Law reviews.

For article, “The Early Georgia Constitution,” see 16 Ga. B.J. 273 (1954).

For article, “The Georgia Constitution of 1861,” see 19 Ga. B.J. 474 (1957).

For article, “Interpreting the Georgia Constitution Today,” see 10 Mercer L. Rev. 219 (1959).

For article, “Georgia’s Constitution of 1777,” see 24 Ga. B.J. 485 (1962).

For article advocating revision of the 1945 Constitution, see 3 Ga. St. B.J. 287 (1967).

For article outlining the numerous amendments to the 1945 Georgia Constitution, see 5 Ga. St. B.J. 331 (1969).

For article discussing the “void-from-inception” doctrine as applied to statutory law in Georgia, see 8 Ga. L. Rev. 101 (1973).

For article, “An Overview of the New Georgia Constitution,” see 35 Mercer L. Rev. 1 (1983).

For article, “E Pluribus — Constitutional Theory and State Courts,” see 18 Ga. L. Rev. 165 (1984).

JUDICIAL DECISIONS

Requirements for raising question as to constitutionality of law. —

In order to raise a question as to the constitutionality of a “law,” at least three things must be shown: (1) the statute or the particular part or parts of the statute which the party would challenge must be stated or pointed out with fair precision; (2) the provisions of the Constitution, which it is claimed have been violated must be clearly designated; and (3) how the statute, or some designated part of it, violates such constitutional provision. Lockaby v. City of Cedartown, 151 Ga. App. 281 , 259 S.E.2d 683 , 1979 Ga. App. LEXIS 2531 (1979).

When charge as to unconstitutionality of statute too indefinite. —

Any charge as to unconstitutionality of a statute, failing to state how the statute violates the specified provisions of the Constitution, is too indefinite to invoke any ruling upon the constitutionality of the statute. Jordan v. State, 172 Ga. 857 , 159 S.E. 235 , 1931 Ga. LEXIS 223 (1931).

CONSTITUTION OF THE STATE OF GEORGIA

To perpetuate the principles of free government, insure justice to all, preserve peace, promote the interest and happiness of the citizen and of the family, and transmit to posterity the enjoyment of liberty, we the people of Georgia, relying upon the protection and guidance of Almighty God, do ordain and establish this Constitution.

Law reviews.

For 1906 address, “The Lawyer in Government,” see 41 Mercer L. Rev. 601 (1990).

Article I Bill of Rights

Section I Rights of Persons

Paragraph I. Life, liberty, and property.

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

1976 Constitution. —

Art. I, Sec. I, Para. I.

Cross references.

Deprivation of liberty and property interests by due process generally, U.S. Const., amends. 5 and 14, Ga. Const. 1983, Art. I, Sec. I, Para. II, and § 1-2-6 .

Actions and remedies for deprivation of liberty: habeas corpus, Ga. Const. 1983, Art. I, Sec. I, Para. XV.

Actions and remedies for deprivation of property: just compensation, Ga. Const. 1983, Art. I, Sec. III, Paras. I and II, and § 22-1-6 .

Deprivation of liberty by due process: detention of a child, § 15-11-18 .

False imprisonment, § 16-5-41 .

Arrest of persons generally, T. 17, C. 4.

Deprivation of life by due process, § 17-10-33 .

Deprivation of property by due process: attachment, T. 18, C. 3.

Garnishment, T. 18, C. 4.

Prescription and adverse possession, § 44-5-160 et seq.

False arrest, § 51-7-1 .

Property damages, §§ 51-9-1 and 51-10-1 .

Law reviews.

For comment discussing taxation of property beyond state jurisdiction by means of ad valorem tax on accounts receivable of foreign corporation from sales in Georgia in light of Parke, Davis & Co. v. Atlanta, 200 Ga. 296 , 36 S.E.2d 773 (1946), see 8 Ga. B.J. 425 (1946).

For comment on Guy v. Nelson, 202 Ga. 728 , 44 S.E.2d 775 (1947), see 10 Ga. B.J. 473 (1948).

For comment on Burke v. State, 205 Ga. 656 , 54 S.E.2d 350 (1949), see 12 Ga. B.J. 212 (1949).

For comment on Harris v. Duncan, 208 Ga. 561 , 67 S.E.2d 692 (1951), see 14 Ga. B.J. 351 (1952).

For article, “Constitutionality of Economic Regulations,” see 2 J. of Pub. L. 98 (1953).

For comment on City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252 , 79 S.E.2d 265 (1953), wherein public utility was denied just compensation for forced relocation of conduits due to city building project, see 5 Mercer L. Rev. 323 (1954).

For article discussing Georgia alimony provisions allowing modification of judgments with respect to federal and state constitutional limitations, see 18 Ga. B.J. 153 (1955).

For comment on Williams v. Hirsch, 211 Ga. 534 , 87 S.E.2d 70 (1955), holding Unfair Cigarette Sales Act of 1949 (Ga. L. 1949, p. 695) unconstitutional, see 6 Mercer L. Rev. 352 (1955).

For comment on Hill v. Balkcom, 213 Ga. 58 , 96 S.E.2d 589 (1957), holding that when court appointed counsel in a criminal case is a member of the bar in good standing, which is prima-facie evidence of his competency as an attorney, and serves his client in good faith and with loyalty, the requirements of due process are met, see 19 Ga. B.J. 519 (1957).

For comment on Complete Auto Transit Co. v. Floyd, 249 F.2d 396 (5th Cir. 1957), holding that a statute which, if applied, would subject the defendant to double recovery of medical and funeral expenses was unconstitutional as against that defendant because it deprives the defendant of its property without due process of law, see 21 Ga. B.J. 244 (1958).

For article, “Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,” see 9 Mercer L. Rev. 253 (1958).

For comment criticizing Young v. Morrison, 220 Ga. 127 , 137 S.E.2d 456 (1964) finding 1957 amendment to the Nonresident Motorists’ Act (§ 68-808) authorizing suit against nonstate resident who when cause of action arose was a state resident unconstitutional, see 16 Mercer L. Rev. 360 (1964).

For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), see 1 Ga. St. B.J. 550 (1965).

For comment on Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 , 12 L. Ed. 2 d 377 (1964), see 2 Ga. St. B.J. 123 (1965).

For article supporting the adoption of comprehensive right to counsel legislation, see 3 Ga. St. B.J. 157 (1966).

For note, “Mental Health Commitment Procedures in Georgia,” see 3 Ga. St. B.J. 230 (1966).

For comment, “Due Process and the Dismissal of Students at State-Supported Colleges and Universities,” see 3 Ga. St. B.J. 101 (1966).

For note discussing constitutional problems with the bail system, see 4 Ga. St. B.J. 278 (1967).

For comment on Tolbert v. State, 224 Ga. 291 , 161 S.E.2d 279 (1968), see 5 Ga. St. B.J. 256 (1968).

For article criticizing Georgia Supreme Court’s decision striking down milk regulation as violative of state due process by application of the full bench rule in Ward v. Big Apple Super Mkts. of Bolton Rd., Inc., 223 Ga. 756 , 158 S.E.2d 396 (1967), see 19 Mercer L. Rev. 366 (1968).

For article discussing the constitutionality of imposing harsher sentences upon defendants found guilty in new trial after appeal, see 6 Ga. St. B.J. 183 (1969).

For note discussing some limitations on governmental tort immunity, see 5 Ga. St. B.J. 494 (1969).

For comment on Sams v. Olah, 225 Ga. 497 , 169 S.E.2d 790 (1969), as to the constitutionality of the State Bar Act (ch. 9-7), see 21 Mercer L. Rev. 355 (1969).

For article, “A Review of Georgia’s Probation Laws,” see 6 Ga. St. B.J. 255 (1970).

For article, “Delegation in Georgia Local Government Law,” see 7 Ga. St. B.J. 9 (1970).

For article, “Some Legal Problems Involved in Saving Georgia’s Marshlands,” see 7 Ga. St. B.J. 27 (1970).

For article discussing the evolution of municipal annexation law in Georgia in light of Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1 , 178 S.E.2d 868 (1970), see 5 Ga. L. Rev. 499 (1971).

For note, “Regulation and Ownership of the Marshlands: The Georgia Marshlands Act,” see 5 Ga. L. Rev. 563 (1971).

For comment on City of Atlanta v. Mapel, 121 Ga. App. 567 , 174 S.E.2d 599 (1970), as to municipal corporations negligence liability for injuries sustained at municipal golf courses, see 22 Mercer L. Rev. 608 (1971).

For comment on Corley v. Lewless, 227 Ga. 745 , 182 S.E.2d 766 (1971), holding parental liability statute which formerly provided for unlimited liability of parents for wilful torts of minor children on the basis of parent-child relationship violative of due process, see 9 Ga. St. B.J. 129 (1972).

For comment criticizing Corley v. Lewless, 227 Ga. 745 , 182 S.E.2d 766 (1971), as to constitutionality of former Code 1933, § 105-113 prior to 1976 amendment, see 23 Mercer L. Rev. 681 (1972).

For comment discussing aspects of Georgia’s bail trover proceeding as violative of due process, in light of Hall v. Stone, 229 Ga. 96 , 189 S.E.2d 403 (1972), see 9 Ga. St. B.J. 336 (1973).

For comment on Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), refusing to apply decision holding Georgia’s alibi instruction unconstitutional retroactively, see 9 Ga. St. B.J. 500 (1973).

For comment on Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58 , 195 S.E.2d 399 (1973), see 10 Ga. St. B.J. 164 (1973).

For article as to the power of Georgia local governments to regulate the trades and occupations of its citizens, see 9 Ga. L. Rev. 115 (1974).

For comment on Ware v. State, 128 Ga. App. 407 , 196 S.E.2d 896 (1973), discussing the right of an accused to retract guilty plea prior to judgment, see 10 Ga. St. B.J. 469 (1974).

For comment on James v. State, 230 Ga. 29 , 195 S.E.2d 448 (1973), see 25 Mercer L. Rev. 935 (1974).

For comment on Deal v. Seaboard C.L.R.R., 236 Ga. 629 , 224 S.E.2d 922 (1976), see 25 Emory L.J. 983 (1976).

For article discussing available means of discovery for criminal cases in Georgia, see 12 Ga. St. B.J. 134 (1976).

For article discussing preliminary hearings in felony cases as necessary to satisfy due process requirements, see 12 Ga. St. B.J. 207 (1976).

For article discussing Allan v. Allan, 236 Ga. 199 , 223 S.E.2d 445 (1976), holding Georgia’s notice requirement for year’s support unconstitutional prior to 1977 revision, see 13 Ga. St. B.J. 85 (1976).

For article discussing due process problems with Georgia’s post-judgment garnishment procedures, in light of City Fin. Co. v. Winston, 238 Ga. 10 , 231 S.E.2d 45 (1976), see 13 Ga. St. B.J. 144 (1977).

For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978).

For comment on a nuisance-abatement statute applied to authorize prior restraint on exhibition of unnamed films in the future as violative of the federal Constitution in Universal Amusement Co. v. Vance, 587 F.2d 159 (5th Cir. 1978), probable jurisdiction noted, 442 U.S. 928, 99 S. Ct. 2857 , 61 L. Ed. 2 d 295 (1979), aff’d, 445 U.S. 308, 100 S. Ct. 1156 , 63 L. Ed. 2 d 413 (1980), see 13 Ga. L. Rev. 1076 (1979).

For comment on Reeves, Inc. v. Kelley, 586 F.2d 1230 (8th Cir. 1978), vacated and remanded, 441 U.S. 939, 99 S. Ct. 2155 , 60 L. Ed. 2 d 1041 (1979), as to whether a state acting in a proprietary capacity as an interstate seller is restricted by the commerce clause, see 13 Ga. L. Rev. 1086 (1979).

For comment on Pope v. City of Atlanta, 242 Ga. 331 , 249 S.E.2d 16 (1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281 , 59 L. Ed. 2 d 494 (1979), see 31 Mercer L. Rev. 375 (1979).

For comment on Rogers v. Medical Ass’n, 244 Ga. 151 , 259 S.E.2d 85 (1979), invalidating Georgia statute requiring Governor’s appointments to Composite State Board of Medical Examiners (now Georgia Composite Medical Board) be made solely from nominees submitted by state medical society as an unconstitutional delegation of legislative authority to a private organization, see 29 Emory L.J. 1183 (1980).

For note, “Due Process Rights of Minors and Parental Authority in Civil Commitment Cases,” see 31 Mercer L. Rev. 617 (1980).

For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981).

For annual survey of constitutional law, see 35 Mercer L. Rev. 73 (1983).

For annual survey on constitutional law, see 36 Mercer L. Rev. 137 (1984).

For article, “The Georgia Bill of Rights: Dead or Alive?,” see 34 Emory L.J. 341 (1985).

For article, “Cable Theft The Problem, The Need for Useful State Legislation and a Proposed Solution For Georgia,” see 35 Emory L.J. 643 (1986).

For article, “Regulating Business Activity by Means of the Substantive Due Process and Equal Protection Doctrines Under the Georgia Constitution: An Analysis and a Proposal,” see 3 Ga. St. U.L. Rev. 1 (1987).

For article, “Contempt of Court in Georgia,” see 23 Ga. St. B.J. 66 (1987).

For article, “Federal and State ‘State Action’: The Undercritical Embrace of a Hypercriticized Doctrine,” see 24 Ga. L. Rev. 327 (1990).

For note, “Determining Patient Competency in Treatment Refusal Cases,” see 24 Ga. L. Rev. 733 (1990).

For article, “Experimenting with the ‘Right to Die’ in the Laboratory of the States,” see 25 Ga. L. Rev. 1253 (1991).

For state constitutional law symposium, see 27 Ga. St. B.J. 158 (1991).

For annual survey article on criminal law and procedure, see 46 Mercer L. Rev. 153 (1994).

For survey of 1995 Eleventh Circuit cases on constitutional civil law, see 47 Mercer L. Rev. 745 (1996).

For survey of 1995 Eleventh Circuit cases on constitutional criminal procedure, see 47 Mercer L. Rev. 765 (1996).

For article, “Campbell v. Georgia: Mandatory Minimum Sentencing Survives Separation of Power Attacks, Remaining a Viable Option for the Legislature in Its War on Crime,” see 17 Ga. St. U.L. Rev. 637 (2001).

For note, “The Final Patient Privacy Regulations Under the Health Insurance Portability and Accountability Act — Promoting Patient Privacy or Public Confusion?,” see 37 Ga. L. Rev. 723 (2003).

For note, “What’s the Use? The Court Takes a Stance on the Public Use Doctrine in Kelo v. City of New London,” see 57 Mercer L. Rev. 689 (2006).

For comment, “I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships,” see 59 Emory L.J. 259 (2009).

For article, “Child Welfare and Future Persons,” see 43 Ga. L. Rev. 367 (2009).

For article, “Are There Checks and Balances on Terminating the Lives of Children with Disabilities? Should There Be?,” see 25 Ga. St. U.L. Rev. 959 (2009).

For note, “The Monster in the Closet: Declawing the Inequitable Conduct Beast in the Attorney-Client Privilege Arena,” see 25 Ga. St. U.L. Rev. 735 (2009).

For article, “Intellectual Property Checklist for Marketing the Recording Artist Online,” see 18 J. Intell. Prop. L. 541 (2011).

For article, “Clearing the Way: Acquiring Rights and Approvals for Music Use in Media Applications,” see 18 J. Intell. Prop. L. 561 (2011).

For article, “Untangling the Market and the State,” see 67 Emory L.J. 243 (2017).

