all provision, such as ‘any action taken for others in any matter connected with the law.’”127 Theoretically, if an attorney is photocopying a document or performing some other task that does not involve legal advice, it could be considered part of the practice of law depending upon the jurisdiction. Generally, and following Model Rule of Professional Conduct 5.7, “law-related services” are services that are related to the provision of legal services, but would not be considered the practice of law if provided by a non-attorney. 128 With most things, it is fairly straightforward whether something would be the practice of law if provided by a non-attorney. But it is not always clear with many new types of e-discovery tasks and it is becoming even more complicated as the technology used in e-discovery becomes more complex.

The outsourcing of traditional legal work, such as document review, is an example. 129 In the past, when most documents were hard copy, the associates assigned to review them did not need to have a degree in information technology to complete the task. All they needed to do was to read the documents carefully to determine whether they had any legal relevance to the case. No sophisticated technical knowledge was required. 130 Today, while most document review technology does typically require a bit of training to use, it does not require an advanced degree.

126

Outsourcing Legal Tasks, supra note 78.

Deborah L. Rhode, What We Know and Need to Know About the Delivery of Legal Services By Nonlawyers, 67 S.C L. REV. 429 (2016).

128 M ODEL RULES OF PROF’L CONDUCT r. 5.7 (A M. BAR A SS’N 2015).

129 Outsourcing Legal Tasks, supra note 78.

130 Bassett, supra note 56.

127

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However, due to the complexity of electronic data, careful reading to determine legal relevance will no longer suffice. Now, in many cases, it is important to know how and why the documents were created, modified, and transmitted. It is important to be able to look at the document’s metadata to make these determinations and it is important to understand how the accuracy of that metadata and other electronic information is authenticated.

To do this many times, attorneys may need to retain a technology expert or other consultants to aid in the process. 131 B. What Can Go Wrong?

The problem is that many e-discovery vendors who provide the needed technological expertise do not stop there. 132 As Caitlin Gifford and Elizabeth Fenton observe in their article, Legal Outsourcing: Farming Out Work Without Reaping Ethical Problems, “e-discovery vendors now describe their services as ‘comprehensive project planning, on-site review team supervision, privilege log preparation, e-vendor selection and more.’”

All things that are very arguably considered part of the practice of law: As a result, [it was] made clear that attorneys who co-own or manage such e-discovery vendors or staffing agencies with non-attorneys may be engaged in or otherwise assisting the unauthorized practice of law and could be subject to ethical sanctions. As a practical matter, e-discovery vendors and staffing agencies not owned solely by attorneys should avoid providing legal services and outside attorneys should avoid hiring such vendors absent knowledge that the work is supervised by licensed attorneys. Otherwise, both inside and outside counsel could face ethical sanctions or worse. 133 This became known as the prohibition against one stop shops. Ediscovery service providers claiming to provide complete soup to nuts ediscovery services were determined to be practicing law and attorneys hiring e-discovery vendors need to make certain that they are providing adequate supervision so as not be the case.

In addition to the potential issues around the increased use of non131

Id. Caitlin Gifford and Elizabeth Fenton, Legal Outsourcing: Farming Out Work Without Reaping Ehtical Problems, A M. BAR A SS’N. (Jan. 23, 2013) http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2013_corp orate_counselcleseminar/8_1_legal_outsourcing.authcheckdam.pdf.

133 Id. 132

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attorneys to perform legal services, the professional independence of a lawyer has the potential to be compromised. With increased pressure for attorneys to offer their services at lower and lower rates as Ham wrote: There may come a point where the drive for cost savings may conflict with the attorney's duty of independent judgment. Certainly in the context of rapidly developing electronic discovery obligations and standards, the pressure to reduce costs by outsourcing can potentially be at odds with an attorney's responsibilities under the Federal Rules of Civil Procedure or state Codes of Civil Procedure, at least where the attorneys are too far removed from the document identification and selection process. 134 Under Model Rule of Professional Conduct 5.4, attorneys are not allowed to partner with non-attorneys in order to protect their professional independence. 135 One reason for this is to lessen any financial concerns from an attorney’s decision process when deciding what the best thing to do is for a client.

Still, in order to remain competitive in reality, attorneys working at firms do need to balance keeping costs down while providing the best possible representation. Partners and associates could keep working on cases doing research, drafting briefs, and taking depositions indefinitely within time constraints and deadlines, but at some point they have to make a judgment call and decide that what they have done is sufficient. If clients are pressuring them to keep costs down, they might feel pressure to make a decision that they would not otherwise have made if cost were not an issue. 136 In essence, when working for a client, most attorneys now have to always consider what is best for the case and how to keep costs down.

Similarly, attorneys who work in-house or for a provider have to provide the best possible representation while keeping costs down. When those interests conflict, they often face even more pressure from their nonattorney colleagues who do not have an understanding of attorney ethical obligations. Their non-attorney colleagues have likely not taken any courses on legal ethics, have not spent hours studying for an MPRE exam, do not spend hours sitting through expensive mandatory ethics CLE courses every year, have not spent thousands of dollars on a legal education, have not taken and passed a bar examination, and have not sworn an oath as an officer of the court.

134

Ham, supra note 54.

M ODEL RULES OF PROF’L CONDUCT r. 5.4 (A M. BAR A SS’N 2015).

136 Ham, supra note 54.

135

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Non-attorneys likely don’t realize the years of work attorneys are risking if they do not adhere to their ethical obligations. For non-attorneys, the most they might be risking is their position--something that they do not need to maintain a professional license to acquire elsewhere. Further, as part of their responsibilities, the non-attorneys have potentially been trained to do whatever it takes to serve the bottom line, including pressuring their attorney colleagues to do the same. 137 How fair is it to ask an attorney to stand up against a non-attorney supervisor in that situation? About as fair as it is to ask an associate to stand up to a partner in a similar situation. In either case, the attorney is putting her job at risk. At least when the partner chooses to act unethically the associate has some recourse in that she can and may ethically be obligated to report the partner to the state bar. That might not be of much consolation to an attorney who now might not have the best future reference from that partner, but it is more than someone would have with a non-attorney supervisor.

These situations cannot be brushed off as preposterous any longer.

They are very real possibilities that many attorneys face every day. As the legal profession continues to change and more and more law school graduates (and even seasoned attorneys) are encouraged to pursue nontraditional legal positions, it seems like a better approach is to recognize the changes that are taking place in the legal industry and make adjustments to allow for them. Instead of futilely wasting time and energy trying to stop progress as the Luddites did, we need to be adapting to changes that have already taken place while anticipating and preparing for additional changes in the future.

V. CONCLUSION. A. What Can We Do? The ABA has taken several steps in the right direction, including when former ABA President Carolyn B. Lamm charged the ABA Commission on Ethics to take a fresh look at legal ethics and the regulation of the profession in light of globalization and technological changes. 138 Most encouraging was when the ABA created the Commission on the Future of Legal Services. As discussed above however, as of the 2016 report, after considering alternative law practice structures in which nonattorneys would have an ownership interest in law firms, the Commission is 137 138

Ho, supra note 11.

Jack P. Sahl, The New Era - Quo Vadis?, 43 A KRON L. REV. 641, 642 (2010)

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not recommending that the ABA support this change. 139 Traditionally, the reasoning behind not allowing non-attorneys to provide legal services is that it is in the client’s best interest that those who advise them on the law are suitably trained and experienced. 140 However, many argue that a closed community of legal specialists has many compelling disadvantages, such as not offering sufficient choices to the consumer. 141 They further contend that by keeping the community closed, attorneys in the United States are simply seeking to protect the exclusivity of the profession by maintaining a monopoly on the provision of legal services. 142 Admittedly, the exclusivity of the profession is a benefit for those within it. However, this benefit is a byproduct of the larger goal of protecting the client’s interests. Like many other licensed and regulated professionals, such as doctors and accountants, there are numerous reasons why only these professionals should be allowed to perform certain tasks.

Only those with verified education, training, and experience should be allowed to perform brain surgery or maintain proper accounts for billion dollar corporations upon whom shareholders depend for financial security.

Similarly, only licensed and regulated professionals should be able to provide legal services.

Yet, do those professionals have to be attorneys? Right now, in the United States, technically they do. In reality, however, they don’t. As discussed above, many e-discovery services are now being provided by non-attorneys. Additionally, other non-aggregate, low revenue producing services are being provided by companies like Legal Zoom who are superior at targeting consumers. However, this is something likely to change in the near future as companies like Legal Zoom go after more of the market. After all, they themselves proclaim with their slogan, “legal help is here” and say, “[t]he change we've brought to the practice of law is here to stay.”143 Ignoring that this is happening is just allowing the unauthorized practice of law to continue unabated and unregulated. Instead of waging a likely futile war to stop what has already progressed, perhaps a better approach is to officially bring it under the wings of the profession.

If an attorney has to meet certain requirements to practice law and provide legal services, it seems only right that legal service providers meet certain requirements as well. Susskind writes in Tomorrow’s Lawyers, 139

Hill, supra note 13, at 907.

Susskind, supra note 5, at 5-6.

141 Id. at 6.

142 Sahl, supra note 139, at 661.

143 LEGAL ZOOM, supra note 16.

140

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“[l]aws and regulations can stipulate who can be a lawyer, who can run and own a legal business, and what services they can provide.� 144 Why not recognize that legal services are already being provided by non-attorneys in the United States and start specifying how they can be provided?

Many jurisdictions are already doing so. Ohio, for example, recently did this with litigation funding. 145 The Ohio Supreme Court ruled against litigation companies on champerty and maintenance grounds in a 2003 case. 146 While the holding did not directly address the unauthorized practice of law, it has been argued that the case was one of the worst court decisions in the area of lawyer regulation. 147 Five years after that decision, Ohio enacted a law permitting and regulating non-recourse civil litigation advances. 148 Clearly, something needs to be done. The practice of law is changing rapidly, due to advances in technology and concerted thinking about the adaptation of basic rules of legal ethics, into a dynamic world where the interactions between attorneys, clients, and the services providers who aid them both is necessary.

B. Continued Increase in Technological Advances.

Technology is only expected to advance in our increasingly interconnected world. As this happens, the issues that are just beginning to develop from within our profession will be multiplied and more significant.

Take quantum computing and artificial intelligence. One of the most basic functions that artificial intelligence can perform is to better organize legal information and keep data current. For example, when a list of how all United States jurisdictions currently stand on an issue is created, such as the ethical duties regarding legal process outsourcing, that list is current and useful for a brief time. However, since it is a static list, it very quickly becomes outdated. 149 144

Susskind, supra note 5.

Rancman v. Interim Settlement Funding Corp., 789 N.E.2d 217 (Ohio 2003).

146 Id. 147 Stahl, supra note 139, at 661-63.

148 Id. 149 See Mark Dreher, Case Law: Multi-State Survey of Ethical Opinions Regarding Legal Process Outsourcing,BUT LER SNOW (Apr. 1, 2009), http://www.butlersnow.com/2009/04/case-law-mu lti-state-survey-of-ethical-opinionsregarding-legal-process-outsourcing/.

Alabama: Opinion Number 1990-04 (legal research services do not constitute the unauthorized practice of law).

145

Alaska: Ethics Opinion No. 73-1 (an attorney may employ non- attorneys to do any task for her except counsel clients

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about law matters, engage directly in the practice of law, or appear in court or in formal proceedings a part of the judicial process, and so long as it is the attorney who takes the work and vouches for it to the client and is responsible to the client).

Arizona: Opinion No. 93-01 (prohibiting the association of an attorney with a non attorney - operated business for the purpose of offering “attorney representation”).

California: Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion No. 518 (legal research and brief-writing are permissible if the attorney is competent to review the work and retains supervisory responsibility for the work product).

San Diego County Bar Association Ethics Opinion 2007-1 (LPO services permitted where attorney is competent to supervise and client is informed).

Colorado: Opinions 61 and 79 (extending duties of competence, supervision, and disclosure to clients to the use of non- attorney legal assistants and prohibiting the unauthorized practice of law by such assistants through appearances in hearings or depositions).

Connecticut: Formal Opinion No. 8 (prohibiting the creation of a partnership with non- attorney s for a consulting and research service limited to the area of taxation and estate and business planning. “The question of what constitutes the practice of law is a thorny question […] That these activities would be engaged in primarily for another attorney rather than directly for a lay client does not alter the fact that the purpose is to offer services of a legal nature, which, when performed directly for a client, can properly be performed only by a attorney”).

District of Columbia: Opinion 227 (permits “migratory” paralegals to work for multiple law firms, subject to appropriate screening of conflicts and confidences).

Florida: Opinion 07-2 (a attorney is not prohibited from engaging the services of an overseas provider for paralegal assistance as long as ethical obligations of unlicensed practice of law, supervision, conflicts, confidentiality, and billing are satisfied).

Georgia: State Disciplinary Board Advisory Opinion No. 21 (extending delegable duties to non- attorneys including legal research and fact investigation, while prohibiting others, such as the rendering of legal advice or executing pleadings).

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Opinion No. 3 of 2000 (provides for contract employment of non- attorney assistants subject to attorney supervision, maintenance of client confidentiality, and avoidance of conflicts of interest).

Iowa: Opinion No. 98-21 (permits legal research services for attorney s).

Kentucky: KBA E-142 (provides for non- attorneys to perform certain tasks, including legal research, as long as the attorney remains responsible for and supervises the work).

KBA E-318 (provides that attorneys can establish legal research services for other attorneys, obligating them to preserve confidences).

Massachusetts: Opinion No. 75-8 (permits legal research services, including use of non- attorney assistants where the attorney maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product).

Michigan: RI-310 (permits temporary “leasing” of attorneys, subject to proper supervision and disclosure duties).

Minnesota: Opinion No. 8 (requires that non- attorney s be supervised by an attorney who is responsible for their work).

Mississippi: Opinion No. 177 (properly disclosed outsourced legal research is not prohibited).

Nevada: Formal Opinion No. 6 (permits an attorney to operate a collateral business of placing temporary secretarial and clerical help, as long as obligations of client confidences are preserved and disclosure of the attorney is made).

New Hampshire: Formal Opinion #1995-96/3 (permits employment agency to place attorney s, law school graduates, and law students to provide legal and quasilegal services, as long as such employees properly avoid the unauthorized practice of law, disclose the nature of their employment relationship as appropriate, and comply with the rules regarding client confidences and conflicts of interest).

New Jersey: Advisory Committee on Professional Ethics Opinion No. 101 (prohibiting the creation and advertising of a legal research service by attorney s for use by other attorney s.

“We hold that legal research and brief writing—the very

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foundation of all law practice—do constitute the practice of law”). Advisory Committee on Professional Ethics Opinion No. 546 (holding as improper the hiring of a non- attorney assistant in which the prospective employer is presently involved in matters adversarial to the prior employer).

New York: New York State Opinion 721 (1999) (legal research services, under proper supervision, do not constitute unauthorized practice of law).

The Association of the Bar of the City of New York Formal Opinion 2006-3 (properly supervised LPO allowed with client’s informed consent).

North Carolina: 2007 Formal Ethics Opinion 12 (properly supervised LPO allowed for services such as “reviewing documents; conducting due diligence; drafting contracts, pleadings, and memoranda of law; and conducting legal research.” Client’s written informed consent required).

Ohio: Opinion No. 2005-1 (an attorney who performs research and writing on a contract basis to other attorneys but who is not engaged by, does not meet with, and does not offer advice to clients is not considered to be engaged in the practice of law).

Oklahoma: Ethics Opinion No. 319 (even though a licensed attorney in a supervisory capacity may delegate some lawrelated clerical tasks to non- attorneys, she must not delegate the professional function of an attorney which requires training, knowledge, and experience critical to effective representation of the client’s interest).

Oregon: Formal Ethics Opinion No. 2005-20 (a attorney must supervise and control what is done in the attorney’s name).

Pennsylvania: Informal Opinion No. 2006-04 (permits limited scope representation with the use of law school interns subject to twin responsibilities of reasonable limits and client informed consent; in addition, appropriate supervision is required).

Rhode Island: Provisional Order 18 to the Rhode Island Disciplinary Rules of Professional Conduct (providing that legal assistants are not to engage in services requiring independent legal judgment, shall be subject to the direction of attorneys who will be ultimately and directly responsible for the work product and all aspects of the attorney-client relationship).

South Carolina: Opinion 02-12 (invoking South Carolina judicial interpretation of the unauthorized practice of law and

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John Marshall Law Journal the proper role of paralegal in legal research, investigation, and the preparation of legal documents).

South Dakota: Opinion 2004-01 (permits non- attorney employees to work for multiple law firms as long as client confidences are protected and the unauthorized practice of law is prevented by adequate supervision).

Texas: Opinion 508 (prohibits pooling employees under a non- attorney leasing agreement among multiple law firms).

Utah: Opinion 02-07 (allows the association of an attorney with a paralegal outside the attorney’s firm, as long as the attorney’s independent professional judgment is maintained).

Vermont: Advisory Ethics Opinion 2002-02 (permits hiring of independent non attorney /paralegal service subject to attorney’s supervision and instruction to protect confidences and avoid conflicts of interest).

Virginia: ABA 08-451 (acknowledged in Virginia State Bar’s ethics database index).

West Virginia: L.E.I. 84-3 (permits operation of legal research service so long as the contemplated research service is limited to the legal profession and not to business or the public and is not advertised or held out in any manner to provide such services to the public at large or outside of the legal profession).

Wisconsin: References ABA Formal Opinion 88-356 (permitting temporary attorneys subject to proper disclosure and confidentiality and conflicts of interest rules).

The following states’ ethics rules do not address LPO issues: Arkansas; Delaware; Hawaii; Illinois; Maine; Missouri; Montana; New Mexico; North Dakota; Tennessee; and Washington.

The following states’ ethics opinions were not publicly available at the time of publication:

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To keep it current requires an extreme amount of effort. Someone has to constantly be aware of any new opinions or changes in all fifty states and manually update the list, an arduous process. One of the very basic things artificial intelligence can do is instantly update these types of lists so that they are dynamic and always current.

In the future, artificial intelligence will be used for even more complex purposes such as analyzing data and suggesting potential courses of action. 150 Ten years from now, hopefully sooner, I won’t have to write articles like this anymore. Rather, a computer will do it for me. I will be able to decide on a thesis topic, have the computer conduct and analyze all of the research, then present me with a draft.

Notice I said a draft, not a final article. I will be able to read the draft and decide what changes I would like made, if any. This is reminiscent of when I was a federal court clerk and would read the pleadings for cases, do legal research, and submit draft orders to the judge I worked for so that he could review them and make a final decision.

In the future, even though I might not be doing all of the work myself, scholars like me will still be needed to come up with ideas and make ultimate decisions. After all, even though the judge I clerked for was not doing all of the work himself, he was still needed to make the ultimate decisions. 151 Similarly, lawyers will still be needed, but as the Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Legal Executive Institute 2017 Report on the State of the Legal Industry warns, “the firms that continue to prosper will most likely be those that are able to adapt most successfully to the evolving demands of their clients and the changed conditions of the marketplace. Those firms that are unable to do so will most likely become endangered species.”152 Furthermore, “[w]hat is ultimately needed…is a broader reimagining of the overall model for legal service delivery, one that includes paraprofessionals, Idaho; Kansas; Louisiana; Maryland; Nebraska; and Wyoming.

150 Lippe, supra note 42, at 426.

151 I doubt anyone would have wanted me in my first position out of law school to have that responsibility, although the judge and I did agree most of the time.

152 Georgetown Law’s Center for the Study of the Legal Profession and Thomson Reuters Legal Executive Institute, 2017 Report on the State of the Legal Market, THOMSON REUT ERS (Jan. 12, 2017), http://legalsolutions.thomsonreuters.com/lawproducts/ns/solutions/peer-monitor/report-library.

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technologists, information specialists, process managers, and others – in addition to lawyers – as part of an integrated system for the delivery of legal services.”153

153

Id.

INTERPRETING THE 2011 GEORGIA RESTRICTIVE COVENANTS STATUTE: HOW TO FIX ITS AMBIGUITIES AND ALLOW THE BLUE PENCIL WHILE DETERRING THE IN TERORREM EFFECT INT RODUCTION.....................................................................................................................................81 I. THE COMMON LAW RULE OF REASON AND THE PROGENY OF THE GRCS ............................ 83 A. B. C. D. II.

Duration ...........................................................................................................................86 Territory and Scope—The Semi-Inverse Proportional Scale................................... 87 The Blue Pencil Doctrine—The In Terrorem Effect .................................................. 89 Progeny of the GRCS—The Previous Attempts to Enact Reform............................ 91

SUMMARY OF THE GRCS ........................................................................................................... 94 A. Non-Compete Covenants—Retaining the Rule of Reason ....................................... 94 B. Non-Solicitation Covenants—The Material Contact Requirement......................... 95 C. The Discretionary Blue Pencil...................................................................................... 95

III. POSSIBLE CIRCUMVENT ION OF T HE GRCS—THE RESULT OF INSUFFICIENT PRESUMPTIONS AND ST ATUTORY A MBIGUIT Y................................................................. 96 A. Fair Notice of the Maximum Reasonable Boundaries—The Unworkable Paradox............................................................................................................................97 B. Good Faith Estimate of Applicability—Two Possible Meanings ............................ 99 i. First Possible Meaning—Based on the Emp loyee ...................... 101 ii. Second Possible Meaning—Based on the Employer.................. 102 C. Suggested Solution—Delegation of Authority to Supplement the GRCS ............. 102 I V. A REBUT T ABLE PRESUMPTION—USING T HE BLUE PENCIL W HILE DETERRING T HE IN TERROREM EFFECT ........................................................................................................ 104 CONCLUSION...................... ............................................................................................................... 106

INTRODUCTION In contract law, there exists few topics more controversial than restrictive covenants in employment contracts—an originally prohibited practice that has developed into a web of sporadic legislative reform, 1 1

Some states have codified their position on restrictive covenants in employment contracts, see, e.g., A LA. CODE § 8-1-190 (2017); COLO. REV. ST AT . A NN. §§ 8-2-113 (West, Westlaw current through 2016 Regular Sess.); FLA. ST AT . A NN. § 542.335 (West,

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pervasive judicial distrust, 2 and conflicting academic opinions on policy and effects. 3 Called one of the “traditional” common-law constraints on trade, restrictive covenants in employment contracts are not a new phenomenon. 4 There is over 500 years 5 of judicial interpretation following once agrarian societies, through the industrial age of manufactured goods, to an economy of information that barters knowledge and invests in human capital. 6 This economic development can be attributed to the value of competition, a policy adopted and well-settled at both the state and federal level. 7 Yet alongside this value of competition there are competing polices of freedom of contract 8 and the protection of legitimate employer interests 9 that must Westlaw current through 2017 Regular Sess.); GA. CODE A NN. §§ 13-8-50 to -59 (2016); TEX. BUS. & COM. CODE A NN. § 15.50 (West, Westlaw current through 2015 Regular Sess.), while other states, such as Alaska and Kentucky continue to rely on judicial tests established by years of precedent. See Data Mgmt., Inc. v. Greene, 757 P.2d 62, 64 (Alaska 1988); Hammons v. Big Sandy Claims Serv., Inc., 567 S.W.2d 313, 315 (Ky. Ct. App. 1978).

2 See, e.g., Robinson v. Boohaker, Schillaci & Co., 767 So. 2d 1092, 1094 (Ala. 2000) (“[T]his Court has routinely refused to enforce [restrictive covenants].”); Richard P. Rita Pers. Servs Int’l, Inc. v. Kot, 191 S.E.2d 79 (Ga. 1972) (discussing the in terrorem effect of restrictive covenants); Michael J. Garrison & John T. Wendt, The Evolving Law of Employee Noncompete Agreements: Recent Trends and an Alternative Policy Approach, 45 A M. BUS. L.J. 107, 113 (2008) (“Courts have traditionally looked upon agreements not to compete with disfavor.”); Greg T. Lembrich, Garden Leave: A Possible Solution to the Uncertain Enforceability of Restrictive Employment Covenants, 102 COLUM. L. REV. 2291 (2002) (“American courts, however, have frequently looked with disfavor upon [restrictive covenants].”).

3 Compare Michael J. Garrison & John T. Wendt, The Evolving Law of Employee Noncompete Agreements: Recent Trends and an Alternative Policy Approach, 45 A M. BUS. L.J. 107, 122-23 (2008) (showing several decades of less stringent approaches that give deference to employers), with Abigail Shechtman Nicandri, The Growing Disfavor of NonCompete Agreements in the New Economy and Alternative Approaches for Protecting Employers' Proprietary Information and Trade Secrets, 13 U. PA. J. BUS. L. 1003, 1005 (2011) (discussing a growing attack by courts and legislatures against restrictive covenants).

4 See Harlan M. Blake, Employee Agreements Not to Compete, 73 HARV. L. REV. 625 (1960) (detailing the history of the common law of restrictive covenants).

5 Id. 6 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).

7 See, e.g., GA. CONST . ART . III, § 6, ¶ V (amended 2010); A LA. CODE § 8-1-190 (2017); CAL. BUS.; & PROF. CODE § 16600 (West, Westlaw current through 2017 Regular Sess.); FLA. ST AT . §542.33 (West, Westlaw current through 2017 Regular Sess.); M ONT .

CODE A NN. § 28-2-703 (West, Westlaw current through 2017 Sess.); N.D. CENT . CODE § 908-06 (West, Westlaw current through 2017 Regular Sess.); Standard Oil Co. v. Fed. Trade Comm’n, 340 U.S. 231, 248 (1951); Kalnitz v. Ion Exch. Prod., Inc., 276 N.E.2d 60, 62 (Ill. 1971) (“Our free economy is based upon competition.”).

8 REST AT EMENT (SECOND) OF CONT RACT S CH. 8, T OPIC 1, INT RO. NOT E (1981) (“In general, parties may contract as they wish, and courts will enforce their agreements without

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 83 be balanced against it. It is this weighing of competing interests that most commonly sparks the debate on restrictive covenants.

Georgia is no stranger to this debate, with years of common law reliance that culminated into a two-decade war between a zealous General Assembly hoping to draw new business into the state and a historically distrusting judiciary that refused to take up the blue pencil out of fear of an in terrorem effect. Ultimately, however, legislative reform slid into the pages of Georgia’s statutory code in an attempt to refine, reshape, and in some parts sweep away entirely, almost 150 years of Georgia precedent. 10 The enacted legislation, dubbed the Georgia Restrictive Covenants Statute (the “GRCS”), is a collection of presumptions and newly adopted public policy for the courts to apply. 11 However, the GRCS falls short in statutory clarity, and presents paradoxical drafting that, if not addressed by the General Assembly, could risk a substantial circumvention of the entirety of the statute’s intended purpose and permit the courts, with their well-founded distrust of restrictive covenants, to persist in relying on their longestablished precedent.

This Comment will address these shortcomings and provide recommendations on how to rectify them. Part I will summarize Georgia’s common law test for evaluating restrictive covenants in employment contracts as well the attempts by the General Assembly to amend this process. Part II will summarize the new GRCS. Part III will discuss the shortcomings of the GRCS and provide recommendations on how to rectify them. Finally, Part IV will offer a compromise that allows the courts to blue pencil and thus further the purpose of the GRCS, but still deter the in terrorem effect while doing so.

I. THE COMMON LAW RULE OF REASON AND THE PROGENY OF THE GRCS In Georgia, there are four types of restrictive covenants commonly utilized in employment contracts: non-compete, 12 non-solicitation, 13 nonpassing on their substance.”).

9 For a concise list of what is considered legitimate employer interests, see Kyle B. Sill, Drafting Effective Noncompete Clauses and Other Restrictive Covenants: Considerations Across the United States, 14 FLA. COAST AL L. REV. 365, sec. IV (2013).

10 See Jenkins v. Temples, 39 Ga. 655, 657 (1869) (contracts in restraint of trade are against public policy, but a party may contract to not to conduct a particular trade).

11 GA. CODE A NN. §§ 13-8-50 to -59 (2016).

12 Non-competes prohibit an employee from performing competitive activities in a specified area for a specified time. Habif, Arogeti & Wynn, P.C. v. Baggett, 498 S.E.2d 346, 353 (Ga. 1998); Firearms Training Systems v. Sharp, 445 S.E.2d 538 (Ga. Ct. App. 1994).

13 Non-solicitations prohibit an employee from soliciting an employer’s

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recruitment of employees, 14 and non-disclosure of confidential information. 15 The GRCS pertains to non-competes and non-solicitations 16 and it is these which this Comment will focus on. 17 In the context of employment contracts, an employer generally inserts restrictive covenants to protect its “interest in property, confidential information, customer goodwill, business relationships, and other economic advantages”18 by including a prohibition, limitation, or other restraint on the “future business activities” of the employee. 19 However, these prohibitions are often seen as violations of public policy because they restrain an employee’s ability to practice unfettered his or her skill or profession. 20 The clients/customers. Habif, Arogeti & Wynn, P.C. v. Baggett, 498 S.E.2d 346, 353 (Ga. 1998).

14 Non-recruitments prohibit an employee from recruiting an employer’s current employees. ALW Marketing Corp. v. McKinney, 421 S.E.2d 565, 568 (Ga. Ct. App. 1992).

15 Non-disclosures prohibit an employee from divulging confidential business information upon termination. Palmer & Cay of Georgia, Inc. v. Lockton Companies, Inc., 615 S.E.2d 752, 757 (Ga. Ct. App. 2005).

16 Non-disclosures are only mentioned briefly in GA. CODE A NN. § 13-8-53(e) (2016), which disclaims any limitations on non-disclosures that might be inferred from the rest of the article; non-recruitments are not mentioned at all. There are several possibilities as to why non-disclosures and non-recruitments are not covered by the GRCS. One might assume that said covenants are not utilized as frequently employment contracts. But see Norman D. Bishara et. al., An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 VAND. L. REV. 1 (2015) (87.1% of contracts surveyed employed non-disclosure covenants). A possibility is that interference with an employer’s relationship with its employees may be actionable under tort law in certain circumstances, thus allowing added protection to employers. See Carroll Anesthesia Associates, P.C. v. AnestheCare, Inc., 507 S.E.2d 829, 833 (Ga. Ct. App. 1998) (“[Fair competition] privilege not applicable where a competitor ‘destroys or inflicts substantial injury by means of attracting away all or a large percentage of personnel upon whom the employer must depend to function...’”); GA. EMPLOYMENT LAW § 10:1 (4th ed.). Another theory is that because non-recruitment and non-disclosure covenants do not require a territorial limitation, they are easier to uphold under common law and thus legislative intervention is not necessary. See Wachovia Ins. Services, Inc. v. Fallon, 682 S.E.2d 657 (Ga. Ct. App. 2009) (non-recruitment covenant upheld with only a time limitation present); Palmer and Cay of Georgia, Inc. v. Lockton Companies, Inc., 615 S.E.2d 752, 757 (Ga. Ct. App. 2005).

17 Some refer analogously to non-compete and non-solicitation covenants, but the court distinguishes them due to the interest each is meant to protect. Habif, Arogeti & Wynn, P.C. v. Baggett, 498 S.E.2d 346, 353 (Ga. 1998).

18 Albany Bone & Joint Clinic, P.C. v. Hajek, 612 S.E.2d 509, 512 (Ga. Ct. App. 2005).

19 Id. 20 See e.g., Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 69 (2d Cir. 1999) (“[C]ourts must weigh the need to protect the employer's legitimate business interests against the employee's concern regarding the possible loss of livelihood, a result strongly disfavored by public policy….”); Collins Music Co. v. Parent, 340 S.E.2d 794, 795 (S.C. Ct. App. 1986) (“A covenant’s enforceability depends on whether it is…not unduly harsh and

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 85 General Assembly can set public policy in the constitution and statutes of a state; but while these sources are “first to be considered” they are not the sole determinants on which the courts may rely. 21 This unfettered range notwithstanding, a contract is deemed to violate public policy when it is “prohibited by statute, condemned by judicial decision, or contrary to the public morals.”22 The Georgia courts have historically adhered to this principle. More often than not, when a court has held a restrictive covenant to be against public policy, such a declaration has been accompanied by a citation to the state constitution and relevant statutes. 23 The Georgia Constitution for many years prohibited the General Assembly from authorizing a contract that lessened competition, 24 and the General Assembly included contracts in general restraint of trade as among those that it deemed contrary to public policy. 25 However, the Georgia Supreme Court made an important distinction in holding that restrictive covenants in employment contracts are only partial restraints on trade 26 and thus will be oppressive in curtailing the legitimate efforts of the employee to earn a livelihood….”); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 658 (Tex. App. 1992) (“Courts generally disfavor noncompete covenants because of the public policy against restraints of trade and the hardships resulting from interference with a person's means of livelihood.”); 6 W ILLIST ON ON CONT RACT S § 13:3 (4th ed.) (“General restraints have been invalidated because of their harmful effect…on the public….The public would be injured by depriving it of the industry to which the employee was best suited….”).

21 Strickland v. Gulf Life Ins. Co., 242 S.E.2d 148, 151 (Ga. 1978) (“In determining what public policy requires, there is no limit whatever to the ‘sources' to which the court is permitted to go; and there is no limit to the ‘evidence’ that the court may cause to be produced . . . .”) (quoting 6A CORBIN ON CONT RACT S § 1375).

22 17A C.J.S. CONT RACT S §281. The phrase “contrary to public morals” is likely a proxy for what the public finds “immoral” at the time of the court’s review. Historically, courts have found immorality in contracts that deal in sexual promiscuity, Rosenblath v.

Sanders, 91 So. 252, 252 (La. 1922), cohabitation, Rehak v. Mathis, 238 S.E.2d 81, 82 (Ga. 1977), and gambling, Nat'l Bank of Augusta v. Cunningham, 75 Ga. 366, 366 (1886). The California Supreme Court went further in scope, adopting a definition of immorality that is “not [] confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare.”

Orloff v. Los Angeles Turf Club, 227 P.2d 449, 453 (Cal. 1951). However, it is common knowledge that what the public, and eventually the court, finds immoral changes with time.

See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

23 See, e.g., W.R. Grace & Co., Dearborn Div. v. Mouyal, 422 S.E.2d 529, 531 (Ga. 1992); Palmer & Cay of Georgia, Inc. v. Lockton Companies, Inc., 615 S.E.2d 752, 755 (Ga. Ct. App. 2005); Habif, Arogeti & Wynn, P.C. v. Baggett, 498 S.E.2d 346, 350, fn. 10 (Ga. Ct. App. 1998).

24 GA. CONST . ART . III, § 6, ¶ V(c) (amended 2010).

25 GA. CODE A NN. § 13-8-2 (2016).

26 Rakestraw v. Lanier, 104 Ga. 188 (1898). Historically, English common law viewed all restrictive covenants as void, but in Mitchel v. Reynolds an English court modified this

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upheld if reasonable, 27 adopting a strict scrutiny standard which it would use to distinguish contracts more favored by public policy. 28 Known as the rule of reason, the Court laid out a three element test 29 of duration, territory, and scope that is used to determine whether a restrictive covenant is reasonable. 30 Although later held by the Georgia Supreme Court to merely be a “helpful tool” rather than a dispositive test, 31 the courts regularly relied upon the three element test when ruling on the reasonableness of a restrictive covenant. 32 A. Duration While analysis of all three elements of the reasonableness test can be arbitrary, duration in particular had a history of unpredictability due to the inconsistent length of times upheld by the courts and lack of analysis present to explain their reasoning. 33 Most commonly, the courts have held a rule of absolute illegality to create a distinction between general and partial restraints on trade, giving way to the rule of reasonableness. (1711) 1 p Wms 181, 24 Eng Reprint 347.

See United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 347 (1897) (acknowledging the distinction between contracts in general restraint of trade and those in partial restraint of trade).

27 See, e.g., Atlanta Bread Co. Intern., Inc. v. Lupton-Smith, 679 S.E.2d 722 (Ga. 2009); Trujillo v. Great Southern Equipment Sales, LLC, 657 S.E.2d 581, 583 (Ga. Ct. App. 2008); Swartz Investments, LLC v. Vion Pharm., Inc., 556 S.E.2d 460, 462 (Ga. Ct. App. 2001). The restrictive covenant must also be founded on valuable consideration, reasonably necessary to protect the employer’s interests, and must not violate public policy.

Rakestraw v. Lanier, 104 Ga. 188 (1898). However, Georgia courts have predominately focused on the reasonableness of the covenant.

28 See Advance Technology Consultants, Inc. v. Roadtrac, LLC, 551 S.E.2d 735, 736 (Ga. Ct. App. 2001) (“The first step in considering the enforceability of restrictive covenants is to determine the level of scrutiny to be applied...covenants ancillary to an employment contract [] receive strict scrutiny…and covenants ancillary to a sale of [a] business [] receive much less scrutiny.”).

29 Determinations regarding the reasonableness of a restrictive covenant is a question of law for the court. W.R. Grace & Co., Dearborn Div. v. Mouyal, 422 S.E.2d 529, 531 (Ga. 1992).

30 Shirk v. Loftis Bros. & Co., 97 S.E. 66 (Ga. 1918).

31 Watson v. Waffle House, Inc., 324 S.E.2d 175, 177-78 (1985). See Roberts v. Tifton Med. Clinic, 426 S.E.2d 188, 191 (Ga. Ct. App. 1992) (applying the Watson holding) (the particular factual settings of the contract must be considered).

32 See, e.g., Gordon Document Prod., Inc. v. Serv. Techs., Inc., 708 S.E.2d 48, 53 (Ga. Ct. App. 2011) (covenant struck down because its territory was overbroad and thus unreasonable); Waldeck v. Curtis 1000, Inc., 583 S.E.2d 266 (Ga. Ct. App. 2003) (nonsolicitation covenant prohibiting acceptance of unsolicited former clients was overbroad as to scope and thus unreasonable); Habif, Arogeti & Wynn, P.C. v. Baggett, 498 S.E.2d 346, 350 (Ga. Ct. App. 1998) (two-year duration often considered reasonable).

33 See Johnson v. Lee, 257 S.E.2d 273, 275 (Ga. 1979) (“[T]his court had not set any limitations on time restrictions which would, per se, be unreasonable and unenforceable.”).

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 87 two-year duration to be reasonable, 34 but under certain circumstances has upheld longer lengths of time. 35 Despite no clear reasoning behind the average two-year length being reasonable, the Georgia Supreme Court has at a minimum held that a time limitation must be present in in a contract whose purpose is to cease the practice of a learned profession. 36 B. Territory and Scope--The Semi-Inverse Proportional Scale The elements of territory and scope are best discussed together due to the interplay that exists between them. The effect can best be described as a semi-inverse 37 proportional scale, where the broadness of one element must be accompanied by the narrowing of the other if the covenant is to be reasonable. 38 The foundational principle of this inverse scale is that an overbroad covenant is an unreasonable one, thereby focusing the analysis of the courts on how narrow or broad a covenant’s territory or scope is set forth in the contract. 39 Consequently, in order to measure this breadth, the court’s analysis must focus on tangible facts that can be utilized as an identifying measure of when an element crosses over into the realm of the 34

See, e.g., American Software USA v. Moore, 448 S.E.2d 206, 207 (Ga. 1994) (conclusively holding two year duration reasonable); Chaichimansour v. Pets are People Too, No. 2, 485 S.E.2d 248 (Ga. Ct. App. 1997) (holding non-compete with duration of two years reasonable). But see, Orkin Exterminating Co. v. Walker, 307 S.E.2d 914, 91617 (Ga. 1983) (holding two year duration overbroad due to circumstances); Lighting Galleries, Inc. v. Drummond, 543 S.E.2d 419, 421-22 (Ga. Ct. App. 2000) (holding two year duration unenforceable).

35 Johnson v. Lee, 257 S.E.2d 273, 275 (Ga. 1979) (five year duration reasonable).

36 Kutash v. Gluckman, 20 S.E.2d 128, 130 (Ga. 1942) (holding that covenants ancillary to the sale of a business may be unlimited as to time, but those ancillary to an employment contract may not be).

37 Semi because both elements could be narrow—one is not required to be broad.

38 W.R. Grace & Co., Dearborn Div. v. Mouyal, 422 S.E.2d 529, 532 (Ga. 1992) (“As the group which the employer wishes to protect…becomes more narrowly defined, the need for a territorial restriction…becomes less important.”); Chaichimansour v. Pets are People Too, No. 2, 485 S.E.2d 248, 250 (Ga. Ct. App. 1997) (“[I]f the scope…is narrow enough…the covenant may be reasonable even if has no territorial limitation or has a territorial limitation which is very broad.”).

39 Courts vary in the manner with which they word this principle, but the three element test of reasonableness invariably requires the court to determine whether each element is reasonable and the manner in which to determine this reasonableness inevitably becomes an analysis of breadth. Compare, Dent Wizard Intern. Corp. v. Brown, 612 S.E.2d 873, 876 (Ga. Ct. App. 2005) (covenant not to compete was overly broad and thus unreasonable) (emphasis added) and Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 447 S.E.2d 94 (Ga. Ct. App. 1994) (“Restrictive covenant was unreasonable and unenforceable as being overbroad.”) with Hulcher Services, Inc. v. R.J. Corman R.R. Co., LLC, 543 S.E.2d 461 (Ga. Ct. App. 2000) (“[N]on-competition restrictive covenant was overbroad and unreasonable.”) (emphasis added).

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overbroad. The tangible facts examined, while based on the premise that the competing interests of both the employer and employee must be weighed against each other, 40 ultimately boil down to two concise inquiries to determine whether an element is overbroad and thus unreasonable: 1) for territory, whether the covenant proscribes an area where the employer does business (as opposed to only where the employee did business); 41 and 2) for scope, whether the covenant proscribes dealing with clients of the employer (as opposed to only those who had specifically dealt with the employee), and/or fails to specify the nature of the business activities being proscribed. 42 The presence of both is prima facie evidence of an unreasonable restrictive covenant, 43 and the absence of one will render the restrictive covenant reasonable under the semi-inverse proportional scale. 44 There are of course exceptions to the semi-inverse proportional scale, which undoubtedly have contributed to the view of many commentators that restrictive covenant case law is hopelessly inconsistent. 45 40

W.R. Grace & Co., Dearborn Div. v. Mouyal, 422 S.E.2d 529, 531-32 (Ga. 1992) (“[C]onsideration must be given to the employee’s right to earn a living....[A]t the same time, the employer has a protectable interest in the customer relationships its former employee established….”); Thomas v. Coastal Industrial Services, 108 S.E.2d 328, 329 (Ga. 1982) (“Reasonableness as to territory depends not so much on the geographical size of the territory as on the reasonableness of the territorial restriction in view of the facts and circumstances of the case.”); Dent Wizard Intern. Corp. v. Brown, 612 S.E.2d 873, 876 (Ga. Ct. App. 2005) (“[The court] considers the nature and extent of the trade or business, the situation of the parties, and all other circumstances.”).