For article, “Exploring the Right to Die in the U.S.,” see 33 Ga. St. U.L. Rev. 1021 (2017).

For article, “Unbefriended and Unrepresented: Better Medical Decision Making for Incapacitated Patients Without Healthcare Surrogates,” see 33 Ga. St. U.L. Rev. 923 (2017).

For article, “Ending-Life Decisions: Some Disability Perspectives,” see 33 Ga. St. U.L. Rev. 893 (2017).

For article, “Distinctive Factors Affecting the Legal Context of End-Of-Life Medical Care for Older Persons,” see 33 Ga. St. U.L. Rev. 869 (2017).

For note, “Workin’ 9:00-5:00 for Nine Months: Assessing Pregnancy Discrimination Laws in Georgia,” see 33 Ga. St. U.L. Rev. 771 (2017).

For article, “Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution Church, State and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?,” see 68 Emory L.J. 837 (2019).

For article, “Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution the Problems with Pornography Regulation: Lessons from History,” see 68 Emory L.J. 867 (2019).

For article, “Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution Changing Faces: Morphed Child Pornography Images and the First Amendment,” see 68 Emory L.J. 909 (2019).

For article, “Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution Therapeutic Expression,” see 68 Emory L.J. 939 (2019).

For comment, “State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms,” see 69 Emory L.J. 111 (2019).

For article, “Transcript: Free Speech and Freedom of Religion,” see 35 Ga. St. U.L. Rev. 937 (2019).

For annual survey on criminal law, see 71 Mercer L. Rev. 69 (2019).

For article, “SB 47: Eligibility Expansion for the Georgia Special Needs Scholarship Program,” see 38 Ga. St. U.L. Rev. 83 (2021).

JUDICIAL DECISIONS

Analysis

General Consideration

Due process of law means the administration of general laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the subject matter, and proceeding upon notice and hearing. Norman v. State, 171 Ga. 527 , 156 S.E. 203 , 1930 Ga. LEXIS 496 (1930), transferred, 44 Ga. App. 92 , 160 S.E. 522 , 1931 Ga. App. LEXIS 600 (1931); Dependable Ins. Co. v. Gibbs, 218 Ga. 305 , 127 S.E.2d 454 , 1962 Ga. LEXIS 487 (1962); Shoemake v. Whitlock, 226 Ga. 771 , 177 S.E.2d 677 , 1970 Ga. LEXIS 680 (1970).

“Due process of law” means that man should be tried in accordance with law of the land. Lamar v. Prosser, 121 Ga. 153 , 48 S.E. 977 , 1904 Ga. LEXIS 56 (1904); Frank v. State, 142 Ga. 741 , 83 S.E. 645 , 1914 Ga. LEXIS 528, writ of error denied, 235 U.S. 694, 35 S. Ct. 208 , 59 L. Ed. 429 , 1914 U.S. LEXIS 934 (1914); Brooks v. State, 178 Ga. 784 , 175 S.E. 6 , 1934 Ga. LEXIS 184 (1934).

Due process clause does not expressly or by implication afford right of action against government. —

Suit by physicians against state officials alleging that O.C.G.A. § 31-9B-1 et seq., regulating abortions, violated the state constitution, was barred by sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX, because there was no consent to such a suit. The Due Process Clause, Ga. Const. 1983, Art. I, Sec. I, Para. I, did not provide a private remedy for its enforcement, and the Judicial Review Clause, Ga. Const. 1983, Art. I, Sec. II, Para. V, did not conflict with sovereign immunity. Lathrop v. Deal, 301 Ga. 408 , 801 S.E.2d 867 , 2017 Ga. LEXIS 529 (2017).

This section is safeguard against arbitrary power. Cutsinger v. City of Atlanta, 142 Ga. 555 , 83 S.E. 263 , 1914 Ga. LEXIS 461 (Oct. 3, 1914).

Personal jurisdiction. —

Because a seller sued an Illinois limited liability company (LLC) on an open account, long-arm jurisdiction over the LLC under the “transacting business” section of O.C.G.A. § 9-10-91(1) was reasonable and comported with due process. The LLC initiated the relationship with the seller and handled payment, the goods were delivered in Georgia to a Georgia apartment complex controlled by a related Georgia entity, and there was a long course of dealing between the parties. Home Depot Supply, Inc. v. Hunter Mgmt., LLC, 289 Ga. App. 286 , 656 S.E.2d 898 , 2008 Ga. App. LEXIS 62 (2008).

Discovery procedures of O.C.G.A. § 17-16-1 et seq. do not violate due process. —

Amended discovery procedure of O.C.G.A. § 17-16-1 et seq. does not violate due process, as it imposes reciprocal discovery upon the state; any difference in the scope of mitigating evidence and the scope of non-statutory aggravating evidence is too minimal to be of constitutional significance on the question of reciprocity of discovery. Stinski v. State, 281 Ga. 783 , 642 S.E.2d 1 , 2007 Ga. LEXIS 128 (2007).

Identification of specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Tucker v. Caldwell, 608 F.2d 140, 1979 U.S. App. LEXIS 9838 (5th Cir. 1979).

State action involved in denial of due process. —

For something to constitute a denial of equal protection of the law as guaranteed by the Fourteenth Amendment and due process under the federal and state constitutions, state action must be involved. Walker v. State, 220 Ga. 415 , 139 S.E.2d 278 , 1964 Ga. LEXIS 573 (1964), rev'd, 381 U.S. 355, 85 S. Ct. 1557 , 14 L. Ed. 2 d 681, 1965 U.S. LEXIS 1158 (1965).

Due process of law is denied when an arm of the state acts directly against an individual’s property and deprives the individual of it without notice or an opportunity to be heard. Thus, the requirements of “state” action can rarely be satisfied when the action is taken by one not a state official. Reinertsen v. Porter, 242 Ga. 624 , 250 S.E.2d 475 , 1978 Ga. LEXIS 1304 (1978).

State cannot be deemed guilty of violation of due process simply because of court error. —

State cannot be deemed guilty of a violation of the due process clause of its constitution, or of the due process clause of the federal constitution, simply because one of its courts while acting within its jurisdiction has made erroneous rulings or decisions. In such a case a party is left to the appropriate remedies for the correction of errors in judicial proceedings. Norman v. State, 171 Ga. 527 , 156 S.E. 203 , 1930 Ga. LEXIS 496 (1930), transferred, 44 Ga. App. 92 , 160 S.E. 522 , 1931 Ga. App. LEXIS 600 (1931).

Grand jury report properly expunged. —

Trial court properly expunged a grand jury presentment of statements unnecessary to the purpose sought to be accomplished by the report that cast reflections of misconduct in office upon a public officer and impugned the officer’s character; the remainder of the report was properly filed and published as the grand jury report was in the nature of a general presentment in which the grand jury took note of alleged excessive overtime for county employees, which was within the province of the grand jury, and its limited remaining criticisms came within the ambit of O.C.G.A. §§ 15-12-71(b) and (c), and 15-12-80 as they did not appear to be criticisms of misconduct in office or impugned character. In re July-August, 2003 DeKalb County Grand Jury, 265 Ga. App. 870 , 595 S.E.2d 674 , 2004 Ga. App. LEXIS 280 (2004).

Due process principles extend to every proceeding which may deprive person of life, liberty, or property. —

Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty, or property, a fortiori the finding of a bureau chief or a government department head ruling cannot do so, consistently with the guarantees embodied in the constitutions of this state and the United States. The protective principles summed up in these due process clauses extend to every proceeding which may deprive a person of life, liberty, or property, whether the process be judicial, administrative, or executive in its nature. Zachos v. Huiet, 195 Ga. 780 , 25 S.E.2d 806 , 1943 Ga. LEXIS 308 (1943).

Law may not be legally applied so as to deprive person of rights, privileges, and immunities. —

A law, even though fair and constitutional on its face, may not legally be applied so as to deprive any person of rights, privileges, and immunities under the Constitution of Georgia and the United States. Walker v. State, 220 Ga. 415 , 139 S.E.2d 278 , 1964 Ga. LEXIS 573 (1964), rev'd, 381 U.S. 355, 85 S. Ct. 1557 , 14 L. Ed. 2 d 681, 1965 U.S. LEXIS 1158 (1965).

Construction under state and federal due process provisions may differ. —

The fact that the United States Supreme Court may construe the Fourteenth Amendment as not imposing a particular limitation would not prevent this court from giving a different construction to the Georgia due process clause and holding that under this clause the limitation does exist. National Mtg. Corp. v. Suttles, 194 Ga. 768 , 22 S.E.2d 386 , 1942 Ga. LEXIS 639 (1942).

Greater protection than federal due process. —

The higher due process standard imposed by the due process clause of the Georgia Constitution requires that an agency present “sufficient justification” for its decisions. Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736, 1989 U.S. Dist. LEXIS 11357 (S.D. Ga. 1989).

The due process clause of the Georgia Constitution, while mirroring the language of the due process clause of the Fourteenth Amendment, affords greater protection than does federal due process. Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736, 1989 U.S. Dist. LEXIS 11357 (S.D. Ga. 1989).

Equal protection. —

Driver’s equal protection challenge to O.C.G.A. § 40-5-22(c)(2) failed as the statute did not create a suspect class or impact a fundamental right and there was a rational basis to create a class of driver’s license applicants whose out-of-state licenses were suspended or revoked; the classification bore a direct relation to the strong governmental interests in protecting the public from drivers whose licenses had been revoked for driving under the influence and in preventing license shopping by nonresidents with revoked out-of-state licenses. Roberts v. Burgess, 279 Ga. 486 , 614 S.E.2d 25 , 2005 Ga. LEXIS 297 (2005).

Driver’s equal protection challenge to O.C.G.A. § 40-5-22(c)(7) failed because a driver applied for a Florida license, the driver was voluntarily subjected to that state’s laws relating to the issuance of licenses; Florida validly suspended the driver’s license and neither Georgia nor Florida was precluded from taking into account offenses that occurred in another state in deciding whether to issue or revoke an already issued operator’s license. Roberts v. Burgess, 279 Ga. 486 , 614 S.E.2d 25 , 2005 Ga. LEXIS 297 (2005).

Litigant’s right to fair trial when there are contested issues of fact. —

When there are contested issues of fact no litigant has any constitutional right to have a verdict in the litigant’s favor; the litigant has only the right to a fair trial under which the jury returns a verdict for that party, plaintiff or defendant, whom it believes entitled thereto. That is due process. YMCA v. Bailey, 112 Ga. App. 684 , 146 S.E.2d 324 , 1965 Ga. App. LEXIS 818 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131 , 17 L. Ed. 2 d 95, 1966 U.S. LEXIS 909 (1966).

It cannot be said the doctrine of interspousal immunity is unconstitutional, as a matter of due process or equal protection. Robeson v. International Indem. Co., 248 Ga. 306 , 282 S.E.2d 896 , 1981 Ga. LEXIS 1003 (1981).

Civil sanctions. —

Imposition of fines and penalties on members of an association of taxicab owners in the form of suspension or revocation of their certificates of public necessity and convenience for infractions of taxicab regulations by their drivers did not violate substantive due process because the civil sanctions were a valid exercise of the police power; the city was authorized to find that in the legitimate interest of promoting and protecting the public safety, subjecting the members to civil sanctions for infractions committed by their drivers was a reasonably necessary and less onerous alternative than the imposition of vicarious criminal liability. Atlanta Taxicab Co. Owners Ass'n v. City of Atlanta, 281 Ga. 342 , 638 S.E.2d 307 , 2006 Ga. LEXIS 1030 (2006).

Civil contempt order in divorce case. —

A civil contempt order in a divorce case requiring a husband to pay $1,500 to the wife for each day that passed without him paying the wife insurance proceeds pursuant to an oral order did not violate due process; a trial court could sua sponte raise an issue of contempt, and although the order to pay the proceeds was oral, the order was not ineffective as a matter of law, as the husband was well aware that the payment of the proceeds would be at issue and that the trial court would decide the matter without a jury. Chatfield v. Adkins-Chatfield, 282 Ga. 190 , 646 S.E.2d 247 , 2007 Ga. LEXIS 405 (2007).

Claimant must act in timely manner. —

If a claimant has a remedy provided by law, under which the claimant can assert a claim within a reasonable time, then the claimant has a “day in court.” If the claimant fails to assert it within such time, then the claimant, not the law, is at fault. Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 , 1973 Ga. App. LEXIS 1360 (1973).

Standing to raise question of constitutionality. —

One cannot raise the question of constitutionality of a statute, or of the action of an administrative agency acting under statutory power, as violative of constitutional rights, unless the interest or rights of such complaining party are affected by the statute or the action of the agency. West v. Housing Auth., 211 Ga. 133 , 84 S.E.2d 30 , 1954 Ga. LEXIS 488 (1954).

Framing of question as to constitutionality of statute. —

When question as to constitutionality of statute is properly raised by attacking specific Code sections as denying the defendant equal protection and due process of law as guaranteed by the Constitution of Georgia and the Fourteenth Amendment of the federal Constitution, and the answer clearly points out wherein the statute violates the constitutional provisions, the court cannot refuse to consider the question merely because it fails to point out the exact location of the due process and the equal protection clauses in the Constitutions. Buchanan v. Heath, 210 Ga. 410 , 80 S.E.2d 393 , 1954 Ga. LEXIS 331 (1954).

Counties are not persons as against state within meaning of constitutional provision guaranteeing due process to all persons. Bibb County v. Hancock, 211 Ga. 429 , 86 S.E.2d 511 , 1955 Ga. LEXIS 347 (1955).

Due process does not require action against defendant be brought in county of defendant’s residence. Dependable Ins. Co. v. Gibbs, 218 Ga. 305 , 127 S.E.2d 454 , 1962 Ga. LEXIS 487 (1962).

Legislation that proof of fact constitutes prima-facie evidence of main fact in issue valid if rational connection. —

State legislation declaring that proof of one fact or a group of facts shall constitute prima-facie evidence of the main or ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred. If the presumption is not unreasonable and is not made conclusive of the rights of the person against whom raised, it does not constitute a denial of due process of law. Reid v. Perkerson, 207 Ga. 27 , 60 S.E.2d 151 , 1950 Ga. LEXIS 391 (1950).

Statute purporting to determine conclusive evidence void as unauthorized invasion of court function. —

Insofar as former Civil Code 1910, § 1790, purported to make an official analysis of fertilizers by the state chemist conclusive evidence, it was an unauthorized invasion of the functions of the courts, and is void as violative of this paragraph, because it is an unauthorized attempt to legislate the truth of facts upon which the rights of parties are made to depend in judicial investigations. Southern Cotton Oil Co. v. Raines, 171 Ga. 154 , 155 S.E. 484 , 1930 Ga. LEXIS 291 (1930).

Final judgment concerning nonresident juveniles. —

When nonresident juveniles are ordered after the adjudicatory hearing to be transferred to the juvenile court authorities of another state, the judgment is final and dismissal of the appeal as not being from a final judgment constitutes deprivation of constitutional due process. G.W. v. State, 233 Ga. 274 , 210 S.E.2d 805 , 1974 Ga. LEXIS 742 (1974).

O.C.G.A. § 40-6-391(a)(4) is not void for vagueness and not violative of the Fourteenth Amendment of the United States Constitution or the due process clause of the Constitution of the State of Georgia. Scott v. Walker, 253 Ga. 695 , 324 S.E.2d 187 , 1985 Ga. LEXIS 527 (1985) (percentage by weight of alcohol in driver’s blood).

Access to courts. —

The 1987 amendment to O.C.G.A. § 9-3-73 , which altered tolling provisions otherwise applicable to tort claims by injured minors in cases in which tort claims arose from health care professionals’ malpractice, did not violate a brain-damaged child’s right to equal protection or right of access to the courts. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566 , 423 S.E.2d 235 , 1992 Ga. LEXIS 987 (1992).

Although a court may in some circumstances issue sua sponte dismissals pursuant to its inherent authority recognized in O.C.G.A. § 15-6-9(8) , a blanket prefiling order entered outside of a pending suit, imposing restrictions on the pro se right of access, may not be issued without a hearing on the court’s contemplated action. In re Carter, 235 Ga. App. 551 , 510 S.E.2d 91 , 1998 Ga. App. LEXIS 1562 (1998).

Abstention by federal courts. —

Since Georgia decisional law extends due process protections beyond what federal due process alone affords, abstention by federal courts is warranted with regard to Georgia due process claims involving provisions which have never been construed by Georgia courts. Fields v. Rockdale County, 785 F.2d 1558, 1986 U.S. App. LEXIS 23768 (11th Cir.), cert. denied, 479 U.S. 984, 107 S. Ct. 571 , 93 L. Ed. 2 d 575, 1986 U.S. LEXIS 4902 (1986).

Child testimony statute not vague. —

O.C.G.A. § 24-3-16 does not violate the due process clause of Ga. Const. 1983, Art. I, Sec. I, Para. I on its face and is not void for vagueness and uncertainty. Weathersby v. State, 262 Ga. 126 , 414 S.E.2d 200 , 1992 Ga. LEXIS 211 (1992).

County homestead tax exemptions did not violate due process. —

County homestead exemptions from ad valorem and education taxes did not violate due process or equal protection because they were rationally related to the legitimate government interests of the encouragement of neighborhood preservation, continuity, and stability, and the protection of reliance interest of existing homeowners, and the limits placed on the exemptions were not arbitrary. Blevins v. Dade County Bd. of Tax Assessors, 288 Ga. 113 , 702 S.E.2d 145 , 2010 Ga. LEXIS 818 (2010).

Privatization of probation services. —

In a suit brought by misdemeanor defendants challenging the privatization of probation services under O.C.G.A. § 42-8-100(g)(1) , the Georgia Supreme Court agreed with the trial court that § 42-8-100(g)(1) was not unconstitutional on the statute’s face and did not offend due process or equal protection nor condone imprisonment for debt. Sentinel Offender Services, LLC v. Glover, 296 Ga. 315 , 766 S.E.2d 456 (2014).

Necessity for Notice and Hearing

Nothing short of notice of proceeding and opportunity to be heard in opposition thereto will satisfy due process clause of the state Constitution. Keenan v. Hardison, 245 Ga. 599 , 266 S.E.2d 205 , 1980 Ga. LEXIS 870 (1980).

Because the trustees for the property at issue, a parcel of property used for religious purposes, never received notice of a tax sale concerning the property, their due process rights were violated, making the sale of that property void. Marathon Inv. Corp. v. Spinkston, 281 Ga. 888 , 644 S.E.2d 133 , 2007 Ga. LEXIS 306 (2007).

Fundamental idea of “due process of law” is that of “notice” and “hearing.” City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 , 1934 Ga. LEXIS 280 (1934); Dependable Ins. Co. v. Gibbs, 218 Ga. 305 , 127 S.E.2d 454 , 1962 Ga. LEXIS 487 (1962); Mulcay v. Murray, 219 Ga. 747 , 136 S.E.2d 129 , 1964 Ga. LEXIS 399 (1964); Blocker v. Blackburn, 228 Ga. 285 , 185 S.E.2d 56 , 1971 Ga. LEXIS 542 (1971).

As matter of right when one’s property rights involved. —

Due process of law, as guaranteed by this paragraph of the Constitution, includes notice and hearing as a matter of right when one’s property rights are involved. Sikes v. Pierce, 212 Ga. 567 , 94 S.E.2d 427 , 1956 Ga. LEXIS 446 (1956); Atlantic Ref. Co. v. Spears, 214 Ga. 126 , 103 S.E.2d 547 , 1958 Ga. LEXIS 347 (1958); Dansby v. Dansby, 222 Ga. 118 , 149 S.E.2d 252 , 1966 Ga. LEXIS 412 (1966); Blocker v. Blackburn, 228 Ga. 285 , 185 S.E.2d 56 , 1971 Ga. LEXIS 542 (1971); Hamilton v. Edwards, 245 Ga. 810 , 267 S.E.2d 246 , 1980 Ga. LEXIS 944 (1980).

Citizen must be afforded hearing before condemned. —

The fundamental idea in “due process of law” is that of “notice” and “hearing.” It means that the citizen must be afforded a hearing before the citizen is condemned. There must be a hearing first, and judgment can be rendered only after trial. Citizens' & Contractors' Bank v. Maddox, 175 Ga. 779 , 166 S.E. 227 , 1932 Ga. LEXIS 329 (1932); City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 , 1934 Ga. LEXIS 280 (1934); Morman v. Board of Educ., 218 Ga. 48 , 126 S.E.2d 217 , 1962 Ga. LEXIS 426 (1962).

Under due process clause without notice and opportunity to be heard, there is no jurisdiction to pass judgment. Citizens' & Contractors' Bank v. Maddox, 175 Ga. 779 , 166 S.E. 227 , 1932 Ga. LEXIS 329 (1932).

Valid, binding judgment cannot be set aside without notice and opportunity for hearing. —

Due process requires that a valid and binding judgment cannot be set aside without notice and opportunity for a hearing being afforded the party in whose favor the judgment was rendered. Citizens' & Contractors' Bank v. Maddox, 175 Ga. 779 , 166 S.E. 227 , 1932 Ga. LEXIS 329 (1932).

Statute complies with due process if the statute provides for notice and hearing as right. —

A statute complies with constitutional provisions as to due process if the statute provides for notice and hearing as a matter of right, either in express terms, or by necessary implication. Robitzsch v. State, 189 Ga. 637 , 7 S.E.2d 387 , 1940 Ga. LEXIS 373 (1940); Kirton v. Biggers, 232 Ga. 223 , 206 S.E.2d 33 , 1974 Ga. LEXIS 914 (1974).

Notice and hearing not matter of grace. —

The benefit of notice and a hearing required by due process before judgment is not a matter of grace, but is one of right. Citizens' & Contractors' Bank v. Maddox, 175 Ga. 779 , 166 S.E. 227 , 1932 Ga. LEXIS 329 (1932).

Medical malpractice claims. —

In a medical malpractice action brought by a married couple, it was error for the trial court to dismiss the claims against two defendants because it found that the couple had abused the civil litigation process; nothing indicated that the couple had been given notice that the trial court intended to dismiss their claims for this reason, and Georgia law did not authorize a dismissal on this basis. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649 , 644 S.E.2d 514 , 2007 Ga. App. LEXIS 389 (2007), cert. denied, No. S07C1177, 2007 Ga. LEXIS 626 (Ga. Sept. 10, 2007), cert. denied, No. S07C1164, 2007 Ga. LEXIS 651 (Ga. Sept. 10, 2007).

Requirements of due process are satisfied if a citizen has reasonable notice and opportunity to be heard, and to present a claim or defense, with due regard to the nature of the proceeding and the character of the rights which may be affected by it. Hancock v. Board of Tax Assessors, 226 Ga. 570 , 176 S.E.2d 102 , 1970 Ga. LEXIS 599 (1970).

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Hamilton v. Edwards, 245 Ga. 810 , 267 S.E.2d 246 , 1980 Ga. LEXIS 944 (1980).

Due process concerns were satisfied by a trial court’s order, which announced that a hearing would be held “to allow final argument as to whether” the land should be partitioned or sold and which directed the parties to be “prepared to present all evidence on all issues”; the order was clearly adequate to inform a minority owner that the trial court intended the proceedings to be a final hearing and that a ruling would be issued thereafter. Talmadge v. Elson Props., 279 Ga. 268 , 612 S.E.2d 780 , 2005 Ga. LEXIS 298 (2005).

When required notice allows or requires act or response within certain time. —

When notice is required by law to be given to a party who has the right or is required to in some way act or respond to the notice within a prescribed period of time, the date of the notice must run from the date of its receipt unless there is an express statutory provision to the contrary. Hamilton v. Edwards, 245 Ga. 810 , 267 S.E.2d 246 , 1980 Ga. LEXIS 944 (1980).

Statute upheld if persons accorded notice and hearing applicable to cases of similar nature. —

A statute does not violate due process of law if all persons to whom the statute applies are accorded notice and a hearing applicable to all cases of a similar nature. Southern Ry. v. Overnite Transp. Co., 223 Ga. 825 , 158 S.E.2d 387 , 1967 Ga. LEXIS 720 (1967).

Procedural due process of law does not require “preseizure” hearing in cases of contraband condemnation. Tant v. State, 247 Ga. 264 , 275 S.E.2d 312 , 1981 Ga. LEXIS 596 (1981).

Forfeiture provision affords adequate notice and hearing to comport with due process. —

O.C.G.A. § 16-13-49 affords adequate notice and adequate hearing so as to comport with due process of law as required by the federal Constitution and the Georgia Constitution. Tant v. State, 247 Ga. 264 , 275 S.E.2d 312 , 1981 Ga. LEXIS 596 (1981).

The fact that the owner of property sought to be condemned under O.C.G.A. § 16-13-49 had adequate notice and an opportunity for hearing is apparent from the facts of the owner’s timely filing of a response to the condemnation petition and the owner’s presentation of oral testimony at the hearing. Tant v. State, 247 Ga. 264 , 275 S.E.2d 312 , 1981 Ga. LEXIS 596 (1981).

Notice by publication under § 48-4-46 . —

It is not presumed that the General Assembly intended to enable a tax sale purchaser to forego any methods of notice of foreclosure of the right to redeem which might be required by the due process clause, and the words “for any reason” in O.C.G.A. § 48-4-46(c) are construed to mean that notice by publication is permissible only if a sheriff’s inability to effect personal service satisfies the constitutional mandate of due process. Hamilton v. Renewed Hope, Inc., 277 Ga. 465 , 589 S.E.2d 81 , 2003 Ga. LEXIS 999 (2003).

In post-seizure cases only reasonable notice and reasonably fair opportunity for hearing before forfeiture required. —

All that procedural due process of law requires in “post-seizure” cases is notice and a hearing at which the owner or other party having an interest to be protected can appear and present a claim to the property being condemned. Any stipulated period of time as notice is not constitutionally required. All that is required by due process of law is that the affected party have reasonable notice and a reasonably fair opportunity for a hearing before the vehicle or other property is forfeited for a violation of the law. Tant v. State, 247 Ga. 264 , 275 S.E.2d 312 , 1981 Ga. LEXIS 596 (1981).

Whether or not one is deprived of fundamental right to fair hearing depends upon facts of each case. Brownlee v. Williams, 233 Ga. 548 , 212 S.E.2d 359 , 1975 Ga. LEXIS 1374 (1975).

Overlap in judicial and prosecutory functions not per se violative of due process. —

It is not unusual at administrative type hearings to have considerable overlap in judicial and prosecutory functions. Such is not per se violative of due process. Brownlee v. Williams, 233 Ga. 548 , 212 S.E.2d 359 , 1975 Ga. LEXIS 1374 (1975).

When due process denied. —

If a body vested with a duty to make judgments has unlawfully delegated that responsibility to another, or if the inseparation of judicial and prosecutory functions engenders a biased hearing, due process is denied. Brownlee v. Williams, 233 Ga. 548 , 212 S.E.2d 359 , 1975 Ga. LEXIS 1374 (1975).

Banning expert from testifying. —

In a medical malpractice action, the trial court was required to afford an expert notice and an opportunity to be heard before imposing the sanction of banning the expert from testifying. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649 , 644 S.E.2d 514 , 2007 Ga. App. LEXIS 389 (2007), cert. denied, No. S07C1177, 2007 Ga. LEXIS 626 (Ga. Sept. 10, 2007), cert. denied, No. S07C1164, 2007 Ga. LEXIS 651 (Ga. Sept. 10, 2007).

Notice to and hearing of valid license holder required before revocation of license. —

The holder of a valid license which has been properly issued may enjoin its revocation and the interference with the holder’s lawful business thereunder in the absence of notice and a hearing. Rose v. Grow, 210 Ga. 664 , 82 S.E.2d 222 , 1954 Ga. LEXIS 405 (1954).

Statutory procedure for garnishments comports with due process. —

Constitutional due process requirements are adequately met by the judicial supervision and notice to the defendant mandated by the statutory procedure for garnishments. Garnishment of wages to satisfy alimony orders or judgments meets the demands of due process. Black v. Black, 245 Ga. 281 , 264 S.E.2d 216 , 1980 Ga. LEXIS 765 (1980).

When notice and hearing implied. —

Act providing for removal of commissioners of roads and revenues of a named county, by the judge of the superior court or the ordinary (now judge of the probate court) after investigation of charges preferred by 25 qualified voters, or by the judge of the superior court after such investigation when charges are made by the grand jury, did not violate the due process clause of either the state or the federal Constitution for lack of requirement as to notice and hearing, in view of the provision that the judge or the ordinary to whom the complaint was presented should cause an investigation to be made of such charges, “at which investigation the accused shall have the benefit of counsel, if desired,” since the provision quoted implied such requirement as to notice and hearing. Robitzsch v. State, 189 Ga. 637 , 7 S.E.2d 387 , 1940 Ga. LEXIS 373 (1940).

Notice of hearing presumed sufficient. —

After a trial court indicated that the court sent a notice of a combined rescheduled hearing on a construction manager’s motion for summary judgment and a hearing on the issue of unliquidated damages to a condominium owner, it was presumed that such notice was sent and received in compliance with O.C.G.A. §§ 9-11-5(b) and 9-11-6(d) , and the owner’s mere contention that the owner did not receive notice of the hearing was not controlling and did not satisfy the owner’s burden of showing that notice was in fact not received; accordingly, the owner’s claim that the owner did not appear at the hearing because notice was insufficient lacked merit, due process was met, and the judgment entered from the hearing was affirmed. Blue Stone Lofts, LLC v. D'Amelio, 268 Ga. App. 355 , 601 S.E.2d 719 , 2004 Ga. App. LEXIS 797 (2004), cert. denied, No. S04C1908, 2005 Ga. LEXIS 83 (Ga. Jan. 10, 2005).

Due process clause does not guarantee to state citizen any particular form or method of state procedure. Hancock v. Board of Tax Assessors, 226 Ga. 570 , 176 S.E.2d 102 , 1970 Ga. LEXIS 599 (1970).

Constitutional validity of any chosen method of service may be defended on the ground that it is in itself reasonably certain to inform those affected or, when conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Benton v. Modern Fin. & Inv. Co., 244 Ga. 533 , 261 S.E.2d 359 , 1979 Ga. LEXIS 1328 (1979).

Notice of process reasonably certain to inform excused when persons missing or unknown. —

As examples of conditions which would not permit notice of process reasonably certain to inform and which would therefore excuse the use of a form of service falling below this standard, the United States Supreme Court cited “the case of persons missing or unknown.” Benton v. Modern Fin. & Inv. Co., 244 Ga. 533 , 261 S.E.2d 359 , 1979 Ga. LEXIS 1328 (1979).

Service of process insufficient. —

Service upon a spouse against whom a temporary protective order had been granted under the Georgia Family Violence Act was insufficient. The original service provided the spouse with no notice of the allegations, and service upon the spouse as the spouse left a hearing in the case was improper under the rule insulating a party in attendance upon the trial of a case from service of process. Loiten v. Loiten, 288 Ga. App. 638 , 655 S.E.2d 265 , 2007 Ga. App. LEXIS 1262 (2007).