41 Howard Schultz & Associates of the Se., Inc. v. Broniec, 236 S.E.2d 265, 267-68 (Ga. 1977) (“Insofar as territorial restrictions are concerned, some of them relate to the territory in which the employee was employed; others related to the territory in which the employer does business. The former generally will be enforced.”); McAlpin v. Coweta Fayette Surgical Associates, P.C., 458 S.E.2d 499, 502 (Ga. Ct. App. 1995) (restrictive covenant covering territory where employee had not worked not unreasonable because scope did not cover all former clients).

42 Fuller v. Kolb, 234 S.E.2d 517, 517-18 (Ga. 1977) (restrictive covenant proscribing business with all clients of former employer overbroad) (no territory was present); Southeastern Beverage & Ice Equipment Co., Inc. v. Dillard, 211 S.E.2d 299 (Ga. 1974) (restrictive covenant that had no territory restriction, no limitation as to clients, and did not specify the activities proscribed, was unreasonable); Ellison v. Labor Pool of America, Inc., 184 S.E.2d 572, 574-75 (Ga. 1971) (restrictive covenant that prohibited 50 mile area was unreasonable, employee had not worked entire areas) (restrictive covenant covered areas where employees had not worked and contained no limitation on scope).

43 Howard Schultz & Associates of the Se., Inc. v. Broniec, 236 S.E.2d 265, 267-68 (Ga. 1977).

44 See supra note 41-42. While not explicitly referenced in the opinions, each of the cases involves a restrictive covenant that either failed due to the presence of both an overbroad territory and scope, or was upheld due to the presence of a narrow territory or scope that counterbalanced its overbroad counterpart.

45 See generally Greg T. Lembrich, Garden Leave: A Possible Solution to the Uncertain Enforceability of Restrictive Employment Covenants, 102 COLUM. L. REV. 2291

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 89 One such exception is that an overbroad territorial restriction may still be reasonable if justified by the employer showing a legitimate business interest that is sought to be protected. 46 Another exception pertaining to non-solicitation covenants is that a restrictive covenant may not proscribe solicitation of clients who had already severed their relationship with the former employer. 47 Furthermore, non-solicitation covenants may not preclude an employee’s acceptance of unsolicited business offers. 48 Note, however, that such conduct may still be proscribed by a valid noncompetition covenant if such would result in competition within the proscribed territory. 49 C. The Blue Pencil Doctrine—The In Terrorem Effect If a restrictive covenant was held unreasonable due to an overbroad duration, territory, or scope, the pleas of employers who wished for the equitable hand of the court to narrow their contracts back into the realm of reasonableness have long gone unheeded. 50 This equitable hand is called the blue pencil doctrine of severability, a judicial tool that permits a court to eliminate or narrow unreasonable aspects of a restrictive covenant and thereafter uphold the remaining reasonable parts. 51 Traditionally a court could only blue pencil by striking through or limiting unenforceable provisions. 52 However, in recent years a more liberal (2002). Because the semi-inversely proportional scale was only a helpful tool and not a mandated test, there was opportunity for varying degrees of application by the courts.

46 Howard Schultz & Associates of the Se., Inc. v. Broniec, 236 S.E.2d 265, 267-68 (Ga. 1977) (holding that a territorial restriction covering everywhere an employer does business, as opposed to where an employee does business, is unenforceable absent a showing of legitimate business interest); see id. (holding that the mere fact that employer wishes to avoid competition by employee not a legitimate interest).

47 Wachovia Ins. Services, Inc. v. Fallon, 682 S.E.2d 657, 661-62 (Ga. Ct. App. 2009) (holding that such a restriction impacts the public’s ability to choose business it prefers).

48 Waldeck v. Curtis 1000, Inc., 583 S.E.2d 266, 268 (2003) (non-solicitation covenants can only proscribe affirmative acts).

49 Habif, Arogeti & Wynn, P.C. v. Baggett, 498 S.E.2d 346, 353 (Ga. Ct. App. 1998).

50 Richard P. Rita Pers. Servs. Int’l, Inc. v. Kot, 191 S.E.2d 79, 81 (Ga. 1972) (“We have given careful consideration to the [blue pencil] theory, and we decline to apply it.”)

(Supreme Court’s first holding declining to apply the blue pencil doctrine).

51 Gary P. Kohn, A Fresh Look: Lowering the Mortality Rate of Covenants Not to Compete Ancillary to Employment Contracts and to Sale of Business Contracts in Georgia, 31 EMORY L.J. 635, 691 (1982).

52 New Atlanta Ear, Nose & Throat Associates, P.C. v. Pratt, 560 S.E.2d 268, 273 (Ga. Ct. App. 2002) (“[T]he ‘blue pencil’ marks, but it does not write.”); Smart Corp. v. Grider, 650 N.E.2d 80, 83–84 (Ind. Ct. App. 1995) (“Blue penciling must be restricted to applying terms which already clearly exist in the contract and the court's redaction of a contract may not result in the addition of terms that were not originally part of the contract.”).

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blue pencil doctrine has emerged in some states that permits courts to rewrite and add to a contract that would have otherwise been unenforceable under the traditional blue pencil approach. 53 While the majority of jurisdictions permit some degree of blue penciling, 54 under its common law jurisprudence Georgia belonged to the minority of states that refused to put the blue pencil to restrictive covenants in employment contracts. 55 Furthermore, Georgia courts viewed such restrictive covenants with the strictest scrutiny, mandating an all-or-nothing approach—if one restrictive covenant fell, the others fell with it. 56 The Georgia Supreme Court’s unwavering refusal to blue pencil restrictive covenants in employment contracts stems from its distaste of the “in terrorem effect”57 that an employer with unfair bargaining power could exert upon its easily dissuaded employee, resulting in his or her mobility being unjustifiably restrained. 58 Because these concerns are not present when a covenant not to compete is made ancillary to the sale of a business, 59 the Georgia Supreme Court adopted a conservative blue pencil 53

Jon P. McClanahan & Kimberly M. Burke, Sharpening the Blunt Blue Pencil: Renewing the Reasons for Covenants Not to Compete in North Carolina, 90 N.C. L. REV. 1931, 1969 (2012).

54 See e.g., Olliver/Pilcher Ins. V. Daniels, 715 P.2d 1218, 1221 (Ariz. 1986); Nat'l Graphics Co. v. Dilley, 681 P.2d 546, 547 (Colo. App. 1984); E. Bus. Forms, Inc. v.

Kistler, 189 S.E.2d 22, 23-24 (S.C. 1972); Jon P. McClanahan & Kimberly M. Burke, Sharpening the Blunt Blue Pencil: Renewing the Reasons for Covenants Not to Compete in North Carolina, 90 N.C. L. REV. 1931, 1986, fn. 216 (2012) (39 states permit at least traditional blue penciling).

55 Advance Technology Consultants, Inc. v. Roadtrac, LLC, 551 S.E.2d 735, 737 (Ga. Ct. App. 2001) (“Georgia does not employ the ‘blue pencil’ doctrine of severability.”).

56 See e.g., Ward v. Process Control Corp., 277 S.E.2d 671, 673 (Ga. 1981) (“If any covenant not to compete within a given employment contract is unreasonable…then all covenants not to compete within the same employment contract are unenforceable.”); Wachovia Ins. Servs., Inc. v. Fallon, 682 S.E.2d 657, 660 (Ga. Ct. App. 2009) (“Strict scrutiny requires a court to strike down all covenants not to compete or solicit if one covenant is unenforceable.”); Waldeck v. Curtis 1000, Inc., 583 S.E.2d 266, 269 (Ga. Ct. App. 2003) (“In restrictive covenant cases strictly scrutinized as employment contracts, Georgia does not employ the ‘blue pencil’ doctrine of severability.”); Advance Technology Consultants, Inc. v. Roadtrac, LLC, 551 S.E.2d 735, 737 (Ga. Ct. App. 2001) (“[W]hether they are individually or collectively categorized as nonsolicit or noncompete covenants, Georgia law is clear that if one of them is unenforceable, then they are all unenforceable.”).

But see O. H. Carter Co. v. Buckner, 287 S.E.2d 636, 638 (Ga. Ct. App. 1981) (holding that the unenforceability of one restrictive covenant only invalidates the other restrictive covenant, not the entire contract in which they were contained).

57 Harlan M. Blake, Employee Agreements Not to Compete, 73 HARV. L. REV. 625, 682 (1960).

58 Richard P. Rita Pers. Servs. Int’l, Inc. v. Kot, 191 S.E.2d 79, 81 (Ga. 1972).

59 White v. Fletcher/Mayo/Associates, Inc., 303 S.E.2d 746 (Ga. 1983) (blue pencil permitted on restrictive covenants ancillary to the sale of a business because less disparity

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 91 doctrine for these types of contracts, allowing courts to limit overbroad provisions to make them reasonable. 60 D. Progeny of the GRCS—The Previous Attempts to Enact Reform Before delving into the changes implemented by the GRCS, it is first worth to note the failed attempts at reform in the past in order to bring context to the two decade struggle and help explain the General Assembly’s procedural reasoning.

On July 1, 1990, O.C.G.A. § 13-8-2.1 constituted the General Assembly’s first attempt at codifying the law on restrictive covenants and to limit the ability of the courts to hold a restrictive covenant unenforceable. 61 Substantively, the statute codified the longstanding principle that restrictive covenants are only partial restraints on trade and would be enforced if reasonable. 62 In addition, the statute departed radically from Georgia precedent by not requiring non-solicitation covenants to have a limited territory or scope, thereby restricting the balancing of the semi-inverse proportional scale to only non-competition covenants. 63 Yet the most drastic shift the legislature sought was a forceful adoption of the blue pencil doctrine. 64 Not only did the statute permit the ready use of the blue pencil to enforce provisions otherwise held unreasonable, it required that the courts put pencil to paper at every feasible opportunity. 65 As discussed above, the Georgia Supreme Court has long disfavored the blue pencil doctrine, 66 and in bargaining power exists between such parties).

60 Hamrick v. Kelley, 392 S.E.2d 518, 519 (Ga. 1990) (“The ‘blue pencil’ marks, but it does not write. It may limit an area, thus making it reasonable, but it may not rewrite a contract void for vagueness….”); White v. Fletcher/Mayo/Assocs., Inc., 303 S.E.2d 746, 749 (Ga. 1983) (“In short, we do not blue pencil in employment contract cases, but do in sale of business cases.”); Jenkins v. Jenkins Irrigation, Inc., 259 S.E.2d 47, 51 (Ga. 1979) (“The reasons for rejecting severability in employee covenants are not applicable to covenants not to compete made in conjunction with the sale of a business….[T]he court will enjoin the seller from competing in only so much of that area as it finds…is essential to protect the buyer.”) (citations omitted).

61 See generally GA. CODE. A NN. § 13-8-2.1 (2016) (as enacted in 1990).

62 GA. CODE A NN. § 13-8-2.1(a) (2016). The statute also codified the courts’ analysis that non-compete covenants which proscribe competition where the employee did business are reasonable.

63 GA. CODE A NN. § 13-8-2.1(b)(3) (2016) (“No express reference to geographic area or the types of products or services…shall be required in order for the restraint to be enforceable.”); John C. Yates Michael W., Intellectual Property, 42 M ERCER L. REV. 295, 322 (1990).

64 GA. CODE A NN. § 13-8-2.1(g)(1) (2016).

65 So long as the restraint, “considered as a whole” was not so unreasonable as to be unconscionable. Id. 66 See Richard P. Rita Pers. Servs. Int’l, Inc. v. Kot, 191 S.E.2d 79, 81 (Ga. 1972)

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reaffirmed this less than a year after the enactment of O.C.G.A § 13-8-2.1.

In Jackson & Coker, Inc. v. Hart, in a two-page opinion, the Georgia Supreme Court held that O.C.G.A § 13-8-2.1 was unconstitutional. 67 The court centered the entirety of its conclusion on the statute’s imposition of the blue pencil doctrine, which the Court saw as compelling courts “breathe life into contracts otherwise plainly void” under the Georgia Constitution. 68 While it is within the power of the courts to authorize reasonable partial restraints on trade despite their effect of defeating or lessening competition, the Georgia Constitution expressly proscribed the General Assembly from doing so. 69 Additionally, the court appeared to balk at the General Assembly’s attempt to alter public policy through legislation. 70 The court did not elaborate as to why it found the newly enacted legislation insufficient to change public policy on restrictive covenants, but it may have been because it held the Georgia Constitution as higher evidence of public policy. 71 It would be approximately twenty years before the General Assembly took a second bite at the apple of restrictive covenant reform, ultimately culminating in the enactment of the GRCS, but not before overcoming several bumps in the road. House Bill 173 in 2009 was the starting point, which contained the text now codified as the GRCS. 72 In an attempt to avoid the same holding of unconstitutionality that befell O.C.G.A (citing the in terrorem effect as the basis for refusing adoption of the blue pencil doctrine); John C. Yates Michael W., Intellectual Property, 42 M ERCER L. REV. 295, 326 (1990) (discussing the possible limitations of the blue pencil doctrine the Supreme Court would place under the new restrictive covenant statute).

67 405 S.E.2d 253, 255 (Ga. 1991).

68 Id. 69 GA. CONST . ART . III, § 6, ¶ V (c)(1)(“The General Assembly shall not have the power to authorize any contract…which is intended to have the effect of defeating or lessening competition….”) (amended 2010) (emphasis added).

70 Compare Jackson & Coker, Inc. v. Hart, 405 S.E.2d 253, 255 (Ga. 1991) (“Further…a court seemingly would be directed by the General Assembly to enforce contracts in which the restraint is ‘against the policy of the law,’ provided it is not so much against the ‘policy of the law’ as to be ‘unconscionable.’”), with GA. A NN. CODE § 13-8-2 (a)(2) (2016) (“Contracts deemed contrary to public policy include…(2) Contracts in general restraint of trade, as distinguished from contracts in partial restraint of trade as provided for in Code Section 13-8-2.1.”) (as amended 1990).

71 As noted in Strickland v. Gulf Life Ins. Co., 242 S.E.2d 148, 151 (Ga. 1978) and discussed above, while public policy may be set by a constitution or statute, the Court can in fact rely on a limitless range of sources when determining public policy. The Court may have resisted the public policy change on the basis that the legislation favors contracts that lessen competition, an idea that can be seen as an implied authorization by the legislature, and thus a violation of the constitution. See GA. CONST . ART . III, § 6, ¶ V(c) (pre-2010 amendment).

72 H.B. 173, 150th Gen. Assemb., Reg. Sess. (Ga. 2009).

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 93 § 13-8-2.1, the effectiveness of House Bill 173 was made explicitly contingent on the ratification of a constitutional amendment 73 that would provide further authority to the General Assembly to enact reform. 74 Although the ratification of an amendment occurred on Nov. 2, 2010, 75 the General Assembly neglected to specify an effective date for the amendment, which therefore caused it to take effect on Jan. 1, 2011. 76 Because the effective date of House Bill 173 was made contingent on the ratification of the constitutional amendment (Nov. 2, 2010), 77 rather than the amendment’s effective date (Jan. 1, 2011), House Bill 173 became both effective and unconstitutional on the same day. 78 In Georgia, a voided statute cannot be revived and can only be made effective by re-enactment, thereby eliminating the possibility that subsequent effectiveness of the constitutional amendment could save House Bill 173. 79 Faced with the likely proposition that their newly enacted statute would again be held unconstitutional, 80 and the risk of entering into another two decade stalemate with the courts, on May 11, 2011, the General Assembly passed House Bill 30 81 to alleviate the uncertainty. The new bill mirrored the provisions of House Bill 173 and became the GRCS. 82

73

H.R. 178, 150th Gen. Assemb., Reg. Sess. (Ga. 2010).

H.B. 173, 150th Gen. Assemb., Reg. Sess. (Ga. 2009). The bill also made clear that the new statute would not apply retroactively, thus leaving the common law analysis intact for contracts entered into before the effective date of the bill.

75 See GA. CONST . ART . III, § 6, ¶ V(c). The amendment passed with overwhelming support in both the House (158 yea, 12 nay) and the Senate (48 yea, 1 nay) during the 2009-2010 Regular Session. Although the constitution still proscribes the legislature from authorizing a contract that lessens competition, the amendment created an explicit exception for restrictive covenants.

76 See GA. CONST . ART . X, § 1, ¶ VI (“Unless the amendment or the new Constitution itself or the resolution proposing the amendment or the new Constitution shall provide otherwise, an amendment to this Constitution or a new Constitution shall become effective on the first day of January following its ratification.”).

77 H.B. 173, supra, note 72.

78 Although no Georgia appellate court ruled on the issue, the court in Becham v.

Synthes USA, 482 Fed. App’x 387 (11th Cir. 2012) applied the Georgia Supreme Court’s holding in Comm’rs of Roads & Revenues of Fulton Cnty. v. Davis, 102 S.E.2d 180 (Ga. 1958) that a statute’s constitutionality is tested at the time it is passed. Further relying on Jackson & Coker, Inc. v. Hart, 405 S.E.2d 253 (Ga. 1991), the circuit court found H.B. 173 was unconstitutional under the pre-amended constitution.

79 Comm’rs of Roads & Revenues of Fulton Cnty. V. Davis, 102 S.E.2d 180, 183 (Ga. 1958).

80 See Jackson & Coker, Inc. v. Hart, 405 S.E.2d 253 (Ga. 1991).

81 H.B. 30, 151st Gen. Assemb., Reg. Sess. (Ga. 2011).

82 See GA. CODE A NN. § 13-8-50 to -59 (2016).

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II. SUMMARY OF THE GRCS Now that the GRCS has been codified in the O.C.G.A., 83 an entire recitation of the statute is unnecessary. However, in order to provide context to the discussion in Part III, it is important to highlight the major changes the GRCS made to the common law analysis. A distinguishing feature of the GRCS is its differentiation in application to non-competition84 and nonsolicitation85 restrictive covenants. 86 Additionally, like O.C.G.A § 13-8-2.1, the GRCS contains a provision on the blue pencil doctrine.

A. Non-Compete Covenants—Retaining the Rule of Reason As applied to non-compete restrictive covenants, the GRCS retains and codifies the common law rule of reason, transforming the “helpful tool”87 of duration, territory, and scope into a mandatory requirement of enforceability. 88 However, whereas the courts used the semi-inverse proportional scale to weigh the reasonableness of the territory and scope elements, the GRCS replaces this process altogether with mandatory presumptions that indicate reasonableness. 89 This is likely to resolve the problem of arbitrary enforcement of restrictive covenants under the rule of reason, despite the guidelines created by precedent, due to the three element test being only a helpful tool, as opposed to a mandatory one.

In place of the semi-inverse proportional scale, the GRCS now requires that a restrictive covenant’s description of territory and scope contain a good faith estimate of what may be applicable at the time of termination, or alternatively, a description of the maximum reasonable scope and territory. 90 The statute further attempts to alleviate the possibility of a covenant being overbroad, as any estimation “shall be construed ultimately to cover only…the activities actually conducted, the products or services actually offered, or the geographic areas actually involved….”91 83

Id. See GA. CODE A NN. § 13-8-53(a) (2016).

85 See GA. CODE A NN. § 13-8-50(b) (2016).

86 While the courts did acknowledge the difference between these two types of covenants, see Habif, Arogeti & Wynn, P.C. v. Baggett, 498 S.E.2d 346, 353 (Ga. Ct. App. 1998), they still applied the rule of reason and the semi-inversely proportional scale to both.

87 Watson v. Waffle House, Inc., 324 S.E.2d 175, 177-78 (Ga. 1985).

88 GA. CODE A NN. § 13-8-53(a) (2016).

89 See e.g. GA. CODE A NN. § 13-8-57(b) (2016) (duration of two years or less presumed reasonable).

90 GA. CODE A NN. § 13-8-53(c)(1) (2016).

91 Id. 84

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 95 However, the GRCS does permit a territory restriction based on where the employer does business (considered overbroad under common law) so long as the total distance of the restriction is also reasonable and/or the restriction contains a list of proscribed competitors. 92 Additionally, the GRCS provides example language that employers can include in their restrictive covenants so as to ensure their restrictions are sufficiently described (the examples, the “Safe-Harbor Provision”). 93 B. Non-Solicitation Covenants—The Material Contact Requirement The analysis for non-solicitation covenants received a far greater restructuring than its counterpart that ultimately allows for a far more straight-forward application. The rule of reason and the semi-inverse proportional scale have been abandoned entirely, replaced instead with a material contact requirement. 94 The GRCS defines material contact as four possible scenarios of employee-customer interaction, thus requiring nonsolicitation covenants be narrower than proscribing solicitation of customers with which the employee had no interaction. 95 Furthermore, with the adoption of the material contact requirement, the GRCS requires no territory provision for the non-solicitation covenant to be enforceable. 96 While the semi-inverse proportional scale would have allowed a nonsolicitation covenant that was overbroad in scope to still be reasonable if it had a narrow territorial restriction, the GRCS abrogates the scale entirely by requiring a narrow scope and removing the territory requirement.

C. The Discretionary Blue Pencil Jackson & Coker held O.C.G.A. § 13-8-2.1 unconstitutional, in part, by referencing its mandated imposition of the blue pencil rule. 97 The GRCS does not include the blue pencil doctrine as a requirement, perhaps as an attempt to make the concept more accepting to the courts. Instead of 92

GA. CODE A NN. § 13-8-56(2) (2016).

GA. CODE A NN. § 13-8-53(c)(2) (2016).

94 GA. CODE A NN. § 13-8-53(b) (2016) (“[A]n employee may agree…to refrain, for a stated period of time following termination, from soliciting, or attempting to solicit…customers, with whom the employee had material contact during his or her employment….”)(emphasis added).

95 GA. CODE A NN. § 13-8-51(10) (2016). This is another example of the GRCS codifying a common law principle, as non-solicitation covenants were deemed overbroad in scope and thus unreasonable if they proscribed solicitation of customers whom the employee never interacted with, absent an accompanying narrow territorial restriction.

96 GA. CODE A NN. § 13-8-53(b) (2016).

97 405 S.E.2d 253, 254-55 (Ga. 1991).

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demanding that the courts utilize the doctrine, the GRCS instead makes its usage discretionary, with no requirement that the courts enforce, even partially, any restrictive covenant that is not in compliance with the GRCS. 98 To the extent that the GRCS has attempted to adopt the blue pencil, the absence of language that would allow a court to add new terms to an unreasonable restrictive covenant indicates that it is the traditional, rather than the liberal, blue-pencil doctrine. 99 With the changes the GRCS made to the common law in mind, the next section will discuss how the new provisions are to be applied in practice and whether the results are more reliable than the semi-inverse proportional scale.

III. POSSIBLE CIRCUMVENTION OF THE GRCS—THE RESULT OF INSUFFICIENT PRESUMPTIONS AND STATUTORY AMBIGUITY The Georgia Constitution has been amended with an exception that explicitly permits the authorization of restrictive covenants in employment contracts. 100 Although no Georgia appellate court has yet ruled on a restrictive covenant under the GRCS, 101 with the Georgia Constitution now amended is it unlikely the entire statute will be found unconstitutional.

While questions of constitutionality are no longer at the forefront, statutory ambiguity creates the risk of a substantial undermining of the core aspects of the GRCS. The GRCS was enacted in order “to provide statutory guidance so that all parties to [a restrictive covenant] may be certain of the validity and enforceability of such provisions….”102 Therefore, it is logical to conclude 98

GA. CODE A NN. § 13-8-54(b) (2016) (“[I]f a court finds that a contractually specified restraint does not comply with the [GRCS], then the court may modify the restraint provision....”); GA. CODE A NN. § 13-8-53(d) (2016) (“[A] court may modify a covenant that is otherwise void and unenforceable….”).

99 GA. CODE A NN. § 13-8-53(11)-(12) (2016) (“’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….‘Modify’ means to make, to cause, or otherwise to bring about a modification.”).

100 GA. CONST . ART . III, § 6, ¶ V(c)(2).

101 Restrictive covenant cases have reached Georgia appellate courts since 2011, but in these cases the contracts at issue were entered into prior to 2011 and thus are governed by the common law analysis. See e.g. Early v. MiMedx Group, Inc., 768 S.E.2d 823 (Ga. Ct. App. 2015); Vulcan Steel Structures, Inc. v. McCarty, 764 S.E.2d 458 (Ga. Ct. App. 2014); Cox v. Altus Healthcare and Hospice, Inc., 706 S.E.2d 660 (Ga. Ct. App. 2011).

102 GA. CODE A NN. § 13-8-50 (2016).

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 97 that one should look to the statute itself to determine the qualifications for enforceability. Non-competition restrictive covenants are enforceable so long as they are reasonable as to time, territory, and scope of proscribed activities, 103 and the descriptions of these three elements are deemed satisfactory if they are in alignment with O.C.G.A. § 13-8-53(c)(1).

Combining the provisions of O.C.G.A. §§ 13-8-53(a), (c)(1), & 57(b) into an applicable rule of law, under the GRCS a non-competition covenant in an employment contract is reasonable and thus enforceable so long as 1) its duration is two years or less and 2) its descriptions of territory and scope each provide either a) fair notice of the maximum reasonable boundaries 104 of that territory and scope, or b) a good faith estimate of what may be applicable at the time of termination, with such estimate construed only to cover only so much of the territory and scope actually involved. While the GRCS explicitly provides what is a reasonable duration, the two options for determining the reasonableness of territory and scope do not appear to fulfill the purpose of the GRCS to provide statutory guidance, instead leaving only open-ended questions that permit the unfettered use of judicial discretion the General Assembly sought to avoid. The next two subsections discuss these open-ended questions.

A. Fair Notice of the Maximum Reasonable Boundaries—The Unworkable Paradox The GRCS is absent as what denotes “fair notice,” or what means should be utilized to determine such. Under common law, notice of what constituted a violation of a restrictive covenant was satiated by providing a reasonable territory limitation. 105 However, it cannot be said that merely providing the maximum area proscribed under the covenant is sufficient to render it reasonable, otherwise an employer could simply insert a territory encompassing the entirety of the known universe and be done with it.

Furthermore, if a territorial restriction was all that was required to render a covenant enforceable, then the requirement of a description of scope would be superfluous. Additionally, if it was the intent of the General Assembly to require only a maximum possible territorial restriction to render a restrictive 103

GA. CODE A NN. § 13-8-53(a) (2016).

The GRCS uses the word “scope,” but to avoid confusion the word “boundaries” has been substituted, in order to effectuate the literal intent of the word as it is used in this manner.

105 See W.R. Grace & Co., Dearborn Div. v. Mouyal, 422 S.E.2d 529, 531 (Ga. 1992) (“A territorial limitation is necessary to give the employee notice of what constitutes a violation of the restrictive covenant.”); see also Fuller v. Kolb, 234 S.E.2d 517, 518 (Ga. 1977) (“The problem inherent in restrictive covenants which do not have territorial limitations is one of notice to the former employee.”).

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covenant reasonable, such unfettered discretion would have been explicitly provided within the GRCS. Therefore, “reasonable boundaries” must have some mitigating effect, but such possibility creates an unfortunate paradox where a “reasonable” boundary is used to prove a “reasonable” restriction.

The Safe-Harbor Provision106 also creates a similar paradox. The language provided in O.C.G.A. § 13-8-53(c)(2) limits territory to that where the employee was working at the time of termination, but then still requires that the maximum reasonable boundary be reasonably determinable by that employee, indicating that, unlike in common law, merely providing a valid territorial limitation may alone be insufficient to give notice. The lack of statutory clarity in this matter appears to leave the courts in the same position as they were before the enactment of the GRCS--determining whether a restriction that purports to denote the maximum reasonable boundaries of an element is reasonable. 107 A decision by one federal district court applying the GRCS demonstrates the possibility of GRCS circumvention. O.C.G.A. § 13-856(2)(A) sets out a presumption for the reasonableness of a territory restriction that encompasses the areas were the employer did business, provided that the total distance encompassed is also reasonable. The court in Cellairis Franchise, Inc. v. Duarte found a restrictive covenant reasonable under section (2)(A) because the employer limited its territorial restriction to those locations where the employer had businesses—an otherwise broad restriction under common law--but was combined with a holding of a scope that proscribed a narrow range of activities. 108 This analysis is the semi-inverse proportional scale, despite the district court’s reference to the text of the GRCS. The presumptions of reasonableness within the GRCS are lacking in substance and number to avoid this eventual circumvention—the courts simply do not have enough statutory guidelines on which to base a ruling.

The second presumption for the reasonableness of a territory restriction, set forth in O.C.G.A. § 13-8-56(2)(B), provides more explicit instruction for an employer to follow than section (2)(A). Section (2)(B) allows a territory restriction that covers the areas where an employer did business—an overbroad restriction under common law--provided that it contains a list of particular competitors that are prohibited employers. 109 106

GA. CODE A NN. § 13-8-53(c)(2) (2016).

Murphree v. Yancey Bros. Co., 716 S.E.2d 824, 827 (Ga. Ct. App. 2011) (“The reasonableness of the restraints imposed is a question of law….”).

108 No. 2:15-CV-00101-WCO, 2015 WL 6517487, at *6 (N.D. Ga. Oct. 21, 2015), reconsideration denied, No. 2:15-CV-00101-WCO, 2016 WL 858787 (N.D. Ga. Mar. 2, 2016).

109 GA. CODE A NN. § 13-8-56(2)(B) (2016).

107

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute 99 Therefore, a territory restriction that sets its maximum reasonable boundary as that of the area in which the employer does business, with a list of the proscribed competitors, may be considered reasonable under O.C.G.A. § 13-8-53(c)(1) without the court having to resort to the semi-inverse proportional scale. However, even this explicit instruction leaves openended the questions of specificity and whether there is a numeric limitation of this presumption. Regarding specificity, does a listed prohibited parent company by extension include its subsidiaries, or must the employer explicitly name them? Regarding a numeric limitation, is there a number at which the list of competitors becomes unreasonable or can the employer list every competitor it can conceive? If further statutory guidance is not provided by the General Assembly, then these questions will have to be answered by the courts.

Another unanswered question is how the maximum reasonable boundary of the scope element is to be determined—another requirement of an enforceable non-compete covenant. 110 The only presumption regarding the reasonableness of scope provided by the GRCS says that it is measured by the business of the employer. 111 This presumption is inherently ambiguous due to the different interpretations of what “business of the employer” means. In laying out the scope of a non-compete covenant, there are four possible lists of proscribed activities or services: 1) those which the employee engaged in; 2) those which the employer engaged in; 3) those that neither the employer nor the employee engaged in; and 4) some mixture of the previous three. The scope presumption may be synonymous with the second option, indicating a broad scope of what is deemed reasonable, but if such were the case then the legislature could have used the explicit language of option two. Alternatively, it is just as likely that an employee’s activities and services can be considered the “business of the employer” when the employee is under employment, thus highlighting the ambiguity of the presumption.

Absent judicial interpretation or further clarity by the General Assembly as to their intent, an employer seeking to draft an enforceable non-compete covenant under the GRCS is better off to utilize the good faith estimate of applicability option. But this provision as well leaves far more questions than the GRCS purports to desire.

B. Good Faith Estimate of Applicability—Two Possible Meanings The alternative means of drafting territory and scope restrictions so as to be reasonable under the GRCS is by making the description a good 110 111

See GA. CODE A NN. § 13-8-53(a) (2016).

GA. CODE A NN. § 13-8-56(3) (2016).

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faith estimate of the territory and scope boundaries that may be applicable at the time of the employee’s termination. 112 This good faith estimate will be construed to cover only so much as to what is actually involved, ignoring so much of the original estimation that was of extraneously extended boundaries (this provision, the “Construing Provision.”). 113 Applying the Construing Provision to a reasonableness determination, under the GRCS, a description which proscribes only so much territory or scope as is “actually involved” is synonymous with, or sufficient to satisfy, the requirement of reasonableness. Because the Construing Provision requires merely a good faith estimate from the employer rather than a specific restriction, the good faith estimate of applicability option is a less strenuous hoop for an employer to jump through114 than the fair notice of maximum reasonable boundaries option, which does not receive this statutory mandated construing. 115 However, the Construing Provision, while affecting the employer’s estimation, does not appear to alleviate the requirement that the estimation be made in good faith. 116 While the GRCS does not provide what qualifies as conforming to a good faith estimate, the Georgia Commercial Code defines good faith as “honesty in fact and the observance of reasonable commercial standards of fair dealing.”117 The courts have made clear that this implied duty of good faith applies even when a party to the contract has discretion in its actions, 118 with the crux of the issue being whether the party complied “with the spirit, and not merely the letter, of a contract.”119 This analysis leaves the question of whether an employer drafted a restrictive covenant in good faith to the discretion of the trier fact, whose reasoning may vary based on personality, location, and circumstance. 120 It is questionable whether such a standard furthers the GRCS’s purpose of ensuring that parties are “certain of the validity and enforceability” of their 112

GA. CODE A NN. § 13-8-53(c)(1) (2016).

Id. This provision will be known as the “construing provision” for purposes of this Comment.

114 A description of the maximum reasonable boundary may be deemed insufficient and thus unreasonable, with no statutory fail safe to save it. This does assume the court does not engage in any blue penciling of the covenant, which will be further discussed in Part IV. Alternatively, with the good faith estimate option, an employer need only make such estimate and let the statute construe it into the realm of reasonability.

115 GA. CODE A NN. § 13-8-53(c)(1) (2016).

116 Id. (requirement of good faith estimate).

117 GA. CODE A NN. § 11-1-201(b)(20).

118 Rigby v. Boatright, 767 S.E.2d 783, 787 (Ga. Ct. App. 2014); Capital Health Mgmt.

Grp., Inc. v. Hartley, 689 S.E.2d 107, 112 (Ga. Ct. App. 2009).

119 Fisher v. Toombs Cty. Nursing Home, 479 S.E.2d 180, 184 (Ga. Ct. App. 1996).

120 Rigby v. Boatright, 767 S.E.2d 783, 787 (Ga. Ct. App. 2014); Hunting Aircraft, Inc. v. Peachtree City Airport Auth., 636 S.E.2d 139, 141 (Ga. Ct. App. 2006).

113

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute101 restrictive covenants. 121 While the definition of good faith is more easily ascertainable, the Construing Provision is more ambiguous. Because the provision equates “actually involved” with reasonableness, it must be determined what “actually involved” entails and how it is ascertained in order to determine how much a court will narrow an extraneously extended restriction. The GRCS provides no definition to clarify what “actually involved” covers, which leaves two possible meanings that can be inferred by the parties to the restrictive covenant. i.

First Possible Meaning—Based on the Employee

The first possible meaning is based on pre-GRCS analysis. Under that analysis, a territory or scope restriction, standing alone, is narrow and thus reasonable if it proscribed only a) territory in which the employee actually worked or b) the activities the employee actually engaged in, and the products the employee actually handled or sold during employment. 122 Combined with the Safe-Harbor Provision provided by the GRCS, 123 it can be deduced that the intent of the legislature was to codify this principle of case law and construe any good faith estimate of territory and scope to cover only that where the employee actually worked, the activities the employee actually engaged in, and the products the employee actually handled or sold during employment. However, if the legislature had intended this aforementioned result, it is uncertain why they did not explicitly provide it in the language of the Construing Provision, rather than using the phrase “actually involved”. Additionally, this interpretation would actually cause the GRCS to grant less protection to an employer than did the common law analysis. This is because the semi-inverse proportional scale still allowed for at least one element to be overbroad so long as its accompanying element of territory or scope was narrow. By its language, 124 the Construing Provision affects the covenant as a whole and does not seem 121

GA. CODE A NN. § 13-8-50 (2016).

The plethora of case law cited above reinforces this conclusion. However, most cases upholding restrictive covenants involve a narrow element accompanied by a broad element. The holding of over-all reasonableness in these cases is because of the semiinversely proportional scale—which permits a broad restriction to be accompanied by a narrow restriction and still be enforceable. This does not override the fact that the overbroad element itself is unreasonable.

123 GA. CODE A NN. § 13-8-53(c)(2) (2016) (giving examples of reasonable descriptions).

124 The provision provides that the “post-employment covenant shall be construed,” rather than only territory or only scope. Therefore, it would seem that the provision would apply to both elements simultaneously. GA. CODE A NN. § 13-8-53(c)(1) (2016).

122

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to adopt the semi-inverse proportional scale’s selective accommodation.

Whereas before an employer could have chosen to have an overbroad territory or scope as long as they drafted its accompanying element narrowly, the GRCS forces the entirety of their covenants to be narrow. The GRCS was enacted to create “an environment that is favorable to attracting commercial enterprises to Georgia and keep existing businesses within the state.”125 This restriction of a previously more lenient contractual practice may instead prove to be an unattractive condition. ii. Second Possible Meaning—Based on the Employer The second possible meaning of “actually involved” is the territory in which the employer did business, the activities the employer actually engaged in, and the products the employer actually handled and sold. This meaning would therefore cause the extraneously extended boundaries narrowed by the Construing Provision to consist of the territory in which the employer doesn’t do business, the activities which the employer doesn’t engage in, and the products the employer doesn’t handle or sell. This interpretation would serve to better effectuate the purpose of the GRCS by providing greater protection to an employer. However, like the first possible meaning, it is uncertain why the General Assembly did not explicitly state this result in the language of the Construing Provision. Additionally, this possible meaning conflicts with the common law analysis that held employer based restrictions of territory and scope as overbroad.

Yet conflict with common law analysis does not condemn this possible meaning of “actually involved,” as it may have been the intent of the General Assembly to override this common law principle. As discussed above, O.C.G.A. § 13-8-56(2) permits a territory restriction based on where the employer does business to be reasonable so long as a) its total distance is reasonable, or b) the agreement sets out a list of prohibited employers. 126 However, if the definition of “actually involved” means the territory of the employer, then the ambiguity and unanswered questions around the presumption in O.C.G.A. § 13-8-56(2) would still have to be addressed, as discussed above.

C. Suggested Solution—Delegation of Authority to Supplement the GRCS Neither the fair notice of maximum reasonable boundaries option nor the good faith estimation of applicability option provides statutory clarity regarding a determination of what is a reasonable restriction under 125 126

GA. CODE A NN. § 13-8-50 (2016).

GA. CODE A NN. § 13-8-56(2) (2016).

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute103 the GRCS. Uncertainty risks circumvention of the GRCS and an invocation of common law analysis that the General Assembly hoped to reform. Unless the General Assembly addresses these problems, it will be left to the courts to muddle through with the limited tools at their disposal. To avoid this outcome, additional presumptions for territory and scope must be provided in the same manner as was done for duration. This would reduce the need for the courts to interpret what was intended to be reasonable under the GRCS and allow the General Assembly to determine such instead.

Notably, the General Assembly does not need to substantially amend the GRCS in order to address these issues. Instead, the GRCS can be amended to delegate the creation of further presumptions and statutory guidance to a pre-existing state agency that would supplement the GRCS via a regulation-making process. The legitimate business interests the GRCS is meant to protect127 can vary dependent upon the needs of a particular business and thus a single, uniform presumption for duration, territory, and scope may not be as applicable to one business as it is another. 128 In order to protect a variety of businesses, no matter their composition or structure, the GRCS should provide numerous, specific, and varying presumptions of reasonableness based upon factors taken from surveys and similar studies of different industries, as well as clarify the statutory ambiguity in the GRCS discussed above. This is a task better suited to an agency like the Georgia Department of Labor, which already has the power and duty to collect and compile statistical information on the conditions of labor and report recommendations to the General Assembly. 129 The Department of Labor could likewise survey and collect information from the widest possible variety of business composition in Georgia and enact specific presumptions applicable to each. This delegation is more efficient than burdening the General Assembly with collecting the surveys and attempting to amend the GRCS. Assuming the General Assembly implements these suggestions to relieve the statutory ambiguity of the GRCS and provide for further presumptions, the GRCS could provide the opportunity for the courts to 127

GA. CODE A NN. § 13-8-50 (2016).

For example, a boutique business that can be easily affected by the competition of a former employee may require a stricter duration, territory, and scope in its restrictive covenant than would a larger business that sells a wider variety of goods or services. See Adam V. Buente, Enforceability of Noncompete Agreements in the Buckeye State: How and Why Ohio Courts Apply the Reasonableness Standard to Entrepreneurs, 8 OHIO ST .

ENT REP . BUS. L.J. 73, 80 (2013); see also Stacey L. Severovich, Texas Hold "Em: The Power of Covenants Not to Compete in Texas After Marsh Usa Inc. v. Cook, 53 S. TEX. L. REV. 853, 881 (2012) (discussing how non-competes favor large businesses due to the disproportionate costs of enforcing them in the legal system).

129 GA. CODE A NN. §§ 34-2-6(a)(3), 34-2-9 (2016).

128

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adopt a reasonable compromise of the blue pencil doctrine while still protecting against the in terrorem effect, discussed below.

IV. A REBUTTABLE PRESUMPTION—USING THE BLUE PENCIL WHILE DETERRING THE IN TERROREM EFFECT The General Assembly most assuredly desires the cooperation and participation of the courts in the application of the General Assembly’s newly modified public policy on restrictive covenants. 130 O.C.G.A. § 13-82.1 was an overzealous attempt by the General Assembly to effectuate this desire by requiring the courts to blue pencil. 131 Jackson & Coker 132 was the result, whose holding likely sparked the basis for the discretionary language contained within the GRCS. 133 With the Georgia Constitution now amended and the worry of a broad holding of unconstitutionality likely averted, the question remains as to whether or not the courts will decide to utilize the discretionary blue pencil doctrine that the GRCS gave them. As discussed above, in the past the courts have refused to blue pencil restrictive covenants in employment contracts due to the threat of the in terrorem effect an employer could exert on an employee of lesser bargaining power. 134 This long-standing concept may be too engrained in the minds of judges who have refused the blue pencil for over forty years. 135 Now that the General Assembly has amended the constitution to authorize judicial enforcement of restrictive covenants and to grant courts the power to blue pencil them, 136 a reasonable compromise is needed that will allow for the legitimate business interests of an employer to be protected while at the same time permit the courts to protect against the in terrorem effect when reasonable to do so.

The Georgia Supreme Court’s acknowledgement of the in terrorem effect and its subsequent refusal to blue pencil any overbroad restrictions 130

There is debate as to whether a definite public policy shift occurred via the amendment of the constitution, but the 11th Circuit appears to believe so. See Becham v.

Synthes USA, 482 Fed. Appx. 387 (11th Cir. 2012)(“Georgia’s public policy did not change until May 2011….”).

131 See GA. CODE A NN. § 13-8-2.1(g)(1) (2016) (requiring the courts to utilize the blue pencil doctrine).

132 405 S.E.2d 253 (Ga. 1991).

133 See GA. CODE A NN. § 13-8-54(b) (2016) (“[I]f a court finds that a…restraint does not comply with the [GRCS], then the court may modify the restraint provision….”) (emphasis added).

134 Harlan M. Blake, Employee Agreements Not to Compete, 73 HARV. L. REV. 625, 682 (1960); see Richard P. Rita Pers. Servs. Int’l, Inc. v. Kot, 191 S.E.2d 79, 81 (Ga. 1972).

135 Richard P. Rita Pers. Servs. Int’l, Inc. v. Kot, 191 S.E.2d 79, 81 (Ga. 1972).

136 GA. CONST . ART . III, § 6, ¶ V(c)(1)-(3).

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute105 indicates a paternalistic view towards employees subjected to restrictive covenants. 137 However, not all employees require the court’s paternalistic protection; employee sophistication in negotiating the terms of their employment have increased with the availability of education and the advent of readily available information not present forty years ago. 138 Furthermore, it is not merely the fear of competition that spurs employers to draft restrictive covenants, but is also the potential loss in investment that can occur when a trained employee leaves without producing a significant enough profit to warrant the capital expended on them. 139 Such is a legitimate interest that should be weighed alongside an employee’s need for economic mobility. Considering the intent of the General Assembly to attract the presence of different businesses in Georgia, the interests of employers should not be so readily submitted to the Supreme Court’s worry of potential bad faith in drafting overbroad restrictive covenants.

This is not to suggest, however, that the in terrorem effect should be wholly disregarded. The interest in protecting a less sophisticated employee, while perhaps not as prevalent today as it was in the past, is still a legitimate interest that should be weighed alongside those of an employer. Instead, the GRCS provides the potential to reduce the threat of the in terrorem effect, whether its occurrence is intentional or accidental, and thereby permit the courts to find a middle ground in interpreting restrictive covenants between the all or nothing approach that heavily favors employees and the liberal blue pencil doctrine that heavily favors the employer.

The idea that overbroad restrictive covenants are drafted solely to cause the in terrorem effect is an exaggerated one. Decisions on what constitutes a reasonable restrictive covenant have been widely inconsistent, thus leaving employers little guidance on what may or may not be considered reasonable. 140 The semi-inverse proportional scale could render unenforceable those restrictive covenants not drafted with enough specificity, even though what constitutes sufficient specificity is not clear to the employer. 141 This results in a business being forced to walk a fine line 137

Steven E. Harbour, Restrictions on Post-Employment Competition by an Executive Under Georgia Law, 54 M ERCER L. REV. 1133, 1136 (2003).

138 Jeffrey T. Rickman, Noncompete Clauses in Georgia: An Economic Analysis, 21 GA. ST . U. L. REV. 1107, 1128 (2005) (“[A]lthough it may once have been the case that employees stood on unequal ground with their educated, experienced employers, this is less the case today.”).

139 Id. 140 See Greg T. Lembrich, Garden Leave: A Possible Solution to the Uncertain Enforceability of Restrictive Employment Covenants, 102 COLUM. L. REV. 2291, 2302 (2002).

141 See Ellison v. Labor Pool of Am., Inc., 184 S.E.2d 572, 574 (Ga. 1971) (territory that described 50 miles from the limits of a city in which the employer operated a franchise

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between drafting a restriction broad enough to protect its legitimate interests but not so broad as to have all of their restrictions held unenforceable. 142 The presumptions of the GRCS has the potential to reduce this uncertainty by providing much needed guidance to employers on exactly what constitutes reasonable restrictions, thereby removing the need to blindly draft overbroad provisions. Importantly, the availability of language expressly held to be reasonable lessens the possibility that an employer may accidently draft a restrictive covenant overbroad and thereby cause the in terrorem effect.

Evidence that the employer drafted an overbroad restrictive covenant despite having access to the guidelines in the GRCS could create a rebuttable presumption that the employer intended to create the in terrorem effect. The employer would then have the burden of showing a legitimate or excusable reason for drafting the provision beyond the bounds of the GRCS in order to have the restrictive covenant blue penciled by the court. Because the GRCS left the utilization of the blue pencil doctrine to the discretion of the courts, 143 if an employer fails to rebut the presumption that it intended to create the in terrorem effect, the court could refuse to blue pencil the provision and apply the all or nothing approach. The courts are not ignorant to the application of the blue pencil doctrine, as they utilize it for restrictive covenants ancillary to the sale of a business. 144 The transition to applying it to restrictive covenants in employment agreements would be a simple one, so long as the ability to protect against the in terrorem effect is still available, thereby satiating the court’s desire to protect the interests of the employee.

This presumption method is a reasonable compromise between the courts refusing to blue pencil any restrictive covenant and O.C.G.A. § 13-82.1’s mandatory application of the blue pencil to all restrictive covenants.

This allows for a protection the employer’s interests by blue penciling overbroad restrictions that were mistakenly drawn while also allowing the courts to continue to deter the intentional creation of the in terrorem effect.

CONCLUSION Restrictive covenants in employment contracts are controversial due to the competing interests of employer security and employee mobility, lacked specificity because it did not list the cities individually).

142 Gary P. Kohn, A Fresh Look: Lowering the Mortality Rate of Covenants Not to Compete Ancillary to Employment Contracts and to Sale of Business Contracts in Georgia, 31 EMORY L.J. 635, 693 (1982).

143 GA. CODE A NN. § 13-8-54 (b) (2016).

144 Jenkins v. Jenkins Irrigation, Inc., 259 S.E.2d 47, 51 (Ga. 1979).

2016-2017] Interpreting the 2011 Georgia Restrictive Covenants Statute107 painted against the backsplash of how each interacts and interferes with economic growth. The GRCS was enacted with the purpose of alleviating the underlying uncertainty regarding the use of restrictive covenants, of lessening the reliance on precedent dating centuries, and of creating guidance for an area of law that is long since been interpreted by subjective measures of reasonableness. However, due a lack of statutory clarity and depth of material, the GRCS falls short of these goals by allowing pervasive gaps in its guidelines of what constitutes reasonableness. Absent judicial interpretation in the six years since its enactment, the GRCS fans the metaphorical flames of confusion by forcing uncertain employers to choose between either drafting restrictions that have been held constitutional under the common law, or attempting to interpret the meaning and procedure of the guidance left by the holes in the GRCS. The General Assembly should act to delegate future supplements to the GRCS to a regulatory agency before the courts construe the GRCS in a manner that materially alters what the General Assembly may have intended. Such would alleviate not only the uncertainty created by the GRCS, but allow for a compromise whereby the courts can utilize the blue pencil doctrine and still protect against the in terrorem effect. The General Assembly should enact these changes promptly, less they wait another twenty years to achieve their intent.

Tyler Watkins *

*

Editor in Chief, John Marshall Law Review 2016-2017; Juris Doctor Candidate, Atlanta’s John Marshall Law School, May 2017; B.S. Psychology, Kennesaw State University, 2013. I would like to thank my Editorial Board and the staff for their continued hard work and dedication this year, without which our goals would have been unattainable.

I would also like to give a well-earned thank you to Professor Jeffrey Van Detta, AJLMS, for his willing and continuous feedback, guidance, and wisdom throughout my tenure on Law Review and my entire law school career.

HOUSE BILL 1 1 : HALEIGH’S HOPE ACT Amending O.C.G.A. § 16-12-190; 2 First signature: Representative Allen Peake (141st) Co-Sponsors: Representative Micah Gravley (67th), Representative Margaret Kaiser (59th), Matt Ramsey (72nd), Tom McCall (33rd), Rich Golick (40th) Summary: The intent of House Bill 1 was to increase treatment options for patients suffering with severe or end stage diseases, specifically, Cancer, Amyotrophic Lateral Sclerosis (ALS), Seizure disorders, Multiple Sclerosis (MS), Crohn’s disease, Mitochondrial disease, Parkinson’s disease, or Sickle Cell disease. House Bill 1 also will provide immunity for patients with possession of low THC oil under certain circumstances. 3 Status: Governor Nathan Deal signed into law April 16, 2015. 4

TEXT OF BILL5

A BILL TO BE ENTITLED AN ACT To amend Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to public health and morals, so as to provide for the possession of low THC oil under certain circumstances; to provide for definitions; to provide for penalties; to amend Title 31 of the Official Code of Georgia Annotated, relating to health, so as to create a registration within the Department of Public Health for individuals or caregivers who are authorized to possess low THC oil; to define certain terms; to provide for registration cards; to provide for procedure; to create the Georgia Commission on Medical 1

H.B. 1, 153rd Gen. Assemb.1st Reg. Sess., (Ga. 2015), available at http://www.legis.ga.gov/legislation/enUS/Display/20152016/ HB/1 [hereinafter House Bill 1].

2 GA. CODE A NN. § 16-12-191 (2016); GA. CODE A NN. § 31-2A-18 (2015); GA. CODE A NN. § 31-50-1 (2016); GA. CODE A NN. § 31-50-2 (2016); GA. CODE A NN. § 31-50-3 (2016); GA. CODE A NN. § 31-50-4 (2016); GA. CODE A NN. § 31-50-5 (2015); GA. CODE A NN. § 31-51-1 (2016); GA. CODE A NN. § 31-51-2 (2016); GA. CODE A NN. § 31-51-3 (2016); GA. CODE A NN. § 31-51-4 (2016); GA. CODE A NN. § 31-51-5 (2016); GA. CODE A NN. § 31-51-6 (2016); GA. CODE A NN. § 31-51-7 (2016); GA. CODE A NN. § 31-51-8 (2016); GA. CODE A NN. § 31-51-9 (2016); GA. CODE A NN. § 31-51-10 (2016); and GA. CODE A NN. § 51-1-29.6 (2015).

3 E-mail from Representative Allen Peake, Author, House Bill 1 (September 20, 2016, 8:39 EST)(on file with author) [hereinafter Peake E-mail].

4 2015-2016 Reg. Sess. – H.B. 1 Haleigh's Hope Act; enact, GA. GEN. A SSEMB. LEGIS., (2015). http://www.legis.ga.gov/Legislation/en-US/display/20152016/ HB/1.

5 House Bill 1, supra note 1.

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Cannabis; to provide for membership, procedures, duties, and responsibilities; to provide for an automatic repeal of the commission; to allow the Board of Regents of the University System of Georgia to create or work with others to create a research program using low THC oil in treating certain residents of this state who have medication-resistant epilepsies; to provide for permits to be issued to program participants and others; to provide for automatic repeal of the research program; to amend Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general provisions of torts, so as to provide for limited liability for health care institutions and health care providers that permit the possession, administration, or use of low THC oil by an individual or caregiver on their premises in accordance with the laws of this state; to provide for a short title; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: PART I SECTION 1-1.

This Act shall be known and may be cited as the "Haleigh's Hope Act." SECTION 1-2.

Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses against public health and morals, is amended by adding a new article to read as follows: "ARTICLE 8 16-12-190.

As used in this article, the term 'low THC oil' means an oil that contains not more than 5 percent by weight of tetrahydrocannabinol and an amount of cannabidiol equal to or greater than the amount of tetrahydrocannabinol.

16-12-191.

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(a)(1) Notwithstanding any provision of Chapter 13 of this title, it shall be lawful for any person to possess or have under his or her control 20 fluid ounces or less of low THC oil if: (A) Such person is registered with the Department of Public Health as set forth in Code Section 312A-18; (B) Such person has in his or her possession a registration card issued by the Department of Public Health; and (C) Such substance is in a pharmaceutical container labeled by the manufacturer indicating the percentage of tetrahydrocannabinol therein.

(2) Notwithstanding any provision of Chapter 13 of this title, any person who possesses or has under his or her control 20 fluid ounces or less of low THC oil without complying with subparagraphs (A), (B), and (C) of paragraph (1) of this subsection shall be punished as for a misdemeanor. (b)(1) Notwithstanding any provision of Chapter 13 of this title, it shall be lawful for any person to possess or have under his or her control 20 fluid ounces or less of low THC oil if: (A) Such person is involved in a clinical research program being conducted by the Board of Regents of the University System of Georgia or any authorized clinical trial or research study in this state or their authorized agent pursuant to Chapter 51 of Title 31 as: (i) A program participant; (ii) A parent, guardian, or legal custodian of a program participant; (iii) An employee of the board of regents designated to participate in the research program; (iv) A program agent;(v) A program collaborator and their designated employees; (vi) A program supplier and their designated employees; (vii) A program physician; (viii) A program clinical researcher;

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(ix) Program pharmacy personnel; or (x) Other program medical personnel; (B) Such person has in his or her possession a permit issued as provided in Code Section 31-51-7; and (C) Such substance is in a pharmaceutical container labeled by the manufacturer indicating the percentage of tetrahydrocannabinol therein.

(2) Notwithstanding any provision of Chapter 13 of this title, any person who possesses or has under his or her control 20 fluid ounces or less of low THC oil without complying with subparagraphs (A), (B), and (C) of paragraph (1) of this subsection shall be punished as for a misdemeanor. (c) Notwithstanding any provision of Chapter 13 of this title, any person having possession of or under his or her control more than 20 fluid ounces of low THC oil but less than 160 fluid ounces of low THC oil or who manufactures, distributes, dispenses, sells, or possesses with the intent to distribute low THC oil shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years, a fine not to exceed $50,000.00, or both. (d) Notwithstanding any provision of Chapter 13 of this title, any person who sells, manufactures, delivers, brings into this state, or has possession of 160 or more fluid ounces of low THC oil shall be guilty of the felony offense of trafficking in low THC oil and, upon conviction thereof, shall be punished as follows: (1) If the quantity of low THC oil is at least 160 fluid ounces but less than 31,000 fluid ounces, by imprisonment for not less than five years nor more than ten years and a fine not to exceed $100,000.00; (2) If the quantity of low THC oil is at least 31,000 fluid ounces but less than 154,000 fluid ounces, by imprisonment for not less than seven years nor more than 15 years and a fine not to exceed $250,000.00;

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and (3) If the quantity of low THC oil is 154,000 or more fluid ounces, by imprisonment for not less than ten years nor more than 20 years and a fine not to exceed $1 million. (e) Subsections (c) and (d) of this Code section shall not apply to a person involved in a research program being conducted by the Board of Regents of the University System of Georgia or its authorized agent pursuant to Chapter 51 of Title 31 as an employee of the board of regents designated to participate in such program, a program agent, a program collaborator and their designated employees, a program supplier and their designated employees, a physician, clinical researcher, pharmacy personnel, or other medical personnel, provided that such person has in his or her possession a permit issued as provided in Code Section 31-5-7 and such possession, sale, manufacturing, distribution, or dispensing is solely for the purposes set forth in Chapter 51 of Title 31. (f) Nothing in this article shall require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in any form, or to affect the ability of an employer to have a written zero tolerance policy prohibiting the on-duty, and off-duty, use of marijuana, or prohibiting any employee from having a detectable amount of marijuana in such employee's system while at work."

PART II SECTION 2-1.

Title 31 of the Official Code of Georgia Annotated, relating to health, is amended in Chapter 2A, relating to the Department of Public Health, by adding a new Code section to read as follows: "31-2A-18. (a) As used in this Code section, the term: (1) 'Board' means the Georgia Composite Medical Board.

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(2) 'Caregiver' means the parent, guardian, or legal custodian of an individual who is less than 18 years of age or the legal guardian of an adult.

(3) 'Condition' means: (A) Cancer, when such diagnosis is end stage or the treatment produces related wasting illness, recalcitrant nausea and vomiting; (B) Amyotrophic lateral sclerosis, when such diagnosis is severe or end stage; (C) Seizure disorders related to diagnosis of epilepsy or trauma related head injuries; (D) Multiple sclerosis, when such diagnosis is severe or end stage; (E) Crohn's disease; (F) Mitochondrial disease; (G) Parkinson's disease, when such diagnosis is severe or end stage; or (H) Sickle cell disease, when such diagnosis is severe or end stage. (4) 'Department' means the Department of Public Health.

(5) 'Low THC oil' shall have the same meaning as set forth in Code Section 16-12-190. (6) 'Physician' means an individual licensed to practice medicine pursuant to Article 2 of Chapter 34 of Title 43.

(7) 'Registry' means the Low THC Oil Patient Registry. (b) There is established within the department the Low THC Oil Patient Registry (c) The purpose of the registry is to provide a registration of individuals and caregivers who have been issued registration cards. The department shall establish procedures and promulgate rules and regulations for the establishment and operation of the registration process and dispensing of registry cards to individuals and caregivers. Only individuals residing in this state for at least one year or a child born in this state less than one year old shall be eligible for registration under this Code section. Nothing in this

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Code section shall apply to any Georgia residents living temporarily in another state for the purpose of securing THC oil for treatment of any condition under this Code section. (d) The department shall issue a registration card to individuals and caregivers as soon as practicable but no later than September 1, 2015, when an individual has been certified to the department by his or her physician as being diagnosed with a condition and has been authorized by such physician to use low THC oil as treatment for such condition. The board shall establish procedures and promulgate rules and regulations to assist physicians in providing required uniform information relating to certification and any other matter relating to the issuance of certifications. In promulgating such rules and regulations, the board shall require that physicians have a doctor-patient relationship when certifying an individual as needing low THC oil and physicians shall be required to be treating an individual for the specific condition requiring such treatment. (e) The board shall require physicians to issue quarterly reports to the board. Such reports shall require physicians to provide information, including, but not limited to, dosages recommended for a particular condition, clinical responses, compliance, responses to treatment, side effects, and drug interactions. (f) Information received and records kept by the department for purposes of administering this Code section shall be confidential; provided, however, that such information shall be disclosed: (1) Upon written request of an individual or caregiver registered pursuant to this Code section; and (2) To peace officers and prosecuting attorneys for the purpose of:

(A) Verifying that an individual in possession of a registration card is registered pursuant to this Code section; or (B) Determining that an individual in possession of low THC oil is registered pursuant to this Code section.

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(g) The board shall develop a waiver form that will advise that the use of cannabinoids and THC containing products have not been approved by the FDA and the clinical benefits are unknown and may cause harm.

Any patient or caregiver shall sign such waiver prior to his or her approval for registration."

PART III SECTION 3-1.

Said title is further amended by adding a new chapter to read as follows: "CHAPTER 50 31-50-1. (a) There is created the Georgia Commission on Medical Cannabis. (b) As used in this chapter, the term 'commission' means the Georgia Commission on Medical Cannabis.

31-50-2. (a) The commission shall consist of 17 members. The commissioner of public health, the director of the Georgia Bureau of Investigation, the director of the Georgia Drugs and Narcotics Agency, the commissioner of agriculture, the chairperson of the Georgia Composite Medical Board, and the Governor's executive counsel shall be permanent members of the commission. The permanent members of the commission may designate another individual to serve in his or her stead. The remaining members of the commission shall be appointed by the Governor on or before July 1, 2015. The remaining members shall be: (1) Two members of the Senate; (2) Two members of the House of Representatives; (3) A board certified hematologist-oncologist; (4) A board certified neurologist;

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(5) A board certified gastroenterologist; (6) A board certified pharmacist; (7) An attorney employed by the Prosecuting Attorneys' Council of the State of Georgia or a prosecuting attorney; (8) A sheriff; and (9) A police chief. (b) In the event of death, resignation, disqualification, or removal for any reason of any member of the commission, the vacancy shall be filled in the same manner as the original appointment, and the successor shall serve for the unexpired term. (c) Membership on the commission shall not constitute public office, and no member shall be disqualified from holding public office by reason of his or her membership. (d) The Governor shall designate a chairperson of the commission from among the members, which chairperson shall serve in that position at the pleasure of the Governor. The chairperson shall only vote to break a tie. The commission may elect such other officers and committees as it considers appropriate. (e) The commission, with the approval of the Governor, may employ such professional, technical, or clerical personnel as deemed necessary to carry out the purposes of this chapter. The commission may create committees from among its membership as well as appoint other persons to serve in an advisory capacity to the commission in implementing this chapter. (f) The commission shall be attached for administrative purposes only to the Department of Public Health in accordance with Code Section 50-4-3. The Department of Public Health may use any funds specifically appropriated to it to support the work of the commission.

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31-50-3. (a) The commission may conduct meetings at such places and times as it deems necessary or convenient to enable it to exercise fully and effectively its powers, perform its duties, and accomplish the objectives and purposes of this chapter. The commission shall hold meetings at the call of the chairperson. (b) A quorum for transacting business shall be a majority of the members of the commission. (c) Any legislative members of the commission shall receive the allowances provided for in Code Section 28-1-8. Citizen members shall receive a daily expense allowance in the amount specified in subsection (b) of Code Section 45-7-21 as well as the mileage or transportation allowance authorized for state employees. Members of the commission who are state officials, other than legislative members, or state employees shall receive no compensation for their services on the commission, but shall be reimbursed for expenses incurred in the performance of their duties as members of the commission in the same manner as reimbursements are made in their capacity as state officials or state employees. The funds necessary for the reimbursement of the expenses of state officials, other than legislative members, and state employees shall come from funds appropriated to or otherwise available to their respective departments.

31-50-4. (a) The commission shall have the following duties: (1) To establish comprehensive recommendations regarding the potential regulation of medical cannabis in this state. Such recommendations shall include, without limitation specification of the department or departments to have responsibility for the oversight of a state-sanctioned system related to medical cannabis. A detailed report, which shall be submitted no later than December 31, 2015, including a review of the conditions, needs, issues, and problems related to medical cannabis and any recommended action or proposed legislation which the commission deems necessary or appropriate

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shall be provided to the executive counsel of the Governor, the Office of Planning and Budget, and the chairpersons of the House Committee on Appropriations, the Senate Appropriations Committee, the House Committee on Judiciary, Non-civil, the Senate Judiciary, Non-civil Committee, the House Committee on Health and Human Services, and the Senate Health and Human Services Committee; and (2) To evaluate and consider the best practices, experiences, and results of legislation in other states with regard to medical cannabis. (b) The commission shall have the following powers: (1) To evaluate how the laws and programs affecting medical cannabis should operate in this state; (2) To request and receive data from and review the records of appropriate state agencies to the greatest extent allowed by state and federal law; (3) To authorize entering into contracts or agreements through the commission's chairperson necessary or incidental to the performance of its duties; (4) To establish rules and procedures for conducting the business of the commission; and (5) To conduct studies, hold public meetings, collect data, or take any other action the commission deems necessary to fulfill its responsibilities. (c) Subject to the availability of funds, the commission shall be authorized to retain the services of attorneys, consultants, subject matter experts, economists, budget analysts, data analysts, statisticians, and other individuals or organizations as determined appropriate by the commission.

31-50-5.

This chapter shall stand repealed on June 30, 2016."

PART IV SECTION 4-1.

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Title 31 of the Official Code of Georgia Annotated, relating to health, is amended by adding a new chapter to read as follows: "CHAPTER 51 31-51-1. (a) As used in this chapter, the term 'low THC oil' shall have the same meaning as set forth in Code Section 16-12-190. (b) The Board of Regents of the University System of Georgia may cause to be designed, developed, implemented, and administered a low THC oil research program to develop rigorous data that will inform and expand the scientific community's understanding of potential treatments for individuals under 18 years of age with medication-resistant epilepsies. (c) Any such program shall adhere to the regulatory process established by the federal Food, Drug, and Cosmetic Act, as well as other federal laws and regulations governing the development of new medications containing controlled substances. (d) Any universities and nonprofit institutions of higher education that conduct research may continue any research that is permitted under federal law as well as any additional research is permitted under this chapter.

31-51-2.

To the extent permissible under this chapter, any research program developed pursuant to this chapter shall be designed to permit the voluntary enrollment of all individuals under 18 years of age having medication-resistant epilepsies who are residents of this state and who: (1) Have been residents of this state for the 24 month period immediately preceding their entry into the program; or (2) Have been residents of this state continuously since birth if they are less than 24 months old at the

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time of their entry into the program.

31-51-3. (a) For purposes of this chapter, the board of regents may act through a unit of the University System of Georgia, a nonprofit corporation research institute, or a nonprofit institution of higher education that conducts research, or any combination thereof. (b) Any nonprofit corporation research institute approved by the board of regents to participate in the research program established under this chapter shall be required to have the necessary experience, expertise, industry standards and security procedures, and infrastructure to implement such research in accordance with accepted scientific and regulatory standards. (c) The board of regents and its authorized agent may enter into such agreements, among themselves and with other parties, as are reasonable and necessary to implement the provisions of this chapter.

31-51-4. (a) The board of regents or its authorized agent may designate an FDA approved supplier of low THC oil and collaborate with a designated supplier to develop a clinical trial or research study protocol to study the use of low THC oil in the treatment of individuals under 18 years of age with medication-resistant epilepsies, which trial or research study shall be conducted at one or more locations in this state. Such supplier shall be required to supply a source of low THC oil that has been standardized and tested in keeping with such standards. (b) The board of regents or its authorized agent shall work with any supplier of low THC oil to commit personnel and other resources to such collaboration and to supply low THC oil for a collaborative study under reasonable terms and conditions to be agreed upon mutually.

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31-51-5.

Any public record, as defined by Code Section 50-18-70, produced pursuant to this chapter shall be exempt from disclosure to the extent provided by Code Section 50-18-72.

31-51-6.

All activities undertaken pursuant to this chapter shall be subject to availability of funds appropriated to the board of regents or to any other academic or research institution or otherwise made available for purposes of this chapter.

31-51-7. (a)(1) Research program participants and their parents, guardian, or legal custodian, employees of the board of regents designated to participate in the research program, program agents and collaborators and their designated employees, and program suppliers of low THC oil and their designated employees shall be immune from state prosecution as provided in Code Section 16-12-191.

(2) Physicians, clinical researchers, pharmacy personnel, and all medical personnel in the research program authorized by this chapter shall be immune from state prosecution as provided in Code Section 16-12-191. (b) For purposes of providing proof of research program participation, the board of regents or its agent which administers the research program authorized by this chapter shall provide appropriate permits, suitable for carrying on their persons or display, as applicable, to research program participants and their parents, guardian, or legal custodian, employees of the board of regents designated to participate in the research program, program agents and collaborators and their designated employees, program suppliers of low THC oil and their designated employees, physicians, clinical researchers, pharmacy personnel, and all medical personnel in the program.

31-51-8.

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The board of regents may establish fees for program participants in such amounts as are reasonable to offset program costs.

31-51-9.

The board of regents may adopt such rules and regulations as are reasonable and necessary for purposes of this chapter.

31-51-10.

This chapter shall stand repealed on July 1, 2020."

PART V SECTION 5-1.

Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general provisions of torts, is amended by adding a new Code section to read as follows: "51-1-29.6. (a) As used in this Code section, the term: (1) 'Caregiver' shall have the same meaning as set forth in Code Section 31-2A-18.

(2) 'Health care institution' shall have the same meaning as set forth in Code Section 51-1-29.5.

(3) 'Health care provider' means any person licensed, certified, or registered under Chapter 9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43 or Chapter 4 of Title 26.

(4) 'Low THC oil' shall have the same meaning as set forth in Code Section 16-12-190. (b) A health care institution shall not be subject to any civil liability, penalty, licensing sanction, or other detrimental action and a health care provider shall not be subject to any civil liability, penalty, denial of a right or privilege, disciplinary action by a professional licensing board, or other detrimental action for allowing an individual or caregiver to possess, administer, or use low THC oil on the premises of a health care

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institution or offices of a health care provider provided that the possession of such substance is in accordance with the laws of this state."

PART VI SECTION 6-1.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 6-2.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE

At the age of four, Haleigh Cox was having hundreds of seizures a day and the five FDA approved potent drugs that were meant to control them were making Haleigh worse. 6 Haleigh is among many children in Georgia faced with severe seizures that cannot be controlled with FDA approved medicine. Families like Haleigh’s family had to make a decision fast, either watch their children die or try the experimental medical cannabis oil that was receiving miraculous results among seizure patients in other states. The problem was medical cannabis was illegal in Georgia.

On January 13, 2014, Haleigh’s mother Janea Cox sent an email to Representative Peake fighting to get Medical Cannabis approved in Georgia. 7 In response to the problem facing Georgia children with severe seizures like Haleigh, Representative Peake authored House Bill 885, which was designed to increase treatment options for children suffering from seizure disorders and other specific medical conditions, by restricting and regulating the distribution of cannabidiol, an oil-based derivative of the cannabis plant. 8

6

Lauren Sennet, Girl’s Seizures Spur Medical Marijuana Legislation in Georgia, CNN (April 16, 2015), http://www.cnn.com/2015/04/16/us/georgia-med ical-marijuana-bill-signing-haleigh-co x/.

7 Peake, supra note 4.

8 Ga. H.R. Blog, Allen Peake and Micah Gravely Announce the Premiere of “Growing Hope” Documentary (Oct. 30, 2014), http://www.house-press.com/?p=4384.

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House Bill 885 failed to pass during the 2014 session, even though it received nearly unanimous support among legislatures. 9 Representative Peake stated “. . . [cannabis oil] ought to be an option for families who really have exhausted every FDA approved drug already that is causing debilitating side effects in their children…it is almost immoral to not provide this as an alternative for these families.”10 After House Bill 885 failed to pass in Georgia, Haleigh Cox and her mother relocated to Colorado in order to receive the controversial medical marijuana treatment option, while her father remained in Georgia. 11 Additionally, at least 17 other Georgia families moved to Colorado to seek medical cannabis oil. 12 In 2015, obtaining medical cannabis in Georgia for severe seizure patients was still illegal. In an attempt to resolve the problem, Representative Peake introduced House Bill 1, a modified version of House Bill 885. The first concept of House Bill 1 is to allow immunity from prosecution for possession of medical cannabis oil with a maximum of 5% Tetrahydrocannabinol (THC) for patients with the eight qualifying conditions, namely, Cancer, ALS, Seizure disorders, MS, Crohn’s disease, Mitochondrial disease, Parkinson’s disease, or Sickle Cell disease. 13 In order to qualify for this immunity, the patient is required to be under the care of a physician, obtain a registration card from the Department of Public Health, and be in possession of less than the maximum amount of 20 ounces with 5% THC.

14

The second concept of House Bill 1 is to create the Georgia Commission on Medical Cannabis, a body comprised of legislators, medical professionals, law enforcement, state agencies and industry experts, who collectively will make a recommendation to the Governor and General Assembly by December 2015 of the best regulatory infrastructure for creating an instate cultivation and distribution model for medical cannabis in Georgia. 15 Governor Nathan Deal signed House Bill 1 into law on April 16, 2015. 16 Georgia joins the ranks of 42 other states that have some form of medical cannabis law on the books including neighboring states of Alabama, Florida, Tennessee, and South Carolina. 17 9

Drew Alexander, Introduction to the Journey of Hope (2014) https://vimeo.com/102795998.

Drew Alexander, The “Original” Growing Hope Film (June 6, 2015), https://www.youtube.com/watch?v=aXviU2_Finl.

11 Genevieve Marie Razick & Zack S. Thompson, Health: Department of Public Health (2015).

12 Peake, supra note 4.

13 GPB Media: Video Archives, Ga House Day 22 – Wednesday (February 25, 2015), http://www.gpb.org/lawmakers/2015/day-22 [hereinafter House Video].

14 Id. 15 Id. 16 Peake, supra note 4.

10

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Rep. Peake reports that 15 of those 17 Georgia families have moved back to Georgia.

18

Reports show that those families have all seen reductions in seizures and improved cognitive ability since starting the treatment.

19

Additionally, patients with medical cannabis have been

weaned off of the numerous FDA approved drugs many of which offered no relief and caused debilitating side effects.

20

OPPOSITION’S RATIONALE House Bill 1 has been met with opposition from several groups, including State Senators and members of the Georgia Law enforcement. 21 The opposition to this Bill is in regards to: the legality of the bill, the purity and content of the medical cannabis oil, the level of THC permitted, the cultivation and/or distribution of the medical cannabis oil, and misuse of the drug. 22 Senator Lindsey Tippins of the 37th District stated that he had two concerns with the Bill. 23 First, he was concerned with the legality of the bill as defined by Federal law. 24 Senator Tippins proposed to add language to the Bill stating, “Nothing in this article shall authorize any conduct which is prohibited by Federal law.”25 He stated that this language would “guarantee that the law would not be contrary to stated Federal law that is currently in existence.”26 Senator Tippins also stated that a “Schedule 1 drug, and the possession of it, is prohibited by federal law, unless it is authorized by the FDA.”27 Senator Tippins further proposed to add amendments that shall become effective only if federal law authorizes possession, dispossession, and administration of THC oil as defined in Code Section 16-12-190 and enacted by Section 1 through 2 of this Act. 28 Second, Senator Tippins had concerns with the purity of the drugs and

17

Id. Id. 19 Id. 20 Id. 21 The Long Road to Marijuana Legalization in Georgia, GLOBAL W AT CHDOG M EDIA A CCOUNTABILITY COALITION (Feb. 3, 2015), http://gwmac.com/the-long-road-to-marijuana-legalization-in-georgia/.

22 Alan Wood, Nathan Deal Joins Georgia Sheriff’s Association Call to Weaken HB-1, GLOBAL W AT CHDOG M EDIA A CCOUNT ABILITY COALITION (Feb. 3, 2015), http://gwmac.com/nathan-deal-joins-georgia-sheriffs-association-callweaken-hb-1/; GPB Media: Video Archives, GA Senate Day 25 – Tuesday, March 24, 2015, http://www.gpb.org/lawmakers/2015/day-35 [hereinafter Senate Video].

23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 18

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the guarantee of the content of the drug that would be dispensed.”29 He would like the drug to be manufactured and produced under the approval of the Federal Drug Administration and certified for purity and content. 30 Furthermore, Senator Chuck Hufstetler of the 52nd District voiced his concerns regarding the level of cannabidiol permitted by the Bill. 31 He stated that the current level of 5% THC is seventeen times higher than the level of cannabidiol submitted the previous year, which was .3%. 32 Senator Hufstetler stated that he had not seen any scientific studies that said THC can help with seizures. He further stated, “in fact high levels of [THC] can trigger seizures in small children.” 33 However, Senator Hufstetler does support the cannabidiol level of .3%, for which he was told would help with medical treatment and can help anyone of any age. 34 Likewise, Frank Rotondo, the executive director of the Georgia Association of Chiefs of Police, says the association is against the bill . . . because it would legalize cannabis oil for adults. 35 Rotondo also raised concerns about how law enforcement officers would test for “driving under the influence” by those [adults] using cannabis oil. 36 However, Rotondo specified that “members are not opposed to decriminalizing the oil for children with seizure disorders.”37 On the other hand, there was opposition to the cultivation and drafting of the Bill. Walker County Sheriff Steve Wilson, president of the Georgia Sheriffs' Association, states that “[Its members] oppose all cultivation.”38 He further states that if cultivation is allowed Sheriffs want the right to inspect any facility where growing or manufacturing will take place and all the paperwork that documents it. 39 The Director of the GBI stated that if Georgia were to pass a law that will allow cultivation the process would be very difficult for the legislature and the company that would have to comply with the law. 40 Within the proposed bill, the legislatures would have 29

Id. Id. 31 Id. 32 Id. 33 Id. 34 Id. 35 Michelle Wirth, Law Enforcement Raises Objections to Medical Cannabis Oil Bill, WABE 90.1: W HERE ATL M EET S NPR (Feb 4, 2015), http://news.wabe.org/post/law-enforcement-raises-objections-medical-cannabis-oil-bil.

36 Id. 37 Id. 38 Maggie Lee, Georgia Law Enforcement Hesitant Over Medical Marijuana Growth, THE TELEGRAPH (Oct. 28, 2016, 10:28 PM), http://www.macon.com/news/politics-government/article41737221.ht ml.

39 Id. 40 Id. 30

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to cover “production, distribution, transportation and security, which would be expensive and time-consuming.”41 IMPLICATIONS IN GEORGIA Although passage of House Bill 1 is a major accomplishment in the fight for alternative treatment options for patients suffering with specific conditions, there are still obstacles to overcome to access the cannabis oil for Georgia citizens. 42 One such major obstacle is cultivation. The Georgia Commission on Medical Cannabis voted 11-5 against approving cultivation in Georgia.

43

Since Georgia provides no cultivation or distribution centers to get the medical cannabis, Georgia families are faced with two options: travel to another state to obtain it and risk violating federal law by bringing it back to Georgia or grow their own marijuana and risk felony charges. 44 Risking felony prosecution is what one Georgia family is planning to do in the spring.

Mike Buffington, co-publisher of Main Street Newspaper in Jackson County, Georgia believes that the current law is actually preventing children from getting the help they need. 45 Buffington’s son suffers from epileptic seizures, some deadly, for the past 15 years. 46 Buffington’s son has tried every single medication available, but none of which can control his seizures. 47 Buffington is not sure if his marijuana plant will help his son but he says “. . . it will keep my hope that someday Georgia’s leaders will take off their blinders and allow medical research on a simple green plant that might help him, and others, in the future.”48 Another implication of House Bill 1 is that it does not protect health care providers from civil liability in cases where a patient taking medical cannabis oil has an adverse effect from combining the cannabis oil with another prescribed medication. 49 Moreover, House Bill 1 does not assume the risk of the patient who buys cannabis oil on the ‘black market’, which may not be lab tested, free from mold, or correctly labeled under the 41

Id. House Video, supra note 13.

43 Peake, supra note 4.

44 Id. 45 Growing Marijuana Is A Georgia Man’s Spring Plan, Fox 5 (January 13, 2016), http://www.fox5atlanta.com/local-news/74032575-story.

46 Id. 47 Id. 48 Id. 49 House Video, supra note 13.

42

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maximum level of THC. 50 Rather, House Bill 1 maintains an individual’s civil liberties to conduct aggressive due diligence in purchasing the medical cannabis oil from a place of their choosing. 51 Furthermore, Georgia’s legislature has managed “to keep the THC level at 5% which is already too low to help many infirmed from being pushed down to 3%. Many studies suggest that a THC level between 15% to 25% shows the best results for certain illnesses. 52 However, increased levels of THC would boost legislatures concern regarding “the getting high” affect. 53 LEGISLATIVE GENEALOGY House Bill 1 was pre-filed within the House on November 17, 2014. 54 The Bill was introduced in the House Hopper on January 26, 2015. 55 On the next day, January 27, 2015, the Bill was read for the first time, then again on the following day January 28, 2015. 56 The Bill was referred to the House Judiciary Non-Civil Committee. 57 On February 24, 2015, the Bill favorably reported by substitute. 58 Representative Allen Peake and others amended the Bill to add “Sickle cell disease,” define caregiver and health care institution, and to provided immunity to patients, caregivers, and health care providers for the possession or use of low THC oil. 59 Then the Bill was read for the third time on February 25, 2015. 60 On the same day, the House passed/adopted the Bill by substitute (158 Yea, 2 Nay). 61 On February 26, 2015, the Bill was read for the first time in the Senate and was referred to the Senate Health and Human Services Committee. 62 Then on March 20, 2015, the Senate

50

Id. Id. 52 Alan Wood, Georgia Sheriff’s and Prosecutors Stick it to AIDS Patients, GLOBAL W AT CHDOG M EDIA A CCOUNT ABILITY COALITION (Feb. 25, 2015), http://gwmac.com/revised-haleighs-hope-act/.

53 Id. 54 2015-2016 Reg. Sess. - HB 1 Haleigh's Hope Act; enact, GA. GEN. A SSEMB. LEGIS. (2015) http://www.legis.ga.gov/Legislation/en-US/display/20152016/ HB/1.

55 Id. 56 Id. 57 Id. 58 Id. 59 H. 2015-AM 29 2358, 2015-2016 Reg. Sess., at 1(2015); H. 2015-AM 29 2360, 2015-2016 Reg. Sess., at 1 (2015).

60 2015-2016 Reg. Sess. - HB 1 Haleigh's Hope Act; enact, GA. GEN. A SSEMB. LEGIS. (2015) http://www.legis.ga.gov/Legislation/en-US/display/20152016/ HB/1.

61 Id. 62 Id. 51

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Committee favorably reported by substitute. 63 Next, the Bill was read for the second time on March 23, 2015. 64 The following day, the Bill was read for the third time, and Senator Lindsey Tippins amended the Bill by adding language regarding the legality of the Bill as defined by federal law and language speaking the purity and content of the medical Cannabis oil. 65 The same day on March 24, 2015, the Senate voted on the Bill three separate times (the first tally was 11-44, the second tally was 7-47, and the final tally was 48-6). 66 The Senate passed/adopted the bill by substitute. 67 The Bill was then – on March 24, 2015 – sent the bill back to the House. 68 On March 25, 2015, the House agreed to the Senate amendment or substitution, with a vote of 160-1. 69 Later, on April 6, 2015, the House sent the Bill to the Governor. 70 The Governor signed the Bill into law on April 16, 2015. The new law, now Act 20, became effective on April 16, 2015. 71

Prepared by: Tarla Atwell & Shantia Jones

63

Id. Id. 65 Senate Video, supra note 22.

66 Id. 67 Id. 68 Id. 69 Id. 70 Id. 71 Id. 64

HOUSE B ILL 34 1: G EORGIA RIGHT TO TRY ACT Amending O.C.G.A. § 31-52-1 First signature: Representative Mike Dudgeon (25th) Co-Sponsors: Representative Jason Spence (180th), Representative Sam Teasley (37th), Representative Micah Gravley (67th), Representative Scot Turner (21st), Representative Margaret Kaiser (59th), and Senator Hunter Hill (6th).