Out of state ex parte proceeding not given effect. —

When the putative father of an illegitimate child sought and obtained a decree of a Tennessee court declaring him to be the father of such child and creating the relationship of parent and child between the petitioner and the child, the decree showing on its face that it was an ex parte proceeding, it will not be given effect in this state as against the mother when she was not made a party in the proceeding, was not served, did not appear and plead, or otherwise waive service or consent to such decree or have notice thereof, as it was violative of the due process clauses of the state and federal Constitutions. Day v. Hatton, 210 Ga. 749 , 83 S.E.2d 6 , 1954 Ga. LEXIS 449 (1954).

Authorization of suit against nonresidents in residence when cause arose not violative of due process. —

Georgia Laws, 1957, p. 649, § 1, which authorizes a suit against any person who is a bona fide resident of another state and who was a resident of this state when the cause of action related to a vehicular accident arose, is not violative of this section of the Georgia Constitution and the Fourteenth Amendment of the United States Constitution.Crowder v. Ginn, 248 Ga. 824 , 286 S.E.2d 706 , 1982 Ga. LEXIS 1094 (1982).

Jurisdiction over nonresident under long arm statute. —

Under the long arm statute, jurisdiction over a nonresident exists on the basis of transacting business in this state if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice. Hollingsworth v. Cunard Line, 152 Ga. App. 509 , 263 S.E.2d 190 , 1979 Ga. App. LEXIS 2977 (1979).

The long arm statute contemplates that jurisdiction shall be exercised over nonresident parties to the maximum extent permitted by procedural due process. Hollingsworth v. Cunard Line, 152 Ga. App. 509 , 263 S.E.2d 190 , 1979 Ga. App. LEXIS 2977 (1979).

Showing of nonresident’s “minimum contact” with forum state. —

In order to satisfy the constitutional requirement of procedural due process, it must be shown that the nonresident defendant has some “minimum contact” with the forum state so as to make the state’s exercise of jurisdiction over the defendant reasonable. Hollingsworth v. Cunard Line, 152 Ga. App. 509 , 263 S.E.2d 190 , 1979 Ga. App. LEXIS 2977 (1979).

Sufficient connection between defendant and forum state and reasonable notice to defendant. —

The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought and a sufficient connection between the defendant and the forum state as to make it fair to require defense of the action in the forum. Hollingsworth v. Cunard Line, 152 Ga. App. 509 , 263 S.E.2d 190 , 1979 Ga. App. LEXIS 2977 (1979).

Since a husband did not present any evidence demonstrating a lack of personal jurisdiction, there was nothing to refute the wife’s showing that the parties’ only marital domicile in the United States was Georgia and that the husband had come back to Georgia several times in an attempt to reconcile; therefore, the trial court erred in dismissing the divorce for lack of personal jurisdiction. Walters v. Walters, 277 Ga. 221 , 586 S.E.2d 663 , 2003 Ga. LEXIS 796 (2003).

Sufficient connection if suit based on contract with substantial connection with state. —

It is sufficient for purposes of due process that a suit is based on a contract which has substantial connection with that state. Hollingsworth v. Cunard Line, 152 Ga. App. 509 , 263 S.E.2d 190 , 1979 Ga. App. LEXIS 2977 (1979).

To the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state; the exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. Hollingsworth v. Cunard Line, 152 Ga. App. 509 , 263 S.E.2d 190 , 1979 Ga. App. LEXIS 2977 (1979).

Hearing implies right to support allegations by argument and proof. —

The hearing required by due process in its essence implies that one who is entitled to it shall have the right to support one’s allegations by argument and proof. City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 , 1934 Ga. LEXIS 280 (1934).

If plaintiff had hearing complying with state law, no deprivation of due process. —

The point that petitioner was unconstitutionally deprived of any due process right lost all its force when the plaintiff admitted that the plaintiff had a hearing, which complied with state law, before the plaintiff’s property was destroyed to abate a nuisance. Stephens v. City of Ellijay, 171 Ga. 612 , 156 S.E. 253 , 1930 Ga. LEXIS 518 (1930).

Local rules providing defendant is to appear for trial one hour from the time the court notified the defendant by telephone to appear provide for reasonable notice and opportunity to be heard and are not constitutionally defective. Archer v. Monroe, 165 Ga. App. 724 , 302 S.E.2d 583 , 1983 Ga. App. LEXIS 1998 (1983).

Defendant waived due process argument by actually appearing and failing to object. —

In an action in which defendant claimed that defendant’s due process rights under Ga. Const. 1983, Art. I, Sec. I, Para. I were violated when defendant was not given written notice of the intention to terminate defendant from the drug court program, defendant waived the issue by failing to object and by appearing at the hearing. Andrews v. State, 276 Ga. App. 428 , 623 S.E.2d 247 , 2005 Ga. App. LEXIS 1273 (2005).

Statutory Notice of Proscribed Conduct

Statute must be definite and certain in its provisions to be valid, and when it is so vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application, it violates the first essential of due process of law. City of Atlanta v. Southern Ry., 213 Ga. 736 , 101 S.E.2d 707 , 1958 Ga. LEXIS 262 (1958).

Constitution does not require impossible standards of statutory clarity, and does not require more than that the language convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. If a statute is so designed that persons of ordinary intelligence who would be law abiding can tell what conduct must be to conform to its requirements and it is susceptible of uniform interpretation and application by those charged with the responsibility of enforcing it, it is invulnerable to an attack for vagueness. Watts v. State, 224 Ga. 596 , 163 S.E.2d 695 , 1968 Ga. LEXIS 859 (1968).

Statute must convey sufficiently definite warning as to proscribed conduct. —

Due process only requires that a statute convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Jones v. State, 219 Ga. 848 , 136 S.E.2d 358 , 1964 Ga. LEXIS 423, cert. denied, 379 U.S. 935, 85 S. Ct. 330 , 13 L. Ed. 2 d 345, 1964 U.S. LEXIS 105 (1964); Lanthrip v. State, 235 Ga. 10 , 218 S.E.2d 771 , 1975 Ga. LEXIS 766 (1975); Constantino v. State, 243 Ga. 595 , 255 S.E.2d 710 , 1979 Ga. LEXIS 1003, cert. denied, 444 U.S. 940, 100 S. Ct. 293 , 62 L. Ed. 2 d 306, 1979 U.S. LEXIS 3630 (1979).

When uncertainty in statute amounts to denial of due process. —

Uncertainty in a statute which will amount to a denial of due process of law is not the difficulty of ascertaining whether close cases fall within or without the prohibition of the statute, but whether the standard established by the statute is so uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved. Mixon v. State, 226 Ga. 869 , 178 S.E.2d 189 , 1970 Ga. LEXIS 716 (1970).

Sufficient definiteness of criminal statute. —

A criminal statute that defines a crime with sufficient definiteness to enable one familiar with the acts made criminal to determine when the statute is being violated is not void as offending the Fourteenth Amendment of the Constitution of the United States, or this section of the Constitution of Georgia. Farrar v. State, 187 Ga. 401 , 200 S.E. 803 , 1939 Ga. LEXIS 412 (1939); Lanthrip v. State, 235 Ga. 10 , 218 S.E.2d 771 , 1975 Ga. LEXIS 766 (1975).

Appellant, a juvenile, was not entitled to the dismissal of two counts of street gang activity based on the juvenile’s assertion that O.C.G.A. § 16-15-4(a) failed to inform ordinary citizens of what associations with a criminal street gang were prohibited under the statute; the statute required that a defendant’s association with a group be active and include the commission of an enumerated offense under O.C.G.A. § 16-15-13(1), and that provided a sufficiently definite warning to persons of ordinary intelligence of the prohibited conduct. In re K.R.S., 284 Ga. 853 , 672 S.E.2d 622 , 2009 Ga. LEXIS 26 (2009).

Even in penal statutes, due process requires only certainty and definiteness for common understanding act forbidden. —

Even in statutes penal in nature, due process only requires that they be of such certainty and definiteness as would enable a person of ordinary intelligence to comprehend that the particular act the person proposes to do is forbidden by the statute. Campbell v. J.D. Jewell, Inc., 221 Ga. 543 , 145 S.E.2d 569 , 1965 Ga. LEXIS 524 (1965).

With application not as strict with respect to civil statutes. —

Application of due process with respect to vagueness and uncertainty is not applied as strictly to civil statutes as to those penal in nature. The rule is that a statute may be too vague and uncertain to be capable of enforcement as a penal statute and yet may be sufficiently certain to set forth a rule of civil conduct. Campbell v. J.D. Jewell, Inc., 221 Ga. 543 , 145 S.E.2d 569 , 1965 Ga. LEXIS 524 (1965); Willis v. Jackson, 148 Ga. App. 432 , 251 S.E.2d 341 , 1978 Ga. App. LEXIS 3184 (1978).

Vagueness challenges to statutes not involving First Amendment freedoms must be examined in light of facts of the case at hand. State v. Hudson, 247 Ga. 36 , 273 S.E.2d 616 , 1981 Ga. LEXIS 601 (1981).

Statutory crime of reckless conduct sufficiently definite. —

Former Code 1933, § 26-2910 (see now O.C.G.A. § 16-5-60 ) was sufficiently definite to give a person of ordinary intelligence fair notice that such conduct was forbidden by the statute. Horowitz v. State, 243 Ga. 441 , 254 S.E.2d 828 , 1979 Ga. LEXIS 928 (1979).

Statutory crime of possession of marijuana with intent to distribute not indefinite. —

O.C.G.A. § 16-13-30(j)(1), prohibiting possession of marijuana with intent to distribute, is not vague and uncertain, and does not violate due process. Walker v. State, 261 Ga. 739 , 410 S.E.2d 422 , 1991 Ga. LEXIS 1040 (1991).

Standard for lawyer’s conduct not vague or overbroad. —

The standard providing that a lawyer shall not without just cause to the detriment of the lawyer’s client willfully abandon or willfully disregard a legal matter entrusted to the lawyer, or so continuously neglect a legal matter as to be tantamount or equivalent to willfulness is not unconstitutionally vague or overbroad. In re Sliz, 246 Ga. 797 , 273 S.E.2d 177 , 1980 Ga. LEXIS 1286 (1980).

Revocation of liquor license. —

That part of the Jasper, Ga., Alcoholic Beverages Ordinance that authorized license revocation for any legal violation that the city council determined to have occurred violated due process principles and could not stand; there were no limits on the council’s discretionary revocation authority and no “ascertainable standards” to guide or limit the grounds for the council’s decision. Folsom v. City of Jasper, 279 Ga. 260 , 612 S.E.2d 287 , 2005 Ga. LEXIS 292 (2005).

Interim ethics rule not void for vagueness. —

Good and sufficient cause standard in Interim Ethics Rules 505-2-.03(1)(o), Ga. Comp. R. & Regs. r. 505-2-.03(1)(o), which permitted suspension or revocation of an educator’s certificate, was not void for vagueness as it gave a School Superintendent notice that the Superintendent’s decision to bypass the sheriff’s department and brandish a firearm and threaten a suspect of criminal activity on a public highway during school hours could constitute “good and sufficient cause” for the suspension of an educator certificate. Prof'l Stds. Comm'n v. Alberson, 273 Ga. App. 1 , 614 S.E.2d 132 , 2005 Ga. App. LEXIS 405 (2005).

Provision relieving surety of liability after final judgment not void for uncertainty. —

Although former Code 1933, § 27-904 (see now O.C.G.A. § 17-6-31 ) failed to describe the procedure by which the surety may be relieved after final judgment, it was not on this account void for uncertainty and indefiniteness as it named the court in which the relief must be had as being the same court rendering the final judgment, and made it mandatory for that court to relieve the surety, thus requiring the court to act in such manner as a court may properly act to effectually grant such relief, and to the extent that the act was silent, the provisions of former Code 1933, § 3-105 (see now O.C.G.A. § 9-2-3 ) may be resorted to. Fields v. Arnall, 199 Ga. 491 , 34 S.E.2d 692 , 1945 Ga. LEXIS 418 (1945).

Sufficient definiteness of “place of amusement” to be basis of criminal prosecution. —

The words “place of amusement” in former Act forbidding establishment of certain businesses outside municipal limits without obtaining a license from municipal authorities were not so vague and indefinite that they could not be made the basis of a criminal prosecution. Ingram v. State, 193 Ga. 565 , 19 S.E.2d 493 , 1942 Ga. LEXIS 447 (1942).

Statutory prohibition of harassing phone calls comports with due process. —

Ga. L. 1968, p. 1249, § 1 and Ga. L. 1968, p. 9, § 1 (see now O.C.G.A. §§ 16-11-39.1 and 46-5-21 ), which prohibit telephone calls for the purpose of harassing, are clear and can be readily understood by people of ordinary intelligence seeking to avoid their violation, and therefore these sections are not unconstitutionally vague or broad and do not violate due process. Constantino v. State, 243 Ga. 595 , 255 S.E.2d 710 , 1979 Ga. LEXIS 1003, cert. denied, 444 U.S. 940, 100 S. Ct. 293 , 62 L. Ed. 2 d 306, 1979 U.S. LEXIS 3630 (1979).

Vagueness of ordinance forbidding disorderly conduct. —

An ordinance forbidding “anyone to engage in or do anything that is disorderly, either by words or unbecoming conduct at any place on any street, alley, park, or any place where such disorderly conduct may be seen or heard by any person in any said city,” is too vague and indefinite to be the basis for the infliction of corporal punishment, such as service on a city chain gang, or the imposition of a fine as an alternative. Griffin v. Smith, 184 Ga. 871 , 193 S.E. 777 , 1937 Ga. LEXIS 649 (1937).

Definition and determination of alimony comports with due process. —

Because the legislative intent was clear and the statute provided “fair notice” of its meaning, former Code 1933, § 30-201 (see now O.C.G.A. § 19-6-1 ) did not violate the due process clause of the state or federal Constitution. Davenport v. Davenport, 243 Ga. 613 , 255 S.E.2d 695 , 1979 Ga. LEXIS 1009 (1979).

Statute proscribing inducement to parents to part with children. —

The terms of O.C.G.A. § 19-8-24 , making it unlawful to directly or indirectly hold out an inducement to parents to part with children, were sufficiently clear to apprise defendant that offering an automobile to a parent in exchange for physical custody or control of the child was proscribed. Douglas v. State, 263 Ga. 748 , 438 S.E.2d 361 , 1994 Ga. LEXIS 51 (1994).

Terms “nuisance” and “offensive.” —

Term “nuisance” itself had a definite and determined meaning in the law, and was not indefinite, vague, or uncertain; furthermore, the term “offensive” did not render a nuisance standard unconstitutionally vague; thus, Glynn County, Ga., Ordinance § 2-16-237 was not unconstitutionally vague. Stanfield v. Glynn County, 280 Ga. 785 , 631 S.E.2d 374 , 2006 Ga. LEXIS 388 (2006).

For involuntary mental hospital commitment clear and convincing standard of proof required. —

Precepts of due process require a clear and convincing standard of proof in a civil proceeding to commit an individual to a mental hospital involuntarily. Pitts v. State, 151 Ga. App. 691 , 261 S.E.2d 435 , 1979 Ga. App. LEXIS 2752 (1979).