Summary: HB34 Georgia Right to Try Act (“the Bill”) affords terminally ill patients in Georgia an opportunity to try investigational drugs, biological products, and devices prior to final approval by the Federal Drug Administration (“FDA”). 2 Status: Signed into law April 26, 2016, and effective July 1, 2016. 3 TEXT OF HOUSE B ILL 34 To amend Title 31 of the Official Code of Georgia Annotated, relating to health, so as to enact the "Georgia Right to Try Act"; to provide for investigational drugs, biological products, and devices for patients with terminal illnesses; to provide for a short title; to provide for legislative findings; to provide for definitions; to provide for eligibility criteria; to provide for written informed consent; to allow manufacturers to make such drugs available; to provide that health benefit coverage is not mandatory; to prohibit sanctions against a physician's license; to prohibit blocking access; to provide for statutory construction; to amend Article 2 of Chapter 34 of Title 43 of the Official Code of Georgia Annotated, relating to medical practice, so as to repeal a provision regarding access to medical treatment and experimental and nonconventional medical treatments; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: § 1.

Title 31 of the Official Code of Georgia Annotated, relating to health, is amended by adding a new chapter to read as follows: 1

H.B. 34, 153rd GEN. ASSEMB., http://www.legis.ga.gov/Legislation/20152016/160399.pdf (last visited Oct. 30, 2016 2 Id. 3 2015-2016 Regular Session-HB 34, Georgia Right To Try Act; Enact, GA . GEN. ASSEMB., http://www.legis.ga.gov/Legislation/en-US/display/20152016/HB/34 (last visited Oct. 30, 2016).

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“CHAPTER 52 31-52-1.

This chapter shall be known and may be cited as the 'Georgia Right to Try Act.' 31-52-2. (a) The General Assembly finds and declares that: (1) The process of approval for investigational drugs, biological products, and devices in the United States protects future patients from premature, ineffective, and unsafe medications and treatments over the long run, but the process often takes many years; (2) Patients who have terminal illnesses do not have the luxury of waiting until an investigational drug, biological product, or device receives final approval from the federal Food and Drug Administration; (3) Patients who have terminal illnesses have a fundamental right to pursue the preservation of their own lives by accessing available investigational drugs, biological products, and devices; (4) The use of available investigational drugs, biological products, and devices is a decision that should be made by a patient with a terminal illness in consultation with the patient's health care provider; and (5) The decision to use an investigational drug, biological product, or device should be made with full awareness by the patient and the patient's family of the potential risks, benefits, and consequences. (b) It is the intent of the General Assembly to allow for patients with terminal illnesses to use potentially life-saving investigational drugs, biological products, and devices.

31-52-3.

As used in this chapter, the term: (1) 'Eligible patient' means a person who meets the requirements of Code Section 31-52-4.

(2) 'Investigational drug, biological product, or device' means a drug, biological product, or device which has successfully completed Phase I of a federal Food and Drug Administration approved clinical trial but has not yet been approved for general use by the federal Food and Drug Administration and currently remains under investigation in a federal Food and Drug Administration approved clinical

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trial.

(3) 'Physician' means a person licensed to practice medicine pursuant to Article 2 of Chapter 34 of Title 43.

(4) 'Terminal illness' means a disease that, without life-sustaining procedures, will result in death in the near future and is not considered by a treating physician to be reversible even with administration of current federal Food and Drug Administration approved and available treatments.

(5) 'Written informed consent' means a written document that: (A) Is signed by the patient; parent, if the patient is a minor; legal guardian; or health care agent designated by the patient in an advance directive for health care executed pursuant to Chapter 32 of Title 31; (B) Is attested to by the patient's physician and a witness; and (C) Meets the requirements of Code Section 31-52-5.

31-52-4.

In order for a person to be considered an eligible patient to access an investigational drug, biological product, or device pursuant to this chapter, a physician must document in writing that the person: (1) Has a terminal illness; (2) Has, in consultation with the physician, considered all other treatment options currently approved by the federal Food and Drug Administration; (3) Has been given a recommendation by the physician for an investigational drug, biological product, or device; and (4) Has given written informed consent for the use of the investigational drug, biological product, or device.

31-52-5.

Written informed consent shall, at a minimum, include the following: (1) A description of the currently approved products and treatments for the terminal illness from which the patient suffers; (2) An attestation that the patient concurs with his or her physician in believing that all currently approved and conventionally recognized treatments are unlikely to prolong the patient's life; and the known risks of the investigational drug, biological product, or device are not greater than the probable outcome of the patient's terminal illness; (3) Clear identification of the specific proposed investigational drug, biological product, or device that the patient is seeking to use; (4) A description of the potential best and worst outcomes of using the investigational drug, biological product, or device and a realistic description of the

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most likely outcome. The description shall include the possibility that new, unanticipated, different, or worse symptoms might result and that death could be hastened by the proposed treatment. The description shall be based on the physician's knowledge of the proposed treatment in conjunction with an awareness of the patient's condition; (5) A statement that the patient understands that his or her health benefit plan is not obligated to pay for the investigational drug, biological product, or device, or any care or treatment consequent to the use of such drug, product, or device, unless such health benefit plan is specifically required to do so by law or contract; (6) A statement that the patient understands that his or her eligibility for hospice care may be withdrawn if he or she begins treatment with the investigational drug, biological product, or device but that such hospice care may be reinstated if such treatment ends and he or she meets hospice eligibility requirements; and (7) A statement that the patient understands that he or she is liable for all expenses consequent to the use of the investigational drug, biological product, or device and that such liability extends to the patient's estate, unless a contract between the patient and the manufacturer of the investigational drug, biological product, or device states otherwise.

31-52-6. (a) A manufacturer of an investigational drug, biological product, or device may make available and an eligible patient may request access to the manufacturer's investigational drug, biological product, or device pursuant to this chapter; provided, however, that nothing in this chapter shall be construed to require that a manufacturer make available an investigational drug, biological product, or device to an eligible patient. (b) A manufacturer may provide an investigational drug, biological product, or device to an eligible patient: (1) Without receiving compensation; or (2) With the requirement that the eligible patient pays the costs of, or the costs associated with, the manufacture of the investigational drug, biological product, or device.

31-52-7.

A health benefit plan or governmental agency may provide coverage for the cost of any investigational drug, biological product, or device pursuant to this chapter; provided, however, that nothing in this chapter shall be construed to require a health benefit plan or governmental agency to provide coverage for the cost of any investigational drug, biological product, or device pursuant to this chapter.

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31-52-8.

The Georgia Composite Medical Board shall not revoke, suspend, sanction, fail to renew, or take any other action against a physician's license solely based on such physician's recommendation, prescription, or treatment of an eligible patient with an investigational drug, biological product, or device pursuant to this chapter.

31-52-9.

No official, employee, or agent of the state shall block or attempt to block an eligible patient's access to an investigational drug, biological product, or device. Counseling, advice, or a recommendation for treatment consistent with medical standards of care shall not be construed as a violation of this Code section.

31-52-10. (a) This chapter shall not be construed to create a private cause of action against a manufacturer of an investigational drug, biological product, or device or against any other person or entity involved in the care of an eligible patient using an investigational drug, biological product, or device for any harm done to the eligible patient resulting from the investigational drug, biological product, or device if the manufacturer or other person or entity is complying in good faith with the terms of this chapter and has exercised reasonable care. (a.1) This chapter shall not be construed to create a private cause of action against a physician who refuses to recommend an investigational drug, biological product, or device for any otherwise eligible patient. (b) Any person or entity providing treatment to an eligible patient using an investigational drug, biological product, or device shall not be liable for injury or death to such eligible patient as a result of the investigational drug, biological product, or device under Code Section 51-1-27 or 51-4-1, et seq., unless it is shown that the person or entity failed to obtain written informed consent in compliance with Code Section 31-52-5. (c) This chapter shall not be construed to affect any required health care coverage under Title 33 for patients in clinical trials." ยง 2.

Article 2 of Chapter 34 of Title 43 of the Official Code of Georgia Annotated, relating to medical practice, is amended by repealing and reserving Code Section 43-34-38, relating to access to medical treatment and experimental and nonconventional medical treatments.

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§ 3.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE Representative Mike Dudgeon sponsored the Bill, which allows terminally ill patients the opportunity to seek experimental alternatives when other, FDA approved, treatments have failed. 4 Dudgeons presented the Bill to the Georgia House of Representative’s Health and Human Services Committee Bill in March 2015 and said he believes this is a step in the right direction. 5 “The problem is when you have a terminal illness, you do not have 8 to 10 years to wait [for the FDA to approve a new treatment],” Rep. Dudgeons said in an interview. 6 The law requires voluntary participation of the patient, doctor, hospital, and treatment provider. 7 The law also requires that the drug pass the safety part of the trials, which happens pretty quickly according to Rep. Dudgeons. 8 Rep. Dudgeons also shared with the committee during this hearing that the legislation had been passed in five other states and was being considered in 20 other states. 9 Darcy Olsen, president of the Goldwater Institute, argues that Americans should have more control over their own healthcare options. 10 “They should be able to work with their doctors directly to decide what potentially life-saving treatments they are willing to try. This is exactly what Right To Try does.”11 As of May 2016, more than 26 states have passed similar legislation into law. 12

4

Id. House Committee: Health and Human Services Archives, Monday, Mar. 2, GA . H.R. COMM. HEALTH AND HUM. SERV., http://www.house.ga.gov/committees/enUS/CommitteeArchives115.aspx (follow video icon hyperlink beside “Monday, Mar. 2) (featuring Representative Mike Dudgeon of the 25th district, beginning at minute 21).

6 Lori Geary, Right to Try Act Provides New Hope for Terminally Ill Patients Across Georgia, WSB-TV.com (Jul. 1, 2016, 6:59 PM), http://www.wsbtv.com/news/local/right-to-try-actprovides-new-hope-for-terminally-ill-patients-across-georgia/377412602.

7 Id. 8 Id. 9 House Committee: Health and Human Services Archives, supra note 5.

10 Signed into Law: Georgia Right to Try Act Rejects Some FDA Restrictions on Terminal Patients, TENTH AMENDMENT CENTER (May 3, 2016), http://blog.tenthamendmentcenter.com/2016/05/signed- into- law-georgia-right-to-try-act-rejectssome-fda-restrictions-on-terminal-patients/.

11 Id. 12 Id. 5

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OPPOSITION’S RATIONALE The bill was unanimously passed13; however, pieces of the bill did face some opposition in the review process. Bill Clark, Director of Political Affairs of the Georgia Trial Lawyers Association (“GTLA”), presented a recommended amendment to establish a standard of care in the bill during the March 2015 House Committee meeting. 14 Clark expressed concern that the only patient safety measure included in the bill is the requirement to get a patient’s consent. 15 “We believe that bill ought to allow for voluntary access to the drugs, but it ought to continue to require the physician to exercise her professional judgment and make an informed decision to advise her patient,” Clark told the committee. 16 Clark told the committee that the current language allows doctors to recommend treatment without any accountability for their actions as long as they have informed consent from the patient. 17 “What this bill says is, ‘You can make a recommendation and there is no accountability if you don't follow the standard of care’”, he said. 18 Representative Trey Kelley put forth an amendment of language suggested by 19 GTLA. The recommended language would have required doctors to provide that degree of care, skill, and diligence, ordinarily employed by health care providers when providing treatment to a patient using a experimental treatment, according to what Rep. Kelley said. 20 “[We’re] [n]ot saying that you have to follow long standing medical practices, these are unique to medical practice,” he said. 21 “Don't compare [physician’s actions] to the world, compare them to the same standard that other doctors would [employ] in the same situation….”22 Clark said the language they suggested would only require that doctors follow the appropriate standard of care. 23 The recommended change would have only compared a physician who recommended an experimental treatment to another physician who is recommending experimental treatments. 24 “So it’s a very narrow comparison,” Clark said. 25 The amendment was not passed by the committee. 26

13

GA . GEN. ASSEMB., supra note 3.

House Committee: Health and Human Services Archives, supra note 5 (featuring Bill Clark, Director of Political Affairs of the Georgia Trial Lawyers Association, beginning at minute 27).

15 Id. 16 Id. 17 Id. 18 Id. 19 Id. (featuring Representative Trey Kelley of the 16th district, beginning at minute 41).

20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 14

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IMPLICATIONS IN G EORGIA The FDA generally prohibits access to experimental drugs; however, there is a path to access for patients through Federal Food, Drug, and Cosmetic Act, 27 but only after the patient received express FDA approval. 28 Georgia Right To Try Act will allow terminally ill patients to avoid seeking express approval from the FDA and will grant access to experimental and non-FDA approved drug, treatment, or medical device when consent has been given by the patient, physician, manufacturer, and the hospital. 29 It is important to note that the bill specifically states that refusal to recommend or consent to an experimental treatment by the physician will not create a private cause of action. 30 The Bill also does not create a private cause of action against a manufacturer for patient injury if the manufacturer has acted in good faith within the meaning of Georgia law and exercised reasonable care. 31 Furthermore, it provides immunity for injury or death for “[a]ny person or entity providing treatment to an eligible patient using an investigational drug, biological product, or device” as long as they have obtained the patient’s consent. 32 The law does not require insurance companies to pay for experimental treatments. 33 LEGISLATIVE G ENEALOGY 34 First filed in the house on January 5, 2015. First read in the house on January 26, 2015. Second reading in the House on January 27, 2015. House Committee Favorably Reported on March 3, 2015. Withdrawn from the house on April 2, 2015. House Committee Favorably Reported on February 3, 2016. Third reading in the House and passed on February 16, 2016. Senate read and referred on February 17, 2016. Senate Committee Favorably Reported on March 8, 2016. Second read in Senate on March 10 and third read on March 11, 2016. Senate passed on March 11, 2016. House sent to Governor on March 28, 2016. Signed by Governor on April 26, 2016. Effective Date on July 1, 2016.

Prepared by: Andrew J. Puckett

27 28

21 U.S.C. § 360bbb.

TENTH AMENDMENT CENTER, supra note 10.

Id. 30 H.B. 34, supra note 1.

31 Id. 32 Id. 33 House Committee: Health and Human Services Archives, supra note 5.

34 GA . GEN. ASSEMB., supra note 3.

29

HOUSE BILL 152 1 : M ICHAEL’S LAW Amending O.C.G.A. § 3-1-2; O.C.G.A § 3-3-2.1; and O.C.G.A § 3-3-24.1; Creating O.C.G.A § 3-3-34 First signature: Representative Geoff Duncan (26th) Co-Sponsors: Representative Mike Dudgeon (25th), Representative Jan Tankersley (160th), Representative Chuck Martin (49th), Representative Spencer Frye (118th), Representative Chuck Williams (119th), and Senator Bill Cowsert (46th).

Summary: House Bill 152 (“the Bill”) amends several sections of Title 3 of the Official Code of Georgia Annotated. 2 This Bill prohibits persons under the age of 21 from entering certain establishments and from being bouncers. 3 The Bill also imposes more requirements upon holders of certain alcohol licenses and those who issue them. 4 These requirements include provisions requiring businesses to notify the Department of Revenue of any violations relating to alcohol sales within 45 days of receiving the citation, as well a requirement imposing a minimum insurance. 5 Included in the Bill are penalties and disciplinary actions that can be brought against these businesses if they are caught in violation of the new reporting system. 6 The Bill also creates a new section which prohibits the manufacture, use, purchase, sale, possession, etc. of powdered alcohol within the state of Georgia. 7 Defined within the Bill are the terms “bar”, “disciplinary action”, “governmental entity”, and “licensee” as used within the new law. 8 Status: Effective Date, July 1, 2016. 9 TEXT OF HOUSE BILL 152 To amend Title 3 of the Official Code of Georgia Annotated, relating to alcoholic beverages, so as to prohibit certain conduct related to alcohol; to impose certain requirements upon holders of certain alcohol licenses and those who issue such licenses; to provide for definitions; to change certain provisions relating to notice to the Department of Revenue of violations relating to the sale of alcoholic beverages to underage persons; to require self-reporting of disciplinary actions to the department by persons licensed to manufacture, distribute, or sell alcoholic beverages; to provide for fines and penalties; to provide for the reporting of certain disciplinary actions by 1. H.B. 152, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016), http://www.legis.ga.gov/Legislation/20152016/ 153778.pdf (last visited Sept. 10, 2016).

2. Id. 3. Id. 4. Id. 5. Id. 6. Id. 7. H.B. 152, supra note 1.

8. Id. 9. 2015-2016 Regular Session-HB 152, Alcoholic beverages; holders of certain alcohol licenses and those who issue such licenses; impose certain requirements, GA. GEN. A SSEMB., http://www.legis.ga.gov/legislation/enUS/Display/20152016/ HB/152 (last visited Sept. 10, 2016) [hereinafter H.B. 152 Status Sheet].

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counties and municipalities which issue licenses or permits for the manufacture, distribution, or sale of alcoholic beverages; to provide for the state revenue commissioner to promulgate certain rules and regulations; to prohibit individuals under a certain age from being bouncers for or entering certain establishments; to prohibit the manufacture, use, sale, and possession of powdered alcohol; to provide for exceptions; to provide for penalties; to provide for related matters; to provide for effective dates and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: SECTION 1.

Title 3 of the Official Code of Georgia Annotated, relating to alcoholic beverages, is amended by adding a new paragraph to Code Section 3-1-2, relating to definitions, to read as follows: "(2.1) 'Bar' means any premises at which a retailer licensed pursuant to this title to sell alcoholic beverages derives 75 percent or more total annual gross revenue from the sale of alcoholic beverages for consumption on the premises."

SECTION 2.

Said title is further amended by revising Code Section 3-3-2.1, relating to notice to the Department of Revenue of violations relating to the sale of alcoholic beverages to underage persons, as follows: "3-3-2.1. (a) As used in this Code section, the term: (1) 'Disciplinary action' means any citation or arrest arising out of the violation of any law, rule, regulation, resolution, or ordinance of a governmental entity relating to the manufacture, distribution, sale, or possession of alcoholic beverages against a licensee, an employee of a licensee, or any person holding a financial interest in the license of the licensee on the premises or place of business of any licensee.

(2) 'Governmental entity' means the United States government, any state governmental, any local government, and any department, agency, or instrumentality thereof.

(3) 'Licensee' means any person issued a license pursuant to this title by a governmental entity to operate a bar. (b)(1) Within 45 days of any disciplinary action, the licensee shall notify the department of the details of such disciplinary action, including the date such action was taken, the nature of such action, and any other information required by the department, using a format to be determined by the department.

(2) The commissioner may impose a fine not to exceed $750.00 for each violation of paragraph (1) of this subsection. A second or subsequent violation of paragraph (1) of this subsection which occurs within three years from the date of the first violation may constitute grounds for the suspension, revocation, or cancellation of such person's license.

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(c) Every Whenever any county or municipality which issues permits or licenses to a licensee authorizing the manufacture, distribution, or sale of alcoholic beverages is made aware of the fact that the holder of any such permit or license has been convicted of violating paragraph (1) of subsection (a) of Code Section 3-3-23, prohibiting the furnishing of alcoholic beverages to underage persons, or takes any shall by resolution or ordinance adopt a policy and implement a process by which any disciplinary action against the holder of any such permit or license for violating any state law or local ordinance relating to the sale of alcoholic beverages to underage persons, the county or municipality shall notify a licensee shall be reported to the department of such violation within 45 days of any officer, department, agency, or instrumentality of such county or municipality taking such disciplinary action. (d) The commissioner shall determine and make available the format for the reporting of disciplinary actions and shall promulgate rules and regulations as to the implementation and use of such reporting method."

SECTION 3.

Said chapter is further amended by revising Code Section 3-3-24.1, relating to definition and penalty, as follows: "3-3-24.1.

Reserved. (a) As used in this Code section, the term 'bouncer' means an individual primarily performing duties related to verifying age for admittance, security, maintaining order, or safety, or a combination thereof. (b) No person shall allow or require an individual under the age of 21 to serve as a bouncer on a premises or in an establishment where alcoholic beverages are dispensed, served, or sold pursuant to a license issued under this title. (c) No individual under the age of 21 shall enter or be allowed to enter a bar unless he or she is accompanied by his or her parent, guardian, or spouse who is 21 years of age or older. This subsection shall not apply to an individual while he or she is attending a live musical concert or live presentation of the performing arts for which he or she has paid an admission charge."

SECTION 4.

Said title is further amended by adding a new Code section to read as follows: "3-3-34. (a) For purposes of this Code section, the term 'powdered alcohol' means a powdered or crystalline substance that contains any amount of alcohol for direct use or reconstitution. (b)(1) No person shall manufacture, use, offer for use, purchase, offer to purchase, sell, offer to sell, or possess powdered alcohol.

(2) No person licensed or issued a permit pursuant to this title shall use powdered alcohol as an alcoholic beverage or use powdered alcohol to create an alcoholic beverage. (c) This Code section shall not apply to the use of powdered alcohol for bona fide research purposes by a:

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(1) Health care provider that operates primarily for the purpose of conducting scientific research; (2) State institution; (3) Private college or university; or (4) Pharmaceutical or biotechnology company. (d) Any person convicted of a violation of this Code section shall be guilty of a misdemeanor. (e) Any violation of this Code section by a person licensed or issued a permit pursuant to this title shall constitute grounds for the suspension and revocation of any and all of such licenses and permits issued to such person.”

SECTION 5. (a) Except as provided in subsection (b) of this section, this Act shall become effective on July 1, 2016. (b) Section 4 of this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 6.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE Representative Geoff Duncan of the 26th District sponsored the Bill, commonly referred to as “Michael’s Law”, in response to the death of Michael Gatto. 10 Michael was an 18-year-old college student who was beaten to death by a 19-year-old bouncer outside of a bar in Statesboro, Georgia. 11 Following Michael’s death, his parents discovered that this bar, along with many others, employed bouncers under the age of 21 to work at the bar. 12 With this information, Representatives Geoff Duncan and Mike Dudgeon drafted H.B. 152. 13 The Representatives hoped to stop events like Michael’s death from happening again by requiring bars and restaurants to be held accountable through imposing stricter reporting measures. 14 During his presentation of the Bill on March 13, 2016, Rep. Duncan stated that the bar Michael was killed at, Rude Rudy’s, had received 71 citations and called for an ambulance 102 times within the previous three years. 15 Rep. Duncan also stated that Rude Rudy’s had not reported any of the citations to the Georgia Department of Revenue, nor had an administrative hearing been held on any of them. 16 This prompted research from the committee which showed that only 3 out of the nearly 700 cities and counties in Georgia had been reporting liquor law violation citations to the Department of Revenue. 17 10. Justin Ove, Bill Prompted by Death of Cumming Teenager Submitted to State House, (Feb. 3, 2015, 5:01 AM), http://patch.com/georgia/cumming/bill-prompted-death-cumming-teenager-submitted-state-house-0.

11.W HAT IS M ICHAEL’S LAW ? https://michaelslaw.wordpress.com/what-is-michaels-law/ (last visited Sept. 11, 2016).

12. Id. 13. Ove, supra note 10.

14. H.B. 152, supra note 1.

15. Ga. Pub. Broad., GPB LAWMAKERS, Video Archive Day 30 Crossover Day, [hereinafter House Video], http://www.gpb.org/lawmakers/2015/day-30-crossover-day .

16. Id. 17. Id.

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To improve public safety, the Bill prohibits anyone under the age of 21 from entering a bar. The Bill does define a bar as an establishment that receives 75% or more of its revenue from alcohol sales. 19 The Bill also prohibits anyone under the age of 21 from being employed at these bars as security personnel or “bouncers.”20 Rep. Duncan explained these age restrictions were made in an effort to keep young people from allowing underage friends or acquaintances into bars. 21 He stated, “Can I guarantee that a 21-year-old will make a better decision than a 19year-old? No I can’t, but I can guarantee they have more life experience and a better chance of making a better decision.”22 Rep. Duncan also strategically wrote the Bill to exclude venues when live music was playing, as to avoid hurting the economy of certain towns, such as Athens, Georgia, which thrives on being a music city. 23 Also in an effort to protect jobs, Rep. Duncan ensured that the Bill would not go into effect until July 1, 2016, giving bar owners and employees over a year to either find another job, or to hopefully reach the age of 21, allowing employees to keep their jobs. 24 In order to create accountability of bar owners, the Bill will require owners of bar establishments to report to the Department of revenue any citations within 45 days of receiving them. 25 Duncan believes that this will help keep the establishments accountable but also will keep the business owners engaged and aware of what is happening at the business. 26 With the establishment of the 45-day reporting requirement, the Bill also encourages business owners to implement a reporting plan, so that there is a system in place to ensure citations are reported. 27 18

OPPOSITION’S RATIONALE Opposition to the Bill is based on the belief that many of the regulations imposed on businesses may have unintended consequences. 28 Representative Jason Spencer voted against the Bill and explained his reasoning was based largely on how the Bill affects state policy. 29 Representative Spencer stated that he believed the Bill was imposing state government where it was not needed and that “local ordinances could have address[sic] this matter locally.”30 It is the belief of Representative Spencer that this over regulation of small businesses will have a negative effect, and will not change the “ills of society” that the Bill aims to fix. 31

18. H.B. 152, supra note 1.

19. Id. 20. Id. 21. Telephone Interview with Rep. Geoff Duncan, Ga. State Rep., H. Dist. 26 (Sept. 16, 2016). [hereinafter Duncan Interview].

22. Id. 23. Id. 24. Id. 25. House Video, supra note 15.

26. Id. 27. Id. 28. E-mail Interview with Rep. Jason Spencer, H. Dist. 180 (Sept. 8, 2016) (on file with the John Marshall Law Journal) [hereinafter Spencer Interview].

29. Id. 30. Id. 31. Id.

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Others also argued that the Bill would be a “job killer” and would hurt small businesses as they may lose employees. 32 According to this argument, it is believed that the Bill will not only cause employees of bars to lose their jobs, but bars will also lose income. 33 Many believed that college students would chose to go to bars that would allow their underage friends in, as many students bring underage friends along to drive them after a night of drinking. 34 IMPLICATIONS IN GEORGIA This Bill was enacted on July, 1, 2016. 35 Currently, reporting data is unavailable from the Department of Revenue. However, according to research by Rep. Duncan, many bars have implemented procedures in order to abide by this new law. 36 Rep. Duncan hopes to have updated reporting data after the end of 2016 to ensure that each bar is following procedures in accordance with the law. 37 Rep. Duncan also has concluded in research that there has been little backlash in the actual implementation of the age restriction. 38 He stated that bars are following the law and that as long as the law is working, colleges will be kept out of the news, because situations like Michael Gatto’s will not continue to occur. 39

LEGISLATIVE GENEALOGY The Bill was placed in the House Hopper on January 28, 2015. 40 The next day, the Bill was read for the first time; then, on February 2, 2015, the Bill was read again. 41 On March 11, 2015, the Bill was favorably reported by substitute by the House Regulated Industries Committee. 42 The Bill was read for a third time on March 13, 2015, and was passed and adopted by substitute in the House the same day by a margin of 157-12. 43 On March 18, 2015, the Bill was read in the Senate and referred to the Regulated Industries and Utilities Committee. 44 The Senate Regulated Industries and Utilities Committee favorably reported by substitute on the Bill on March 26, 2015, and the Bill was read in the Senate for a second time the same day. 45 On March 31, 2015, the Senate tabled the Bill. 46 On April 2, 2015, the Bill was taken from the table, read a third time in the Senate and the Senate passed and adopted the Bill by substitute with a margin of 52-2. 47 The same day, the Senate sent the Bill back to the House where the House 32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

Duncan Interview, supra note 21.

Id. Id. H.B. 152, supra note 1.

Duncan Interview, supra note 21.

Id. Id. Id. H.B. 152 Status Sheet, supra note 9.

Id. Id. Id. Id. Id. Id. Id.

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agreed to the Senate substitute as House amended with a margin of 151-13. 48 The Bill was sent back to the Senate the same day where the Senate agreed to the House amendment 51 to 1. 49 On April 14, 2015, the House sent the Bill to the Governor. 50 The Governor signed the Bill into law on May 5, 2015, and the Bill became Act 78. 51 On July 1, 2016, Act 78 became effective. 52

Prepared by: Tara E. Latimer

48.

49.

50.

51.

52.

Id. Id. Id. Id. Id.

HOUSE BILL 205 1 : DRIVERS ' LICENSES ; REQUIRE DRIVER WHO REFUSED BLOOD ALCOHOL CONCENTRATION TESTING TO INSTALL AND MAINTAIN IGNITION INTERLOCK DEVICES ON VEHICLE; PROVISIONS

Amending O.C.G.A. § 40-5-64 and § 42-8-110 First signature: Representative Tom Rice 95th Co-Sponsors: Representative Jesse Petrea 166th, Senator Bill Cowsert 46th Summary: To amend Chapter 5 of Title 40 and Article 7 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to drivers' licenses and ignition interlock devices as a condition of probation. The bill looks to provide for changes to licensing and driving privileges for individuals arrested for driving under the influence. The bill is to allow for the issuance of an optional ignition interlock device limited driving permit upon arrest for driving under the influence under certain circumstances, these circumstances being that the individual is a first time offender. The bill will require the Department of Driver Services to maintain information concerning the issuance, conditions, fees, etc. that are associated with the interlock device. The bill will also make changes to the time frame for requesting hearings after a DUI arrest, and will cancel all limitations placed on a person’s ability to drive once they have successfully installed the interlock device. 2 Status: House Date Signed by Governor on April 26, 2016. 3 TEXT OF HOUSE BILL 1114 PART I SECTION 1-1.

Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers' licenses, is amended in Code Section 40-5-64, relating to limited driving permits for certain offenders, by revising subsections (a), (c) through (e), and (g) as follows: "(a) To whom issued.

(1) Notwithstanding any contrary provision of this Code section or Code Section 40-5-57, or 40-5-63, or any other Code section of this chapter 40-5-75, 40-5-121, or 42-8-111, any person who has not been previously convicted or adjudicated delinquent for a violation of Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of 1

H.B. 205, 153rd Gen. Assemb., Reg. Sess. (Ga. 2015), http://www.legis.ga.gov/Legislation/20152016/ 162407.pdf (last visited Sept. 11, 2016).

2 Id. 3 2015-2016 Regular Session - HB 205, Drivers' licenses; require driver who refused blood alcohol concentration testing to install and maintain ignition interlock devices on vehicle; provisions, GA. GEN. A SSEMB., http://www.legis.ga.gov/Legislation/en-US/display/20152016/ HB/205 (last visited Sept. 11, 2016) [H.B. 205].

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nolo contendere is accepted, may apply for a limited driving permit when and only when that person's driver's license had a suspension imposed prior to July 1, 2015, under Code Section 40-5-22 or that person's driver's license has been suspended in accordance with subsection (d) of Code Section 40-5-57, paragraph (1) of subsection (a) of Code Section 40-5-63, paragraph (1) of subsection (a) of Code Section 40-5-67.2, or subsection (a) of Code Section 40-5-57.1, when the person is 18 years of age or older and his or her license was suspended for exceeding the speed limit by 24 miles per hour or more but less than 34 miles per hour, and the sentencing judge, in his or her discretion, decides it is reasonable to issue a limited driving permit.

(2) Any person whose driver's license has been suspended as a result of a second conviction for violating Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, may apply for an ignition interlock limited driving permit after serving at least 120 days of the suspension required for such conviction and providing either a certificate of eligibility from a drug court program in the court in which he or she was convicted of the offense for which such suspension was imposed or by submitting proof of enrollment in clinical treatment as provided in Code Section 40-5-63.1. No person who has been granted an exemption from the ignition interlock device requirements of Article 7 of Chapter 8 of Title 42 due to undue financial hardship under Code Section 42-8-111 shall be eligible for a limited driving permit, an ignition interlock device limited driving permit, or any other driving privilege for a period of one year.

(3) To the extent a person is subject to more than one suspension for which a limited driving permit may be issued, the department shall not issue such permit unless the suspensions are for a conviction for driving under the influence in violation of Code Section 40-6-391 imposed pursuant to Code Section 40-5-63 and an administrative suspension imposed pursuant to paragraph (1) of subsection (a) of Code Section 40-5-67.2 arising from the same incident." "(c) Standards for approval. The department shall issue a limited driving permit if the application indicates that refusal to issue such permit would cause extreme hardship to the applicant. Except as otherwise provided by subsection (c.1) of this Code section, for the purposes of this Code section, the term 'extreme hardship' means that the applicant cannot reasonably obtain other transportation, and therefore the applicant would be prohibited from: (1) Going to his or her place of employment or performing the normal duties of his or her occupation; (2) Receiving scheduled medical care or obtaining prescription drugs; (3) Attending a college or school at which he or she is regularly enrolled as a student; (4) Attending regularly scheduled sessions or meetings of support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner; (5) Attending under court order any driver education or improvement school or alcohol or drug program or course approved by the court which entered the judgment of conviction resulting in suspension of his or her driver's license or by the commissioner; (6) Attending court, reporting to a community supervision, juvenile probation, or Article 6 of Chapter 8 of Title 42 probation office or reporting to a community supervision

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officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42 or performing community service; or (7) Transporting an immediate family member who does not hold a valid driver's license 78 for work, to obtain medical care, or prescriptions, or to school; or (8) Attending any program, event, treatment, or activity ordered by a judge presiding in an accountability court, as such term is defined in Code Section 15-1-18. (c.1) Exception to standards for approval.

(1) The provisions of paragraphs (2), (3), (4), and (5) of subsection (c) of this Code section shall not apply and shall not be considered for purposes of granting a limited driving permit or imposing conditions thereon under this Code section in the case of a driver's license suspension imposed prior to July 1, 2015, under paragraph (2) of subsection (a.1) of Code Section 40-5-22.

(2) An ignition interlock device limited driving permit shall be restricted to allow the holder thereof to drive solely for the following purposes: (A) Going to his or her place of employment or performing the normal duties of his or her occupation; (B) Attending a college or school at which he or she is regularly enrolled as a student; (C) Attending regularly scheduled sessions or meetings of treatment support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner; and (D) Going for monthly monitoring visits with the permit holder's ignition interlock device service provider. (d) Conditions attached. A limited driving permit shall be endorsed with such conditions as the commissioner deems necessary to ensure that such permit will be used by the permittee only to avoid the conditions of extreme hardship. Such conditions may include the following restrictions: (1) Specific places between which the permittee may be allowed to operate a motor vehicle; (2) Routes to be followed by the permittee; (3) Times of travel; (4) The specific vehicles which the permittee may operate; and (4.1) The installation and use of an ignition interlock device in accordance with Article 7 of Chapter 8 of Title 42, which shall be required for any permittee who is applying for an ignition interlock limited driving permit; and (5) Such other restrictions as the department may require. (e) Fees, duration, renewal, and replacement of limited driving permit.

(1) A limited driving permit issued pursuant to this Code section shall be $25.00 and shall become invalid upon the driver's eighteenth birthday in the case of a suspension under paragraph (2) of subsection (a.1) of Code Section 40-5-22, upon the expiration of one year following issuance thereof in the case of a suspension for an offense listed in Code Section 40-5-54 or a suspension under Code Section 40-5-57 or a suspension in accordance with paragraph (1) of subsection (a) of Code Section 40-5-63 for a violation of Code Section 40-6-391, or upon the expiration of 30 days in the case of an administrative license suspension in accordance with paragraph (1) of subsection (a) of Code Section 40-5-67.2; except that such limited driving permit shall expire upon any

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earlier reinstatement of the driver's license. A person may apply to the department for a limited driving permit immediately following such conviction if he or she has surrendered his or her driver's license to the court in which the conviction was adjudged 123 or to the department if the department has processed the citation administrative driver's license suspension form or conviction. Upon the applicant's execution of an affidavit attesting to such facts and to the fact that the court had not imposed a suspension or revocation of his or her driver's license or driving privileges inconsistent with the driving privileges to be conferred by the limited driving permit applied for, the department may issue such person a limited driving permit. Permits Limited driving permits issued pursuant to this Code section are renewable upon payment of a renewal fee of $5.00.

Permits Such permits may be renewed until one time after the person has his or her 131 license reinstated is eligible to reinstate his or her driver's license for the violation that was the basis of the issuance of the permit. Upon payment of a fee in an amount the same as that provided by Code Section 40-5-25 for issuance of a Class C driver's license, a person may be issued a replacement for a lost or destroyed limited driving permit issued to him or her.

(2) An ignition interlock device limited driving permit shall be valid for a period of one year. Upon successful completion of one year of monitoring of such ignition interlock device, the restriction for maintaining and using such ignition interlock device shall be removed, and the permit may be renewed for additional periods of two months as provided in paragraph (1) of this subsection." "(g) Revocation of limited driving permit.

(1)(A) Any limited driving permittee who is convicted of violating any state law or local ordinance relating to the movement of vehicles or any limited driving permittee who is convicted of violating the conditions endorsed on his or her limited driving permit shall have his or her such permit revoked by the department. Any court in which such conviction is had shall require the such permittee to surrender the his or her limited driving permit to the court, and the court shall forward it to the department within ten days after the conviction, with a copy of the conviction.

(B) Upon receipt of notice from the Department of Behavioral Health and Developmental Disabilities that a permittee who is required to complete a substance abuse treatment program pursuant to Code Section 40-5-63.1 enrolled in but failed to attend or complete such program as scheduled, the department shall revoke such person's limited driving permit and, by regular mail to his or her last known address, notify such person of such revocation. Such notice of revocation shall inform the person of the grounds for and effective date of the revocation and of the right to review.

The notice of revocation shall be deemed received three days after mailing.

(C) Upon receipt of notice from a provider center for ignition interlock devices that an ignition interlock device which a permittee is required to use has been tampered with or the permittee has failed to report for monitoring of such device as required by law, the department shall revoke such permittee's limited driving permit and, by regular mail to his or her last known address, notify such person of such revocation. Such notice of revocation shall inform the person of the grounds for and effective date of the revocation and of the right to review. The notice of revocation shall be deemed received three days after mailing.

(2) Any person whose limited driving permit has been revoked shall not be eligible to

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apply for a driver's license until six months from the date such permit was surrendered to the department. In any case of revocation of a limited driving permit pursuant to subparagraph (A) of paragraph (1) of this subsection, the department may impose an additional period of suspension for the conviction upon which revocation of the permit was based."

SECTION 1-2.

Said chapter is further amended by adding a new Code section to read as follows: "40-5-64.1. (a) To whom issued.

(1) Any person who has not been previously convicted or adjudicated delinquent for a violation of Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest, and whose driver's license is subject to an administrative driver's license suspension pursuant to subsection (c) of Code Section 40-5-67.1, may apply for an ignition interlock device limited driving permit with the department.

(2) Any person who has not been previously convicted or adjudicated delinquent for a violation of Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest, and whose driver's license is subject to an administrative driver's license suspension pursuant to subsection (d) of Code Section 40-5-67.1, may apply for an ignition interlock device limited driving permit with the department.

(3) Any person whose driver's license has been suspended as a result of a second conviction for violating Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, may apply for an ignition interlock device limited driving permit after serving at least 120 days of the suspension required for such conviction.

(4) The department shall not issue an ignition interlock device limited driving permit to any person: (A) Under 21 years of age; (B) Who is not currently licensed to operate a motor vehicle in this state; (C) Who currently holds a license to drive a commercial motor vehicle; (D) Whose driver's license is subject to an administrative suspension for involvement in a traffic accident resulting in injuries or fatalities; or (E) Whose driver's license is subject to a suspension, revocation, or cancellation for any reason other than as contemplated by this Code section. (b) Application form. Applications for ignition interlock device limited driving permits shall be made upon such forms as the commissioner may prescribe. All applications shall be signed by the applicant before a person authorized to administer oaths. (c) Standards for approval.

(1) The department shall issue an ignition interlock device limited driving permit for a fee of $25.00 and:

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(A) For an applicant eligible for an ignition interlock device limited driving permit pursuant to paragraph (1) or (2) of subsection (a) of this Code section: (i) Within 30 days from the date on which notice was given pursuant to subsection (g) of Code Section 40-5-67.1; (ii) Upon surrender of the applicant's driver's license; and (iii) Upon the applicant's execution of an affidavit attesting that the hearing afforded under subsection (g) of Code Section 40-5-67.1 has been waived; or (B) For an applicant eligible for an ignition interlock device limited driving permit pursuant to paragraph (3) of subsection (a) of this Code section, upon the submission of a certificate of eligibility from an accountability court, as such term is defined in Code Section 15-1-18, or the submission of proof of enrollment in a substance abuse treatment program as provided in Code Section 40-5-63.1 and the surrender of his or her driver's license to such court or to the department if the department has processed the administrative driver's license suspension form or conviction.

(2) No person who has been granted an exemption from the ignition interlock device requirements of Article 7 of Chapter 8 of Title 42 due to undue financial hardship under Code Section 42-8-111 shall be eligible for a limited driving permit pursuant to Code Section 40-5-64 or any other driving privilege for a period of one year. (d) Duration, renewal fees, and replacement of ignition interlock device limited driving permit.

(1) An ignition interlock device limited driving permit issued pursuant to this Code section shall become invalid upon the expiration of one year following issuance thereof or upon any earlier reinstatement of the permittee's driver's license.

(2) Ignition interlock device limited driving permits issued pursuant to this Code section shall be renewable upon payment of a renewal fee of $5.00. Such permits may be renewed for additional periods of two months upon payment of a renewal fee of $5.00, but it may only be renewed one time after such person is eligible to reinstate his or her driver's license.

(3) Upon payment of a fee in the same amount as that provided by Code Section 40-5-25 for the issuance of a Class C driver's license, a person may be issued a replacement for a lost or destroyed ignition interlock device limited driving permit previously issued to him or her.

242 (e) Conditions upon use of ignition interlock device limited driving permit. An ignition interlock device limited driving permit shall be restricted to allow the holder thereof to drive solely for the following purposes: (A) Going to his or her place of employment or performing the normal duties of his or her occupation; (B) Receiving scheduled medical care or obtaining prescription drugs; (C) Attending a college or school at which he or she is regularly enrolled as a student; (D) Attending regularly scheduled sessions or meetings of treatment support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner; (E) Attending under court order any driver education or improvement school or alcohol or drug program or course approved by the court which entered the judgment of conviction resulting in suspension of his or her driver's license or by the commissioner; (F) Attending court, reporting to a community supervision, juvenile probation, or

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Article 6 of Chapter 8 of Title 42 probation office, reporting to a community supervision officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, or performing community service; (G) Transporting an immediate family member who does not hold a valid driver's license for work, to obtain medical care or prescriptions, or to school; (H) Attending any program, event, treatment, or activity ordered by a judge presiding in an accountability court, as such term is defined in Code Section 15-1-18; or (I) Going for monthly monitoring visits with the permit holder's ignition interlock device service provider. (f) Revocation of ignition interlock device limited driving permit.

(1)(A) The department shall revoke the ignition interlock device limited driving permit of any permittee issued such permit pursuant to paragraph (1) or (2) of subsection (a) of this Code section who is convicted of violating any state law relating to the movement of vehicles or convicted of driving a motor vehicle in violation of an ignition interlock device limited driving permit. Any court in which such conviction is had shall require such permittee to surrender the ignition interlock device limited driving permit to the court, and the court shall forward it to the department within ten days after the conviction, with a copy of the conviction.

(B) The department shall revoke the ignition interlock device limited driving permit of any permittee who is required to complete a substance abuse treatment program pursuant to Code Section 40-5-63.1 and enrolled but failed to attend or complete such program as scheduled upon receipt of notice of such information from the Department of Behavioral Health and Developmental Disabilities. The department shall notify the permittee of such revocation by regular mail to his or her last known address. Such notice of revocation shall inform the permittee of the grounds for and effective date of the revocation and of the right to review. The notice of revocation shall be deemed received three days after mailing.

(C) The department shall revoke the ignition interlock device limited driving permit of a permittee upon receipt of notice from an ignition interlock device service provider that an ignition interlock device has been tampered with, a permittee has failed to report for monitoring as required by law, or an ignition interlock device has been removed from any motor vehicle to be driven by a permittee prior to successful completion of the required term of monitoring under Code Section 42-8-110.1.

(2) The department shall notify the permittee of such revocation by regular mail to his or her last known address. Such notice of revocation shall inform the permittee of the grounds for and effective date of the revocation and of the right to review. The notice of revocation shall be deemed received three days after mailing.

(3) Any person whose ignition interlock device limited driving permit has been revoked for the first time shall not be eligible to apply for a driver's license until six months from the date such permit was surrendered to the department. Any person whose ignition interlock device limited driving permit has previously been revoked shall not be eligible to apply for a driver's license until two years from the date such permit was surrendered to the department. (g) Hearings. Any person whose ignition interlock device limited driving permit has been revoked or who has been refused such permit by the department may make a request in

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writing for a hearing to be provided by the department. Such hearing shall be provided by the department within 30 days after the receipt of such request and shall follow the procedures required by Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Appeal from such hearing shall be in accordance with such chapter.

Rules and regulations. The commissioner may promulgate rules and regulations as are necessary to implement this Code section. (i) Penalty. Any person issued an ignition interlock device limited driving permit who operates a motor vehicle in violation of the terms of such permit, as described in Code Section 42-8-110.1 or subsection (e) or (f) of this Code section, commits the offense of violation of an ignition interlock device limited driving permit. Any person who commits the offense of violation of an ignition interlock device limited driving permit shall be guilty of a misdemeanor.

40-5-64.2. (a) The commissioner shall submit a report to the Senate Public Safety Committee and the House Committee on Motor Vehicles detailing the annual number of optional ignition interlock device limited driving permits issued under paragraph (1) or (2) of subsection (a) of Code Section 40-5-64.1. Such report shall be made no later than the last day of December of each year. (b) This Code section shall stand repealed on January 1, 2020."

SECTION 1-3.

Said chapter is further amended by revising subsection (b) of Code Section 40-5-67, relating to seizure and disposition of driver's license of persons charged with driving under the influence, as follows: "(b)(1) At the time the law enforcement officer takes the driver's license, the officer shall issue a temporary driving permit to the person as follows: (1)(A) If the driver refuses to submit to a test or tests to determine the presence of alcohol or drugs as required in Code Section 40-5-55, the officer shall issue a 30 45 day temporary driving permit; (2) (B) If the driver's license is required to be suspended under Code Section 40-5-67.1, the officer shall issue a 30 45 day temporary driving permit; or (3) (C) If the test or tests administered pursuant to Code Section 40-5-55 indicate an alcohol concentration in violation of Code Section 40-6-391 but less than the level for an administrative suspension of the license under subsection (c) of Code Section 40-5-67.1, the officer shall issue a 180 day temporary driving permit.

(2) A This temporary driving permit issued under this subsection shall be valid for the stated period or until the person's driving privilege is suspended or revoked under any provision of this title. The department, at its sole discretion, may delay the expiration date of the such temporary driving permit, but in no event shall this delay extend beyond the date when such person's driving privilege is suspended or revoked under any provision of this title. The department shall by rules and regulations establish the conditions under which the expiration of the a temporary driving permit may be delayed."

SECTION 1-4.

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Said chapter is further amended in Code Section 40-5-67.1, relating to chemical tests, implied consent notices, rights of motorists, test results, refusal to submit, suspensions and denials, and right to a hearing and review, by revising paragraph (1) of subsection (f) and paragraphs (1), (3), and (4) of subsection (g) as follows: "(f)(1) The law enforcement officer, acting on behalf of the department, shall personally serve the notice of intention to suspend or disqualify the license of the arrested person or other person refusing such test on such person at the time of the person's refusal to submit to a test or at the time at which such a test indicates that suspension or disqualification is required under this Code section. The law enforcement officer shall take possession of any driver's license or permit held by any person whose license is subject to suspension pursuant to subsection (c) or (d) of this Code section, if any, and shall issue a 30 45 day temporary driving permit. The officer shall forward the person's driver's license to the department along with the notice of intent to suspend or disqualify and the report required by subsection (c) or (d) of this Code section within ten calendar days after the date of the arrest of such person. This paragraph shall not apply to any person issued a 180 day temporary driving permit pursuant to subsection (b) of Code Section 40-5-67. The failure of the officer to transmit the report required by this Code section within ten calendar days shall not prevent the department from accepting such report and utilizing it in the suspension of a driver's license as provided in this Code section." "(g)(1) A person whose driver's license is suspended or who is disqualified from operating driving a commercial motor vehicle pursuant to this Code section shall remit to the department a $150.00 filing fee together with a request, in writing, for a hearing within ten business 30 days from the date of personal notice or receipt of notice sent by certified mail or statutory overnight delivery, return receipt requested, or the right to said hearing shall be deemed waived. The issuance of an ignition interlock device limited driving permit to a person eligible for such permit under paragraph (1) or (2) of subsection (a) of Code Section 40-5-64.1 shall constitute a waiver of the right to a hearing under this subsection. Within 30 days after receiving a written request for a hearing, the department shall hold a hearing as is provided in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The hearing shall be recorded." "(3) The hearing officer shall, within five calendar days after such hearing, forward a decision to the department to rescind or sustain the driver's license suspension or disqualification. If no hearing is requested within the ten business 30 days specified above in paragraph (1) of this subsection, and the failure to request such hearing is due in whole or in part to the reasonably avoidable fault of the person, the right to a hearing shall have been waived. The issuance of an ignition interlock device limited driving permit to a person eligible for such permit under paragraph (1) or (2) of subsection (a) of Code Section 40-5-64.1 shall constitute a waiver of the right to a hearing under this subsection. The request for a hearing shall not stay the suspension of the driver's license; provided, however, that if the hearing is timely requested and is not held before the expiration of the temporary driving permit and the delay is not due in whole or in part to the reasonably avoidable fault of the person, the suspension shall be stayed until such time as the hearing is held and the hearing officer's decision is made.

(4)(A) Except as where provided to the contrary in subparagraph (B) of this paragraph, in In the event the person is acquitted of a violation of Code Section 40-6-391 or such charge is initially disposed of other than by a conviction or plea of nolo contendere,

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then the suspension shall be terminated and deleted from the driver's license record. An accepted plea of nolo contendere shall be entered on the driver's license record and shall be considered and counted as a conviction for purposes of any future violations of Code Section 40-6-391. In the event of an acquittal or other disposition other than by a conviction or plea of nolo contendere, the driver's license restoration fee shall be promptly returned by the department to the licensee.

(B)(i) If any person who has obtained an ignition interlock device limited driving permit under paragraph (1) of subsection (a) of Code Section 40-5-64.1 is acquitted of the violation of Code Section 40-6-391 upon which the underlying driver's license suspension was based or if such charge is initially disposed of other than by a conviction or plea of nolo contendere, then such permit shall be revoked and the driver's license shall be reinstated without a fee. The department shall terminate the driver's license suspension of any such person and shall delete the suspension from the driver's license record. (ii) Any person who has obtained an ignition interlock device limited driving permit under paragraph (2) of subsection (a) of Code Section 40-5-64.1 shall maintain such permit for the required term of monitoring under Code Section 42-8-110.1, regardless of whether such person is acquitted of the violation of Code Section 40-6-391 upon which the underlying driver's license suspension was based or such charge is initially disposed of other than by a conviction or plea of nolo contendere."

SECTION 1-5.

Article 7 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to ignition interlock devices as condition of probation, is amended in Code Section 42-8-110, relating to definitions, by revising subsection (b) as follows: "(b) As used in this article, the term 'provider center' means a facility established for the purpose of providing and installing ignition interlock devices when their use is required by or as a result of an order of a court or as required in order to maintain an ignition interlock device limited driving permit in accordance with Code Section 40-5-64.1."

SECTION 1-6.

Said article is further amended by adding a new Code section to read as follows: "42-8-110.1. (a)(1) Any person issued an ignition interlock device limited driving permit under paragraph (1) of subsection (a) of Code Section 40-5-64.1 shall, upon issuance thereof and within no less than ten days of such issuance, have installed and shall maintain in any motor vehicle to be driven by such person for a period of not less than four months a functioning, certified ignition interlock device, and such person shall not drive any motor vehicle whatsoever that is not so equipped during such period.

(2) Any person issued an ignition interlock device limited driving permit under paragraph (2) of subsection (a) of Code Section 40-5-64.1 shall, upon issuance thereof and within no less than ten days of such issuance, have installed and shall maintain in any motor vehicle to be driven by such person for a period of not less than 12 months a functioning, certified ignition interlock device, and such person shall not drive any motor

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vehicle whatsoever that is not so equipped during such period. (b) The restriction for maintaining and using an ignition interlock device shall be cancelled by the department upon payment to the department of a $100.00 fee or $90.00 when such fee is processed by mail and upon successful completion of the term of monitoring on an ignition interlock device required under subsection (a) of this Code section. (c) Any ignition interlock device limited driving permit issued shall bear a restriction reflecting that the person shall only operate a motor vehicle equipped with a functioning, certified ignition interlock device. (d) The fee for issuance of an ignition interlock device limited driving permit shall be as prescribed in Code Section 40-5-64.1."

SECTION 1-7.

Said article is further amended in Code Section 42-8-111, relating to court issuance of certificate for installation of ignition interlock devices, exceptions, and fees, by revising subsections (a), (d), and (e) as follows: "(a) Upon a second or subsequent conviction of a resident of this state for violating Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, for which such person is granted probation, the court shall issue a certificate of eligibility for an ignition interlock device limited driving permit or probationary license, subject to the following conditions: (1) Such person shall have installed and shall maintain in each motor vehicle registered in such person's name for a period of not less than one year a functioning, certified ignition interlock device; (2) Such person shall have installed and shall maintain in any other motor vehicle to be driven by such person for a period of not less than one year a functioning, certified ignition interlock device, and such person shall not drive any motor vehicle whatsoever that is not so equipped during such period. Upon successful completion of one year of monitoring of such ignition interlock device, the restriction for maintaining and using such ignition interlock device shall be removed, and the permit may be renewed for additional periods of two months as provided in paragraph (1) of subsection (e) (d) of Code Section 40-5-64 40-5-64.1; and (3) Such person shall participate in a substance abuse treatment program as defined in paragraph (16.2) of Code Section 40-5-1, or a drug court division program in compliance with Code Section 15-1-15, a mental health court division in compliance with Code Section 15-1-16, or a veterans court division in compliance with Code Section 15-1-17 for a period of not less than 120 days.

For the purposes of this subsection, a plea of nolo contendere shall constitute a conviction; and a conviction of any offense under the law of another laws of any other state or territory substantially conforming to any offense under of the United States which, if committed in this state, would be a violation of Code Section 40-6-391 shall be deemed a conviction of violating said such Code section." "(d) Except as provided in Code Section Sections 42-8-110.1 and 42-8-112, no provision of this article shall be deemed to reduce any period of driver's license suspension or revocation otherwise imposed by law.

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(e) The fee for issuance of any driver's license indicating that use of an ignition interlock device is required shall be as prescribed for a regular driver's license in Code Section 40-5-25, and the fee for issuance of any limited driving permit indicating that use of an ignition interlock device is required shall be as prescribed for a limited driving permit in Code Section 40-5-64 40-5-64.1; except that, for habitual violators required to use an ignition interlock device as a condition of a probationary license, the fee shall be as prescribed for a probationary license in Code Section 40-5-58."

SECTION 1-8.

Said article is further amended in Code Section 42-8-112, relating to timing for issuance of ignition interlock device limited driving permit and documentation and reporting requirements, by revising paragraph (1) of subsection (d) as follows: "(d)(1) If a person required to report to an An ignition interlock provider as shall notify the Department of Driver Services if a person required by subsection (c) of this Code section fails to report to the provider as required or, receives an unsatisfactory report from the provider, or requests the provider remove the ignition interlock device at any time during the one-year period, ignition interlock device limited driving permit period, and the Department of Driver Services shall revoke such person's ignition interlock device limited driving permit immediately upon receipt of such notification from the provider of the failure to report or failure to receive a satisfactory report. Except as provided in paragraph (2) of this subsection, within 30 days after such revocation, the person may make a written request for a hearing and remit to the Department of Driver Services a payment of $250.00 for the cost of the hearing. Within 30 days after receiving a written request for a hearing and a payment of $250.00, the Department of Driver Services shall hold a hearing as provided in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The hearing shall be recorded."

PART II SECTION 2-1.

Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers' licenses, is amended in Code Section 40-5-22, relating to minimum ages for licenses and limited driving permits, by revising subsection (d) as follows: "(d) The department is authorized to issue a limited driving permit to an applicant whose license is currently under suspension or revocation in any other jurisdiction upon grounds which would authorize the suspension or revocation of a license under this chapter, provided that the applicant is otherwise eligible for such limited driving permit in accordance with paragraph (1) of subsection (a) of Code Section 40-5-64 and paragraph (1) or (2) of subsection (a) of Code Section 40-5-64.1."

SECTION 2-2.

513 Said chapter is further amended in Code Section 40-5-39, relating to endorsements on 514 licenses of limousine chauffeurs, by revising paragraph (2) of subsection (b) as follows: 515 "(2) Possess a valid Georgia driver's license which is not limited as defined in Code

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516 Section 40-5-64 or 40-5-64.1;" SECTION 2-3.

Said chapter is further amended in Code Section 40-5-63, relating to periods of suspension and conditions for return of a license, by revising paragraph (2) of subsection (a) as follows: "(2) Upon the second conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be three years. At the end of 120 days, the person may apply to the department for reinstatement of his or her driver's license; except that if such license was suspended as a result of a second conviction of a violation of Code Section 40-6-391 within five years, the person shall not be eligible to apply for license reinstatement until the end of 18 months. Such license shall be reinstated if such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail, provided that, if such license was suspended as a result of a conviction of an offense listed in Code Section 40-5-54, such license shall be reinstated if such person submits proof of completion of either a defensive driving course approved by the commissioner pursuant to Code Section 40-5-83 or a DUI Alcohol or Drug Use Risk Reduction Program and pays the prescribed restoration fee. A driver's license suspended as a result of a conviction of a violation of Code Section 40-6-391 shall not become valid and shall remain suspended until such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program, provides proof of installation and maintenance of an ignition interlock device for a period of one year coinciding with the issuance of an ignition interlock device limited driving permit as provided in Code Section 40-5-64 40-5-64.1 unless waived due to financial hardship, and pays the prescribed restoration fee. For purposes of this paragraph, a plea of nolo contendere and all previous accepted pleas of nolo contendere to an offense listed in Code Section 40-5-54 within such five-year period of time shall constitute a conviction. For the purposes of this paragraph, a plea of nolo contendere to a charge of violating Code Section 40-6-391 and all prior accepted pleas of nolo contendere within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a plea of nolo contendere is accepted, shall be considered and counted as convictions; or" SECTION 2-4.

Said chapter is further amended in Code Section 40-5-66, relating to appeals from decisions of the department, by revising subsection (a) as follows: "(a) Except as provided in subsection (h) of Code Section 40-5-67.1, and subsection (h) of Code Section 40-5-64, and subsection (g) of Code Section 40-5-64.1, any decision rendered by the department shall be final unless the aggrieved person shall desire an appeal. In such case, such person shall have the right to enter an appeal in the superior court of the county of his residence or in the Superior Court of Fulton County. Such appeal shall name the commissioner as defendant and must be filed within 30 days from the date

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the department enters its decision or order. The person filing the appeal shall not be required to post any bond nor to pay the costs in advance."

SECTION 2-5.

Said chapter is further amended in Code Section 40-5-67.2, relating to terms and conditions for suspension of license under subsection (c) of Code Section 40-5-67.1, by revising subsection (d) as follows: "(d) Any other provision of law to the contrary notwithstanding, a driver with no previous conviction for a violation of Code Section 40-6-391 within the previous five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest, during the period of administrative suspension contemplated under this chapter, shall be entitled to a limited driving permit or an ignition interlock device limited driving permit as provided in Code Section Sections 40-5-64 and 40-5-64.1."

SECTION 2-6.

Said chapter is further amended in Code Section 40-5-76, relating to judicial restoration of a driver's license or issuance of a limited driving permit, by revising subsection (a) as follows: "(a) A judge presiding in a drug court division, mental health court division, or veterans court division an accountability court, as such term is defined in Code Section 15-1-18, may order the department to restore reinstate a defendant's driver's license that has been or should be suspended pursuant to Code Section 40-5-75, suspend such license, issue a defendant an ignition interlock device limited driving permit in accordance with Code Section 40-5-64.1, or issue a defendant a limited driving permit in accordance with the provisions set forth in subsections (c) and (d) of Code Section 40-5-64 or with whatever conditions the court determines to be appropriate under the circumstances as a reward or sanction to the defendant's behavior in such court division. The court shall determine what fees, if any, shall be paid to the department for such reward or sanction, provided that such fee shall not be greater than the fee normally imposed for such services."

SPONSOR’S RATIONALE The Center for Disease Control has indicated that a DUI offender has driven drunk at least 80 times before they ever get arrested. 4 “As current law stands, if you are arrested for DUI, an officer will take your license and give you a 1205 form to allow you to drive for 30 days. 5 10 business days after that arrest, you can apply for an administrative license suspending hearing (“ALS”) on whether or not you should have had your license taken. 6 The problem with this option is that there are only 10,000 people who actually apply for this hearing, when there are 24,9000 convictions for DUIs every year. 7 This means that those 14,900 people who did not

4

Georgia House, LD 28, YOUTUBE (March 3, 2016) https://www.youtube.com/watch?v=zov_NN2e7PI. Id. 6 Id. 7 Id. 5

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apply for the hearing are most likely driving anyway. 8 There are 9,000 arrests per year for people who are driving without a license with a DUI conviction being the base for the loss of their license. 9 This Bill gives another alternative to first time DUI offenders to drive legally and “hopefully affect a behavioral change in the driver.”10 Under this Bill, on refusal of a field sobriety test, the driver will have the option of obtaining an ignition interlock device. 11 The driver will be given a 45-day driving permit. 12 In 30 days the driver will have to get the interlock device installed and take proof of the installation to the Department of Driver Services. 13 At that point they will be given a limited driving permit interlock, which allows the driver to drive anywhere, freely and legally. 14 The cost of installing and de-installing the device will be charged to the driver at $75 for each action. 15 There are a lot of advantages presented with this bill. 16 First, the driver will be able to drive legally. 17 Second, the driver will have the option to waive their ALS hearing and still be permitted to drive. 18 This will save time, risk, and costs associated with the hearing and reinstatement of the license. 19 This will also save time and cost to the officers because they will not have to take time off and appear at the ALS hearing to testify about the arrest. 20 “Third, and most important, people with this device have been found 67% less likely to recidivate while the device is in place.”21 The intent behind this bill is simple and explicit on its face. 22 It is to afford first time DUI offenders the option of preserving their driving privileges, to protect public safety and to “hopefully begin a behavioral change in the offender.”23 “In order to ensure its ripe and readiness, over the course of four years, with two study committees, one special judiciary committee, a full judiciary committee and a rules committee hearing, this bill has been thoroughly vetted and studied.”24 “Mothers Against Drunk Driving (M.A.A.D.), is in support of this bill because they see it as an opportunity to find out whether or not we can really change the behavior of the people who opt in for the device.”25 This Bill will change the DUI options for the first time in 20 years. 26 It is important to note that the current law is not changing. 27 This is simply an option the individual can chose to take if they want to. 28 Even more important to note is that this Bill is only 8

Id. Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 9

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effective for first time offenders. 29 After that, this Bill will no longer be an option. 30 “I am presenting this Bill because it is a great way for us to get control over this situation which we quietly, and subliminally allow to happen, either legally or illegally.”31 OPPOSITION’S RATIONALE Georgia solicitors opposed the legislation. 32 Some of them noted that there were a number of flaws in the current proposal – in part because the current administrative license suspension process does not work. 33 They were also concerned about the reporting requirements for the ignition interlock devices as well as costs associated with the devices (which would be optional) and would create a separate class of citizens, leading to a court challenge. 34 Questions were also raised about implied consent and how this legislation might throw out current case law. 35 IMPLICATIONS IN GEORGIA “HB 205 provides for a process by which drivers will be eligible for a permit even if they refuse the state administered chemical test or have a result on the test of .08 or more.”36 The application for the Ignition Interlock Device Limited Driving Permit (IIDLDP) will serve as a waiver of the ALS hearing. 37 “The ability to get a driver’s license reinstated by complying with the conditions of OCGA § 40-5-67.2, such as the risk reduction program and paying a reinstatement fee, are still in effect under HB 205.”38 “HB 205 also creates new code section OCGA § 40-5-64.2, which requires DDS to report to the Senate Public Safety Committee the numbers of IIDLDPs issued for those who those who test at .08 or above and those who refuse the state administered chemical test.”39 This reporting requirement will remain in effect until 2020. 40 For drivers approved for an IIDLDP, an Ignition Interlock Device must be installed within 10 days of the receipt of the device. 41 Drivers who are suspended due to a state administered chemical test result of .08 or higher must drive for 4 months on an Ignition Interlock Device Limited Driving Permit. 42 Drivers who are suspended due to a refusal to take the state administered chemical test must drive on Ignition Interlock Device Limited Driving Permit for 12 months. 43 “An Ignition Interlock Device Limited Driving Permit may be issued 29

Id. Id. 31 Id. 32 Id. 33 Id. 34 Nelson Mullins, Gold Dome Report, GOLD DOME REPORT (March 8, 2016), http://www.nelsonmullins.com/newsletters/gdr-3-8-2016.

35 Id. 36 Cynthia H. Clanton, Summary of Enacted Legislation 2016, (last visited Oct. 2, 2016), http://enactedlegislation.georgiacourts.gov/sites/default/files/Enacted%20Legislation/Enacted%20Legislation%2020 16_interactive.pdf.

37 Id. 38 Id. 39 Id. 40 Id. 41 Id. 42 Id. 43 Id. 30

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within 30 days of notice of the ALS hearing, surrender of the driver’s license, and an affidavit attesting to the waiver of the ALS hearing.”44

LEGISLATIVE GENEALOGY The first reading of HB 205 took place on February 4, 2015. 45 The second reading took place on February 9, 2015. 46 The House Committee favorably reported by substitute on February 18, 2016. 47 The third reading took place on February 25, 2016. 48 HB 205 was also passed in the House and adopted by substitute on February 25, 2016. 49 On February 26, 2016, HB 205 was read and referred in the Senate. 50 The Senate Committee favorably reported by substitute on March 16, 2016. 51 The second reading in the Senate also took place on March 16, 2016. 52 The third reading in the Senate took place on March 22, 2016. 53 The Senate also passed and adopted by substitute on March 22, 2016. 54 On March 24, 2016, the House disagreed with the Senate’s substitutions. 55 The Senate insisted that the House adopt its substitutions on March 24, 2016. 56 On the same day the House responded by insisting that the Senate accept the disagreement with their substitutions. 57 On March 24, 2016, The House Conference Committee appointed Representatives Tome Rice, Rich Golick, and Dustin Hightower to head of the committee. 58 The Senate Conference Committee appointed Senators Jesse Stone, John F. Kennedy, and Charlie Bethel to head of the committee on this day. 59 Also on March 24, 2016, the House Conference Committee’s report was adopted. 60 The Senate Conference Committee’s report was adopted the next day on March 25, 2016. 61 HB 205 was sent to the Governor on April 4, 2016. 62 Governor Nathan Deal signed HB 205 on April 26, 2016. 63 HB 205 will go into effect on July 1. 2017. 64 Prepared by: Rodrequez Burnett

44

Id. 2015-2016 Regular Session - HB 205, Drivers' licenses; require driver who refused blood alcohol concentration testing to install and maintain ignition interlock devices on vehicle; provisions, GA. GEN. A SSEMB., http://www.legis.ga.gov/Legislation/en-US/display/20152016/ HB/205 (last visited Sept. 11, 2016).

46 Id. 47 Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id. 56 Id. 57 Id. 58 Id. 59 Id. 60 Id. 61 Id. 62 Id. 63 Id. 64 Id. 45

HOUSE BILL 229 1 : DOMESTIC RELATIONS ; GRANDPARENT RIGHTS TO VISITATION AND INTERVENTION TO GREAT-GRANDPARENTS AND SIBLINGS OF PARENTS ; EXPAND Amending O.C.G.A. § 19-7-3 First Signature: Representative Brian Strickland (111th) Co-Sponsers: Andrew Welch (110th ), John Meadows (5th ), Barry Fleming (121st ), Dustin Hightower (68th ), LeDawn Jones (62nd).

Summary: House Bill 229 (“the Bill”) amends title 19 of the Official Code of Georgia Annotated as it relates to domestic relation cases to allow for intervention by great-grandparents and siblings of parents. 2 The Bill seeks to expand family member’s rights for visitation but still keeping in line with the intent of the conflicting law to ensure that those who have access to minors in domestic relations are those that deserve to have access to those minors. 3 Status: Signed by Governor Nathan Deal and effective on July 1, 2016. 4 TEXT OF HOUSE BILL 229 §1 To amend Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, so as to change provisions relating to a grandparent’s right to intervention in certain domestic relation cases; to allow for intervention by great-grandparent’s and sibling of parents; to provide for definitions; to provide for an evidentiary standard; to conform cross-references relating to adoption; to provide for related matters’ to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA SECTION 1.

Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by revising Code Section 19-7-3, relating to grandparent visitation rights and intervention as follows: “19-7-3. (a) As used in this Code section, the term ‘grandparent’.

(1) ‘Family member’ means a grandparent, great-grandparent, or sibling.

(2) ‘Grandparent’ means the parent of a parent of a minor child, the parent of a minor child’s parent who has died, and the parent of a minor child’s parent whose parental rights have been terminated.

1

H.B. 229, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016), http://www.legis.ga.gov/legislation/enUS/Display/20152016/ HB/229 [hererinafter GA. H.B. 229].

2 Id. 3 Id. 4 Id.

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(3) Great-grandparent means the parent of the parent of a parent of a minor child, the parent of the parent of a minor child’s parent who has died, and the parent of the parent of a minor child’s parent whose parental rights have been terminated.

(4) ‘Sibling’ means the brother or sister of a parent of a minor child, the brother or sister of a minor child’s parent who has died, and the brother or sister of a minor child’s parent whose parental rights have been terminated. (b)(1) Except as otherwise provided in paragraph (2) of this subsection, any: (A) Any grandparent shall have the right to file an original action for visitation rights to a minor child or: and (B) Any family member shall have the right to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, a divorce of the parents or a parent of such minor child, a termination of the parental rights of either parent of such minor child, or visitation rights concerning such minor child or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of Cod Section 19-8-19.

(2) This subsection shall not authorize an original action where when the parents of the minor child are not separated and the child is living with both parents. (c)(1) Upon filing of an original action or upon intervention in an existing proceeding under subsection (b) of this Code section, the court may grant any grandparent family member of the child reasonable visitation rights if the court finds by clear and convincing evidence that the heath or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. The mere absence of an opportunity for a child to develop a relationship with a family member shall not be considered as harming the health or welfare oft eh child when there is no substantial preexisting relationship between the child and such family member. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where when, prior to the original action or intervention: (A) The minor child resided with the grandparent family member for six months or more; (B) The grandparent family member provided financial support for the basic needs of the child for at least one year; (C) There was an established patter of regular visitation or child care by the grandparent family member with the child; or (D) Any other circumstance exists indication that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

The court shall make specific findings of fact in support of its rulings.

(2) An original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child. After visitation rights have been granted to any grandparent, the legal custodian, guardian of the person, or parent of the child ma petition the court for revocation or amendment of such visitation rights, for good cause shown which the court, in its discretion, may grant or deny; but such a petition shall not be filed more than once in any two-year period.

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(3) While a parent’s decision regarding grandparent family member visitation shall be given deference by the court, the parent’s decision shall not be conclusive when failure to provide grandparent family member contact would result in emotional harm to the child. A court may presume that a child who is denied any contact with his or her grandparent family member or who is not proceed some minimal opportunity for contact with his or her grandparent family member when there is a preexisting relationship between the child and such family member may suffer emotional injury that is harmful to such child’s health. Such presumption shall be a rebuttable presumption.

(4) In no case shall the granting of visitation rights to a grandparent family member interfere with a child’s school or regularly scheduled extracurricular activities.

(5) Visitation awarded to a grandparent family member shall not be less than 24 hours in any on-month period; provided, however, that when more than one individual seeks visitation under this Code section, the court shall determine the amount of time to award each petitioner which shall not be less than 24 hours in any one-month period in the aggregate. (d) Notwithstanding the provision of subjections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interest of the child. The custodial parent’s judgment as to the best interest of the child regarding visitation shall be given deference by the court but shall not be conclusive. (e) If the court finds that the grandparent or grandparent’s family member can bear the cost without unreasonable financial hardship, the court, at the sole expense of the petitioning grandparent or grandparent’s family member, may: (1) Appoint a guardian ad litem for the minor child; and (2) Assign the issue of visitation rights of a grandparent family member for mediation. (f) In the event that the court does not order mediation or upon failure of the parties to reach an agreement through mediation, the court shall fix a time for the hearing of the issue of visitation rights of the grandparent or grandparents family member. (g) Whether or not visitation is awarded to a grandparent family member, the court may direct a custodial parent, by court order, to notify such grandparent family member of every performance of the minor child to which the public is admitted, including, but not limited to, musical concerts, graduations, recitals, and sporting events or games. (h) When more than one family member files an action pursuant to this Code section, the courts shall determine the priority of such actions.”

Section 2.

Said title is father amended by revising subsection (f) of Code Section 19-8-13, relating to the petition for adoption, filing, and contents, as follows: “(f)(1) As used in this subsection, the term ‘family member’ shall have the same meaning as set forth in Code Section 19-7-3.

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(2) Whenever a petitioner is a blood relative of the child to be adopted and a grandparent family member other than the petitioner has visitation rights to the child granted pursuant to Code Section 10-7-3, the petitioner shall cause a copy of the petition for adoption to be served upon the grandparent family member with the visitation rights or upon such person’s counsel of record.”

Section 3.

Said title is further amended by revising Cod Section 19-8-5, relating to when objections may be filed by relatives to petition for adoption, as follows: ’19-8-15.

(1) As used in this Cod section, the term ‘family member’ shall have the same meaning as set forth in Code Section 19-7-3.

(2) If the child sought to be adopted has no legal father or legal mother living, it shall be the privilege of any person related by blood to the child to file objections to the petition for adoption. A grandparent family member with visitation rights a child granted pursuant to Code Section 19-7-3 shall have the privilege to file objections to the petition of adoption if neither parent has any further rights to the child and if the petition for adoption has been filed by a blood relative of the child. The court, after hearing such objection shall determine, in its discretion, whether or not the same constitute a good reason for denying the petition and the court shall have the authority to grant or continue such visitation rights of the grandparent to family member of the child in adoption order in the event the adoption by the blood relative is approved by the court.”

Section 4.

All laws and pars of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE HB229 initially started as a grassroots effort by Georgia citizen, Jessica Patton (“Patton”), who was denied rights to see her nephew, Nicholas, when his father (her brother) and the boy’s mother parted ways under contentious circumstances. 5 Nicholas’ parents were never married and Nicholas’ father was not officially legitimated until after the pair separated, all which made the situation more complicated. 6 Patton called her petition “Nicholas’ Law” after the nephew she was being denied contact with. 7 Patton’s efforts, which ultimately become HB229 (“the Bill”), is actually an expansion of a law already in existence commonly referred to as the Grandparent Visitation Act (“GVA”). The GVA was enacted in 1995 to give grandparents of children whose parents were in the midst of domestic relations disputes standing to petition the court for visitation. 8 Under the GVA, if there are no living grandparents and, or the parent dies,

5

Nicholas’ Law, CHANGE.ORG, https://www.change.org/p/nathan-deal-nicholas-law-afford-visitation-rights-to-noncustodial-extended-family-members-particu larly-aunts-and-uncles/u/12465320 (last visited Sept. 10, 2016).

6 Id. 7 Id. 8 Telephone Interview with State Representative Brian Strickland (Oct. 22, 2016) [hereinafter Strickland Interview].

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other extended family members have very little rights to visitation with the children. 9 Thus, family members like Patton had no rights at all because she was not a grandparent and the GVA did not take into consideration the rights of other family members who have had a hand in raising their nephews, nieces, or great-grandchildren. 10 Seeing a need to amend the current law, Patton started an online petition to extend visitation rights to include extended family members like herself. 11 She reached out to everyone she could in the state capital and garnered the attention of State Representative Brian Strickland. 12 “The intent of Nicholas’ Law is not to give aunts and uncles automatic rights in every instance, but in certain circumstances where it can be proven that alienation would be harmful to the relationship.”13 Patton’s main goal was to protect the best interest of these children by making sure that any relationship they had with their family continued, thus, extending the coverage of the law. 14 Representative Strickland and his supporters view it to be in the best interest of the child to allow for strong family bonds between immediate family members who have helped raise a child be able to petition for visitation rights. 15 Representative Strickland’s strong family values were the driving force behind working to pass the Bill. 16 Representative Strickland, also a family law attorney, was contacted by a great-grandmother in 2015 for help in petitioning visitation rights to see her greatgrandchildren. 17 However, the law in place at the time was the GVA which did not allow for anyone other than grandparents to pursue visitation to see their family members. 18 After being contacted by Patton, Representative Strickland recognized the need for legislation to amend to expand the GVA. 19 Amending the GVA would finally give family members standing to have their day in court. 20 It was apparent that the reality was that his constituents needed this law amended because, at times, more than one level of the family unit was involved in the raising of children. 21 The Bill amends the GVA to allow extended family members the standing to petition the court for visitation. 22 This Bill also further defines ‘family member’ to include greatgrandparents, aunts, uncles, cousins, and siblings as those who have a right to petition the court. 23 The Bill offers several safeguards to ensure that the family law courts are not inundated with petitions, and also protects the Constitutional rights of the parents. 24 Person’s petitioning must show “clear and convincing evidence that the health and welfare of the child would be 9

GA. CODE A NN. §19-7-3 (West 2016).

Telephone Interview with Jessica Patton (Sept. 16, 2016) [hereinafter Patton Interview].

11 Id. 12 Id. 13 HenryCountyTimes.com, http://www.henrycountytimes.com/html/archives/2015/04.22.15/co mmsub1.ht ml (last visited Oct. 2, 2016) [hereinafter Henry County Times].

14 Patton Interview, supra note 10.

15 Locust Grove News Facebook Page, https://www.facebook.com/LocustGroveNews/posts/1048403138538658, (last visited Oct. 2, 2016).

16 Id. 17 Id. 18 Id. 19 Id. 20 Strickland Interview, supra note 8.

21 Id. 22 GA. CODE A NN. §17-9-3 (West 2016).

23 Id. 24 Strickland Interview, supra note 8.

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harmed unless such visitation was granted.”25 Family members petitioning may do so only to intervene in an existing, open case. 26 This stipulation controls the number of lawsuits because unless you are a grandparent you cannot file an original action. 27 Finally, “when more than one individual seeks visitation, the court shall determine the amount of time to award each petitioner which shall not be less than 24 hours, taken together, in any one-month period.”28 The ultimate goal of the Bill is to keep families intact and allow children in the middle of domestic relations disputes to maintain emotional relationships with extended family members who were a large part of that child’s life. The Bill also prevents the custodial parent from using visitation as a tool to hurt or punish the noncustodial parent or his or her family. 29 OPPOSITION’S RATIONALE The opposition’s rationale is concerned about to main issues: 1) allowing extended family members opens up a “slippery slope” that must be highly scrutinized; and 2) judicial economy30 .

A. The Slippery Slope The opposition feared that passing the Bill threatened to infringe upon parents’ Constitutional rights to parent their own children. Expanding the law allowed several layers of family members to request time with the child, thus, taking time away from the parents. 31 The court’s main objective is always to preserve the family structure, but this Bill would potentially expand the family structure to unrecognizable proportions. 32 There was also a fear that undesirable family members would “come out of the woodwork” and petition the court for visitation because they now could. 33 Relatives known to abuse drugs or alcohol or have criminal pasts may exercise their right to petition the court for the sheer purpose of creating strife and discord in the family. 34 State Representative, and attorney, Regina Quick, recognized these issues with the Bill and initially opposed the Bill before she offered to collaborate with Representative Strickland to rewrite the Bill with him. 35 B. Judicial Economy The passage of this Bill could potentially create a lot of work for the family law court. 36 Judges would need to screen who could access the children creating a backed up docket. 37 The 25

GA. CODE A NN. §17-9-3 (West 2016).

Id. 27 Id. 28 Strickland Interview, supra note 8.

29 Id. 30 Interview with Suzanne Hovastak, Family Law attorney licensed in Georgia, in Smyrna, Ga. (Sept. 23, 2016) [hereinafter Hovastak Interview].

31 Id. 32 Id. 33 Patton Interview, supra note 10.

34 Id. 35 Strickland Interview, supra note 8.

36 Hovastak Interview, supra note 30.

37 Patton Interview, supra note 10.

26

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Bill does not address various components of domestic relations cases like parenting plans, parent time deviations protocol, or if disparaging language provisions apply to the petitioning family member, too, to name a few. 38 Additionally, programs that are part of domestic relations proceedings involving divorce and child custody, like Seminar for Divorcing Parents, are not addressed in the Bill and do not indicate whether petitioning family members granted visitation would be required to attend these programs. 39 The further the blood connection between the child and the petitioning family member, the more difficult it would be to enforce provisions of parenting or visitation plans already set in place by the court. 40 The GVA, in general, is a relatively new law. 41 Even with the amendments added to it by the Bill, judges still have very few guidelines on what they can include in final provisions from the court. 42 Judges, pursuant to the statute, are given guidance to rule on two things: 1) notice for public events, like baseball games and dance recitals of the children involved; and 2) visitation provisions for parents. 43 Now, provisions to include and address grandparents and extended family members will have to be directly addressed or there will have to be a separate judgment regarding the other family members. 44 For the foregoing reasons, this amended law has potential to impact family law courts tremendously.

IMPLICATIONS IN GEORGIA As passed into law, House Bill 229 does four things: 1) allows for immediate family members who have raised a child but are being denied visitation rights to petition the courts for reasonable visitation; 2) redefines what a ‘family member’ is and takes into consideration that the raising of children is often times done by several layers of a family; 3) determines that denying a child involvement with family members who had a hand in raising them is not in the best interest of the child; the standard held today in family law courts; and 4) created awareness for parental alienation. 45 The Bill allows relatives of children who are a product of a relationship where parents never married to continue to stay involved and receive court mandated visitation. 46 It gives family members standing in a court of law when the custodial parent refuses to allow them visitation. 47 As a direct result of this Bill, families who were once separated are now reunited. 48 This Bill has also created a level awareness for parental alienation that was not here in Georgia. 49 Parental Alienation Awareness Day, which is commemorated worldwide, is currently recognized in 17 states including Georgia. 50 However, this year Governor Nathan Deal

38

Hovastak Interview, supra note 30.

Id. 40 Id. 41 Strickland Interview, supra note 8.

42 Id. 43 Id. 44 Id. 45 Henry County Times, supra note 13.

46 Id. 47 Strickland Interview, supra note 8.

48 Patton Interview, supra note 10.

49 Id. 50 Henry County Times, supra note 13.

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went a step further, declaring an entire week to the cause. 51 Henry County was the first county in the state in which all cities have issued proclamations for this special day. 52 Just having a law in place that gives extended family members standing in court makes it less likely that cases like Patton’s ever make it in front of a judge. 53 However, since the law is so new, holdings relying on the new law may still be appealed, and the ramifications of that are yet to be seen. 54 LEGISLATIVE GENEALOGY On February 4, 2015 State Representative Strickland, State Representative Welch, State Representative Meadows, State Representative Fleming, State Representative Hightower, and State Representative Jones introduced the House Bill 229 to the House Hopper. 55 The First Reading was performed on February 9, 2015. 56 Second Reading was performed on February 10, 2015. 57 A Third Reading was performed on February 29, 2016 and on the same day the House passed and adopted, by substitute, by a vote of 164 to 4. 58 On March 2, 2015, the Senate Read and Referred. 59 On March 14, 2015, the Senate Committee favorably reported by substitute and on the same day a second Reading was performed in the Senate. 60 A third Reading was performed in the Senate and on the same day the Senate passed and adopted by substitute with a vote of 16 to 0. 61 On March 22, 2016, the House agreed to Senate substitutions by a vote of 161 to 0. 62 On March 24, 2016 the Senate agreed to House substitutions by a vote of 46 to 3. 63 On April 4, 2016, the House send the Bill to Governor Nathan Deal. 64 On April 26, 2016, the Bill, now known as Act 229, was signed by Governor Deal and became effective law on July 1, 2016. 65

Prepared by: Teresa Gohlke

51

Id. Id. 53 Strickland Interview, supra note 8.