Trial court had for the court’s consideration the evidence of numerous prior committals for psychiatric treatment, evidence that following release from such structured treatment defendant had suffered decompensation and had often become violent and aggressive toward others or the defendant personally when not undergoing a regular course of treatment and medication, even though the state did not affirmatively offer it or any additional evidence at the release hearing. Pitts v. State, 151 Ga. App. 691 , 261 S.E.2d 435 , 1979 Ga. App. LEXIS 2752 (1979).

Statutory method of determining lunacy and appointing guardian comports with due process. —

In view of the express requirement as to formal examination by inspection of a person alleged to be a lunatic, the statute prescribing the method of determining an issue of lunacy, and providing for the appointment of a guardian of one adjudged to be a lunatic, does not violate the due process clause of the state or the federal Constitution in that it fails to provide for any notice to the person alleged to be insane. Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4 , 177 S.E. 803 , 1934 Ga. LEXIS 443 (1934).

Legislation may require judiciary to provide definitions. —

One of the traditional functions of courts is to interpret and construe legislative enactments. There is no due process prohibition on the enactment of legislation which requires definitions to be provided by the judiciary. Bell v. Barrett, 241 Ga. 103 , 243 S.E.2d 40 , 1978 Ga. LEXIS 883 (1978).

Court’s duty to adopt construction of law sustaining constitutionality when capable of two constructions. —

When a statute or an ordinance is capable of two constructions, constitutional under one construction and unconstitutional under the other, it is the duty of the court to adopt that construction which will sustain the statute’s constitutionality. City of Newnan v. Atlanta Laundries, Inc., 174 Ga. 99 , 162 S.E. 497 , 1932 Ga. LEXIS 4 (1932).

Higher court’s appeal order improperly dismissed. —

Superior court erred in dismissing appellant’s appeal without allowing the appellant an opportunity to be heard, in contravention of an order of the Court of Appeals and resulting in the violation of the appellant’s right to due process. Walton v. State, 207 Ga. App. 787 , 429 S.E.2d 158 , 1993 Ga. App. LEXIS 343 (1993).

DUI offenses. —

Trial court did not err in denying defendant’s motion to quash the uniform traffic citation even though the citation did not specify whether defendant was being charged with DUI under O.C.G.A. § 40-6-391(a)(1), known as “less safe DUI” or under O.C.G.A. § 40-6-391(a)(5), known as “per se DUI” since those provisions were not separate offenses but were merely alternative ways to prove the offense of DUI; however, the trial court did violate defendant’s procedural due process rights to present evidence by telling the state to stick to proving “per se DUI” because the trial court indicated to defendant that it was not going to require defendant to defend against a “less safe DUI” charge even though it later clarified that the resulting conviction was for “less safe DUI.” Rigdon v. State, 270 Ga. App. 217 , 605 S.E.2d 903 , 2004 Ga. App. LEXIS 1392 (2004).

Police Power — Generally

Regulation for promotion of public welfare under police power. —

While the maxim salus populi suprema lex cannot be used as a mere pretext for the curtailment of constitutional safeguards still, when the maxim does apply, it acts as a limitation on the rights of the individual which otherwise would be beyond the power of the legislature to regulate or circumscribe. Ingram v. State, 193 Ga. 565 , 19 S.E.2d 493 , 1942 Ga. LEXIS 447 (1942).

Principle of laws passed under inherent police power. —

When a law is attacked on the ground that it deprives a citizen of liberty or property without due process of law, the underlying principle of laws passed under the inherent police power of the government is that it is the duty of each citizen to use one’s property and exercise one’s rights and privileges with due regard to the personal and property rights of others. De Berry v. City of La Grange, 62 Ga. App. 74 , 8 S.E.2d 146 , 1940 Ga. App. LEXIS 598 (1940).

Due process clause not designed to interfere with police power. —

Due process clauses of the state and federal Constitutions were not designed to interfere with the police power of the state. Davis v. Stark, 198 Ga. 223 , 31 S.E.2d 592 , 1944 Ga. LEXIS 396 (1944).

Municipal ordinances must be reasonable; the limitations of the power of a city council in this regard are not to be measured by the more extensive powers of the state legislature. De Berry v. City of La Grange, 62 Ga. App. 74 , 8 S.E.2d 146 , 1940 Ga. App. LEXIS 598 (1940).

Municipal ordinances cannot be oppressive or unfairly discriminate. —

Ordinances cannot be oppressive or unreasonable, nor can they unfairly discriminate in favor of one citizen or of one class against another. De Berry v. City of La Grange, 62 Ga. App. 74 , 8 S.E.2d 146 , 1940 Ga. App. LEXIS 598 (1940).

Construction of ordinance imposing liability on property owners for injuries to third persons. —

If a city ordinance can be taken and construed as meaning that the owner of any improved or vacant premises of whatever character and size, within the limits of the city, becomes instantly liable for injuries to third persons on account of and from the moment any trash, banana peeling, ice, snow, or what not falls upon the abutting sidewalk, without fault or knowledge on the part of such owner, it would manifestly be a rule so harsh and unconscionable as would render such municipal ordinance unconstitutional and void as violative of this paragraph. Ellis v. Southern Grocery Stores, Inc., 46 Ga. App. 254 , 167 S.E. 324 , 1933 Ga. App. LEXIS 16 (1933).

Prohibition on scalping tickets comports with due process. —

By prohibiting the practice of “scalping” tickets, Ga. L. 1970, p. 172 and Ga. L. 1973, p. 196 was reasonably related to a proper legislative objective and consequently did not violate the due process clause of either the state or federal Constitution. The statute puts all sports fans on an equal footing in the race to the ticket window. State v. Major, 243 Ga. 255 , 253 S.E.2d 724 , 1979 Ga. LEXIS 875 (1979).

Statutes concerning illegality of possession of marijuana not violative of due process. —

State has no right, under the guise of exercising police power, to invade the personal rights and liberty of the individual citizen by legislation which has no reasonable relation to a legitimate state purpose. If marijuana is a perfectly harmless substance, then its possession cannot constitutionally be made criminal. If marijuana is a dangerous drug, the state has a right to make its sale and use criminal. Marijuana is not demonstrated to be such a harmless substance that the legislature has no right to make its sale and possession criminal. Blincoe v. State, 231 Ga. 886 , 204 S.E.2d 597 , 1974 Ga. LEXIS 1269 (1974).

Classification of cocaine as narcotic drug not violative of due process. —

Classification of cocaine by the legislature as a narcotic drug, when there is scientific evidence to the contrary, does not violate the due process and equal protection clauses of the United States and Georgia Constitutions. Robinson v. State, 244 Ga. 15 , 257 S.E.2d 523 , 1979 Ga. LEXIS 1082 (1979).

Right of legislature to make reasonable classifications of persons and things for purpose of legislation is clearly recognized by all authorities. The mere fact that legislation is based on a classification and is made to apply to certain persons and not to others does not affect its validity, if it is so made that all persons subject to its terms are treated alike under like circumstances and conditions. When provisions operate uniformly upon all minors who are employed under such circumstances as to come under the Workers’ Compensation Act, who are 18 years of age or over, and who are not mentally incompetent or physically incapable of earning a livelihood, the fact that they do not apply to all minors, that is, all persons below the age of 21 years, in no way affects the validity of the statute under the provisions of the Constitution. Rourke v. U.S. Fid. & Guar. Co., 187 Ga. 636 , 1 S.E.2d 728 , 1939 Ga. LEXIS 758 (1939).

Basis for statutory classification must relate to legislative purpose. —

When provisions of statute require hotels and inns charging $2.00 per day or more to provide outside fire escapes and make violation a misdemeanor, the amount charged the guests has no conceivable relation to the danger of fire, the danger the law seeks to avoid. The basis for statutory classification must relate in some degree to the purpose of the legislation; and the classification here is arbitrary, rendering the law unconstitutional. Geele v. State, 202 Ga. 381 , 43 S.E.2d 254 , 1947 Ga. LEXIS 439 (1947).

Justification for legislative classification and regulation of business. —

Classification of businesses into different classes for legislative regulation is not justified by a mere difference in the nature or character of two businesses. A right of classification arises on behalf of the general public if a business is affected with a great public interest in which all of the citizens of the state are concerned and injury will result to the general public unless regulatory control is applied. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1 , 187 S.E. 648 , 1936 Ga. LEXIS 166 (1936), rev'd, 301 U.S. 459, 57 S. Ct. 838 , 81 L. Ed. 1223 , 1937 U.S. LEXIS 301 (1937).

Discriminatory requirement for business certificate. —

Georgia Law 1937, p. 748, § 12 is discriminatory against individuals not connected with a partnership or corporation, since the individual would not be allowed to engage in the plumbing or steamfitting business without obtaining the certificate provided for by the Act, whereas a partnership or corporation would have the right to engage in either of the businesses if one person holding a certificate is connected with the partnership or corporation, whether or not that person is supervising the plumbing or steamfitting work done. Jenkins v. Manry, 216 Ga. 538 , 118 S.E.2d 91 , 1961 Ga. LEXIS 271 (1961).

No reasonable basis for discrimination between classes of persons. —

There is no reasonable basis for requiring examination and licensing of plumbing and steamfitters who are not employees of public utility corporations, and exempting employees of public utility corporations operating in the territory covered by the Act. This is an unjust discrimination between classes of persons and renders the proviso in Ga. L. 1937, p. 748, § 16-A unconstitutional and void, as a violation of the due process clauses of the state and federal Constitutions. Jenkins v. Manry, 216 Ga. 538 , 118 S.E.2d 91 , 1961 Ga. LEXIS 271 (1961).

Arbitrary declaration that home solicitors constitute nuisance and are subject to punishment violates due process. —

To arbitrarily declare, without qualification, that every solicitor who goes to a private home to try to conduct an otherwise perfectly legal business is a nuisance and subject to fine or imprisonment is an unreasonable interference with one’s normal legal rights, and is without due process of law. De Berry v. City of La Grange, 62 Ga. App. 74 , 8 S.E.2d 146 , 1940 Ga. App. LEXIS 598 (1940).

When Act purporting to amend city charter is void, ordinances adopted pursuant thereto are unenforceable. —

Georgia Law 1951, p. 3074, which purported to amend city’s charter, was too vague, indefinite, and uncertain in meaning to be enforced by the courts and was therefore void; and being so, the ordinances which the city adopted pursuant thereto were unsupported by charter authority and therefore unenforceable. City of Atlanta v. Southern Ry., 213 Ga. 736 , 101 S.E.2d 707 , 1958 Ga. LEXIS 262 (1958).

Need to specify what ordinance violates in order to raise question of constitutionality. —

In prosecution for violation of city code provision making it unlawful to possess a lottery ticket, demurrer (now motion to dismiss) on constitutional grounds which does not specify by chapter number, section number or paragraph number, or in any other manner identify what law or constitutional provision it is contended is violated by the ordinance attacked is entirely too vague and general to raise any question as to the constitutionality of the ordinance insofar as it might contravene the due process clauses of the state and federal Constitutions. Smith v. City of Albany, 97 Ga. App. 731 , 104 S.E.2d 488 , 1958 Ga. App. LEXIS 868 (1958).

Officer empowered to order owner away from burning building. —

Under the police power, a deputy sheriff is authorized to go upon private property and direct the owner to move back from a burning building. Veit v. State, 182 Ga. App. 753 , 357 S.E.2d 113 , 1987 Ga. App. LEXIS 2656 (1987).

Police Power — Business

Right to transact business within realms or bounds not contrary to public health, safety, morals, or policy is property right, and a citizen’s business is entitled to protection against discriminatory or prohibitive legislation. Jones v. City of Atlanta, 51 Ga. App. 218 , 179 S.E. 922 , 1935 Ga. App. LEXIS 635 (1935).

Trade regulation in exercise of police power within power of General Assembly. —

It is within the power of the General Assembly, in the proper exercise of the police power of the state, to regulate certain trades or occupations, and not regulate others, unless the regulations are so unreasonable and extravagant that the property or personal rights of the citizen are unnecessarily and arbitrarily interfered with, without due process of law. Berta v. State, 223 Ga. 267 , 154 S.E.2d 594 , 1967 Ga. LEXIS 492 (1967).

Business regulations void when without reasonable or substantial relation to general welfare. —

Georgia Law 1937, p. 280, establishing a state board of photographic examiners, and providing, among other things, that except as to stated classes, persons desiring to engage in the business of photography or photofinishing must stand an examination and thereby qualify as to competency, ability, and integrity, and denouncing as a crime a violation of any of the terms of the Act, is unconstitutional and void as an exercise of the police power. The prescribed regulations are imposed upon a lawful business, and considered as a whole do not bear any reasonable or substantial relation to the public health, safety, or morality, or other phase of the general welfare. Bramley v. State, 187 Ga. 826 , 2 S.E.2d 647 , 1939 Ga. LEXIS 771 (1939).

Municipal bylaws and ordinances undertaking to regulate useful business enterprises are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulation, there has been an unwarranted and arbitrary interference with the constitutional right to carry on a lawful business or use and enjoy property. Borough of Atlanta v. Kirk, 175 Ga. 395 , 165 S.E. 69 , 1932 Ga. LEXIS 257 (1932).

If the facts and evidence before the municipal body at the time of passing the ordinance would authorize the exercise by that body of a discretion in passing or refusing to pass the ordinance, then a court should not declare the ordinance unreasonable, arbitrary, and void merely because the court should take the view that it would be best for the public that the ordinance should not be enforced. Borough of Atlanta v. Kirk, 175 Ga. 395 , 165 S.E. 69 , 1932 Ga. LEXIS 257 (1932).

Legislature may pass reasonable cemetery regulations. —

In the exercise of the police power of the state, and in order to promote the public health and well-being, the legislature may pass reasonable regulations as to the establishment and operation of cemeteries. Arlington Cem. v. Bindig, 212 Ga. 698 , 95 S.E.2d 378 , 1956 Ga. LEXIS 502 (1956).

Legislative power to regulate professions. —

Portion of Act regulating the practice of dentistry which defines the making or repairing of appliances usable on teeth or as teeth, unless ordered by a licensed dentist as part of the practice of dentistry, did not violate this provision. Holcomb v. Johnston, 213 Ga. 249 , 98 S.E.2d 561 , 1957 Ga. LEXIS 351 (1957).

Contract bidding process. —

Bidding insurer’s summary judgment motion was properly granted as to its substantive due process claim against a county as the county’s decision to throw out the entire bidding process was rational in light of the taint caused by a consultant’s lack of a counselor’s license under O.C.G.A. §§ 33-23-1.1 and 33-23-4 . Benefit Support, Inc. v. Hall County, 281 Ga. App. 825 , 637 S.E.2d 763 , 2006 Ga. App. LEXIS 1267 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. Feb. 26, 2007).

What due process requires prior to professional board’s decision to initiate proceedings against professional. —

When an investigator was attempting to gain information concerning a doctor’s fitness to practice medicine, due process did not require at this stage of the matter that the doctor be informed of the nature of the charges that have been made to the board or the names of the doctor’s accusers, nor was the doctor denied due process because the doctor was not permitted to participate in selecting the documents to be collected by the investigator or to participate in the deliberations prior to the decision to initiate proceedings against the doctor. Gilmore v. Composite State Bd. of Medical Exmrs., 243 Ga. 415 , 254 S.E.2d 365 , 1979 Ga. LEXIS 918 (1979).

“Fair Trade Act” unconstitutional for violation of due process. —

Georgia Law 1953, Nov.-Dec. Sess., p. 549, permitting a manufacturer under guise of protecting the manufacturer’s property rights in a trade name and trademark to control the price of the manufacturer’s product through the channels of trade into the hands of the ultimate consumer and into the hands of persons with whom the manufacturer had no contractual relationship violated the due process clause of the state Constitution. Cox v. GE Co., 211 Ga. 286 , 85 S.E.2d 514 , 1955 Ga. LEXIS 300 (1955).