54 Id. 55 H.B. 229 Status Sheet, supra note 3.

56 Id. 57 Id. 58 Id. 59 Id. 60 Id. 61 Id. 62 Id. 63 Id. 64 Id. 65 Id. 52

HOUSE BILL 272 1 : M INIMUM WAGE; PROVIDE FOR SUBSTANTIVE AND COMPREHENSIVE REFORM OF PROVISIONS REGARDING THE LAW; PROVISIONS Amending O.C.G.A. § 34-4-3 First signature: Representative Rahn Mayo (84th) Co-Sponsors: Representative Drenner (85th), Representative Dickerson (113th), Representative Marin (96th) Summary: For House Bill 272 (the “Bill”)to be entitled an Act to amend Chapter 4 of Title 34 of the Official Code of Georgia Annotated, relating to minimum wage, so as to provide for a substantive and comprehensive reform of provisions regarding the minimum wage law; to provide for an increase in the minimum wage; to provide for annual minimum wage increases to match the rising cost of living; to provide a credit toward the minimum wage for employers of tipped workers; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes. 2 Status: House Second Readers, February 11, 2015. 3 TEXT OF HOUSE BILL 272 § 1.

Chapter 4 of Title 34 of the Official Code of Georgia Annotated, relating to minimum wage, is amended by revising Code Section 34-4-3, relating to amount of minimum wage to be paid by employers, as follows: (a) Except as otherwise provided in this Code section, every employer, whether a person, firm, or corporation, shall pay to all covered employees a minimum wage which shall be not less than $5.15 $10.10 per hour for each hour worked in the employment of such employer. On January 1, 2016, and on January 1 of each successive year thereafter, the minimum wage shall be increased by the increase in the cost of living, if any. On September 30, 2015, and on September 20 of each successive year thereafter, the Georgia Department of Labor shall measure the increase in the cost of living as being the percentage increase as of the preceding July over the July level of the immediately preceding year according to the Consumer Price Index for Urban Wage Earners and 1

H.B. 272, 153rd Gen. Assemb., Reg. Sess. (Ga. 2015), http://www.legis.ga.gov/Legislation/20152016/ 147093.pdf.

Id. 3 2015-2016 Regular Session-HB 272, Minimum Wage; Provide for Substantive and Comprehensive Reform of Provisions Regarding the Law; Provisions, GA. GEN A SSEMB., http://www.legis.ga.gov/Legislation/enUS/display/20152016/ HB/272 (last visited Sept. 30, 2016).

2

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Clerical Workers or its successor index as published by the United States Department of Labor or its successor agency. Each adjusted minimum wage rate calculated shall be published and take effect on the following January 1. (b) Employers of employees who meet the eligibility requirements for the tip credit under the federal Fair Labor Standards Act, 29 U.S.C. Section 203(t), may credit tips towards the satisfaction of up to 50 percent of the minimum wage provided by this Code section. (b)(c) This chapter shall not apply with respect to: (1) Any employer that has sales of $40,000.00 per year or less; (2) Any employer having five employees or less; (3) Any employer of domestic employees; (4) Any employer who is a farm owner, sharecropper, or land renter; (5) Any employee whose compensation consists wholly or partially of gratuities; (6) Any employee who is a high school or college student; (7) Any individual who is employed as a newspaper carrier; or (8) Any individual who is employed by a nonprofit child-caring institution or long-term care facility serving children or mentally disabled adults who are enrolled in such institution and reside in residential facilities of the institution, if such employee resides in such facilities, receives without cost board and lodging from such institution, and is compensated on a cash basis at an annual rate of not less than $10,000.00. (c)(d) This chapter shall not apply to any employer who is subject to the minimum wage provisions of any act of Congress as to employees covered thereby if such act of Congress provides for a minimum wage which is greater than the minimum wage which is provided for in this Code section."

SECTION 2.

This Act shall become effective on September 1, 2015.

SECTION 3.

All laws and parts of laws in conflict with this Act are repealed.

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SPONSOR’S RATIONALE Representative Rahn Mayo of the 34th District sponsors this Bill, like some senate and house bills proposing to raise Georgia’s minimum wage, in response to the imbalance of wealth and lack of economic opportunity for many average working people. 4 The proposition to increase the minimum wage is not a new subject in Georgia. 5 For instance, after comparing this Bill and Senate Bill 314, it can be inferred that this Bill may have been influenced by Senate Bill 314 introduced by Senator Donzella James in the 2013-2014 legislative session because of its substantial similarities. 6 Senators James of the 35th District and Vincent Ford of the 39th District sponsored bills during the 2013-2014 legislative session to raise the minimum wage for similar reasons, but differed whether the minimum wage should be increased to $10.10 or $15.00 per hour. 7 Sponsors for a raise reasoned that an increase will help alleviate poverty, boost the state’s economy, reduce the need for Supplemental Nutrition Assistance Program (SNAP) or other government benefits, and save taxpayers around $4.6 billion a year. 8 According to Senator James, “raising the minimum wage would give Georgia businesses a boost by putting $1.3 billion in new wages into the pockets of workers.” In addition, Senator Ford said this year, “the presence of low-wage workers in the labor force hurts middle-class taxpayers because it forces more Georgians to rely on various forms of public assistance, 4

Id.; Dave Williams, Georgia Senate Panel Hears Pleas for Minimum Wage Hike, A T LANTA BUSINESS CHRONICLE: CAPIT OL VISION (Feb. 12, 2016, 12:50 PM), http://www.bizjournals.com/atlanta/blog/capitol_vision/2016/02/georgia-senate-panel-hears-pleas-for-minimu mwage.html; 2015-2016 Regular Session-HB 8, Minimum Wage; provide for substantive and comprehensive reform of provisions regarding the law; provisions, GA. GEN A SSEMB., http://www.legis.ga.gov/Legislation/enUS/display/20152016/ HB/8 (last visited Sept. 30, 2016).

5 H.B. 8, supra note 4.

6 H.B. 272, supra note 3; 2013-2014 Regular Session-SB 314, Minimum Wage; provide for substantive and comprehensive reform of provisions regarding the law; provisions, GA. GEN A SSEMB., http://www.legis.ga.gov/Legislation/en-US/display/20132014/ SB/ 314 (last visited Oct. 4, 2016).

7 S.B. 314, supra note 6.

8 Anna Chu, It’s Time to Raise the Minimum Wage: Georgia, Fact sheet in It’s Time to Raise the Minimum Wage, CENT ER FOR A MERICAN PROGRESS A CT ION FUND: ECONOMY ISSUE (Mar. 24, 2014), https://www.americanprogressaction.org/wp-content/uploads/2014/03/MinWage-Georgia.pdf; Williams,

supra note 4.

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including food stamps and Medicaid.”9 Center for American Progress Action Fund, an independent, nonpartisan policy institute and advocacy organization found that about 110,045 people in Georgia would not need SNAP benefits if the minimum wage increased to $10.10 and this raise would result in annual SNAP savings of about $234.6 million in Georgia. 10 On February 11, 2016, the Senate committee heard testimony for Senate Bill 314, but there were not enough votes to push the senate bill forward. 11 Although the raise in Georgia’s minimum wage has not come into fruition, many Georgia citizens directly affected by the minimum wage advocate for an increase because it will help them take care of their basic needs, such as paying rent and day care. 12 OPPOSITION’S RATIONALE The opposition to raising Georgia’s minimum wage understand the intention is to alleviate poverty, but reason a raise will fail to reduce poverty because it will have adverse effects on employment. 13 According to the Georgia Chamber of Commerce, “this type of government interference could jeopardize existing and future employment for Georgians.”14 Although supporters to raising the minimum wage claim that women will greatly benefit, the Georgia Restaurant Association found an increase in the minimum wage to $10.10 could eliminate about $21,000 jobs – nearly half of which are held by women. 15 Opponents are also concerned that small businesses would greatly suffer if Georgia’s minimum wage is raised to 9

Williams, supra note 4.

Chu, supra note 9.

11 Id. 12 Sarah Parrish, Push to Raise Minimum Wage in Georgia, NEWS 95.5 A M 750 W SB: NEWS (Feb. 11, 2016, 11:47 PM), http://www.wsbradio.com/news/news/push-raise-minimum-wage-georgia/nqN6j/.

13 Joseph J. Sabia, Minimum Wages: A Poor Way to Reduce Poverty, 70 CAT O INST IT UTE TAX & BUDGET BULLETIN (2014), http://object.cato.org/sites/cato.org/files/pubs/pdf/tbb_70.pdf.

14 James Salzer, Georgia Chamber Honors Pol Seeking Minimum Wage for Insurance Agents, A JC.COM: NEWS (June 16, 2016), http://investigations.blog.ajc.com/2016/06/16/georgia-chamber-honors-pol-seeking-minimuminsurance-wage/.

15 Jim Galloway, Georgia Restaurant Association: $10.10 Minimum Wage Would Cost 21,000 Jobs, AJC.COM: NEWS (June 18, 2014), http://politics.blog.ajc.com/2014/06/18/georgia-restaurant-association-10-10-minimumwage-would-cost-21000-jobs/.

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$10.10 or higher. 16 According to Allen Peake, a Middle Georgia State Representative and restaurant franchisee “small business[es] that employ a large amount of individuals who may be at minimum wage, would have no option but to raise prices significantly, or to cut hours for those who are currently working for [him].”17 “Businesses such as his cannot operate at a loss or [they] [would] be out of business and then everyone will lose their jobs.”18 Former Chairman of the Committee of Industry and Labor, Mark Hamilton, was also opposed to raising the minimum wage. 19 As a business owner, he believed “businesses that have to pay workers suffer more due to the tangible cost of the raise in minimum wage.”20 During his tenure, he had no desire to assist in the progression of HB 8 to increase minimum wage to $15.00. 21 IMPLICATIONS IN GEORGIA Georgia’s minimum wage is $5.15 and is one of the lowest in the United States. 22 However, if employees are covered under the federal Fair Labor Standards Act, then employers must pay their employees the federal minimum wage of $7.25 per hour. 23 This Bill provides the minimum wage would increase $10.10 per hour for each hour worked in the employment of such employer and it would increase annually based on cost of living changes based on the Consumer Price Index for Urban Wage Earners and Clerical Workers or its successor index as published by

16

Jenna Martin, Augusta-Area Small Employers Wary of Proposed Minimum Wage Increase, THE A UGUST A CHRONICLE (Mar. 22, 2014), http://m.chronicle.augusta.com/news/business/local-business/2014-03-22/augusta-areasmall-employers-wary-proposed-minimu m-wage#.

17 Trevor Young, Georgia’s Minimum Wage is Still $5.15 An Hour, GPB M EDIA: NEWS (Sept. 2, 2015, 9: 39 AM), http://www.gpb.org/news/2015/09/02/georgias-min imu m-wage-still-5-15-hour.

18 Id. 19 Alysha Arlequin & Kiera Hardnett, Problem Statement, Subsection to Legislative Project E-Portfolio SW 3600/Social Welfare Policy House Bill 8: Minimum Wage, CT WSW 3600PROJECT , http://ctwsw3600project.weebly.com/problem-statement.html (last visited Oct. 24, 2016).

20 Id. 21 Id. 22 Young, supra note 18.

23 Minimum Wage Laws in the States, U.S. DEPT . OF LABOR: W AGE AND HOUR DIVISION (Aug. 1, 2016), https://www.dol.gov/whd/minwage/america.htm#Georg ia (last visited Sept. 26, 2016).

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the United States Department of Labor. 24 According to Wesley Tharpe, senior political analyst for the Georgia Budget and Policy Institute, “a reasonable increase in the state’s minimum wage would help arrest the slide in wages and send a positive ripple effect through Georgia’s economy”. 25 The increase could help Georgia families invest in their future by going back to school or affording better quality child care. 26 Also, it could boost employee productivity and loyalty, developing better workers and boosting company profits. 27 According to the nonpartisan Economic Policy Institute in Washington, D.C., if Georgia transitioned to a minimum wage of $10.10 an hour over three years, nearly one million Georgia citizens could get a raise. 28 In other words, an estimate of one in four Georgia women and one in five Georgia men would get a raise. 29 In addition, nearly half of the people who could benefit are families that make from $20,000 to $60,000 a year. 30 Supporters for raising Georgia’s minimum wage to $10.10 say this could have a positive impact on women.

31

According to the National

Women’s Law Center, in Georgia about six in ten wage workers are women earning a minimum wage of $7.25 or a tipped minimum cash wage of $2.13 an hour. 32 Because minimum-wage workers are more likely to be women, raising their income would also help close the gender gap in wages. 33

24

Gold Dome Report, NELSON M ULLINS: GOLD DOME REPORT , (2015).

Wesley Tharpe, Better Pay Will Yield Better Workers, Article within The Minimum Wage Debate, AJC.COM (April 28, 2015), http://atlantaforward.blog.ajc.com/2015/04/28/the-minimu m-wage-debate/.

26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 James Reynolds, Tell Georgia Legislators to Raise the Minimum Wage, CREDO M OBILIZE, https://www.credomobilize.com/petitions/tell-state-legislators-to-raise-the-minimum-wage-18 (last visited Oct. 24, 2016).

32 Andrew Soergel, Women Southerners Most Likely to Earn Minimum Wage, U.S. NEWS & W ORLD REPORT : NEWS (Sept. 5, 2016, 6:00 AM), http://www.usnews.com/news/articles/2016-09-05/wo men-southerners-most-likely-toearn-minimum-wage.

33 Id. 25

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However, opponents to an increase of the state’s minimum wage contend raising the minimum wage would hurt small business owners unable to pay $10 to $15 per employee but able to pay above the federal minimum wage. 34 This could hurt employees because they may get less hours to work or may be terminated from employment. 35 For instance, [S]tate [D]irector of the National Federation of Independent Business, Kyle Jackson stated, “[t]he [increased] minimum wage disproportionately hurts smaller employers because smaller employers have less of an ability to absorb cost increases, and this is probably the worst possible time we could be having a discussion about the minimum wage, because most small employers are just now getting back to pre-recession levels in terms of their performance.”36 Ultimately, the greatest concern about raising the minimum wage is the negative implications the raise would have on small businesses because although the idea of increasing the minimum wage is noble, the harm would outweigh the benefits for Georgia. 37 Nevertheless, there are businesses and cities, such as mega-company Walmart and the city of Clarkson in Georgia, that have increased the minimum wage for its employees. 38 In February 2016, Wal-Mart Stores Inc. sought to provide about 58,900 additional raises for associates across the state. 39 The raises represent an $87.4 million investment in Georgia. 40 These raises increased the average hourly wage for full-time associates to an estimate of $13.64

34

Linda S. Morris, Ga. Unlikely to Follow Boost in Minimum Wage, Lawmaker Says, THE TELEGRAPH: BUSINESS (Aug. 15, 2015, 9:01 PM), http://www.macon.com/news/business/article31227140.html.

35 Id. 36 Rick Badie, Min. Wage Hike: Job Creator or Crusher, Article within The Minimum Wage Debate, AJC.COM (April 28, 2015), http://atlantaforward.blog.ajc.com/2015/04/28/the-minimu m-wage-debate/.

37 Id. 38 Carla Caldwell, Walmart to Raise Hourly Wage in Georgia; Provide Raises for 58,900 Workers, A T LANTA BUSINESS CHRONICLE: INDUST RY NEWS (Dec. 15, 2015, 4:49 AM), http://www.bizjournals.com/atlanta/morning_call/2015/ 12/ walmart-to-raise-hourly-wage-in-georgia-provide.html; Dan Chapman, Clarkson First Georgia City to Set $15 Minimum hourly Wage, THE A T LANTA JOURNALCONST IT UTION: NEWS (July 7, 2016, 12:00 PM), http://www.ajc.com/business/economy/clarkston-first-georgia-cityset-minimum-hourly-wage/3TFVJuJUUv5jsIKZGcdvKO/.

39 Caldwell, supra note 39.

40 Id.

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and for part-time associates to an estimate of $10.47 an hour. 41 On July 7, 2016, Clarkson became the first city in Georgia to mandate a $15 an hour minimum wage for its employees. 42 Although, the mandate applies to three of its public works employees and is well above the $10.10 minimum wage, the mandate is a step toward increasing the minimum wage to some degree in Georgia. 43

LEGISLATIVE GENEALOGY Representative Rahn Mayo introduced House Bill 272. The Bill was placed in the house hopper on February 9, 2015. 44 The Bill was first read on February 10, 2015. 45 The Bill’s second reading to took place on February 11, 2015. 46

Prepared by: Stacey Burke

41

Id.; More Than One Million Walmart Associates to Receive Pay Increase in 2016, W ALMART: BLOG (Jan. 20, 2016), http://news.walmart.com/news-archive/2016/01/20/ more-than-one-million-walmart -associates-receive-payincrease-in-2016.

42 Chapman, supra note 39.

43 Id. 44 H.B. 272, supra note 1.

45 Id. 46 Id.

HOUSE BILL 792 1 : FIREARMS ; CARRYING, POSSESSION, AND USE OF ELECTROSHOCK WEAPONS

BY PERSONS WHO ARE STUDENTS OR WHO ARE EMPLOYED AT A PUBLIC INSTITUTION; AUTHORIZE

Amending O.C.G.A. § 16-11-127.1 First signature: Representative Brockway (102nd) Co-Sponsors: Representative Pak (108th), Representative Quick (117th), Representative Cooke (18th), Representative Ballinger (23rd), and Representative Allison (8th).

Summary: House Bill 792 (“the Bill”) relates to carrying and possession of firearms, so as to authorize the carrying, possession, and use of electroshock weapons while in or on any building or real property owned by or leased to a public institution of postsecondary education. 2 The Bill also repeals conflicting laws and is presently effective as of July 1, 2016. 3 Due to the rise of sexual assault on campuses, the Bill’s goal is to increase students safety by allowing stun guns on public campuses thereby providing students with an extra method of protection. 4 The premise of the Bill is to allow students time to escape from perpetrators and avoid being harmed. 5 Status: The Bill went into effect on July 1, 2016, after being signed by Governor Deal on May 3, 2016. 6 TEXT OF HOUSE BILL 792 § 1.

Part 3 of Article 4 of Chapter 11 of Title 16 of the Official Code of Georgia Annotated, relating to carrying and possession of firearms, is amended in subsection (c) of Code Section 16-11-127.1, relating to carrying weapons within school safety zones, at school functions, or on a bus or other transportation furnished by a school, by deleting "or" at the end of paragraph (17), by replacing the period with "; or" at the end of paragraph (18), and by adding a new paragraph to read as follows: "(19) Any person who is 18 years of age or older or currently enrolled in classes on the campus in question and carrying, possessing, or having under such person's 1

H.B. 792, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016), http://www.legis.ga.gov/legislation/20152016/162266.pdf (last visited Sept. 25, 2016).

2 Id. 3 Id. 4 Buzz Brockway, How To NOT Get Tased (on a Georgia public college campus), YOUTUBE (June 30, 2016), https://www.youtube.com/watch?v=6OT32xIhxy U. 5 Ga. Pub. Broad., GPB LAWMAKERS, Video Archive House Day 26 PM, [hereinafter House Video], http://www.gpb.org/lawmakers/2016/day-26.

6 H.B. 792, supra note 1.

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control an electroshock weapon while in or on any building or real property owned by or leased to such public technical school, vocational school, college or university or other public institution of postsecondary education; provided, however, that, if such person makes use of such electroshock weapon, such use shall be in defense of self or others. The exemption under this paragraph shall apply only to such person in regard to such electroshock weapon. As used in this paragraph, the term 'electroshock weapon' means any commercially available device that is powered by electrical charging units and designed exclusively to be capable of incapacitating a person by electrical charge, including, but not limited to, a stun gun or taser as defined in subsection (a) of Code Section16-11-106." § 2.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE Representative Buzz Brockway of the 102nd District is the primary author of House Bill 792. 7 Representative Brockway suggested the Bill to address the concerns of the college students who were being attacked and facing harm by perpetrators on their campuses across Georgia. 8 With the rise of sexual assault across the nation, Representative Brockway believes that allowing students to carry a stun gun may cause a decrease in similar assaults on college campuses in Georgia. 9 Also, a number of Georgia State University students were concerned for their wellbeing with the recent robberies in their school library. 10 In addition, several female college students contacted Representative Brockway about concerns for their safety at their universities. 11 Some of the students stated to Representative Brockway that their universities prohibited pepper spray and mace which prompted him to investigate school policies. 12 Through his investigation, Representative Brockway noted that the students were mistaken about the pepper spray; however, he noticed a pattern of policies banning stun guns. 13 Due to the ban of stun guns on campus, Representative Brockway decided to propose a law overriding the ban. 14 Representative Brockway noted that campus police cannot be everywhere especially on large

7

Id. E-mail from Buzz Brockway, Rep., State of Ga., to Kristan Polard, Staff Member, Atlanta’s John Marshall Law Sch. (Sept. 26, 2016, 1:59 EST) (on file with author).

9 Buzz Brockway, Comment to How to NOT Get Tased (on a Georgia public college campus) (July 12, 2016, 5:09 PM), https://www.vote4buzz.com/how-to-not-get-tased-on-a-georgia-public-college-campus/.

10 Interview by Tim Bryant with Buzz Brockway, Talking Stun Guns with Tim Bryant (June 26, 2016, 9:20 AM), https://www.vote4buzz.com/talking-stun-guns-with-tim-bryant-2.

11 Email from Buzz Brockway, supra note 8.

12 Id. 13 Id. 14 Id. 8

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campuses. 15 The hope from this new law was that it would provide students a measure of safety while on campus. 16 Representative Brockway stated the Bill was intended to provide an alternative to students wanting to protect themselves on campus, but not use a lethal weapon in the event that H.B. 859 passed. 17 Furthermore, the electroshock device may be carried in any building owned or leased by the institution, including residence halls. 18 The Bill was termed “campus carry lite.”19 Representative Brockway ensured the stun guns were subject to the requirement of use in self-defense or defense of others to give the victim time to run from the perpetrator. 20 He noted that other areas of the law deal with the abuse of stun guns in the event of such misuse. 21 The right to self-defense is a natural right older than our Constitution and the 2nd amendment. 22 Representative Brockway stated that the Bill creates this natural right and gives students an option to protect themselves from harm. 23 OPPOSITION’S RATIONALE The Bill faced some opposition receiving 46 nay votes on February 23, 2016; 12 nay votes on March 22, 2016; and 50 nay votes on March 24, 2016. 24 A large portion of opposition came from The Board of Regents who raised their concerns via their lobbyists. 25 Opponents of the bill had a fear concerning the misuse of the stun guns. 26 Some students feared the misuse as well. 27 Students were concerned that this was an excuse to be violent for reasons other than selfdefense. 28 Legislators fear the dangers that can accompany stun guns as well. 29 There have been instances where the use of these weapons have proven to be deadly. 30 Additional concern arose over the fact that stun guns are not required to be registered with the government; therefore, there is more potential for abuse especially by unsavory characters. 31 Some opponents feel that certain institutions function better when those in them are concerned with the functioning of the

15

Interview by Tim Bryant, supra note 10.

Email from Buzz Brockway, supra note 8.

17 Aaron Gould Sheinin, Bill allowing Tasers on Georgia’s college campuses gets final OK, (March 24, 2016, 3:10 PM), http://www.myajc.com/news/news/state-regional-govt-politics/bill-allowing-tasers-on-georgias-collegecampuses-/nqrm7.

18 Electroshock devices (Tasers) on campus, http://www.mga.edu/police/tasers.aspx. (last visited Sept. 26, 2016).

19 Aaron Gould Sheinin, Bill allowing Tasers on Georgia’s college campuses gets final OK, (March 24, 2016, 3:10 PM), http://www.myajc.com/news/news/state-regional-govt-politics/bill-allowing-tasers-on-georgias-collegecampuses-/nqrm7.

20 House Video, supra note 5.

21 Id. 22 Id. 23 Id. 24 Id. 25 Email from Buzz Brockway, supra note 8.

26 Id. 27 Lori Geary, Stun guns allowed at public colleges, universities (June 28, 2016, 6:57 PM), http://www.wsbtv.com/news/local/stun-guns-allowed-at-public-colleges-universities/370430369.

28 Id. 29 Maggie Lee, Campus Weapon Bills Loaded in State Senate (Mar. 8, 2016, 5:13 PM), http://www.macon.com/news/politics-government/article64821857.ht ml.

30 Id. 31 Mahalakshmi Srinivasan, We asked Tech students how they feel about the Campus Carry bill, http://thetab.com/us/georgia-tech/2016/04/14/tech-students-react-campus-carry-bill-24. (last visited Sept. 30, 2016).

16

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institution and not the protection of their own well-being. 32 At the beginning of the Bill, legislators were concerned that the Bill did not contain an age requirement. 33 Once the Senate added the age requirement of 18 and older or currently enrolled in classes on the campus in question, apprehension arose from the dual-enrollment aspect. 34 Some feared that 13 or 14 year olds who are dual enrolled would be allowed to possess stun guns. 35 The legislators were concerned that these young children would use the stun guns for pranks against one another. 36 IMPLICATIONS IN GEORGIA This Bill addresses students’ concerns about their safety on public college campuses. 37 Anyone over the age of 18 or enrolled in classes at a public college or university is now allowed to carry a stun gun for the purpose of personal protection. 38 The Bill will provide parents of college students some peace of mind for their children’s safety. 39 With the Bill enacted, police chiefs and college administrators have drawn up implementation plans for their unique campuses. 40 The campus community has been informed of the new provision, and officers are prepared to uphold the state law. 41 University police are prepared to hold information and training sessions for faculty, students, and staff. 42 The Bill has increased the revenue of many merchants that sell stun guns in the State. 43 Sales of stun guns and electroshock weaponry has surged since the Bill was passed in Georgia. 44 LEGISLATIVE GENEALOGY The Bill was placed in the House Hopper on January 20, 2016. 45 The House first readers occurred on January 21, 2016. 46 The House’s second reading took place on January 22, 2016. 47 On February 17, 2016, the Bill was sent to the Public Safety and Homeland Security Committee in the House which favorably reported by substitute. 48 The House’s third reading took place on February 23, 2016. 49 The House voted on the Bill and the Bill passed 117- 46. 50 The Bill was 32

Ariel Gratch, Comment to How to NOT get Tased (on a Georgia public college campus) (July 12, 2016, 4:55 PM), https://www.vote4buzz.com/how-to-not-get-tased-on-a-georgia-public-college-campus.

33 House Video, supra note 20.

34 Id. 35 Id. 36 Id. 37 Email from Buzz Brockway, supra note 8.

38 Id. 39 Id. 40 Id. 41 WSPA Staff, Georgia students allowed to carry Tasers, stun guns on public college campuses, (Jan. 29, 2016, 3:54 AM), http://wspa.com/2016/07/29/georgia-students-allowed-to-carry-tasers-stun-guns-on-public-collegecampuses.

42 Id. 43 New Stun gun law in Georgia electrifies concealed-carry debate, http://www.foxnews.com/us/2016/08/ 15/newstun-gun-law-in-georgia-electrifies-concealed-carry-debate.html (last visited October 1, 2016).

44 H.B. 792, supra note 7.

45 Id. 46 Id. 47 Id. 48 Id. 49 Id.

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sent to the Senate on February 24, 2016 where it was read and referred to the Senate Judiciary Committee. 51 The Senate Judiciary Committee favorably reported by substitute on March 10, 2016. 52 The Senate read the bill a second time on March 11, 2016. 53 The Bill became engrossed in the Senate on March 22, 2016. 54 The Senate Judiciary Committee amended the Bill to add an age requirement. 55 The Senate then read the Bill a third time on March 22, 2016 where the Bill was adopted by substitute and passed 43 – 12. 56 The Senate then sent the Bill back to the House. 57 On March 24, 2016, the House approved the Senate substitution by 119 – 50. 58 The Bill was sent to the Governor on April 1, 2016. 59 The Governor signed the Bill into law on May 3, 2016. 60 The new law, now known as Act 616, became effective on July 1, 2016. 61 Prepared by: Kristan Polard

50

Id. Id. 52 Id. 53 Id. 54 Id. 55 H.B. 792, 153rd Gen. Assemb., House Committee Substitute (Ga. 2016), http://www.legis.ga.gov/Legislation/20152016/ 159844.pdf (last visited Sept. 30, 3016).

56 H.B. 792, supra note 1.

57 Id. 58 Id. 59 Id. 60 Id. 61 Id. 51

HOUSE BILL 808 1 : COURTS ; JUDICIAL QUALIFICATIONS COMMISSION; CREATE Amending GA. CODE ANN. § 15-01-19 First signature: Representative Wendell Willard 51st Co-Sponsors: Representative Jan Jones 47th , Representative Jon Burns 159th , Representative Mary Margaret Oliver 82nd, Representative John Meadows 5th , Representative Johnnie Caldwell 131st Summary: House Bill 808 (“the Bill”) amends Chapter 1 of Title 15 of the Official Code Annotated to abolish the current Judicial Qualifications Commission and create a new Judicial Qualifications Commission. The Bill also addresses how the members are to be appointed and the composition of the commission. The Bill went into effect if House Resolution 1113 (“HR 1113”), a Constitutional Amendment, passed on November 08, 2016. 2 Status: Passed by the House and Senate and signed by the governor. Effective date of January, 1, 2017 after HR 1113, the enabling legislation, passed by Constitutional Amendment on November 8, 2016. 3 TEXT OF HOUSE BILL 808 SECTION 1.

Chapter 1 of Title 15 of the Official Code of Georgia Annotated, relating to general provisions relative to courts, is amended by adding a new Code section to read as follows: "15-1-19. (a) Pursuant to Paragraph VI of Section VII of Article VI of the Constitution, there is hereby created the Judicial Qualifications Commission, which shall have the power to discipline, remove, and cause involuntary retirement of judges in accordance with such Paragraph. (b) The Judicial Qualifications Commission shall consist of seven members who shall be subject to confirmation by the Senate. (c) From January 1, 2017, until June 30, 2017, the members of the commission shall be as follows: (1) Two judges of any court of record, appointed by the Supreme Court; (2) One member of the State Bar of Georgia who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the President of the Senate from a list of at least ten nominees 1. H.B. 808, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016), http://www.legis.ga.gov/legislation/enUS/Display/20152016/ HB/808.

2. Id. 3. Elly Yu, Ga. Voters Pass Overhaul of State’s Judicial Watchdog Agency, 90.1 WABE (Nov. 9, 2016), http://news.wabe.org/post/ga-voters-pass-overhaul-state-s-judicial-watchdog-agency.

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from the board of governors of the State Bar of Georgia; provided, however, that if a nominee is not selected from such list, the board of governors shall submit another slate of ten nominees; (3) One member of the State Bar of Georgia who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the Speaker of the House of Representatives from a list of at least ten nominees from the board of governors of the State Bar of Georgia; provided, however, that if a nominee is not selected from such list, the board of governors shall submit another slate of ten nominees; (4) One citizen member, who shall be a registered voter of this state but shall not be a member of the State Bar of Georgia, appointed by the Speaker of the House of Representatives; (5) One citizen member, who shall be a registered voter of this state but shall not be a member of the State Bar of Georgia, appointed by the President of the Senate; and (6) One member of the State Bar of Georgia, who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the Governor to serve as chairperson of the commission. (d) From July 1, 2017, through December 31, 2020, the members of the commission shall be as follows: (1) Two judges of any court of record, appointed by the Supreme Court; (2) One member of the State Bar of Georgia who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the President of the Senate from a list of at least ten nominees from the board of governors of the State Bar of Georgia; provided, however, that if a nominee is not selected from such list, the board of governors shall submit another slate of ten nominees; (3) One member of the State Bar of Georgia who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the Speaker of the House of Representatives from a list of at least ten nominees from the board of governors of the State Bar of Georgia; provided, however, that if a nominee is not selected from such list, the board of governors shall submit another slate of ten nominees; (4) One citizen member, who shall be a registered voter of this state but shall not be a member of the State Bar of Georgia, appointed by the Speaker of the House of Representatives; (5) One citizen member, who shall be a registered voter of this state but shall not be a member of the State Bar of Georgia, appointed by the President of the Senate; and (6) One member of the State Bar of Georgia, who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the Governor to serve as chairperson of the commission. (e) On and after January 1, 2021, the members of the commission shall serve for a term of three years and until their successors are appointed and shall be as follows: (1) Two judges of any court of record, appointed by the Supreme Court; (2) One member of the State Bar of Georgia who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the President of the Senate from a list of at least ten nominees from

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the board of governors of the State Bar of Georgia; provided, however, that if a nominee is not selected from such list, the board of governors shall submit another slate of ten nominees; (3) One member of the State Bar of Georgia who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the Speaker of the House of Representatives from a list of at least ten nominees from the board of governors of the State Bar of Georgia; provided, however, that if a nominee is not selected from such list, the board of governors shall submit another slate of ten nominees; (4) One citizen member, who shall be a registered voter of this state but shall not be a member of the State Bar of Georgia, appointed by the Speaker of the House of Representatives; (5) One citizen member, who shall be a registered voter of this state but shall not be a member of the State Bar of Georgia, appointed by the President of the Senate; and (6) One member of the State Bar of Georgia, who shall have been an active status member of the State Bar of Georgia for at least ten years and shall be a registered voter of this state, appointed by the Governor to serve as chairperson of the commission. (f) Any list of nominees required by this Code section shall be submitted to the Senate no later than the third Monday in January. Any member appointed to the commission shall serve until the Senate confirms such nominee and if an individual's name is not submitted by such deadline, he or she shall not be eligible for appointment. (g) The Judicial Qualifications Commission may adopt procedures for its own governance which are not otherwise provided by the Constitution or this Code section; provided, however, that such procedures shall not allow an individual member to initiate an investigation without presenting such proposal to the other members of the commission at a commission meeting. (h) Members of the commission shall be subject to removal from the commission by an affirmative vote of six members of the commission, with the member who is subject to removal being disqualified from any such vote. (i) No person shall serve more than two consecutive terms as a member of the 100 commission; provided, however, that any person appointed pursuant to subsection (c) of this Code section may serve for three consecutive terms as a member of the commission. (j) Notwithstanding Chapter 14 of Title 50, unless otherwise waived by the judge involved, all papers filed with and proceedings before the commission, including any investigation that the commission may undertake, shall be confidential, and no person shall disclose information obtained from commission proceedings or papers filed with or by the commission, except as provided in this Code section. Such papers shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50. (k) Information submitted to the commission or its staff, and testimony given in any proceeding before the commission, shall be absolutely privileged, and no civil action predicated upon such information or testimony shall be instituted against any complainant, witness, or his or her counsel. (l) If, after an investigation is completed, the commission concludes that a letter of caution is appropriate, it shall issue a letter of caution to the judge in lieu of any further proceeding in the matter. The issuance of a letter of caution shall be confidential in accordance with subsection (j) of this Code section.

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(m) If, after an investigation is completed, the commission concludes that disciplinary proceedings should be instituted, the notice and statement of charges filed by the commission, along with the answer and all other pleadings, shall remain confidential in accordance with subsection (j) of this Code section. Disciplinary hearings ordered by the commission shall be confidential, and recommendations of the commission to the Supreme Court, along with the record filed in support of such recommendations, shall be confidential in accordance with subsection (j) of this Code section. Testimony and other evidence presented to the commission shall be privileged in any action for defamation. At least four members of the commission shall concur in any recommendation to issue a public reprimand against or to censure, suspend, retire, or remove any judge. A respondent who is recommended for public reprimand, censure, suspension, retirement, or removal shall be entitled to a copy of the proposed record to be filed with the Supreme Court, and if the respondent has objections to it, to have the record settled by the commission's chairperson. The respondent shall also be entitled to present a brief and to argue the respondent's case, in person and through counsel, to the Supreme Court. A majority of the members of the Supreme Court voting shall concur in any order of public reprimand, censure, suspension, retirement, or removal. The Supreme Court may approve the recommendation, remand for further proceedings, or reject the recommendation. A member of the commission who is a judge shall be disqualified from acting in any case in which he or she is a respondent. (n) Upon issuance of a public reprimand, censure, suspension, retirement, or removal by the Supreme Court, the notice and statement of charges filed by the commission along with the answer and all other pleadings, including the recommendation of the commission to the Supreme Court and the record filed in support of such recommendation, shall no longer be confidential. (o) The findings and records of the commission during an open meeting shall not be exempt from disclosure under Article 4 of Chapter 18 of Title 50."

SECTION 2.

This Act shall become effective on January 1, 2017, only if an amendment to the Constitution abolishing the existing Judicial Qualifications Commission and requiring the General Assembly to create and provide by general law for the composition and manner of appointment of a new Judicial Qualifications Commission, with such commission having the power to discipline, remove, and cause involuntary retirement of judges, and providing for exceptions to certain disclosures is ratified by the voters at the November, 2016, state-wide general election. If such an amendment is not so ratified, then this Act shall not become effective and shall stand repealed on January 1, 2017.2 SECTION 3. (d) 153 All laws and parts of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE Representative Wendell Willard of the 51st district proposed House Bill 808 (“HB 808”) to address the Judicial Qualifications Commission’s (“JQC”) lack of oversight and because their actions lacked a check and balance system. 4 The amendment will “let the people of the state be

4

Elly Yu, Lawmaker Admits: Most Georgians Don’t Know About Amendment 3, 90.1 WABE (Oct. 27, 2016), http://news.wabe.org/post/lawmaker-admits-most-georgians-dont-know-about-amendment-3.

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more aware that there are problems that need to be corrected.”5 Willard’s amendment seeks to change the make-up of the “autonomous body” where “[n]o one has any say-so over their actions and the way they conduct their business.”6 The amendment would remove appointment power of the State Bar of Georgia and replace it with four appointments by the House Speaker and the President of the State Senate. 7 According to Willard, the need to strip the appointment power from the State Bar comes from its lack of diligent oversight “to insure they are performing as expected.”8 Representative Willard is also critical of the “misuse of the criminal justice system by members of the commission” regarding the Commission’s treatment of judges in investigations, particularly retired judge Cynthia Becker of the DeKalb County Superior Court and her indictment. 9 The charges against Judge Becker stemmed from pending ethics charges against her by the JQC related to statements she made while appearing before the Commission. 10 Judge Becker made statements that were deemed to be false in meetings with the JQC even though they were not sworn. 11 The fact that the false statement charges were based on an informal meeting where the judge was not informed she was being recorded and the statements were not sworn in was troubling to Representative Willard. 12 The ethics charges from the JQC eventually led to Judge Becker being indicted with a misdemeanor and six felonies. 13 A consent order signed with the JQC shortly after the indictment stating that she would never seek judicial office again led to the charges being dropped. 14 Representative Willard has also mentioned similar actions against other judges, including one sitting judge in Brunswick, Ga., 15 Lester Tate, the former JQC Chairman, also expressed concerns over the criminal prosecutions of Judge Becker and Judge Williams and their relation to false statements made before the JQC stating that “It’s a valid concern we have been trying to address.”16 5

R. Robin McDonald, Corrected: Lawmakers Aim to Remake JQC, Remove State Bar's Appointment Authority, DAILY REPORT (Jan. 22, 2016), https://advance.lexis.com/api/permalink/ea8bf327-9ac3-4028-8ae01885de9d21a6/?context=1000516.

6 Elly Yu, Hearings About State Judicial Watchdog Agency Begin Thursday, 90.1 WABE (Sep 7, 2016), http://news.wabe.org/post/hearings-about-state-judicial-watchdog-agency-begin-thursday.

7 R. Robin McDonald, Ralston ‘Animus’ Cited as Motive for Amendment to Remake JQC, DAILY REPORT (Oct. 20, 2016), https://advance.lexis.com/document/?pdmfid=1000516&crid=cc4f938d-2ad 1-4a8a-9aaffc6cfea33898&pdactivityid=dfcfe1ff-4c16-43d 0-8a03-55ab9cd716f7&pdtargetclientid=-None&ecomp=7sqhk&prid=12b1a110-298c-4407-93a0-30c680ba6e19.

8 R. Robin McDonald, Corrected: Lawmakers Aim to Remake JQC, Remove State Bar's Appointment Authority, DAILY REPORT (Jan. 22, 2016).

9 Id. 10 Id. 11 GPB Lawmakers, GA House Day 25- Monday, February 22, 2016, YOUTUBE (Aug. 2, 2016), https://www.youtube.com/watch?v=iylmp35rv1Y&feature=youtu.be&t=54m17s.

12 Id. 13 R. Robin McDonald, Corrected: Lawmakers Aim to Remake JQC, Remove State Bar's Appointment Authority, DAILY REPORT (Jan. 22, 2016).

14 Id. 15 GPB Lawmakers, GA House Day 25- Monday, February 22, 2016, YOUTUBE (Aug. 2, 2016), https://www.youtube.com/watch?v=iylmp35rv1Y&feature=youtu.be&t=54m17s.

16 R. Robin McDonald, Corrected: Lawmakers Aim to Remake JQC, Remove State Bar's Appointment Authority, DAILY REPORT , Jan. 22, 2016.

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Representative Willard also raised concerns with members of the JQC using its power as leverage in actions against judges 17 citing a reported instance of a members of the JQC threatening an investigation by the JQC to get their way. 18 The conduct of the investigators for the JQC has also been a source of criticism as Representative Willard has raised concerns about investigators showing up at a judge’s home very late in the evening. 19 Representative Willard has also voiced concern about the balance of transparency concerning the actions of the JQC. 20

OPPOSITION’S RATIONALE Much of the opposition to HB 808 has been concerned with the legislative body of the government having too much oversight of the newly formed JQC. 21 The new JQC would replace the members appointed by the State Bar of Georgia with appointments by leadership within the House and Senate and increase the governor’s appointments by one. 22 Lester Tate, the former chair of the Judicial Qualifications Commission, felt the JQC would be at the “complete whim of the politicians.”23 Representative Nikki Randall expressed concerns of cronyism and legislators “that have had run-ins with the JQC to dismantle that body and to appoint some of their friends.”24 Georgians for Judicial Integrity, a coalition in opposition to the re-structuring of the JQC, called it a “blatant political power grab” and that the new Commission will be “vulnerable to political pressure.”25 With the additional oversight, there have been worries of a lack of separation of the judiciary and the legislature. 26 If this legislation is to go into effect, Georgia, along with Virginia, will be one of two states that gives the legislature this amount of power of the judiciary. 27

17

GPB Lawmakers, GA House Day 25- Monday, February 22, 2016, YOUTUBE (Aug. 2, 2016), https://www.youtube.com/watch?v=iylmp35rv1Y&feature=youtu.be&t=54m17s.