Legislature empowered to regulate personal contracts in insurance industry. —

The business of insurance is so far affected with a public interest as to justify legislative regulation. It is within the power of the legislature to regulate the personal contracts involved in such business. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1 , 187 S.E. 648 , 1936 Ga. LEXIS 166 (1936), rev'd, 301 U.S. 459, 57 S. Ct. 838 , 81 L. Ed. 1223 , 1937 U.S. LEXIS 301 (1937).

Ordinance requiring ice cream sellers to secure board of health permit comports with due process. —

The provisions of the ordinance requiring those selling ice cream in a city to secure a permit from the board of health of that city is not unreasonable, unlawful, or void under state laws and the state Constitution. The health and physical welfare of many citizens would be endangered if milk products were not free from all infection. Wright v. Richmond County Dep't of Health, 182 Ga. 651 , 186 S.E. 815 , 1936 Ga. LEXIS 530 (1936).

Municipal ordinance prohibiting sales during certain times at certain place valid under police power. —

A municipal ordinance providing that it shall be illegal “for any person, firm, or corporation to sell or offer for sale any goods, wares, merchandise, pamphlets, magazines, maps, or other article of value, on any Saturday between the hours of 12 Noon and 9 P.M. on any of the following congested sidewalks of said city,” designating certain sidewalks and providing a penalty therefor, is a valid and reasonable regulation for public safety and convenience, under the police power of the city. It was not error to deny an injunction after plaintiffs sought to enjoin enforcement of the ordinance against them, on the grounds that the magazines sold and offered for sale were devoted to religious subjects, and advocated the adoption of a particular form of religion, the distribution of which was a part of their religious belief, and urged that to prohibit the sale of the magazines would be in violation of their rights of religious freedom under the state and federal Constitutions. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943).

Ordinance prohibiting pinball machine business not violative of due process. —

Ordinance prohibiting the owning, maintaining, or operating of pinball machines and the like, authorized under the general welfare clause of the charter of the municipality enacted in pursuance of the police power of the state, is not violative of the due process of law clauses of the federal and state Constitutions, for any reason assigned, or void on the ground of unreasonableness, merely because the effect of the ordinance is to destroy and confiscate the business and property of the petitioner (distributing and leasing novelty machines used for pleasure and skill only), whereas other articles of pleasure and skill are not included in the ordinance. Woodward v. City of Lithonia, 191 Ga. 234 , 11 S.E.2d 476 , 1940 Ga. LEXIS 607 (1940).

Ordinance imposing occupational tax on linen rental service not violative of state or federal due process clause. National Linen Serv. Corp. v. City of Gainesville, 181 Ga. 397 , 182 S.E. 610 , 1935 Ga. LEXIS 99 (1935).

License to sell malt beverages is privilege, not absolute right. —

The refusal of a license to sell malt beverages did not deprive the petitioner of life, liberty, or property as the sale of malt beverages is declared to be a privilege, and denial of a license did not deprive the petitioner of anything to which the petitioner had an absolute right. Harbin v. Holcomb, 181 Ga. 800 , 184 S.E. 603 , 1936 Ga. LEXIS 436 (1936).

License charge imposed by ordinance not deprivation of property without due process. —

License charge imposed by ordinance on dairies, defined as those milking more than six cows, was not void as depriving petitioners of property without due process, nor as denying them the full enjoyment of their rights. Rossman v. City of Moultrie, 189 Ga. 681 , 7 S.E.2d 270 , 1940 Ga. LEXIS 368 (1940).

When ordinance fixing graduated scale of license fees violative of due process. —

A municipal ordinance which uses the gross sales of the preceding year as a basis on which to fix a graduated scale of license fees for meat markets, and makes no provision for fees for meat markets not in business the preceding year, is unconstitutional in that it is discriminatory and violates the due process and equal protection clauses of the state and federal Constitutions. Elder v. Smith, 188 Ga. 65 , 2 S.E.2d 670 , 1939 Ga. LEXIS 784 (1939).

Ordinance requiring laundry license applicant to give bond not unreasonable. —

An ordinance which requires the applicant for a laundry license to give a bond when articles are taken from a city for the purpose of laundering is not arbitrary and unreasonable, and is not in conflict with the due process clause of the state Constitution or U.S. Const., amend. 14. City of Newnan v. Atlanta Laundries, Inc., 174 Ga. 99 , 162 S.E. 497 , 1932 Ga. LEXIS 4 (1932).

Act prohibiting operation of public dance halls without license and permission to operate is not unconstitutional as denying “due process of law” or “equal protection of laws.” Poss v. Norris, 197 Ga. 513 , 29 S.E.2d 705 , 1944 Ga. LEXIS 288 (1944).

Failure of Act granting power to license to provide for review does not make it unconstitutional. —

Even though an Act granting power to license occupations may not make provision for an appeal, this will not prevent a citizen who has been wronged by an arbitrary or capricious exercise of the power from seeking aid from the courts to protect the citizen from oppression, and the failure of the Act to provide for a review does not make it unconstitutional. Jenkins v. Manry, 216 Ga. 538 , 118 S.E.2d 91 , 1961 Ga. LEXIS 271 (1961).

Laws impairing vested rights violate due process but first in field gets no monopoly protection. —

The due process clauses of the state and federal Constitutions prohibit the enactment of a law which would impair vested rights, but do not inure to a person, first in the field, a monopoly in any line of business. Villyard v. Regents of Univ. Sys., 204 Ga. 517 , 50 S.E.2d 313 , 1948 Ga. LEXIS 471 (1948).

Constitutional guarantee of due process forbids action that curtails free competition or impairs value of private property. —

Any statute which deprives a free citizen of the right to agree upon a price which the citizen will accept for the citizen’s private property robs the citizen of the most valuable element of that property and renders private ownership a farce and is consequently unconstitutional. Cox v. GE Co., 211 Ga. 286 , 85 S.E.2d 514 , 1955 Ga. LEXIS 300 (1955).

Protection of property right to contract and to agree on price. —

The right to contract, and for the seller and purchaser to agree upon a price, is a property right protected by the due process clause of the Constitution, and unless it is a business “affected with a public interest,” the General Assembly is without authority to abridge that right. Harris v. Duncan, 208 Ga. 561 , 67 S.E.2d 692 , 1951 Ga. LEXIS 417 (1951).

Though reasonable sale and distribution regulations allowable under police power. —

As a health measure, reasonable regulations may be enacted by the legislature, applying to sale and distribution of milk under the police power of the state; but provision to fix the price takes from the seller and purchaser the right to agree upon the price of their choice. Harris v. Duncan, 208 Ga. 561 , 67 S.E.2d 692 , 1951 Ga. LEXIS 417 (1951).

General Assembly can authorize price fixing in business “affected with public interest”. —

Before the General Assembly can authorize price fixing without violating the due process clause of the Constitution, among other requirements, it must be done in a business or where property involved is “affected with a public interest”; and the milk industry does not come within that scope. Harris v. Duncan, 208 Ga. 561 , 67 S.E.2d 692 , 1951 Ga. LEXIS 417 (1951).

“Affected with a public interest” defined. —

For an industry or any particular business to become “affected with a public interest,” its business or its property must be so applied to the public as to authorize the conclusion that it has been devoted to a public use and thereby its use, in effect, granted to the public. Harris v. Duncan, 208 Ga. 561 , 67 S.E.2d 692 , 1951 Ga. LEXIS 417 (1951).

Milk Control Law price fixing provision violated due process. —

Georgia Law 1937, p. 247, formerly codified as former Code 1933, § 42-523 et seq., insofar as it provided for board to fix the prices of milk, was in violation of the due process clause of the state Constitution. Harris v. Duncan, 208 Ga. 561 , 67 S.E.2d 692 , 1951 Ga. LEXIS 417 (1951).

Ordinance can vary utility service rates according to territory. —

An ordinance which provides that rates for water service shall be higher in territory outside the corporate limits is not unconstitutional and void as denying “due process” and “equal protection” under the federal and state Constitutions. Barr v. City Council, 206 Ga. 753 , 58 S.E.2d 823 , 1950 Ga. LEXIS 570 (1950).

Ordinance increasing rates and fixing higher rates for nonresident water users not violative of due process. —

When the city has the right under the city’s charter to furnish water to resident and nonresident users, and to classify the rates for such service, an ordinance increasing the rates and fixing rates for nonresident users higher than for resident users, is not violative of the due process and equal protection clauses of the federal and state Constitutions. Messenheimer v. Windt, 211 Ga. 575 , 87 S.E.2d 402 , 1955 Ga. LEXIS 396 (1955).

Protection of complainant’s rights when rates fixed by Public Service Commission are confiscatory. —

When in a case properly brought it is shown that telephone rates fixed by Public Service Commission are confiscatory and protection by a court of equity is sought to prevent a violation of the due process provisions of the state and federal Constitutions, the court is required to adjudicate the question and to render a judgment that will afford the complainant full protection of its constitutional rights. Southern Bell Tel. & Tel. Co. v. Georgia Pub. Serv. Comm'n, 203 Ga. 832 , 49 S.E.2d 38 , 1948 Ga. LEXIS 564 (1948).

Rate set by commission must reach point of confiscation for utility to show legally protected interest. Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558 , 212 S.E.2d 628 , 1975 Ga. LEXIS 1375 (1975).

Public utility has standing to challenge rate schedule on ground that schedule is so low that it is confiscatory and denies the utility substantive due process. Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558 , 212 S.E.2d 628 , 1975 Ga. LEXIS 1375 (1975).

Requiring extension of existing power lines beyond carrier’s public service commitment violates due process. —

To require extension of existing power lines beyond the scope of the carrier’s commitment to the public service is taking of property in violation of due process. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706 , 186 S.E. 839 , 1936 Ga. LEXIS 548 (1936).

Empowering county authorities to control and regulate establishment of businesses not violative of due process. —

Georgia Law 1937, p. 624 providing that no person should establish a public dance hall, boxing or wrestling arena, or amusement place, tourist camps, and barbecue stands, for money or profit, outside the limits of incorporated towns or cities of a certain minimum population without first obtaining the permission of the commissioners or other authority in charge of such counties, and conferring authority on them to grant or refuse such permission for such time or under such regulations as they might deem proper for the public good, to levy a license or occupational tax on those endeavors and to provide punishment for a violation of the Act was not violative of the due process and equal protection clauses of the state and federal Constitutions, or the constitutional provisions vesting legislative power in the General Assembly. Ingram v. State, 193 Ga. 565 , 19 S.E.2d 493 , 1942 Ga. LEXIS 447 (1942).

Operation of service at reduced price at and for educational institution not taking without due process. —

Operation of the laundry and dry cleaning service at reduced prices in an educational institution for the benefit of students and persons connected with the school, by the Board of Regents of the University System, did not constitute the taking, by the defendants for the state, of private property of the petitioners without due process of law, in violation of this paragraph and U.S. Const., amend. 5. Villyard v. Regents of Univ. Sys., 204 Ga. 517 , 50 S.E.2d 313 , 1948 Ga. LEXIS 471 (1948).

When denial of application for operation of taxicabs violated due process. —

Petition alleging compliance with all the requirements of a city ordinance for the operation of taxicabs, denial of application for permit to operate taxicabs though no objection was made that applicant had not complied with the requirements of the ordinance, and that such denial was without legal justification or excuse, was arbitrary, illegal and capricious and an abuse of discretion, depriving the applicant of due process of law, and that because of denial of the permit the petitioner is deprived of the right to pursue the petitioner’s chosen livelihood and suffers pecuniary loss for which the petitioner cannot be compensated in damages, states a cause of action for mandamus to compel city officials to issue a permit. McWhorter v. Settle, 202 Ga. 334 , 43 S.E.2d 247 , 1947 Ga. LEXIS 437 (1947).

Business license tax. —

A catchall category of “agent or agency not specifically mentioned” following a list of specifically covered occupations was sufficient description to include the occupation of using a talking cat to obtain economic benefits on the streets of the city. Miles v. City Council, 551 F. Supp. 349, 1982 U.S. Dist. LEXIS 15801 (S.D. Ga. 1982), aff'd, 710 F.2d 1542, 1983 U.S. App. LEXIS 25215 (11th Cir. 1983).

Gasoline distributor. —

O.C.G.A. § 10-1-234 , which prohibits a gasoline distributor from selling gasoline to another distributor at distributor prices, violates Ga. Const. 1983, Art. I, Sec. I, Para. I in that it seeks to regulate a business not affected with a public interest. Batton-Jackson Oil Co. v. Reeves, 255 Ga. 480 , 340 S.E.2d 16 , 1986 Ga. LEXIS 584 (1986).

O.C.G.A. § 10-1-233(6) , which restricts changes in management of gasoline dealers, is unconstitutional under the due process clause of the Georgia constitution in that it purports to regulate an industry not affected with a public interest. O'Brien v. Union Oil Co., 699 F. Supp. 1562, 1988 U.S. Dist. LEXIS 13210 (N.D. Ga. 1988).

Plumbers. —

Former subparagraph (e)(2)(A) of O.C.G.A. § 43-14-8 was unconstitutional insofar as it denied to formerly locally licensed plumbers the rights extended to formerly state-licensed plumbers. Waller v. State Constr. Indus. Licensing Bd., 250 Ga. 529 , 299 S.E.2d 554 , 1983 Ga. LEXIS 557 (1983) (decided prior to 1983 amendment of § 43-14-8 ).

Pawnbrokers. —

Gwinnett County, Ga., Ord. No. 82-11 served the public purpose of impeding the sale of stolen property, and its requirements were reasonably necessary to achieve that end and did not unduly oppress pawnbrokers; thus, it did not violate a pawnbroker’s due process rights. Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19 , 608 S.E.2d 639 , 2005 Ga. LEXIS 121 (2005).

Police Power — Property
1.In General

This paragraph is violated when defendant is deprived of property by execution without hearing. Smith v. Brown, 96 Ga. 274 , 23 S.E. 849 , 1895 Ga. LEXIS 56 (1895); City Council v. King, 115 Ga. 454 , 41 S.E. 661 , 1902 Ga. LEXIS 442 (1902); Shippen Bros. Lumber Co. v. Elliott, 134 Ga. 699 , 68 S.E. 509 , 1910 Ga. LEXIS 331 (1910), overruled, Collins v. Williams, 237 Ga. 576 , 229 S.E.2d 388 , 1976 Ga. LEXIS 1307 (1976); Gaulden v. Wright, 140 Ga. 800 , 79 S.E. 1125 , 1913 Ga. LEXIS 268 (1913).

Judicial supervision over proposed temporary deprivation of property, and notice and opportunity for early preliminary hearing after deprivation are necessary to guard against mistaken and illegal deprivations of property. This is true even when the victim of the deprivation is an alleged judgment debtor. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699 , 240 S.E.2d 171 , 1977 Ga. App. LEXIS 2469 (1977).

Person not deprived of property without due process by erroneous state court decision after hearing. —

When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of a state court does not deprive the unsuccessful party of property without due process of law. Gilmore v. Mutual Benefit Life Ins. Co., 179 Ga. 267 , 175 S.E. 681 , 1934 Ga. LEXIS 270 (1934).

Ordinance is unconstitutional if city board of commissioners given arbitrary authority to grant permits. —

An ordinance is constitutionally defective if it grants to the board of commissioners of a city the arbitrary authority to grant a permit to dig a well to some and to refuse others by prescribing no rule or guide by which it may be impartially executed and which will preclude partiality. City of Hawkinsville v. Clark, 135 Ga. App. 875 , 219 S.E.2d 577 , 1975 Ga. App. LEXIS 1855 (1975).

Though municipality may make reasonable rules and regulations and may require permits. —

While a municipality may make reasonable rules and regulations for the protection, safety, and health of its citizens and may require permits for the exercise of its power of regulation, the grant or refusal of a permit to dig a well cannot be left to arbitrary discretion. City of Hawkinsville v. Clark, 135 Ga. App. 875 , 219 S.E.2d 577 , 1975 Ga. App. LEXIS 1855 (1975).

Distinction between use of eminent domain and use of police power is that the former involves the taking of property because it is needed for public use while the latter involves the regulation of the property to prevent its use in a manner detrimental to the public interest. Pope v. City of Atlanta, 242 Ga. 331 , 249 S.E.2d 16 , 1978 Ga. LEXIS 1198 (1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281 , 59 L. Ed. 2 d 494, 1979 U.S. LEXIS 1018 (1979).

Property interest in government job. —

When it is determined by the duly elected city officials that the best interest of the public can be served by discontinuing certain procedures for reassignment or rehiring employees, the public interest overrides whatever property interest the individual employees have. City of Atlanta v. Mahony, 162 Ga. App. 5 , 289 S.E.2d 250 , 1982 Ga. App. LEXIS 1998 (1982).

Employment did not implicate substantive due process concerns. —

School district employee’s allegation of termination of employment did not implicate substantive due process concerns. Palmer v. Stewart County Sch. Dist., No. 4:04-CV-21, 2005 U.S. Dist. LEXIS 35511 (M.D. Ga. June 17, 2005), aff'd in part, vacated in part, 178 Fed. Appx. 999, 2006 U.S. App. LEXIS 11663 (11th Cir. 2006).

No property interest in accessing Georgia Port Authority terminal. —

Truck driver’s claim that truck driver was improperly barred from an authority’s terminal was properly dismissed because the driver failed to show an enforceable property interest for purposes of due process and eminent domain jurisprudence. Gambell v. Ga. Ports Auth., 276 Ga. App. 115 , 622 S.E.2d 464 , 2005 Ga. App. LEXIS 1178 (2005).

Regulation of game fish in private ponds proper. —

While ownership of fish in private ponds is a property right, it is not an absolute and unqualified right, and is bound by the limitation that it must always yield to the state’s power to regulate and preserve for the public good. Thus, O.C.G.A. § 27-4-74 (sale, purchase, transportation, etc. of game fish generally), which functions to protect the stocks of fish swimming freely in waters of this state, is a proper exercise of the police power. Maddox v. State, 252 Ga. 198 , 312 S.E.2d 325 , 1984 Ga. LEXIS 641, cert. denied, 469 U.S. 820, 105 S. Ct. 93 , 83 L. Ed. 2 d 39, 1984 U.S. LEXIS 3105 (1984).

Moratorium on commercial development and building permit standards violated due process. —

County board of commissioners’ building permit resolution and “moratorium” resolution on commercial development did not provide sufficient objective standards to meet due process requirements since the resolutions allowed the board absolute discretion to grant or deny permission for construction for commercial uses with no standards whatsoever to control that discretion nor did they provide any notice to applicants of the criteria for the issuance of a permit; therefore, the resolutions were void because they improperly allowed uncontrolled discretion by the board in granting or denying a permit application and were too vague, indefinite, and uncertain to be enforceable. Davidson Mineral Properties, Inc. v. Monroe County, 257 Ga. 215 , 357 S.E.2d 95 , 1987 Ga. LEXIS 808 (1987).

2.Taking Property for Public Use

Sovereign’s taking citizen’s property must be for public purpose with just and adequate compensation. —

The right of the sovereign in the property of the citizen is hedged by two fundamental safeguards — the taking must be for a public purpose, and it must be attended by just and adequate compensation. This includes every species of property in which the individual has a right of ownership, whether real or personal, corporeal or incorporeal. Weiner v. Fulton County, 113 Ga. App. 343 , 148 S.E.2d 143 , 1966 Ga. App. LEXIS 1062, cert. denied, 385 U.S. 958, 87 S. Ct. 393 , 17 L. Ed. 2 d 304, 1966 U.S. LEXIS 196 (1966).

In order to determine the value of land taken by a transportation department that contained deposits of kaolin, the proper method was not to multiply the number of units of kaolin by a fixed, projected royalty per unit, as the kaolin had to be valued separately from the land, and it was impossible to determine what the kaolin was worth until it was removed from the earth and processed, so this method would result in improper speculation. DOT v. Bacon Farms, L.P., 270 Ga. App. 862 , 608 S.E.2d 305 , 2004 Ga. App. LEXIS 1617 (2004), cert. denied, No. S05C0678, 2005 Ga. LEXIS 248 (Ga. Mar. 28, 2005).

When land taken by a transportation department contained deposits of kaolin and a buffer zone was required around the land actually taken, from which kaolin could not be mined, the resulting consequential damages to the land’s owner were not determined from the value of the kaolin that would be “lost” as a result of the buffer zone, because the proper measure of damages was the difference between the fair market value of the remainder before the taking and the fair market value of the remainder after the taking. DOT v. Bacon Farms, L.P., 270 Ga. App. 862 , 608 S.E.2d 305 , 2004 Ga. App. LEXIS 1617 (2004), cert. denied, No. S05C0678, 2005 Ga. LEXIS 248 (Ga. Mar. 28, 2005).

Owner not entitled to hearing on necessity or expediency of taking. —

The necessity or expediency of taking property for public use is a legislative question upon which the owner is not entitled to a hearing under the due process clause of U.S. Const., amend. 14 and the same clause of the Constitution of this state. Miles v. Brown, 223 Ga. 557 , 156 S.E.2d 898 , 1967 Ga. LEXIS 604 (1967).

Neither legislature nor municipality authorized to take private property without notice to owner of hearing before condemnation. —

Neither the General Assembly of this state, nor any municipality thereof, has authority to suspend the due process clauses of the federal and state Constitutions and to provide for the destruction of private property without notice to the owner of the time and place of hearing, prior to any judgment of condemnation. City of Atlanta v. Aycock, 205 Ga. 441 , 53 S.E.2d 744 , 1949 Ga. LEXIS 373 (1949).

Insufficient compliance with O.C.G.A. § 22-1-9 . —

In a condemnation action, the court vacated the trial court’s order adopting the special master’s return as to the property value because none of the city’s offers prior to 2014 satisfied the dictates of O.C.G.A. § 22-1-9(3) and the city took several years to comply with § 22-1-9(3) . Because the city failed to comply with O.C.G.A. 22-1-9(3), and the owner did not acquiesce in or waive strict compliance with the statute, the city acted outside its authority by condemning the property, and its condemnation petition was dismissed. There is no need for the question of bad faith and to the extent that the Court of Appeals directed the trial court to do so on remand, the judgment is reversed. City of Marietta v. Summerour, 302 Ga. 645 , 807 S.E.2d 324 , 2017 Ga. LEXIS 927 (2017).

Notice to nonresident owners of property to be condemned violative of due process. —

The portion of Ga. L. 1957, p. 387, § 10 (see now O.C.G.A. § 22-2-107 ) which purports to provide for posting, publishing, and mailing notices to known nonresident owners of property to be condemned offends U.S. Const., amend. 14 and this paragraph in that it denies due process by not naming anyone to post, publish, or mail the notice therein referred to. Ray v. Mayor of Athens, 221 Ga. 73 , 143 S.E.2d 386 , 1965 Ga. LEXIS 385 (1965) (decided prior to amendment by Ga. L. 1966, p. 388, § 1, which designated the sheriff or the sheriff’s deputy as responsible for posting and publishing the notice).

Statutory provisions for notice in absence of someone to execute them amount to no requirement of notice. Ray v. Mayor of Athens, 221 Ga. 73 , 143 S.E.2d 386 , 1965 Ga. LEXIS 385 (1965) (decided prior to amendment by Ga. L. 1966, p. 388, § 1, which designated the sheriff or the sheriff’s deputy as responsible).

Slum clearance project not taking of private property in violation of due process. —

The slum clearance project inaugurated by virtue of Art. 1, Ch. 3, T. 8 and Art. 2, Ch. 3, T. 8 does not involve the taking of private property in violation of the due process clause of the state Constitution or of U.S. Const., amend. 14. Williamson v. Housing Auth., 186 Ga. 673 , 199 S.E. 43 , 1938 Ga. LEXIS 684 (1938).

Outdoor Advertising Control Act, O.C.G.A. § 32-6-70 , is a proper exercise of the police powers, as it provides for compensation for property rights in signs which were lawfully in existence on its effective date. DOT v. Shiflett, 251 Ga. 873 , 310 S.E.2d 509 , 1984 Ga. LEXIS 536 (1984).

Comprehensive sign ordinance providing for removal of nonconforming signs effected an unconstitutional taking of private property without just and adequate compensation. Lamar Adv. of S. Ga., Inc. v. City of Albany, 260 Ga. 46 , 389 S.E.2d 216 , 1990 Ga. LEXIS 88 (1990).

Citizens may maintain nuisance suits against the state under the constitutional prohibition against taking or damaging private property for public purposes. DOT v. Bonnett, 257 Ga. 189 , 358 S.E.2d 245 , 1987 Ga. LEXIS 675 (1987).

Waiver of sovereign immunity when county creates nuisance amounting to inverse condemnation. —

Nuisance suits for injunction and damages can be maintained against a county under the constitutional provisions against taking or damaging private property for public purposes. Therefore, the Constitution provides for a waiver of sovereign immunity when a county creates a nuisance which amounts to an inverse condemnation. Duffield v. DeKalb County, 242 Ga. 432 , 249 S.E.2d 235 , 1978 Ga. LEXIS 1241 (1978).

A county, unlike a municipality, is not generally liable for creating nuisances. Duffield v. DeKalb County, 242 Ga. 432 , 249 S.E.2d 235 , 1978 Ga. LEXIS 1241 (1978).

Municipalities liable for nuisance damaging property and health hazards. —

A municipality, whether exercising its governmental or its ministerial functions, is liable for creating a nuisance which damages property and imposes health hazards. Duffield v. DeKalb County, 242 Ga. 432 , 249 S.E.2d 235 , 1978 Ga. LEXIS 1241 (1978).

Ordinance (Ga. L. 1913, p. 893) providing for abatement of public nuisances by city is not violative of paragraph. Curtis v. Town of Helen, 171 Ga. 256 , 155 S.E. 202 , 1930 Ga. LEXIS 328 (1930).

Claims concerning reasonable certainty of continuing nuisance amounting to unlawful taking of property to be heard. —

When it is alleged, inter alia, that the construction, maintenance, and operation of an airport in a residential area and the flights of airplanes in connection therewith will constitute a continuing nuisance, will cause the residents irreparable and constantly recurring damages, and will amount to an unlawful taking of their properties without due process of law in violation of the state and federal Constitutions, a motion by the defendants to dismiss the complaint on the basis that it fails to state a claim and that it is anticipatory of future conditions is properly overruled by the trial court. Camp v. Warrington, 227 Ga. 674 , 182 S.E.2d 419 , 1971 Ga. LEXIS 814 (1971).

City commissioners authorized to abolish city roadways provided city liable for damages. —

Neither charter amendment providing that city commissioners should have authority in their discretion to close up and abolish any city street, road, or alley, or part, thereof, provided that the city should be liable for damages to any property right of any person occasioned by the exercise of such powers, nor ordinance adopted pursuant thereto, was violative of the due process clauses of the state and federal Constitutions. Jones v. City of Decatur, 189 Ga. 732 , 7 S.E.2d 730 , 1940 Ga. LEXIS 383 (1940).

County decision to acquire land with no effect on abutting landowners’ rights. —

A mere decision by the governing body of a county to acquire land for an authorized public purpose, without more, in no way affects the constitutionally protected property rights of abutting landowners, and does not trigger due process considerations of personal notice because there was no deprivation of property in any cognizable sense. Lindsey v. Guhl, 237 Ga. 567 , 229 S.E.2d 354 , 1976 Ga. LEXIS 1306 (1976).

When other land uses cannot be considered in valuation in condemnation case. —

It is error in a condemnation case to charge that the jury might, in estimating the value of the land taken, consider other uses to which the land might be devoted when there is no evidence authorizing the jury to find that it was suitable for any use other than that to which it was devoted at the time of the taking or from which a reasonable inference of suitability for other uses might be drawn. State Hwy. Dep't v. Howard, 110 Ga. App. 373 , 138 S.E.2d 597 , 1964 Ga. App. LEXIS 635 (1964).

Owner not entitled to recover business loss damages. —

In a condemnation action, partial summary judgment was properly granted in favor of the Georgia Department of Transportation because an owner was unable to recover losses for business damages since the evidence showed that the owner was not actually conducting a business on the condemned land, despite the fact that a lease agreement between the owner and a lessee gave the owner some control over the business operations of a service station and store located on the property. Davis Co. v. DOT, 262 Ga. App. 138 , 584 S.E.2d 705 , 2003 Ga. App. LEXIS 861 (2003), cert. denied, No. S03C1644, 2003 Ga. LEXIS 961 (Ga. Nov. 10, 2003).

3.Taxation

Legislative power to impose income tax. —

The right to impose an income tax is an inherent right of the people and there is nothing in the Constitution of this state which denies to the legislature the power to impose an income tax if it is levied without infringing some provision of that instrument. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 , 1960 Ga. LEXIS 456 (1960).

When corporation utilized state services. —

Having accepted and utilized valuable state services, the corporation cannot consistently contend or successfully assert under the facts that its property (the taxes collected) has been taken from it in violation of the due process clause of Georgia’s Constitution. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 , 1960 Ga. LEXIS 456 (1960).

State cannot tax property over which it has no territorial jurisdiction. —

For a state to undertake to tax property over which it has no territorial jurisdiction is a violation of the due process clauses of the federal and state Constitutions. It would be a taking of property without due process of law. Davis v. Penn Mut. Life Ins. Co., 198 Ga. 550 , 32 S.E.2d 180 , 1944 Ga. LEXIS 431 (1944), cert. denied, 331 U.S. 829, 67 S. Ct. 1353 , 91 L. Ed. 1844 , 1947 U.S. LEXIS 2281 (1947).

Any effort to tax property wholly beyond jurisdiction would be in violation of due process clause embodied in the U.S. Const., amend. 14, as well as the similar provision of the state Constitution. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 , 1942 Ga. LEXIS 446 (1942).

Due process not violated because property owners subjected to taxation by Act extending municipal boundaries. —

Act extending municipal boundaries does not violate the constitutional guarantee of due process of the law because it subjects property owners in the area annexed to taxation by the municipality; nor does it deny to such property owners equal protection of the law within the meaning of U.S. Const., amend. 14. Lee v. City of Jesup, 222 Ga. 530 , 150 S.E.2d 836 , 1966 Ga. LEXIS 543 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307 , 18 L. Ed. 2 d 337, 1967 U.S. LEXIS 1866 (1967).

An Act which subjected a landowner to municipal taxation by including property within the corporate limits of a municipality did not violate the landowner’s rights under this paragraph. As noted in White v. City of Atlanta, 134 Ga. 532 , 68 S.E. 103 (1910), a resident of a city receives certain corresponding benefits and should share the responsibility of the municipal burdens. Schneider v. City of Folkston, 207 Ga. 434 , 62 S.E.2d 177 , 1950 Ga. LEXIS 629 (1950).