18 Id. 19 Id. 20 Id. 21 R. Robin McDonald, Corrected: Lawmakers Aim to Remake JQC, Remove State Bar's Appointment Authority, DAILY REPORT (Jan. 22, 2016), https://advance.lexis.com/api/permalink/ea8bf327-9ac3-4028-8ae01885de9d21a6/?context=1000516.

22 H.B. 808, supra note 1.

23 Brendan Keefe, Disgraced Former Ga. Judge Behind Push to Abolish Judicial Watchdog Group, WXIA (Aug. 22, 2016), http://www.11alive.com/news/local/investigations/disgraced-former-ga-judge-behind-push-to-abolishjudicial-watchdog-group-1/303205441.

24 David Johnson, Judicial watchdog group in danger of being dismantled and replaced, WGXA (Apr. 20, 2016), http://wgxa.tv/news/state-news/judicial-watchdog-group-in-danger-of-being-dismantled-and-replaced.

25 R. Robin McDonald, Coalition Forms to Fight Constitutional Amendment to Abolish JQC, DAILY REPORT (Oct. 12, 2016), https://advance.lexis.com/document/?pdmfid=1000516&crid=2d 360e4b-462a-4e36-9a68d8312954f60e&pdwo rkfolderid=a5f07ff1-dc5f-4593-90bd-6c341bd97f22&eco mp=n 74h k&earg=a5f07ff1-dc5f4593-90bd-6c341bd97f22&prid=0353914f-d 77f-4cc8-a03f-33f827769b0d.

26 R. Robin McDonald, Women Lawyers’ Group Opposes Amendment to Remake JQC, DAILY REPORT (Oct. 21, 2016), https://advance.lexis.com/document/?pdmfid=1000516&crid=4d 332ee0-491f-4ab4-a313d399e86eee1c&pdactivityid=09696208-8287-4acd-b85f-e9b4715f1866&pdtargetclientid=-None&ecomp=7sqhk&prid=289487f4-ae53-4d41-9ab7-48dcb55357fd.

27 R. Robin McDonald, Coalition Forms to Fight Constitutional Amendment to Abolish JQC, DAILY REPORT (Oct. 12, 2016).

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In his resignation letter, the former chair of the JQC stated that the “work of the Judicial Qualification Commission is threatened by political and other outside forces that are interested only in protecting jurists connected to the right people.”28 Tate also accused the effort to make changes to the JQC to be related to judges with power friends in the legislative branch. 29 In his resignation letter to the State Bar of Georgia, Tate stated that “certain individuals and groups within the judicial and other branches of government have sought to interfere with the commission’s work in ways that intrude upon its independence and hamper its day-to-day operations.”30 The motivations for such control has also been called into question because of those who support the change. 31 One of the co-sponsors of the bill is a former judge who resigned after an investigation by the JQC that found evidence of misconduct. 32 Senator Josh McKoon cited House Speaker David Ralston’s “personal animus against the State Bar of Georgia” relating to a pending bar complaint against the Ralston. 33 McKoon also stated that Ralston threatened to pursue legislation eliminating the mandatory membership to the bar for practicing attorneys in the state. 34 “This [HB 808] would give the legislature unprecedented authority and power over another branch of government,” said Brinkley Serkedakis, executive director for Common Cause Georgia, a political advocacy group. 35 Critics believe that the changes needed to the JQC can be done without abolishing and reforming the Commission. 36 Critics have also warned that HB 808 going into effect “could result in less transparency” in Georgia courts. 37 There are also concerns that by taking the JQC out of the Constitution, the legislature will be able to reform the board in any way it sees fit in the future. 38

28

Rhonda Cook, Chair of judicial watchdog resigns, THE A T LANTA JOURNAL CONST ITUTION (Apr. 5, 2016), http://www.ajc.com/news/news/local/chair-of-judicial-watchdog-resigns/nqy87/.

29 Id. 30 Id. 31 R. Robin McDonald, Ralston ‘Animus’ Cited as Motive for Amendment to Remake JQC, DAILY REPORT (Oct. 20, 2016); See also R. Robin McDonald, Coalition Forms to Fight Constitutional Amendment to Abolish JQC, DAILY REPORT (Oct. 12, 2016).

32 Brendan Keefe, Disgraced Former Ga. Judge Behind Push to Abolish Judicial Watchdog Group, WXIA (Aug. 22, 2016), http://www.11alive.com/news/local/investigations/disgraced-former-ga-judge-behind-push-to-abolishjudicial-watchdog-group-1/303205441.

33 R. Robin McDonald, Ralston ‘Animus’ Cited as Motive for Amendment to Remake JQC, DAILY REPORT (Oct. 20, 2016), https://advance.lexis.com/document/?pdmfid=1000516&crid=cc4f938d-2ad 1-4a8a-9aaffc6cfea33898&pdactivityid=dfcfe1ff-4c16-43d 0-8a03-55ab9cd716f7&pdtargetclientid=-None&ecomp=7sqhk&prid=12b1a110-298c-4407-93a0-30c680ba6e19.

34 Id. 35 Elly Yu, Hearings About State Judicial Watchdog Agency Begin Thursday, 90.1 WABE (Sep 7, 2016), http://news.wabe.org/post/hearings-about-state-judicial-watchdog-agency-begin-thursday.

36 R. Robin McDonald, Coalition Forms to Fight Constitutional Amendment to Abolish JQC, DAILY REPORT (Oct. 12, 2016).

37 R. Robin McDonald, First Amendment Group Urges Defeat of Amendment to Abolish JQC; Newsreel, DAILY REPORT (Sept. 22, 2016), https://advance.lexis.com/document/?pdmfid=1000516&crid =3c34b867-53c5-4289-93f955f01a0c128b&pdactivityid=716f94a6-12d3-4f3b-aae4-539d8a467c03&pdtargetclientid=-None&ecomp=7sqhk&prid=b280593e-858b-4f5d-b89f-711f9da9f171.

38 Telephone Interview with Jeff Jeter, Chief of Staff, Senator Steve Henson (October 24, 2016).

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IMPLICATIONS IN GEORGIA This Bill has been passed and signed by the Governor and will now go into effect after House Resolution 1113, a Constitutional Amendment, passed on November 8, 2016. 39 The amendment’s chances of passing are likely to be somewhat high as most Constitutional amendments pass when there is money attached. 40 Now that the Bill has becomes effective, the current JQC has been abolished and the new commission will be established per HB 808. 41 The new makeup of the Commission will be two judges appointed by the Supreme Court, one member of the State Bar of Georgia appointed by the President of the Senate, the Speaker of the House, and the Governor, and one member not a member of the bar from the Speaker of the House of Representatives and the President of the Senate. 42 After 2021, the members will have term limits of three years until their successor is appointed. 43 LEGISLATIVE GENEALOGY The Bill was first introduced in the House Hopper and had its first reading on January 22, 2016, and its second reading on January 25, 2016. The Bill was then favorably reported by Substitute from the House Committee on February 16, 2016. The Bill had its third reading and was passed/adopted by substitute on February 22, 2016. The Bill was read and referred by the Senate on February 23, 2016. The Substitute was reportedly favorably by the Senate Committee and read a second time on March 16, 2016. March 22, 2016, saw the third reading and was passed/adopted by substitute. The House agreed to the Senate amendment or was substituted as amended on March 24, 2016. The Senate agreed to House amendment or was substituted as amended on March 25, 2016. The House sent the Bill to the governor on April 4, 2016 and it was signed by the Governor on May 03, 2016. The Bill will go into effect on January 1, 2017 after HR 1113 passed on November 6, 2016.

Prepared by: Gabriel L. Daniel

39

Elly Yu, Ga. Voters Pass Overhaul of State’s Judicial Watchdog Agency, 90.1 WABE (Nov. 9, 2016), http://news.wabe.org/post/ga-voters-pass-overhaul-state-s-judicial-watchdog-agency.

40 Telephone Interview with Jeff Jeter, Chief of Staff, Senator Steve Henson (October 24, 2016).

41 H.B. 808, supra note 1.

42 Id. 43 Id.

HOUSE BILL 887 1 : COURTS ; PARENTAL RIGHTS ; PRIORITIZE PLACEMENT OF A CHILD WITH AN ADULT OR FICTIVE KIN QUALIFIED TO CARE FOR SUCH CHILD

Amending O.C.G.A. § 15-11-135 First signature: Representative Chuck Efstration (104th) Co-Sponsors: Representative Mandi Ballinger (23rd), Representative Regina Quick (117th), Representative Johnnie Caldwell, Jr. (23rd), Representative Stacey Abrams (89th), Representative Stacy Evans (42nd), and Senator Renee Unterman (45th).

Summary: House Bill 887 (“the Bill”) amends Article 3 and 4 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated. 2 The new Bill will give preference for placement to an adult who is a relative or fictive kin over a nonrelated caregiver, provided that the relative or fictive kin has met all requirements for a DFCS relative or fictive kin placement and such placement is in the best interest of the child. This Bill also allows a child to be placed together with his or her sibling who are also in protective custody.

Status: The Bill was signed into law by Governor Nathan Deal on April 26, 2016, and became effective July 1, 2016. 3 TEXT OF HOUSE BILL 887 AN ACT To provide for the placement of children under certain circumstances; to amend Articles 3 and 4 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to dependency proceedings and termination of parental rights, respectively, so as to prioritize the placement of a child with an adult who is a relative or fictive kin when such individual is qualified to care for such child and it is in the best interests of the child; to amend Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, so as to provide for the creation, authorization, procedure, revocation, recision, and termination of a power of attorney from a parent, guardian, or legal custodian of a child to a kinship caregiver for the temporary delegation of certain power and authority for the care and custody of a child; to provide a short title; to provide for and correct a definition; to provide for procedure; to provide for legislative findings; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: PART I 1

H.B. 887, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016), http://www.legis.ga.gov/Legislation/20152016/ 162400.pdf (last visited Oct. 2, 2016).

2 Id. 3 2015-2016 Regular Session - HB 887, Courts; parental rights; prioritize placement of a child with an adult or fictive kin qualified to care for such child, GA. GEN. A SSEMB., http://www.legis.ga.gov/legislation/enUS/Display/20152016/ HB/887 (last visited Oct. 2, 2016) [hereinafter H.B. 887 Status Sheet].

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ยง 1.

Article 3 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to dependency proceedings, is amended by revising subsection (e) of Code Section 15-11-135, relating to placement in eligible foster care, as follows: "(e) In any case in which a child is taken into protective custody of DFCS, such child shall be placed together: (1) DFCS shall give preference for placement to an adult who is a relative or fictive kin over a nonrelated caregiver, provided that the such relative or fictive kin has met all requirements for a DFCS relative or fictive kin placement and such placement is in the best interests of the child; and

(2) Such child shall be placed together with his or her siblings who are also in protective custody or DFCS shall include a statement in its report and case plan of continuing efforts to place the siblings together or document why such joint placement would be contrary to the safety or well-being of any of the siblings. If siblings are not placed together, DFCS shall provide for frequent visitation or other ongoing interaction between siblings, unless DFCS documents that such frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings." ยง 1-2.

Said article is further amended by revising paragraph (3) of subsection (b) of Code Section 1511-146, relating to preliminary protective hearing and findings, as follows: "(3) On finding that the complainant has met the burden prescribed in subsection (a) of this Code section, may place the child before the court in the temporary custody of DFCS pending the hearing on the dependency petition. DFCS shall prioritize temporary placement with an adult who is a relative or fictive kin, provided that such individual has met DFCS's requirements for relative placement and such temporary placement is in the best interests of such child."

ยง 1-3.

Said article is further amended by revising subparagraph (a)(2)(A) of Code Section 43 15-11212, relating to disposition of a dependent child, as follows: "(A) Any individual, including a biological parent, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive

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and care for such child, provided that priority for placement is given to an adult who is a relative or fictive kin;" ยง 1-4 Article 4 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to 50 termination of parental rights, is amended by revising subsection (a) of Code Section 15-11-321, relating to custody of child following termination proceedings or surrender of parental rights, as follows: "(a)

When a court enters an order terminating the parental rights of a parent or accepts a

parent's voluntary surrender of parental rights, or a petition for termination of parental rights is withdrawn because a parent has executed an act of surrender in favor of the department, a placement may be made only if the court finds that such placement is in the best interests of the child and in accordance with such child's court approved permanency plan created pursuant to Code Sections 15-11-231 and 15-11-232.

In determining which placement is in a child's best

interests, the court shall initially attempt to place the child with an adult who is a relative or fictive kin, if such individual is willing and found by the court to be qualified to receive and care for such child. In determining which placement is in a child's best interests, the court shall enter findings of fact reflecting its consideration of the following: (1) Such child's need for a placement that offers the greatest degree of legal permanence and security; (2) The least disruptive placement for such child; (3) Such child's sense of attachment and need for continuity of relationships; (4) The value of biological and familial connections; and (5) Any other factors the court deems relevant to its determination."

PART II ยง 2-1 The General Assembly finds that:

(1) From time to time, parents experience short-term difficulties that impair their ability to perform the regular and expected functions to provide care and support to their children;

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(2) Parents need a means to confer to a relative or fictive kin the temporary authority to act on behalf of a child without the time and expense of a court proceeding or the involvement of the Division of Family and Children Services of the Department of Human Services; and (3)

Providing a statutory mechanism for granting such authority enhances family preservation

and stability.

ยง 2-2.

Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by adding a new article to Chapter 9, relating to child custody proceedings, to read as follows:

"ARTICLE 5 19-9-140.

This article shall be known and may be cited as the 'Supporting and Strengthening Families Act.' 19-9-141.

As used in this article, the term: (1) 'Child' means an unemancipated individual who is under 18 years of age.

(2) 'Fictive kin' shall have the same meaning as provided in Code Section 15-11-2.

(3) 'Guardian' means an individual appointed pursuant to a court order establishing a permanent guardianship for a child.

(4) 'Kinship caregiver' means a grandparent, step-grandparent, aunt, uncle, great aunt, 97 great uncle, cousin, or sibling of a child or a fictive kin who resides in this state.

(5) 'Legal custodian' shall have the same meaning as provided in Code Section 15-11-2.

(6) 'Parent' shall have the same meaning as provided in Code Section 19-3-37.

19-9-142. (a) A parent, guardian, or legal custodian of a child may delegate caregiving authority regarding such child to a kinship caregiver for a period not to exceed one year, except as provided in Code Section 19-9-150, by executing a power of attorney that substantially complies with this article. A parent, guardian, or legal custodian of a child may delegate to an agent in such power of attorney any power and authority regarding the care and custody of such child, except the power to consent to the marriage or adoption of such child, the performance or inducement of an abortion on or for such child, or the termination of parental rights to such child.

Such power and authority may be delegated without the approval of a court, provided that such

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delegation of power and authority shall not operate to change or modify any parental or legal rights, obligations, or authority established by an existing court order, including a standing order, or deprive a parent, guardian, or legal custodian of a child of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of such child. Such delegation of power and authority shall not deprive or limit any support for a child that should be received by such child pursuant to a court order or for any other reason. When support is being collected for the child by the Child Support Enforcement Agency of the Department of Human Services, such agency shall be authorized to redirect support payments to the agent until such time as the child returns to the individual executing a power of attorney under this article. No power of attorney shall be executed during the pendency of a divorce or custody action. (b) Except as limited by federal law, this article, or the direction of a parent, guardian, or legal custodian of a child as expressed in the power of attorney, an agent shall have the same rights, duties, and responsibilities that would otherwise be exercised by such parent, guardian, or legal custodian of a child pursuant to the laws of this state. (c) An agent shall acknowledge in writing his or her acceptance of the responsibility for caring for a child for the duration of the power of attorney. An agent shall certify that he or she is not currently on the state sexual offender registry of this state or the sexual offender registry for any other state, a United States territory, the District of Columbia, or any Indian Tribe nor has he or she ever been required to register for any such registry. Such certification shall include a criminal background check if requested by the individual executing the power of attorney. (d) The agent under a power of attorney shall act in the best interests of the child. Such agent shall not be liable to the individual executing the power of attorney for consenting or refusing to consent to medical, dental, or mental health care for a child when such decision is made in good faith and is exercised in the best interests of the child. (e)(1) The agent under a power of attorney shall have the right to enroll the child in a public school serving the area where the agent resides and may enroll the child in a private school, prekindergarten program, or home study program.

(2) A public school shall allow such agent with a power of attorney executed under this article to enroll a child.

(3) At the time of enrollment, the agent shall provide to such public school such residency documentation as is customary in that school system.

(4) A public school shall not unreasonably deny enrollment of a child. If a public school denies enrollment of a child by an agent, such denial may be appealed and shall be treated as any other denial of enrollment of a child in that school system, including all of the remedies otherwise available when enrollment is denied to a child.

19-9-143. (a) At least 30 days prior to executing a power of attorney under this article: (1) An individual with sole custody of a child who intends to execute such power of attorney shall provide written notice of such intention to the noncustodial parent by certified mail or statutory overnight delivery, return receipt requested. Such notice shall constitute a change in

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material conditions or circumstances for the purpose of a child custody modification proceeding; and (2) An individual who is a guardian or legal custodian of a child who intends to execute such power of attorney shall provide written notice to the child's parents by certified mail or statutory overnight delivery, return receipt requested. (b) An individual receiving the notice set forth in subsection (a) of this Code section may object to the execution of such power of attorney within 21 days of the delivery of such notice and shall serve his or her objection on the individual intending to execute such power of attorney by certified mail or statutory overnight delivery, return receipt requested. An objection shall prohibit the execution of a power of attorney under this article. (c) In addition to the notice provided in subsection (a) of this Code section, a parent with sole custody of a child who executes a power of attorney under this article shall comply with any applicable relocation notice requirements under subsection (f) of Code Section 19-9-3.

19-9-144.

Nothing in this article shall preclude a parent, guardian, legal custodian, or agent from granting temporary written permission to seek emergency medical treatment or other services for a child while such child is in the custody of an adult who is not the parent, guardian, legal custodian, or agent and who is temporarily supervising the child at the request of such parent, guardian, legal custodian, or agent.

19-9-145. (a) Except as may be permitted by the federal Every Student Succeeds Act (P.L. 114-95), an individual executing a power of attorney under this article shall swear or affirm under penalty of law that such action is not being taken for the purpose of enrolling the child in a school to participate in the academic or interscholastic athletic programs provided by that school or for any other unlawful purpose. Violation of this subsection shall be punishable in accordance with state law and may require, in addition to any other remedies, repayment by such parent, guardian, or legal custodian of all costs incurred by the school as a result of the violation. (b) An individual shall not execute a power of attorney under this article for the purpose of subverting an investigation of the child's welfare initiated by the Division of Family and Children Services of the Department of Human Services and shall not execute such power of attorney so long as the Division of Family and Children Services of the Department of Human Services has an open child welfare and youth services case with regard to the parent, guardian, or legal custodian, the child, or another child of the parent.

19-9-146.

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A power of attorney executed under this article shall be signed and acknowledged before a notary public by the parent, guardian, or legal custodian executing such power of attorney and by the agent accepting such delegation.

19-9-147. (a)(1) An agent shall have the authority to act on behalf of the minor child on a continuous basis, without compensation, and shall not be subject to any provision concerning the licensing or regulation of foster care homes for the duration of the power of attorney so long as the duration does not exceed the length of time authorized in Code Sections 19-9-142 and 19-9-150 or until the individual who executed the power of attorney revokes the power of attorney in writing and provides notice of the revocation to the agent as provided in this Code section.

(2) An agent shall have the authority to act on behalf of the child until a copy of the revocation of the power of attorney is received by certified mail or statutory overnight delivery, return receipt requested, and upon receipt of the revocation, the agent shall cease to act as agent.

(3) The individual revoking the power of attorney shall send a copy of the revocation of the power of attorney to the agent within five days of the execution of the revocation by certified mail or statutory overnight delivery, return receipt requested. If an individual revokes the power of attorney, the child shall be returned to the custody of the individual who granted the power of attorney as soon as reasonably possible.

(4) The revoking individual shall notify the school, health care providers, and others known to the revoking individual to have relied upon such power of attorney. (b) The power of attorney executed under this article may also be terminated by any order of a court of competent jurisdiction. (c) The agent shall notify the school, health care providers, and others known to the agent to have relied upon such power of attorney. (d) An agent may resign by notifying the individual who appointed the agent in writing by certified mail or statutory overnight delivery, return receipt requested. (e) Upon the death of the authorizing individual, the agent shall notify the parents of the child, if possible, as soon as practicable. (f) The authority to designate an agent to act on behalf of a minor child is in addition to any other lawful action an individual may take for the benefit of such minor child. (g) A parent shall continue to have the right to medical, dental, mental health, and school records pertaining to the minor child, even when a power of attorney has been executed under this article.

19-9-148.

The execution of a power of attorney under this article shall not constitute abandonment under Code Section 19-10-1 nor be reportable as child abuse or neglect under Code Section 19-7-5 unless the individual who executed such power of attorney fails to take custody of the child or

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execute a new power of attorney under this article after the expiration or revocation of the power of attorney.

19-9-149. (a) A child subject to a power of attorney executed under this article shall not be considered placed in foster care under Chapter 5 of Title 49, and the parties to the power of attorney shall not be subject to any of the requirements or licensing regulations for foster care or other regulations relating to community care for children. (b) An agent who has been delegated caregiving authority under this article shall not be subject to the requirements of any other child care facility or foster care licensing provisions, and such delegation shall not constitute an out-of-home child placement. (c) This article shall not be construed to exempt a person from the requirements of Chapter 5 of Title 49 regarding the licensing and inspection of child welfare agencies if such person fails to have evidence of a power of attorney executed under this article.

19-9-150.

Except as limited by or in conflict with federal law regarding the armed forces of the United States, a parent who is a member of the armed forces of the United States, including any reserve component thereof, or the commissioned corps of the National Oceanic and Atmospheric Administration or the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the armed forces of the United States, or who is required to enter or serve in the active military service of the United States under a call or order of the President of the United States or to serve on state active duty, may delegate caregiving authority for a period longer than one year if such parent is deployed as defined in Code Section 19-9-6. Such term of delegation, however, shall not exceed the term of deployment plus 30 days.

19-9-151. (a) The power of attorney contained in this Code section may be used for the temporary delegation of caregiving authority to an agent. The form contained in this Code section shall be sufficient for the purpose of creating a power of attorney under this article, provided that nothing in this Code section shall be construed to require the use of this particular form. (b) A power of attorney shall be legally sufficient if the form is properly completed and the signatures of the parties are notarized. (c) The power of attorney delegating caregiving authority of a child shall be in substantially the following form:

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'FORM FOR POWER OF ATTORNEY TO DELEGATE PARENTAL, GUARDIAN, OR LEGAL CUSTODIAN POWER AND AUTHORITY FOR THE CARE OF A MINOR CHILD NOTICE: (1) THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE INDIVIDUAL WHO YOU DESIGNATE (THE AGENT) POWERS TO CARE FOR YOUR MINOR CHILD, INCLUDING THE POWER TO: ENROLL THE CHILD IN SCHOOL AND IN EXTRACURRICULAR SCHOOL ACTIVITIES; HAVE ACCESS TO SCHOOL RECORDS AND DISCLOSE THE CONTENTS TO OTHERS; ARRANGE FOR AND CONSENT TO MEDICAL, DENTAL, AND MENTAL HEALTH TREATMENT FOR THE CHILD; HAVE ACCESS TO RECORDS RELATED TO SUCH TREATMENT OF THE CHILD AND DISCLOSE THE CONTENTS OF THOSE RECORDS TO OTHERS; PROVIDE FOR THE CHILD'S FOOD, LODGING, RECREATION, AND TRAVEL; AND HAVE ANY ADDITIONAL POWERS AS SPECIFIED BY THE INDIVIDUAL EXECUTING THIS POWER OF ATTORNEY. (2) THE AGENT IS REQUIRED TO EXERCISE DUE CARE TO ACT IN THE CHILD'S BEST INTERESTS AND IN ACCORDANCE WITH THE GRANT OF AUTHORITY SPECIFIED IN THIS FORM. (3) A COURT OF COMPETENT JURISDICTION MAY REVOKE THE POWERS OF THE AGENT IF IT FINDS THAT THE AGENT IS NOT ACTING PROPERLY. (4) THE AGENT MAY EXERCISE THE POWERS GIVEN IN THIS POWER OF ATTORNEY FOR THE CARE OF A MINOR CHILD FOR THE PERIOD SET FORTH IN THIS FORM UNLESS THE PARENT REVOKES THIS POWER OF ATTORNEY AND PROVIDES NOTICE OF THE REVOCATION TO THE AGENT OR UNTIL A COURT OF COMPETENT JURISDICTION TERMINATES THIS POWER OF ATTORNEY. (5) THE AGENT MAY RESIGN AS AGENT AND MUST IMMEDIATELY COMMUNICATE SUCH RESIGNATION TO THE INDIVIDUAL EXECUTING THIS POWER OF ATTORNEY. (6) THIS POWER OF ATTORNEY MAY BE REVOKED IN WRITING. IF THIS POWER OF ATTORNEY IS REVOKED, THE REVOKING INDIVIDUAL SHALL NOTIFY THE AGENT, SCHOOL, HEALTH CARE PROVIDERS, AND OTHERS KNOWN TO THE INDIVIDUAL EXECUTING THIS POWER OF ATTORNEY TO HAVE RELIED UPON SUCH POWER OF ATTORNEY. (7) IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU. POWER OF ATTORNEY FOR THE CARE OF A MINOR CHILD made this ______ day of _________________, 20____.

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1. I certify that I am the parent, guardian, or legal custodian of: ____________________________________________________ birth)

(Full name of child) (Date of

2. I designate _______________________________________, (Full name of agent) ____________________________________________________ and ZIP Code of agent)

(Street address, city, state,

____________________________________________________, (Home and work phone numbers of agent)

as the agent of the child named above.

3. Sign by the statement you wish to choose (you may only choose one):

(A) ___________________________ (Signature) I delegate to the agent all my power and authority regarding the care and custody of the child named above, including but not limited to the right to enroll the child in school, inspect and obtain copies of education records and other records concerning the child, attend school activities and other functions concerning the child, and give or withhold any consent or waiver with respect to school activities, medical and dental treatment, and any other activity, function, or treatment that may concern the child. This delegation shall not include the power or authority to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child.

OR

(B) ___________________________ (Signature) I delegate to the agent the following specific powers and responsibilities (write in): ____________________________________________________________________ This delegation shall not include the power or authority to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child.

4. Initial by the statement you wish to choose (you may only choose one) and complete information in the paragraph:

the

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(A) ________ (Initials) This power of attorney is effective for a period not to exceed one year, beginning _____________, 20___, and ending _____________, 20___. I reserve the right to revoke this power and authority at any time.

OR

(B) ________ (Initials) I am a parent as described in O.C.G.A. ยง 19-9-150. My deployment is scheduled to begin on _____________, 20___, and is estimated to end on _____________, 20___. I acknowledge that in no event shall this delegation of power and authority last more than one year or the term of my deployment plus 30 days, whichever is longer. I reserve the right to revoke this power and authority at any time.

5. Except as may be permitted by the federal Every Student Succeeds Act (P.L. 114-95), I hereby swear or affirm under penalty of law that this power of attorney is not being executed for the purpose of enrolling a child in a school so that the child may participate in the academic or interscholastic athletic programs provided by that school or for any other unlawful purpose.

6. I hereby swear or affirm under penalty of law that I provided the notice required by O.C.G.A. ยง 19-9-143 and received no objection in the required time period.

By: _______________________________________ (Parent, guardian, or legal custodian signature) __________________________________________ (Relationship to child) __________________________________________ (Printed name) 7. I hereby accept my designation as agent for the child specified in this power of attorney and by doing so acknowledge my acceptance of the responsibility for caring for such child for the duration of this power of attorney. Furthermore, I hereby certify that: (A) I am not currently on the state sexual offender registry of this state or the sexual offender registry for any other state, a United States territory, the District of Columbia, or any Indian Tribe nor have I ever been required to register for any such registry; (B) I have provided a criminal background check to the individual designating me as an agent, if it was requested; (C) I understand that I have the authority to act on behalf of the minor child for the period set forth in this form or until the power of attorney is revoked in writing and notice is provided to me as provided in O.C.G.A. ยง 19-9-147;

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(D) I understand that if I am made aware of the death of the individual who executed the power of attorney, I must notify the parent of the child, if known, as soon as practicable; and (E) I may resign as agent by notifying the individual who executed the power of attorney in writing by certified mail or statutory overnight delivery, return receipt requested. _____________________________ (Agent signature) _____________________________ (Printed name) State of Georgia County of ____________________ ACKNOWLEDGMENT Before me, the undersigned, a Notary Public, in and for said County and State on this _____ day of ____________, 20____, personally appeared ____________________ (name of parent, guardian, or legal custodian) and ______________________ (name of agent), to me known to be the identical persons who executed this instrument and acknowledged to me that each executed the same as his or her free and voluntary act and deed for the uses and purposes set forth in the instrument.

Witness my hand and official seal the day and year above written. _____________________________ (Notary Public signature) (Seal) My commission expires: _________'" PART 111 ยง 3-1.

Said title is further amended by revising subparagraph (a)(2)(B) of Code Section 19-3-37, relating to parental consent to marriage of underage applicants, as follows: "(B) The parent individual who has legal sole custody if the parents are divorced, separated, or widowed; or"

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PART IV § 4-1.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE Representative Efstration of the 104th district sponsored the Bill to address the preference for kinship or family relationships over other foster care placement options. 4 Representative Efstration felt that the Bill was important to clarify Georgia’s Juvenile Code on the preference for children in foster care to be place with an individual the child has a prior relationship and to be consist with Federal Regulations. 5 In 2013, the Georgia Juvenile Code was revised in regards to the enactment of the Child Protection and Public Safety Act (HB 242), but the clear preference of relatives for foster care placement was not reinstated. Representative Efstration felt that the Bill would help ensure greater safety for foster children. 6 Representative Efstration also stated that the placement of a child with a family member has to be what is most appropriate for and in the best interest of the child. 7 Under OCGA § 1511-2, the juvenile court is only required to make an initial attempt to place the child with a qualified relative that can care for the child. 8 The juvenile court was not required to give priority to family members or kin placement. 9 The Georgia Juvenile Code emphasized the desire of placing dependent children with family members or kin. 10 Research has shown that kinship care is good for kids. Tiffany Conway & Rutledge Q. Hutson, Is Kinship Care Good for Kids, Center for Law and Social Policy (Nov. 18, 2016, 8:24PM), http://www.clasp.org/resources-and-publications/files/0347.pdf.

Children placed with family members or kin tend to have more stability with placement, fewer behavioral problems and it gives them access to their ethnic, racial and cultural traditions. 11 OPPOSITION’S RATIONALE The Georgia House and Senate supported House Bill 887 as evidenced by unanimous votes in both Houses; 160-0 and 54-0 respectively. 12 However, the attachment of Senate Bill 3 was opposed by some members of the House. 13 The members of the House that opposed Senate

4

Interview with Chuck Efstration, Ga. State. Rep., H. Dist. 104, in Atlanta, Ga. (Sept. 25, 2016) [hereinafter Efstration Interview].

5 Id. 6 Id. 7 Id. 8 GA. CODE A NN. §15-11-2 (West 2016).

9 Id. 10 Id. 11 Tiffany Conway & Rutledge Q. Hutson, Is Kinship Care Good for Kids? (Mar. 2, 2007), http://www.clasp.org/resources-and-publications/files/0347.pdf.

12 HB Status Sheet, supra note 3.

13 Id.

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Bill 3 main concern was no legal framework was established to oversee the parental or legal rights, obligations, or authority regarding the custodian of a child. 14 Another concern for the House members was that without court or Department of Family and Children Services (DFACS) oversight there is no accountability. 15 A parent given the authority to delegate caregiving responsibilities to a kinship caregiver without a legal framework puts the child at risk of being with a caregiver that is not in the child’s best interest. 16 The majority of House Bill 887 became law, but ultimately Section 2 did not become law due to the signing of Senate Bill 64 that superseded it.

IMPLICATIONS IN GEORGIA According to Melissa Carter, Clinical Professor of Law at Emory Law School, the citizens of Georgia would benefit from House Bill 887 because the placement of a child with an adult or fictive kin would help with the increasing numbers of children entering foster care. 17 There is not an adequate supply of foster parent homes for child placement. 18 The placement of a child with an adult or fictive kin is one strategy to attempt to alleviate some of the pressures on the foster care system. 19 Also, the child would be within their communities which is a shown benefit to have the familiar settings and background. 20 Moreover, the Department of Family and Child Services case workers would be expected to consider relatives and give preference to them when making decisions about where to place a child. 21 Also, the juvenile court would exercise their authority under the law to oversee the decision by DFACS and they would be required to give preference to relatives if they are available and suitable to provide care for the child. 22 LEGISLATIVE GENEALOGY House Bill 887 was placed in the House Hopper on February 2, 2016. The first reading occurred on February 3, 2016. 23 The second reading took place on February 4, 2016. The Bill was then sent to the House Committee which favorably reported by substitute on February 23, 2016. The third reading took place on February 26, 2016. The House passed and adopted by substitute on February 26, 2016 with no opposing objections. 24 The Bill was then sent to the Senate on February 29, 2016, and it was read and referred to the Senate Committee. 25 The Senate Committee favorably reported by substitute on the Bill on

14

House Day 39, GPB Lawmakers, (Mar. 22, 2016).

Id. 16 Id. 17 Telephone Interview with Melissa Carter, Clinical Professor of Law, Emory Law School (Oct. 4th , 2016) [hereinafter Carter Oct. Interview].

18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 HB Status Sheet, supra note 3.

24 Id. 25 Id. 15

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March 8, 2016. 26 The Senate read the Bill a second time on March 10, 2016. 27 The Senate then read the Bill a third time and adopted it by substitute on March 14, 2016 without objection. 28 The Senate then sent the Bill back to the House. On March 22, 2016, the House approved the Senate amendment or substitute as amended by a margin of 125-36. 29 The House then sent the Bill back to the Senate on March 24, 2016, and it agreed to the House amendment or substitute. 30 The Senate then sent the Bill back to the House. 31 The Bill was sent to the Governor on April 5, 2016. 32 The Governor signed the Bill into law on April 26, 2016. The new law, now Act 337, became effective on July 1, 2016. 33

Prepared by: Ellen D. Dorsey

26

Id. Id. 28 Id. 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 27

SENATE BILL 133 1 : OPPORTUNITY SCHOOL DISTRICT; ESTABLISHMENT; PROVIDE FOR DEFINITIONS ; SUPERVISION OF PUBLIC ELEMENTARY AND SECONDARY SCHOOLS THAT ARE FAILING

Amending Article 3 of Chapter 14 of Title 20 First Signature: Senator Butch Miller (49th ) Co-Sponsors: Senator Lindsey Tippins (37th ), Senator Rick Jeffares (17th ), Senator Freddie Powell Sims (12th ), Senator Brandon Beach (21st ), Senator Jeff Mullis (53rd) Summary: Senate Bill 133 (“Bill’) amends Article 3 of Chapter 14 of Title 20. 2 This Bill creates the Opportunity School District, which authorizes the state to appoint a superintendent to supervise, manage, and operate elementary and secondary schools that are identified as failing. 3 This bill provides a system for rating schools, introduces several intervention models, and defines the role of the Opportunity School District superintendent. 4 Status: The Bill was signed by Governor Nathan Deal on April 21, 2015. 5 However, it will not become effective on January 1, 2017 because the amendment to the Georgia Constitution allowing its enactment was voted against on November 8, 2016. 6 TEXT OF THE BILL To amend Chapter 14 of Title 20 of the Official Code of Georgia Annotated, relating to the Education Coordinating Council, so as to provide for the establishment of the Opportunity School District; to provide for definitions; to authorize the Opportunity School District to assume the supervision of public elementary and secondary schools that are qualifying; to provide for a superintendent for the district; to provide criteria; to provide for rating of schools; to provide for intervention models; to provide for opportunity schools seeking state charter school status; to provide for successful opportunity schools to exit state supervision; to provide for funding; to provide for applicability; to provide for support services and flexibility for schools on warning, schools on probation, and qualifying schools that are not selected; to repeal a provision relating to appropriate levels of intervention for failing schools; to provide for conforming amendments; to provide for related matters; to provide for contingent effectiveness; to provide for automatic repeal under certain conditions; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

1

S.B. 133, 153rd Gen. Assemb., 1st Reg. Sess. (Ga. 2015), http://www.legis.ga.gov/Legislation/20152016/ 153000.pdf (last visited Oct. 7, 2016) 2 S.B. 133, 153rd Gen. Assemb., 1st Reg. Sess. (Ga. 2015), http://www.legis.ga.gov/Legislation/20152016/ 15su mdoc.pdf (last visited Oct, 7, 2016) [hereinafter Statute Summary] 3 Id. 4 S.B. 133, 153rd Gen. Assemb., 1st Reg. Sess. (Ga. 2015), http://www.legis.ga.gov/Legislation/20152016/ 153000.pdf (last visited Oct. 7, 2016) 5 Statue Summary, supra note 2.

6 Politico, State Overview: Georgia, Nov. 15, 2016, http://www.politico.com/2016-election/results/georgia [hereinafter Politico] .

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SECTION 1.

Chapter 14 of Title 20 of the Official Code of Georgia Annotated, relating to the Education Coordinating Council, is amended by adding a new article to read as follows: "ARTICLE 3 20-14-100.

As used in this article, the term: (1) 'Office' means the Office of Student Achievement.

(2) 'Opportunity school' means a public elementary or secondary school under the supervision of the Opportunity School District.

(3) 'Opportunity School District' or 'OSD' means the state-wide district established pursuant to this article.

(4) 'OSD charter school' means an opportunity school authorized by the State Charter Schools Commission pursuant to Article 31A of Chapter 2 of this title.

(5) 'OSD Superintendent' means the superintendent of the Opportunity School District appointed by the Governor pursuant to Code Section 20-14-102.

(6) 'Qualifying school' means a public elementary or secondary school that earns a rating of F pursuant to Code Section 20-14-104 for a minimum of three consecutive years.

(7) 'School on probation' means a public elementary or secondary school that earns a rating of F pursuant to Code Section 20-14-104 for two consecutive years.

(8) 'School on warning' means a public elementary or secondary school that earns a rating of F pursuant to Code Section 20-14-104 for one year.

20-14-101. (a) The Opportunity School District is hereby created pursuant to the authority granted in Article VIII, Section V, Paragraph VIII of the Georgia Constitution. The Opportunity School District shall be authorized to assume the supervision, management, and operation of public elementary and secondary schools which have been determined to be qualifying pursuant to this article. (b) The Opportunity School District shall be established within the Office of Student Achievement.

20-14-102.

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(a) The Governor shall appoint a superintendent, to be confirmed by the Senate, to serve as the executive officer of the Opportunity School District. The OSD Superintendent shall serve at the pleasure of the Governor and shall have such qualifications as set forth in subsection (b) of Code Section 20-2-101 and salary as determined by the Governor. The OSD Superintendent shall be an employee of the office but shall report directly to the Governor. (b) The OSD Superintendent shall develop guidelines and procedures for the operation of the OSD. The OSD Superintendent shall annually provide a report to the General Assembly on all aspects of operation, including the selection, intervention chosen, and progress of the opportunity schools. The report shall also be published on the office website.

20-14-103. (a) The Opportunity School District shall be authorized to select up to 20 qualifying schools to add to the OSD in any single school year. The Opportunity School District shall have no more than 100 schools under its supervision at any given time. The schools selected for inclusion in the OSD should represent geographic diversity, including urban and rural schools. (b) Selection of up to 20 qualifying schools to add to the OSD in any single school year shall be based on an analysis of performance over the most recent three-year period with emphasis on student growth and progress and other considerations, including geographic clusters of qualifying schools, feeder patterns with multiple eligible schools, current turn-around efforts, availability of qualified partners, and community engagement and support. The school selection process shall include a public hearing to allow for parent and community input and the final selection of which schools are transferred into the OSD shall be in the sole discretion of the OSD Superintendent. (c) The OSD Superintendent shall have the sole discretion in determining the timing and sequencing of transferring qualifying schools to the OSD, which may take into consideration the capacity of the OSD in successfully overseeing each school. Prior to transferring any qualifying school to the OSD, the OSD Superintendent shall conduct an evaluation of the school to determine the factors contributing to the school's performance and shall conference with the school principal, local board of education members, and the local school superintendent to share the findings of the evaluation and discuss options for remediation in a joint effort between the OSD and the local school system. The OSD Superintendent shall evaluate and identify the

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qualifying schools selected for intervention no later than April 1 prior to the initial school year in which the OSD intervention model 80 will be implemented. The specific intervention model in subsection (a) of Code Section 20-14-105 most appropriate for each school based on the findings of the evaluation shall be identified by the OSD Superintendent no later than July 1 of the effective school year and published on the office website. (d) The OSD Superintendent is authorized to waive specifically identified State Board of Education rules, regulations, policies, and procedures, or provisions of Chapter 2 of this title for opportunity schools. The goal for each waiver shall be improvement of student performance. The OSD Superintendent is not authorized to waive any federal, state, and local rules, regulations, court orders, and statutes relating to civil rights; insurance; the protection of the physical health and safety of school students, employees, and visitors; conflicting interest transactions; the prevention of unlawful conduct; any laws relating to unlawful conduct in or near a public school; any reporting requirements pursuant to Code Section 20-2-320 or this chapter; the requirements of Code Section 20-2-211.1 relating to fingerprint and criminal background checks; state accountability requirements, including but not limited to teacher and leader evaluation pursuant to Code Section 20-2-210; or the requirements in subsection (c) of Code Section 20-2-327. A school that has received a waiver shall remain subject to the provisions of Part 3 of Article 2 of this chapter, the requirement that it shall not charge tuition or fees to its students except as may be authorized for local boards by Code Section 20-2-133. All opportunity schools shall comply with all applicable constitutional and statutory nondiscrimination requirements. (e) In the event that a qualifying school selected to be an opportunity school pursuant to this article is an existing charter school or is currently subject to any school level requirements included in a charter system contract or a contract executed pursuant to Article 4 of Chapter 2 of this title, the authority of the OSD shall supersede any such charter or contract with respect to the qualifying school and the State Board of Education and affected local board of education shall take all necessary steps to modify or cancel any such charter or contract with respect to the qualifying school to effectuate this.

20-14-104.

The office shall annually, for purposes of this article, determine a rating of A, B, C, D, or F for each public elementary and secondary school in this state based on student achievement,

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achievement gap closure, and student growth. Such ratings shall be based on the state accountability system approved by the State Board of Education.

20-14-105. (a) An opportunity school may be subject to any of the following intervention models, as determined by the OSD Superintendent: (1) Direct management of the opportunity school by the OSD; (2) Shared governance of the opportunity school by the OSD and the local board of education pursuant to a contract in which the local board of education operates the school and the OSD Superintendent has the authority to direct changes to be made at the school; (3) Reconstitution of the school as an OSD charter school in which the OSD works in collaboration with the State Charter Schools Commission to build capacity of petitioning governing boards and charter school applications to establish a charter that will be approved by the State Charter Schools Commission; or (4) Closure of an opportunity school which is not enrolled at full capacity and reassigning the students to a nonqualifying school within the local school system. School closure shall be the intervention of last resort. (b) The OSD Superintendent shall establish and implement a process for gaining community feedback and input to inform his or her decision regarding the most appropriate intervention model for a particular school. (c)(1) For opportunity schools under the intervention models in paragraphs (2) and (3) of subsection (a) of this Code section, the school principal or OSD charter school governing board shall be authorized to make decisions about school finance, human capital, and curriculum and instruction for the opportunity school; provided, however, that the OSD Superintendent may direct school principals to make certain decisions under the intervention model in paragraph (2) of subsection (a) of this Code section. For such schools, the OSD Superintendent and staff shall provide appropriate training and support to develop effective leadership in such areas.

(2) For opportunity schools under the intervention model in paragraph (1) of subsection (a) of this Code section, the OSD shall be authorized to have a direct role in making decisions about school finance, human capital, and curriculum and instruction for

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the opportunity school while developing the leadership capacity in such schools.

(3) For opportunity schools under the intervention models in paragraphs (1) and (2) of subsection (a) of this Code section, the existing local school councils may remain in place or may be reconstituted under the guidance of the opportunity school principal so long as they still meet the requirements in Code Section 20-2-86 regarding the composition of the council. The school council shall serve as an advisory board for the principal.

(4) For opportunity schools under the intervention model in paragraph (3) of subsection (a) of this Code section, parents and advisory board members shall be eligible for consideration to fill specific roles on the governing board. (d) All opportunity schools shall remain open to enrollment in the same manner with the same attendance zone as prior to becoming an opportunity school. (e) An opportunity school may purchase services from the OSD, the local board of education, or an education service provider for routine student support and operational services for an opportunity school. The opportunity school shall solicit and preferentially consider qualified local contractors and service providers. The local board of education shall be required to cooperate fully with the opportunity school, whether under the control of the OSD or the State Charter Schools Commission, to make available at a reasonable cost all appropriate services requested. Such services may include, but are not limited to, transportation, cafeteria services, custodial services, alternative education, broadband, utilities, special education services, test administration services, and student information services. The local board of education shall be required to make immediately available to the opportunity school, at no cost, the student records for all students of that school. (f) Opportunity schools shall develop and provide for positive behavioral interventions and supports, which means an evidence based data-driven framework to reduce the disciplinary incidents, increase a school's sense of safety, and support improved academic outcomes through a multitiered approach, using disciplinary data and principles of behavior analysis to develop school-wide, targeted, and individualized interventions and supports. Additionally, opportunity schools shall develop and provide for response to intervention, which means a framework of identifying and addressing the academic and behavioral needs of students through a tiered system.

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(g) Opportunity schools shall develop and provide for integrated student supports that target academic and nonacademic barriers to achievement and, where appropriate, shall form partnerships to implement proven or innovative strategies. (h) The OSD Superintendent or OSD charter school governing board shall select and hire the school principal for an opportunity school. Within the limits of the school budget, the school principal shall select staff members in accordance with guidance from the OSD or OSD charter school governing board. Before finalizing staffing recommendations, the principal, the OSD Superintendent, or the OSD charter school governing board shall interview all existing staff members at the qualifying school and review student growth and performance data for those staff members for whom it is available. The OSD or OSD charter school governing board shall have the authority to decide whether any leader, teacher, or staff member previously assigned to a qualifying school selected to become an opportunity school shall continue as an employee of the opportunity school. Any such employees retained shall become employees of the OSD or OSD charter school governing board, on the principal's recommendation, and be under their control.

Any teacher subject to Code Section 20-2-942 who is not given the option to continue as an employee for the opportunity school shall remain an employee of the local board of education.

The local board of education may determine whether or not to continue the employment of any teacher who is not given the option to continue as an employee for the opportunity school, subject to Code Section 20-2-942. Local boards of education may use the authority contained in Code Section 20-2-943 to reassign staff and in Code Section 20-2-948 to implement their reduction in force policy.

20-14-106. (a) For opportunity schools other than OSD charter schools, the OSD Superintendent shall set clear goals, empower and equip teachers and school leaders to meet the goals, and hold such teachers and school leaders accountable to meet the goals. The OSD Superintendent shall approve appropriate waivers for the qualifying school pursuant to subsection (d) of Code Section.

20-14-103. (b) For opportunity schools that become OSD charter schools, the State Charter Schools Commission shall set such goals and hold such teachers and school leaders accountable.

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(c) The OSD Superintendent shall select, approve, or remove the school principal for opportunity schools and the governing board members for opportunity schools which become OSD charter schools. (d)(1) Each OSD charter school shall have a governing board that is involved in school-level governance of the school. The governing board shall be organized and operated as a nonprofit corporation under the laws of this state. The OSD charter school shall be a public, nonsectarian, nonreligious, nonprofit school that is not home based, provided that a school's nonprofit status shall not prevent the school from contracting for the services of a for profit entity.

(2) The members of the governing board for an OSD charter school shall come from the community and shall meet the following qualifications: (A) Must be a United States citizen; (B) Must be a resident of Georgia; and (C) Must not be an employee of the opportunity school.

(3) The OSD Superintendent, after soliciting and considering recommendations from the local legislative delegation, shall make the final selection of governing board members for OSD charter schools and shall ensure that the boards possess the financial, legal, and educational expertise needed to successfully run a school. (e) The OSD Superintendent shall enter into an agreement with the school principal, the OSD charter school governing board, or the local board of education regarding specific goals for each opportunity school related to higher academic outcomes for students, quality careers for graduates, safe and positive learning environments for children, parent and community engagement, and the efficient and effective use of taxpayer dollars.

20-14-107. (a) In an effort to ensure high quality charter petitions for opportunity schools seeking OSD charter school status, the OSD Superintendent shall: (1) Solicit, screen, and select or approve OSD charter school governing board members; and (2) Assist the OSD charter school governing board members in charter petition development and review; provided, however, that such assistance shall conclude upon approval by the State

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Charter Schools Commission of the opportunity school as an OSD charter school. (b) In an effort to provide opportunity schools seeking OSD charter school status with necessary support, the State Charter Schools Commission shall solicit, screen, and select education service providers, including independent consultants, education management organizations, charter management organizations, and other support organizations, that can partner with the OSD charter school governing boards to support or operate such OSD charter schools. (c) The State Charter Schools Commission shall establish a separate application cycle for opportunity schools seeking OSD charter school status. Such application cycle shall allow commission staff and commission members to evaluate the needs of an opportunity school, match them with an education service provider, and work with both parties to ensure the execution of a viable curricular model and educational program. (d) Upon renewing a state charter, an OSD charter school shall no longer be considered a part of the OSD but shall be subject to the terms of its charter and the provisions of Article 31A of Chapter 2 of this title. The local board of education shall be required to continue any and all facility use and service provision agreements previously in place with the OSD regarding any such OSD charter school as long as the OSD charter school continues to operate in that facility. (e) If an opportunity school is not approved or renewed by the State Charter Schools Commission as an OSD charter school, the school shall remain under or return to the supervision of the OSD, and the OSD Superintendent shall reevaluate the school's performance and determine the appropriate intervention pursuant to subsection (a) of Code Section 20-14-105 for the school. If an initial charter petition by an opportunity school to become an OSD charter school is denied by the State Charter Schools Commission, the opportunity school may submit another charter petition in a subsequent cycle. If a renewal charter petition by an opportunity school to continue as an OSD charter school is denied by the State Charter Schools Commission at the end of its initial term, the governing board of the school may not elect to seek approval from the local board of education as a local charter school.

20-14-108. (a) Facilities of qualifying schools that are transferred to the supervision of the OSD as opportunity schools shall come under the control of the OSD. The OSD Superintendent may assign the facility for use by an OSD charter school governing board to operate the opportunity

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school. The OSD or the OSD charter school governing board shall be responsible for paying the pro-rata bond indebtedness of the school. The contents of the facility, including but not limited to textbooks, technology, media resources, instructional equipment, and all other resources shall remain with the facility and be available for use by the opportunity school. In the event that the OSD Superintendent closes a qualifying school, the local board of education shall not use the facility to open a school with the same grade span or attendance zone that is substantially the same for three years. (b) The OSD or OSD charter school governing board shall be responsible for the routine maintenance and repair of the facilities and property, such that they are maintained in the same manner prior to the school's transition to the OSD. The OSD or OSD charter school governing board shall be responsible for reasonable costs for all utilities at an opportunity school as provided in subsection (d) of Code Section 20-14-105. (c) The local board of education shall continue to be responsible for extensive repairs, as determined by the State Properties Commission, to buildings or facilities considered capital expenses. Any fixtures, improvements, or tangible assets added to a school building or facility by the OSD while the school is an opportunity school shall remain with the school building or facility upon its return to the control of the local board of education pursuant to Code Section 20-14-109.

20-14-109. (a) An opportunity school shall remain under the supervision of the OSD for a minimum of five consecutive years or, for an OSD charter school, for the term of the initial charter for such school; provided, however, that if an opportunity school earns, for three consecutive years, a rating above an F pursuant to Code Section 20-14-104, it shall be removed from the OSD. If an opportunity school that becomes an OSD charter school that subsequently earns a rating above an F for three consecutive years, it shall no longer be subject to the oversight of the OSD but shall remain under the authority of the State Charter Schools Commission and shall operate according to the terms of its charter. (b) An opportunity school shall remain under the supervision of the OSD for no more than ten years. Renewal of a charter for an opportunity school shall result in the exit of the school from the OSD. For other opportunity schools, the OSD Superintendent shall engage the school, the

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school community, and the school's local board of education in a negotiation to determine the best transition plan for the school to leave the supervision of the OSD. (c) An opportunity school that becomes an OSD charter school shall work with the State Charter Schools Commission to renew and continue an effective charter or, if ineffective as a charter school, shall return to the governance of the OSD. If a successful OSD charter school does not wish to remain under the authorization of the State Charter Schools Commission for a subsequent charter term after demonstrating effective performance, the State Charter Schools Commission and the OSD shall coordinate the development of a transition plan back to the governance of the local board of education, which may include, but is not limited to, approval by the local board of education as a local charter school.

20-14-110. (a) The OSD shall be treated as a single local education agency; provided, however, that opportunity schools that are OSD charter schools shall be treated individually as single local education agencies in accordance with Code Section 20-2-2090. The State Charter Schools Commission shall annually provide an analysis of the performance of opportunity schools that are OSD charter schools. The commission shall work with the OSD Superintendent to determine additional assistance that may be needed to improve the performance of the school. (b) The OSD shall be responsible for data reporting for all opportunity schools under the intervention model in paragraph (1) of subsection (a) of Code Section 20-14-105. The local board of education shall be responsible for data reporting for all opportunity schools under the intervention model in paragraph (2) of subsection (a) of Code Section 20-14-105. OSD charter schools shall be subject to data reporting in accordance with Code Section 20-2-2090. For all opportunity schools, the entity responsible for data reporting shall comply with the requirements of Code Section 20-2-740.

20-14-111. (a) Funding for an opportunity school shall be an amount equal to the sum of: (1) QBE formula earnings, QBE grants, and federal grants earned by the school based on the school's enrollment, school profile, and student characteristics. QBE formula earnings shall include the salary portion of direct instructional costs, the adjustment for training and experience, the nonsalary portion of direct instructional costs, earnings for

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psychologists and school social workers, school administration, facility maintenance and operation, media centers, additional days of instruction in accordance with Code Section 20-2-184.1, and staff development and shall include the portion of funds that are calculated as the local five mill share pursuant to Code Section 20-2-164; (2) A proportional share of state categorical grants, non-QBE state grants, state equalization grants, and all other state and federal grants; and (3) An amount determined by OSD for each student enrolled in such school equal to a proportional share of local revenue from the local school system in which the school is located. (b) The OSD may withhold up to 3 percent of the amount determined pursuant to subsection (a) of this Code section for each opportunity school for use in administering the duties required pursuant to this article; provided, however, that any amount withheld pursuant to this subsection shall be spent solely on expenses incurred by the OSD in performing the duties required by this article. For opportunity schools that are OSD charter schools, the 3 percent withheld shall be shared equally between the OSD and the State Charter Schools Commission for the initial term of the charter. (c) The total allotment of state and federal funds to the local school system in which an opportunity school is located shall be calculated as otherwise provided in Article 6 of Chapter 2 of this title with an ensuing reduction equivalent to the amount of funds appropriated to the opportunity schools pursuant to paragraph (3) of subsection (a) of this Code section. (d) Opportunity schools that become OSD charter schools and subsequently exit the OSD shall continue to be eligible for the same level of funding provided for in this Code section that they were eligible for while under the authority of the OSD. (e) The General Assembly may appropriate additional funds to be allocated among the opportunity schools within the OSD at the discretion of the OSD Superintendent for necessary and innovative purposes. In addition, private funds may be solicited and accepted by the OSD to support opportunity schools.

20-14-112. (a) The State Board of Education is authorized to waive specifically identified State Board

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of Education rules, regulations, policies, and procedures, or provisions of Chapter 2 of this title for schools on warning, schools on probation, and qualifying schools not selected as opportunity schools. The goal for each waiver shall be improvement of student performance.

Notwithstanding subsection (g) of Code Section 20-2-244, the State Board of Education is authorized to waive the provisions referenced in paragraphs (1) through (4) of subsection (g) of Code Section 20-2-244 for schools on warning, schools on probation, and qualifying schools not selected as opportunity schools and is also authorized to waive any other state board rule, regulation, policy, procedure, or provision of Chapter 2 of this title for such schools pursuant to Code Section 20-2-244. Any waivers granted pursuant to this subsection may be renewable annually based on student performance. The State Board of Education shall coordinate with the OSD Superintendent in determining appropriate waivers for a qualifying school that was not selected as an opportunity school to enable school improvement services and technical assistance by the department pursuant to subsection (b) of this Code section. The State Board of Education shall communicate to the OSD Superintendent any waivers granted to a school on warning or a school on probation. Any waivers granted pursuant to this subsection shall not preclude the school from being selected in subsequent years for inclusion in the OSD. (b) The Department of Education shall provide school improvement services and technical assistance to schools on warning, schools on probation, and qualifying schools not selected for intervention by the OSD Superintendent pursuant to this article which may include, but is not limited to, appointing a Department of Education school improvement team to: (1) Conduct a comprehensive on-site evaluation of the school to determine the cause for the school's low performance and lack of progress that includes presentations by the chairperson of the local board of education, the school principal, a parent member of the local school council, and other school personnel; (2) Recommend actions, including reallocation of resources and technical assistance, changes in school procedures or operations, professional learning focused on student achievement for instructional and administrative staff, intervention for individual administrators or teachers, instructional strategies based on scientifically based research, waivers from state statutes or rules, adoption of policies and practices to ensure all groups of students meet the state's proficiency level, extended instruction time for low-performing students, strategies for parental

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involvement, incorporation of a teacher mentoring program, smaller class size for low performing students, or other actions the team considers appropriate; (3) Assist in the development of an intensive school improvement plan focused on student achievement; and (4) Monitor the progress of the school in implementing the intensive school improvement plan focused on student achievement.

20-14-113.

This article shall be applicable beginning with school year 2017-2018."

SECTION 2.

Said chapter is further amended by repealing Code Section 20-14-41, relating to appropriate levels of intervention for failing schools, master or management team, school improvement team, annual reports, data revision, and hearings.

SECTION 3.

Code Section 20-2-84 of the Official Code of Georgia Annotated, relating to the accountability, flexibility, and consequences components of contracts, is amended by revising paragraph (1) of subsection (c) as follows: "(1) Interventions or sanctions for failure to meet identified levels of achievement or for not showing specified levels of progress pursuant to Code Section 20-14-41, which may be accelerated; and" SECTION 4.

Code Section 20-2-186 of the Official Code of Georgia Annotated, relating to the allocation of funds for local systems to pay beginning salaries of superintendents, secretaries, accountants, nurses, and certain other personnel, is amended by revising subsection (c) as follows: "(c) Notwithstanding any provision of this Code section to the contrary, no local system shall earn funds under this Code section, except for funds for nurses, accountants, visiting teachers, school psychologists, and secretaries, if the local board of education has not implemented in a failing school within the system the interventions, as defined in Code Section 20-14-41, that are prescribed by the State Board of Education or the office pursuant to their respective authority."

SECTION 5.

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Code Section 20-2-2068 of the Official Code of Georgia Annotated, relating to termination of a charter for a charter school, is amended by revising subparagraph (a)(2)(A) as follows: "(A) A failure to comply with any recommendation or direction of the state board with respect to Code Section 20-14-41 any intervention prescribed by the state board pursuant to the charter;" SECTION 6. (a) This Act shall become effective on January 1, 2017, only if an amendment to the Constitution is ratified at the November, 2016, general election expressly allowing the General Assembly to authorize the establishment of an Opportunity School District to provide for state intervention for failing schools. (b) If such an amendment to the Constitution is not so ratified, then this Act shall not become effective and shall stand repealed by operation of law on January 1, 2017.

SECTION 7.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR’S RATIONALE Under Georgia’s current academic achievement standard, created by the Career and College Ready Performance Index (“Index”), 127 Georgia elementary and secondary schools qualify as failing. 7 This means the schools have scored less than 60 points on the Index for three consecutive years. 8 The phenomenon of such a significant number of failing schools in Georgia is not new. Under “No Child Left Behind,” enacted in 2002, Georgia schools struggled to meet Adequate Yearly Progress (“AYP”). Then, in 2012, nearly thirty percent of schools failed to meet AYP. 9 This constant failure and lack of significant improvement is what drove Governor Nathan Deal to propose the Opportunity School District (“OSD”). 10 Governor Deal believes that “when we talk about helping failing schools, we’re talking about rescuing children,” and “stand[s] equally firm in the belief that the status quo isn’t working.”11 Members of Congress and the community stand behind the Bill, applauding the State for accepting accountability for its education system. 12 Michael Sullivan, state director of Students First GA, states, “It’s past time 7

Opportunity School District: Frequently Asked Questions, OFFICE OF T HE GOVERNOR, (May 18, 2016), https://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/site_page/OSD%20FAQs%20051816.pdf [hereinafter Opportunity School District: Frequently Asked Questions].

8 Id. 9 GA. Dep’t of Educ., About the No Child Left Behind Act of 2001, 2015, https://www.gadoe.org/AYP/Pages/AboutNCLB.aspx.

10 Opportunity School District Proposal, OFFICE OF T HE GOVERNOR, (May 18, 2016), https://gov.georgia.gov/opportunity-school-district-proposal.

11 Id. 12 Susan Percy, Studying Georgia’s Opportunity School District, Dec. 2015, http://www.georgiatrend.com/December-2015/ Studying-Georg ias-Opportunity-School-District/.

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for the state to say there’s a role they can play” and feels as though OSD is “an appropriate remedy” for fixing failing schools. 13 To support his push for OSD, Governor Deal turns to the results of other states that have implemented similar reform programs. 14 In New Orleans, Louisiana, following Hurricane Katrina, the state intervened in a number of schools that had been failing prior to the disaster. 15 The state seized the opportunity to recreate the educational system that had done such a disservice to students in low-income areas and replaced it with a system that would yield results. 16 To reach these results, Louisiana turned their failing schools into charter schools. 17 Under this system, schools have produced 40 more days of classroom learning compared to other public school systems, eight more weeks focused on math, and a total of 28 days to dedicated to reading. 18 Under this system, Louisiana state charter schools have filled in the achievement gap significantly. 19 Originally, these schools were performing at an average level of fifty percent lower than other schools across the state. Now, the state character schools are performing at only six percent lower than their state-wide counterparts. 20 Supporters of OSD are hopeful that the same type of positive results will be replicated in Georgia. 21 OPPOSITION’S RATIONALE For OSD to become effective, the citizens of Georgia must first vote to amend the Georgia Constitution. As it stands, the appointment of a superintendent lies within the power vested in the local board of education, which consist of locally elected members. 22 The goal of the amendment is to grant the state government the power to appoint a superintendent to supervise, manage, and control the operations of failing schools 23 . Many members of Congress, community leaders, and Georgia’s Parent Teacher Association fear that the current ballot language introducing this amendment is “intentionally misleading and disguises the true intentions of OSD.”24 The preamble reads “Amendment # 1: Provides greater flexibility and state accountability to fix failing schools through increasing community involvement.”25 Those opposing this ballot language agree that increasing community involvement is a true need for Georgia’s failing schools, but argue that the Bill proposes to do the exact opposite. The opposition believes the Bill actually takes control from the community-elected school board and 13

Id. Opportunity School District: Frequently Asked Questions, supra note 6.

15 Jonathan Chait, How New Orleans Proved Urban- Education Reform Can Work, NEW YORK M AGAZINE, (Aug. 24, 2015), http://nymag.com/daily/intelligencer/2015/08/how-new-orleans-proved-education-reform-can-work.ht ml [hereinafter How New Orleans Proved Urban- Education Reform Can Work].

16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Opportunity School District: Frequently Asked Questions, supra note 6.

22 GA. CONST . art. VIII, § V. 23 S.R. 287, 153rd Gen. Assemb., 1st Reg Sess., (Ga. 2015), http://www.legis.ga.gov/Legislation/20152016/ 150295.pdf.

24 Press Release of Lisa- Marie Haygood, State President of Georgia’s Parent Teacher Ass’n., August 25, 2016, http://www.georgiapta.org/news-events/osd-press-release-august-2016/ [hereinafter Press Release of Lisa-Marie Haygood].

25 Stephanie Jackson Ali, 2016 Ballot Measures- Just The Basics, 2016, http://newamericanpathways.org/2016ballot-measures-just-the-basics/.

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places it in the hands of a state-appointed superintendent. 26 Those opposed to the Bill, such as House Representative Spencer Frye, have released information to the public informing them on what is deemed to be a well-intentioned proposal that falls short in application. 27 In a study produced by the Southern Education Foundation (“SEF”), it was stated that OSD will have disadvantageous effects on minorities and low- income students; require the failing schools to endure funding cuts; does not propose any effective curricular strategies; and focuses solely on leadership and staffing. 28 Ninety-four percent of the students in schools eligible for OSD takeover are minorities and among those students, ninety-five percent are eligible for free or reduced lunch. 29 This indicates that the majority of students subject to the state takeover come from low-income households and face adversities outside of school which affect their performance in the classroom. 30 The SEF argues that the current Georgia Department of Education program focused on improving the performance of low income and minority students has been successful over the past decade and could produce even better results if more support and resources were allocated to fully execute it. 31 However, OSD does not provide an increase in funding or resources for failing schools, instead it gives the state appointed superintendent a discretionary spending power. 32 Many fear that the discretionary spending function will lead to a misallocation of resources, such as, providing more funds to schools which are closer to passing the Index and ignoring those schools that are failing significantly. 33 Additionally, SEF states that implementing OSD will cause confusion within the school system and place professionals in charge who do not have the experience and knowledge needed to effectively work with the students targeted by OSD. 34 Valarie Wilson, the executive director of Georgia School Board Association, stated, “Th[e] approach must include the input of the professionals in this state who have not only the knowledge base, but who have been in the trenches and understand the specific needs for providing a quality education.”35 IMPLICATIONS IN GEORGIA If enacted, OSD would produce an expansion of government power and change the operation of Georgia’s school systems. 36 Those schools that score a 60 or below on the Index for three consecutive years will be subject to take over by OSD. 37 Each school eligible for takeover will be allowed a public hearing, but the final decision of whether a school will become a part of 26

Press Release of Lisa- Marie Haygood, supra note 13.

Kyle Hayes, Opportunity School District Falls Short of Meeting Needs of Georgia’s Most Disadvantaged Students, SPENCERFRYE.COM: THE BLOG, (Mar. 24, 2015), http://www.spencerfrye.com/opportunity-school-districtfalls-short-of-meeting-needs-of-georgias-most-disadvantaged-students/.

28 Investing in What Works, Community Driven Strategies for Strong Public Schools in Georgia, SOUT HERN EDUCAT ION FOUNDATION, (Dec. 2015), http://www.southerneducation.org/getattachment/c2de4b16-e4c3-4ec4-9eaf646390125639/Investing-in-What-Works-Co mmunity-driven-Strategie.asp x [hereinafter Investing in What Works].

29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 34 Id. 35 Id. 36 Georgia’s Proposed Opportunity District Overview, OFFICE OF T HE GOVERNOR, (May 18, 2016), https://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/site_page/GA%20OSD%20Overview%20051816.pd f.

37 Id. 27

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OSD will be determined by the Governor appointed, Senate approved, superintendent. 38 Once a school is selected for takeover, the superintendent will implement one of these four proposed management strategies: (1) Direct management of the school by OSD; (2) shared governance with the local board of education; (3) Reconstitution of the school as an OSD charter school; or (4) Closing the school if there is low enrollment, and sending students to another school in the district. 39 OSD will be allowed to supervise up to 20 schools in one year and no more than 100 schools at any given time. 40 OSD’s ultimate goal is to turn failing schools around and allow local school boards to step back in to supervise, manage, and operate. 41 In order to reach this goal, a school under OSD control must perform at a level above failing for three consecutive years using the same Index standard. 42 The potential long-term implications of the Bill can be seen in the results of states that have implemented similar reform strategies. 43 Governor Deal refers to the reform bill passed in Louisiana, which uses the charter school strategy and has had significant statistical growth since its state takeover of one hundred and two New Orleans schools. 44 Since 2000, these schools have steadily improved, and in 2012 there were state charter school students who outperformed students in other districts. 45 Conversely, Louisiana’s achievement data has been accused of being skewed for reasons such as, changing the status of schools in the reform district from failing to turnaround, allowing turnaround schools to be left out of the state’s overall performance review. 46 This makes it difficult to accurately measure the success of the school system. 47 Several states, such as, Tennessee, Michigan, and California have passed similar bills and received very mixed results and feedback from the communities affected. 48 LEGISLATIVE GENEALOGY Senate Bill 133 was placed on the Senate Hopper on February 18, 2015. 49 The Senate read and referred the Bill on February 19, 2015. 50 On March 3, 2015, the Senate Committee Favorably Reported by Substitute and a minority report was also filed. 51 The second reading occurred on March 4, 2015. 52 On March 5, 2015, the Senate read the Bill a third time and passed/adopted it by substitute. 53 The House read the Bill for the first time on March 9, 2015, and read it for the second time on March 11, 2015. 54 The House Committee favorably reported 38

Id. Id. 40 Id. 41 Id. 42 Id. 43 Investing in What Works, supra note 17.

44 How New Orleans Proved Urban- Education Can Work, supra note 13.

45 Id. 46 Andrea Gabor, The Myth of the New Orleans School Makeover, NEW YORK TIMES, (Aug. 23, 2015), http://www.nytimes.com/2015/08/23/opinion/sunday/the-myth-of-the-new-orleans-school-makeover.html?_r=0.

47 Id. 48 Investing in What Works, supra note 17.

49 2015-2016 Regular Session - SB 133, Opportunity School District; establish, GA. GEN. A SSEMB., http://www.legis.ga.gov/Legislation/en-US/display/20152016/ SB/ 133 (last visited Oct. 7, 2016).

50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 39

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by substitute on March 24, 2015. 55 The House read the Bill for the third time, modified the structured rule, passed/ adopted by substitute, and immediately transmitted it to Senate on March 25, 2015. 56 The Senate agreed to the House Substitute on March 27, 2015, and the Bill was sent to the Governor on April 8, 2015. 57 On April 24, 2015, Governor Deal signed the Bill creating Act 24, effective January 1, 2017, contingent upon the ratification of a Georgia Constitution amendment. 58 On November 8, 2016, the constitutional amendment was voted against in the general election. 59 Prepared by: Kamaria Womack

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Id. Id. 57 Id. 58 Statute Summary, supra note 5.

59 Politico, supra note 6.

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SENATE BILL 304 1 : COMPASSIONATE CARE FOR VICTIMS OF SEXUAL ASSAULT ACT Amending O.C.G.A. § 35-1-2 First Signature: Senator Elena Parent (42nd) Co-Sponsors: Senator Harold Jones II (22nd) Summary: Senate Bill 304 seeks to amend Chapter 1 of Title 35 of the Official Code of Georgia Annotated, relating to general provisions for law enforcement officers and agencies, to provide requirements for submitting certain evidence collected from a forensic medical examination to the Georgia Bureau of Investigation. The law would speed the transfer of forensic evidence from local law enforcement to state investigators, as well as require more detailed record keeping of forensic evidence by local police. 2 Status: Signed by Governor Nathan Deal on April 26, 2016, with an effective date of July 1, 2016 3 Text of the Bill 4 : § 1. This Act shall be known and may be cited as the “Compassionate Care for Victims of Sexual Assault Act.” § 2. Chapter 1 of Title 35 of the Official Code of Georgia Annotated, relating to general provisions for law enforcement officers and agencies, is amended by revising Code Section 35-12, which was previously reserved, as follows: 35-1-2 (a) As used in this Code section, the term: (1) ‘Division’ means the Division of Forensic Sciences of the Georgia Bureau of Investigation.

(2) ‘Medical examination’ means an examination pursuant to subsection © of Code Section 16-6-1 or subsection (c) of Code Section 16-6-2. (b) When a forensic medical examination is performed, evidence is collected, and the alleged victim has requested that law enforcement officials be notified, the individual performing such exam, or his or her designee, shall notify the appropriate law enforcement agency of the collection of such evidence and provide a summary of all rights guaranteed to the alleged victim pursuant to the Crime Victims’ Bill of Rights established to Code Section 17-17-1, et seq., as provided by the Criminal Justice Coordinating Council. At the time of the examination, no alleged victim shall be required to assign or waive any rights afforded to them in the Crime Victim’s Bill of Rights or that might prevent the alleged victim from seeking relief form the Crime Victims Compensation Board. Law 1

S.B. 304, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016), http://www.legis.ga.gov/Legislation/20152016/162518.pdf [hereinafter S.B. 304].

2 Id. 3 2015-2016 Regular Session-SB 304, Compassionate Care for Victims of Sexual Assault Act of 2016; enact, GA. GEN. A SSEMB., http://www.legis.ga.gov/Legislation/en-US/display/20152016/SB/304.

4 S.B. 304, supra note 1.

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enforcement officials shall take possession of such evidence no later than 96 hours of being notified.

It shall be the duty of every law enforcement officer who takes possession of the evidence as provided in subsection (b) of this Code section to ensure that such evidence is submitted to the division within 30 days of it being collected, in accordance with the procedures established by the division.

When a forensic medical examination was performed before July 1, 2016, evidence was collected and the alleged victim requested that law enforcement officials be notified the individuals who performed such exam or his or her designee, shall notify the appropriate law enforcement agency of the collection of such evidence on or before July 15, 2016, and law enforcement officials shall take possession of such evidence on or before July 31, 2016. It shall be the duty of every law enforcement officer who takes possession of the evidence as provided in this Code section to ensure that such evidence is submitted to the division by August 31, 2016, in accordance with the procedure established by the division.

It shall be the duty of every law enforcement agency to create a list of evidence resulting from a forensic medical examination that is in such agency’s possession on August 1, 2016, identifying such evidence as needing to be tested and submitting such listing of information to the division by August 15, 2016.

A failure to comply with the provision of this Code section shall not affect the admissibility of evidence collected from a forensic medical examination.

Beginning December 1, 2016, the division shall issue an annual report detailing the number of cases for which it has tested evidence pursuant to this Code section and the number of cases that are awaiting testing. Such report shall be provided to the executive counsel of the Governor, the Speaker of the House of Representatives, the Lieutenant Governor, the members of the House Committee on Judiciary, Non-civil, the members of the Senate Judiciary, Non-civil Committee, the House Committee on Health and Human Services, and the Senate Health and Human Services Committee and posted online at the Georgia Bureau of Investigation’s website. Reserved

§ 3.

All laws and parts of laws in conflict with this Act are repealed.

Sponsor’s Rationale: Representative Scott Holcomb, of the 81st district, authored the Compassionate Care for Victims of Sexual Assault Act (the “Bill”) to “ensure timely processing of rape kits from care providers to local law enforcement to the Georgia Bureau of Investigation.”5 Creating a statewide uniform process for the collection and handling of Rape Kits, Rep. Holcomb believes this is a first step towards a system that better serves victims of sexual assault. 6 As the law currently stands, Georgia did not have a uniform system for processing rape kits. 7 Each jurisdiction had 5

Rape Test Kit Bill Press Conference, THE POST BROOKHAVEN (Mar. 16, 2016), http://brookhavenpost.co/2016/03/16/video-rep-scott-holcomb-holds-press-conference-on-pursuing-justice-for-rapevictims-act/.

6 Telephone Interview with Rep. Scott Holcomb, 81st district, Georgia General Assembly (September 23, 2016) [hereinafter Holcomb interview].

7 Rape Test Kit Bill Press Conference, supra note 5.

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its own procedure for the handling of rape kits and we know that a large number were not moving on to be tested. 8 This issue is “not limited to one city, hospital or county … and we do not have a full understanding of the depth of this problem.” 9 This Bill will “answer the question for us, just how bad this problem is.”10 Contrary to the oppositions contention that the rape kits were only a problem in two counties, the Georgia Bureau of Investigation list of submitted previously untested kits proves that this is good legislation. 11 SB 304, previously HB 827, is the first step of many, in Representative Holcomb’s goal to reduce violence against women across the board. 12 Representative Holcomb recognized that Georgia had a problem when it came to a consistent system of ensuring the timely processing of rape kits. 13 A 2015 investigation report by the Atlanta Journal Constitution revealed Atlanta’s own Grady Memorial Hospital withheld over fifteen hundred sex crimes, including more than 130 where the victims asked the hospital to alert police. 14 There is a need for a system in place that would make victims of sexual assault feel confident in the system. 15 Victims of sexual assault go through an “unbelievable horrible experience …, invasive process for the rape kit to be taken, evidence to be gathered; it is shameful for us to then not insure that each and every one of those moves on and is tested.”16 Rep. Holcomb sees this Bill as a vehicle to changing the larger problem of violence towards women in general. 17 This is not just a Georgia problem, across the country it has been shown “evidence that has been identified by forcing testing of kits has led to prosecutions of serial rapists.”18 Representative Holcomb made it very clear “that we have a public safety interest in making sure that the legislature is taking action now when there is a solution now, not next year.”19 HB 827, before becoming SB 304, had 70 co-sponsors and passed the house unanimously. 20 This bipartisan support shows all of Georgia that this is “common sense legislation.”21 Oppositions Rationale:

8

Holcomb interview, supra note 6.

Rape Test Kit Bill Press Conference, supra note 5.

10 Id. 11 Id. 12 Holcomb interview, supra note 6.

13 Id. 14 Willoughby Mariano, Locked Away: Grady withheld rape evidence from police, A T LANTA JOURNAL CONST IT UTION (June 12, 2015, 6:00 PM), http://www.myajc.com/news/news/crime-law/ locked-away/nmcFj/.

15 Holcomb interview, supra note 6.

16 Rape Test Kit Bill Press Conference, supra note 5.

17 Id. 18 Id. 19 Id. 20 H.B. 827, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016), http://www.legis.ga.gov/legislation/enUS/Display/20152016/ HB/827 [hereinafter Ga. H.B. 827]. See also Trey Benton, Video: Rep. Scott Holcomb holds Press Conference on “Pursuing Justice for Rape Victims Act,” THE POST – BROOKHAVEN (March 16, 2016), http://brookhavenpost.co/2016/03/16/video-rep-scott-holcomb-holds-press-conference-on-pursuing-justice-for-rapevictims-act/.

21 Holcomb interview, supra note 7; see also Rape Test Kit Bill Press Conference, supra note 5.

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A lone senator provided opposition to the language of SB 304. Sen. Renee Unterman opposed the Bill and denied requests for a hearing. 22 Sen. Unterman stated that she didn’t see a reason to write a law for problems that are in Dekalb and Fulton County only. 23 Sen. Unterman spoke before the Senate on March 15, 2016, explaining that “in 2015, Sen. Unterman and others in the legislature created a task force to study the issue of rapes on college campuses in Georgia.”24 The task force issued a final report on January 8, 2016, stating “it appeared as if law enforcement officials were taking care of any issues and the task force would re visit the issue in the next year if they needed to.”25 Implications in Georgia: Georgia has a real problem with women who wanted to move forward in the legal process and simply were falling through the cracks. 26 This Bill does not require the testing of these kits, but rather this Bill fixes an issue of chain of custody. 27 The biggest change for agencies in Georgia is that now instead of holding onto a kit they are required to send every kit to the Georgia Bureau of Investigation (“GBI”) no matter what. 28 The influx of previously untested rape kits has put a strain on the GBI’s resources. To address the backlog, the GBI will be outsourcing the kits to out-of-state labs for testing to speed up the investigation process. 29 This Bill created a new chain of custody for rape kits collected after July 1, 2016. 30 Any kits collected prior to July 1, 2016, that had not been previously submitted had to be submitted to the GBI by August 31, 2016. 31 As of September 1, 2016, the GBI had received 1,994 previously untested rape kits. 32 Agencies that have submitted kits for testing since SB304 has been law, confirms to the legislature, that this is a state wide issue, not just an issue in the bigger jurisdictions. 33 There have been 164 agencies across the Georgia to submit untested rape kits. 34 Rep. Holcomb acknowledged the unknown added cost to the agencies impacted by this Bill

22

Willoughby Mariano, Bill that would count neglected rape evidence in trouble in Ga. Senate, A T LANTA JOURNAL CONST IT UTION (Mar. 11, 2016, 4:07 PM), http://www.myajc.com/news/news/state-regional-govt-politics/bill-thatwould-count-neglected-rape-evidence-in-t/nqjMd/.

23 Id. 24 Video Sen. Unterman regarding H.B. 827; http://www.ajc.com/videos/news/state-sen-renee-unterman-r-bufordspeaks-out-on/vDprD7/.

25 Id; see also Final Report of the Senate Study Committee on Sexual Assault: Before the Health and Human Services Committee, 153rd Gen. Assemb. Reg. Sess., (Ga. 2016), http://www.senate.ga.gov/sro/Documents/StudyCommRpts/SexualAssault2015.pdf.

26 Id. 27 Id. 28 James Torrez, Georgia Bureau of Investigation finds over 3,000 untested rape kits, NEWS CHANNEL 9 ABC, (Aug. 24, 2016), http://newschannel9.com/news/local/georgia-bureau-of-investigation-finds-over-3000-untested-rape-kits.

29 Id. 30 S.B. 304, supra note 1.

31 Id. 32 E-mail from Nelly Mile, Deputy Director of the Office of Public Affairs for Georgia Bureau of Investigation, to Rep. Scott Holcomb, Representative 81st District Georgia General Assembly (Sept. 1, 2016, 4:45 PM)(on file with the John Marshall Law Journal) [hereinafter GBI email].

33 Holcomb interview, supra note 6.

34 GBI email, supra note 30.

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Now that the agencies have turned in their outstanding kits, the legislature can now gauge the full extent of the problem and how much money it will take to fix it. 35 Legislative Genealogy: Rep. Holcomb, along with a bi-partisan group of legislators introduced H.B 827: Pursing Justice for Rape Victims Act on January 22, 2016. 36 The first reading of the Bill occurred on January 25, 2016, and was assigned to the Judiciary non-civil committee and the Health and Human Services committee. 37 Both committees returned favorable reports on February 11, 2016, and was adopted and passed unanimously by the House on February 23, 2016. 38 Once the Bill moved to the Senate it appeared that H.B. 827 was stalled. 39 Senator Elena Parent, 42nd District, was sponsoring S.B. 304: Criminal Records; allow for the preservation of a person’s involuntary hospitalization information received by Georgia Crime Information. 40 Senator Elena Parent agreed to delete the language from S.B. 304, replace it with the language form H.B. 827 and allowed the bill to live and pass. 41 The Bill cleared its final hurdle with a unanimous House vote on March 24, 2015 and Governor Nathan Deal signed S.B. 304 into law April 26, 2016. 42

Prepared by: Brandi Munroe Sluss

35

Id. H.B. 827, supra note 17.

37 Id. 38 Id. 39 Id. 40 S.B. 304, supra note 1; see also Margie Miller, 2016 Legislative Session Wrap-up report, A UGUST A UNIVERSIT Y OFFICE OF GOVERNMENT RELAT IONS (April 2016), http://www.augusta.edu/gov/documents/leg6.pdf.

41 Holcomb interview, supra note 7; see also Email from Stephanie Tanner, Legislative Assistant to Senator Elena C. Parent, to Brandi Munroe Sluss, Staff Member, John Marshall Law Journal (Sept. 6, 2016, 1:18 PM) (on file with the John Marshall Law Journal).

42 Claire Simms, Governor Deal signs rape kit testing bill into law, FOX 5 (April 26, 2016, 1:08 PM, updated April 26, 2016, 7:37 PM), http://www.fox5atlanta.com/news/132875089-story.

36