Unequal benefit did not violate due process. —

County’s approval of a tax assessment of each property in the county in order to pay for medical care for indigent patients did not violate due process and equal protection under U.S. Const., amends. 5 and 14 and under Ga. Const. 1983, Art. I, Sec. I, Paras. I and II even though not all taxpayers benefitted; the question of the benefit to each taxpayer was for the legislature except in extraordinary cases, and the instant case was not extraordinary. Greene County Bd. of Comm'rs v. Higdon, 277 Ga. App. 350 , 626 S.E.2d 541 , 2006 Ga. App. LEXIS 83 (2006), cert. denied, No. S06C1011, 2006 Ga. LEXIS 511 (Ga. July 13, 2006).

Review of ordinances imposing occupational taxes. —

The constitutionality and legality of an occupation tax is to be judged by its effect upon dealers generally, and is not to be construed as unreasonable because it is prohibitive upon certain financially weak persons; only those laws imposing occupation taxes the general operation of which is confiscatory and oppressive are to be declared unconstitutional. Solomons v. Mayor of Savannah, 183 Ga. 631 , 189 S.E. 230 , 1936 Ga. LEXIS 156 (1936).

That a seller, in order to obtain business at a distant city and compete with its local laundries, subjects the seller to unusual expense and makes little profit under adverse conditions, does not afford a basis for declaring arbitrary, prohibitory, confiscatory, and void an ordinance imposing an occupational tax as applied to a business which admittedly is in its infancy. National Linen Serv. Corp. v. City of Gainesville, 181 Ga. 397 , 182 S.E. 610 , 1935 Ga. LEXIS 99 (1935).

Graduated business tax based on reasonable classification comports with due process. —

Provisions of a city ordinance imposing a graduated tax on those persons using vehicles on the streets for business purposes in addition to the business tax required of them, and also levying a graduated tax for doing business on the streets upon carriers for hire, was not violative of U.S. Const., amend. 14, Sec. 1 or this paragraph. The city ordinance did not make unreasonable and arbitrary classifications. Solomons v. Mayor of Savannah, 183 Ga. 631 , 189 S.E. 230 , 1936 Ga. LEXIS 156 (1936).

Ordinance imposing graduated license tax on right to operate butcher shops and retail groceries reasonable revenue measure. —

Ordinance imposing a license tax on the right to operate butcher shops and retail grocery stores, classified according to a graduated scale based on the number of meat blocks, or value of stock and fixtures, respectively, and number of hours operated, and applicable to all persons operating businesses of the designated classes within the city, was a reasonable revenue measure, and not violative of former Code 1933, §§ 2-102 and 2-103 (see now Ga. Const. 1983, Art. I, Sec. I, Paras. I and II), and U.S. Const., amend. 14, Sec. 1. Ard v. City of Macon, 187 Ga. 127 , 200 S.E. 678 , 1938 Ga. LEXIS 791 (1938).

Maintenance Tax Act of 1937 not void because of classifications for taxation purposes. —

Georgia Law 1937, pp. 155-167 was not void as violative of the equal protection or due process clauses of the state Constitution or the due process clause of the federal Constitution merely because, for taxation purposes, it classified carriers for hire and carriers not for hire separately, and charged different amounts for each class, or because it set up subclassifications based on the manufacturer’s rated capacity of the vehicles used and fixed different rates of tax accordingly. Dixie-Ohio Express Co. v. State Revenue Comm'n, 186 Ga. 228 , 197 S.E. 887 , 1938 Ga. LEXIS 617 (1938), aff'd, 306 U.S. 72, 59 S. Ct. 435 , 83 L. Ed. 495 , 1939 U.S. LEXIS 1023 (1939).

When municipality’s refusing conducting of business violative of due process. —

An Act allowing a municipality to refuse the conduct of a business, irrespective of its compliance with any regulations adopted for the proper exercise of such business, is violative of Ga. Const. 1933, Art. I, Sec. I, Paras. II and III (see now Ga. Const. 1983, Art. I, Sec. I, Paras. I and II), unless a business may be held to be a nuisance per se. Jones v. City of Atlanta, 51 Ga. App. 218 , 179 S.E. 922 , 1935 Ga. App. LEXIS 635 (1935).

Act taxing operation of motortrucks for hire, but exempting persons hauling farm products exclusively not violative of due process. —

The tax imposed on those operating motortrucks or trailers for transportation of freight for hire with exclusion of haulers of farm produce, livestock, and fertilizers exclusively (Ga. L. 1927, p. 56, § 2, Para. 75A) did not violate Ga. Const. 1877, Art. I , Sec. I, Para. I (see now Ga. Const. 1983, Art. I, Sec. II, Para. I), U.S. Const., amend. 14, Sec. 1, or this paragraph. Exemption from operation of a tax is allowable when the exemption is not arbitrary and is based upon some good reason. Southern Transf. Co. v. Harrison, 171 Ga. 358 , 155 S.E. 338 , 1930 Ga. LEXIS 353 (1930).

Nonresident’s intangible property taxable if integral part of local business. —

Intangible property of a nonresident may be taxed in this state, consistently with U.S. Const., amend. 14 and the similar or due process clause of the Constitution of Georgia, if it is so used as to become an integral part of some local business conducted by the nonresident or the nonresident’s agent. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 , 1942 Ga. LEXIS 446 (1942).

Credits or accounts receivable of nonresident corporation engaged in business in Georgia taxable. —

When a nonresident corporation engaged in business in this state becomes the owner of accounts receivable arising out of the business conducted in this state, such credits or accounts receivable have a tax situs in the county wherein such business is conducted, notwithstanding that the orders taken for merchandise sold in this state are filled, the shipments made, the credit of the customers passed upon, and the books of account kept, at a point without the State of Georgia. Colgate-Palmolive-Peet Co. v. Davis, 196 Ga. 681 , 27 S.E.2d 326 , 1943 Ga. LEXIS 402 (1943).

Tax enforceable on nonresident corporation’s accounts receivable with situs in municipality where business conducted. —

When a nonresident corporation became the owner of accounts receivable arising out of business conducted in a municipality in this state, such credits had a tax situs in the municipality where such business was conducted, so that the enforcement of a tax upon the credits would not be contrary to the guaranty of due process or equal protection of the law in the state and federal Constitutions. Parke, Davis & Co. v. City of Atlanta, 200 Ga. 296 , 36 S.E.2d 773 , 1946 Ga. LEXIS 376 (1946).

Jurisdiction to tax intangible credits when no business situs is involved is in state of domicile of creditor and not of the debtor. Davis v. Penn Mut. Life Ins. Co., 198 Ga. 550 , 32 S.E.2d 180 , 1944 Ga. LEXIS 431 (1944), cert. denied, 331 U.S. 829, 67 S. Ct. 1353 , 91 L. Ed. 1844 , 1947 U.S. LEXIS 2281 (1947).

Loans with situs for ad valorem taxation in county where loan business conducted. —

In a suit by a nonresident insurance company against county taxing officials to enjoin enforcement of assessments and executions for state and county taxes based on credits existing in the company’s favor as a result of loans made by it on county real estate before the taxable period, but remaining unpaid during the period of taxation, the evidence showed without dispute that the loans had a situs for ad valorem taxation in the county in question where the loan business was conducted, so that to tax them in the county would not violate the due process clause of either the state or federal Constitution. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84 , 38 S.E.2d 786 , 1946 Ga. LEXIS 355 (1946).

Nonresident corporation conducting loan business in Georgia within its taxing power. —

Since a nonresident life insurance company employed a loan agent in Georgia on a salary basis to solicit and submit applications for loans and make reports concerning applicants and the proffered security in a fixed office or place of business in the state leased in the agent’s own name, with the rent paid by the company through reimbursement to the agent on expense account, and in all negotiations in reference to loans the company dealt with applicants by communications passing through the agent as its agent, with the notes and security deeds prepared in the home office and sent to the agent for execution by applicants in Georgia, and, after their return to and approval in the home office, checks were mailed to the agent for delivery to applicants in Georgia, so that all loan contracts were thus finally executed in Georgia, and where as many as 19 long-term loans were so made during continuous existence of such agency, the company in making such loans was conducting a loan business in Georgia, and thus came within its taxing power, as to property derived from or used in such business. Hence, the credits arising from such loans had a situs for ad valorem taxation in Georgia where the loan business was conducted so that to tax them would not violate the due process clause of either the state or the federal Constitution. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 , 1942 Ga. LEXIS 446 (1942).

Taxation of domesticated foreign corporation’s intangibles that acquired business situs outside state, and on which the corporation had paid franchise taxes out of the state, did not violate due process clauses of the state and federal Constitutions. National Linen Serv. Corp. v. Thompson, 103 Ga. App. 786 , 120 S.E.2d 779 , 1961 Ga. App. LEXIS 1060 (1961).

Law recognizes right and power of municipal government to make reasonable classifications of subjects for taxation and to make subclassifications of such classes. But it does not permit an arbitrary classification, the basis for which has no reasonable relationship to the purpose for which classification is made. Elder v. Smith, 188 Ga. 65 , 2 S.E.2d 670 , 1939 Ga. LEXIS 784 (1939).

Classification of oleomargarine with tax on one class valid. —

Former statute (Ga. L. 1935, p. 81) which placed oleomargarine containing generally any fat or oil ingredient in one class, and oleomargarine containing oleo oil from cattle, oleo stock from cattle, oleo stearine from cattle, neutral lard from hogs, peanut oil, pecan oils, corn oil, cottonseed oil, soy bean oil or milk fat in another class, and imposed an excise tax on sale or exchange of first class, but no such tax on the sale or exchange of oleomargarine composed of any of the ingredients named in the second class, was reasonable and did not constitute an arbitrary and discriminatory classification, nor violate any property right to deal in oleomargarine. Coy v. Linder, 183 Ga. 583 , 189 S.E. 26 , 1936 Ga. LEXIS 149 (1936).

Phrase “doing business” within corporate tax provisions not violative of due process. —

The phrase “doing business” within Ga. L. 1978, p. 309, § 2 (see now O.C.G.A. §§ 48-7-31 (corporate income tax) and 48-13-72 (corporate net worth tax)), which means any activity or transactions for the purpose of financial profit or gain, does not violate the due process requirement of either U.S. Const., amend. 14 or this paragraph. Chattanooga Glass Co. v. Strickland, 244 Ga. 603 , 261 S.E.2d 599 , 1979 Ga. LEXIS 1342 (1979).

Provision for taxpayer’s affidavit of illegality to tax execution and hearing comports with due process. —

Former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ), which provided that a taxpayer may tender an affidavit of illegality when any writ of execution for payment of taxes was issued and provided for a hearing in order to determine whether the tax was legally due, was not violative of the due process clause of the state Constitution or of the Constitution of the United States. Hicks v. Stewart Oil Co., 182 Ga. 654 , 186 S.E. 802 , 1936 Ga. LEXIS 531 (1936).

Ordinances making tax assessment for street improvement a lien upon the property is not violative of this paragraph. Baugh v. City of LaGrange, 161 Ga. 80 , 130 S.E. 69 , 1925 Ga. LEXIS 303 (1925).

Legislature can grant municipality power to make improvements and assess cost against abutting land. —

An Act of the legislature granting charter power to a municipality to make public improvements such as sidewalks and street paving, and by special assessment and execution against the abutting land collect the cost therefor, does not deprive the owner of due process of law when the Act also permits the owner of such land to file an affidavit of illegality and thereby contest the reasonableness or the lawfulness of the assessment before payment is finally required. Lockridge-Rogers Lumber Co. v. City of E. Point, 214 Ga. 255 , 104 S.E.2d 228 , 1958 Ga. LEXIS 386 (1958).

Section of city charter which empowers it to assess the actual cost of laying or constructing a sewer line along one of its streets against the abutting property on each side of the street and which also permits the owner of such land to file an affidavit of illegality contesting the assessment, does not offend the due process clauses of the state and federal Constitutions, even though it permits the city to assess the cost without prior notice to the owner of such land and without first affording such owner an opportunity to be heard respecting the reasonableness or lawfulness of the assessment. Lockridge-Rogers Lumber Co. v. City of E. Point, 214 Ga. 255 , 104 S.E.2d 228 , 1958 Ga. LEXIS 386 (1958).

City’s legislative authority to pave street and to assess company using street within taxing and police power. —

City of Decatur, under the Constitution and general law of Georgia, and under the city’s charter and the amendments thereof, had legislative authority to pave the city’s streets and to assess a portion of the costs of such improvement against the street railway company occupying and using, with the consent of the city, the paved street, irrespective of the benefit to the company. The authority came within both the taxing and the police power reserved in the state. Georgia Power Co. v. City of Decatur, 181 Ga. 187 , 182 S.E. 32 , 1935 Ga. LEXIS 54 (1935), aff'd, 297 U.S. 620, 56 S. Ct. 606 , 80 L. Ed. 925 , 1936 U.S. LEXIS 542 (1936).

Due process argument untimely when no legal action instituted to prevent paving. —

When a city, in conformity to legislative authority and the city’s ordinances, paved and incurred the expense of paving a street occupied by a street railway company, and when the company, with knowledge that the city intended, in conformity to the city’s charter and ordinances, to charge the company with a part of the expense of such paving, stood by and saw the paving done and the expense incurred without instituting any legal action to prevent the paving, it was thereafter too late for the company to avoid payment on the ground that enforcement of the assessment would deprive the company of its property in violation of the due process clauses of the state and federal Constitutions. Georgia Power Co. v. City of Decatur, 181 Ga. 187 , 182 S.E. 32 , 1935 Ga. LEXIS 54 (1935), aff'd, 297 U.S. 620, 56 S. Ct. 606 , 80 L. Ed. 925 , 1936 U.S. LEXIS 542 (1936).

When property owner estopped from questioning assessment for improvement as confiscatory and void. —

When a city has obtained jurisdiction to make an assessment against an abutting property owner’s property for the purpose of paving a street, and all the provisions and requirements of the special Act authorizing such assessment have been complied with by the city, and the abutting property owner has been given fair opportunity to object to the street improvement and the assessment against the owner’s property therefor, but fails to object and then stands by and sees the street paving improvements made at an expense to the city, without entering any objection thereto, the owner is then estopped to raise the question that the assessment was confiscatory and void in that the assessment deprived the owner of property in violation of the due process clause of the state and federal Constitutions, although under the facts of the case this point would have been good and could have been sustained had the point been raised in time. City of Waycross v. Harrell, 59 Ga. App. 615 , 1 S.E.2d 681 , 1939 Ga. App. LEXIS 373 (1939).

Fixing of cigar and cigarette prices by statute did not comport with due process. —

Former Code 1933, § 92-2204(h) was held unconstitutional as being violative of this paragraph because fixing of prices of cigars and cigarettes by statute was not a reasonable means to the legitimate end of collecting tobacco taxes. Strickland v. Rio Stores, Inc., 243 Ga. 600 , 255 S.E.2d 714 , 1979 Ga. LEXIS 1004 (1979) (decided before repeal by Ga. L. 1980, p. 10, § 37).

Former Georgia bank share tax scheme constitutional. —

The 1975 Georgia bank share tax scheme did not subject banks to a tax classification that was so “palpably arbitrary” or “invidious” as to run afoul of the constitutional equal protections of the equal protection clause of the United States Constitution and the due process clauses of the United States and Georgia Constitutions. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 , 1983 Ga. LEXIS 757 (1983).

Statute creating special districts for the purpose of implementing a hotel/motel tax did not violate state and federal constitutional due process and equal protection guarantees. Youngblood v. State, 259 Ga. 864 , 388 S.E.2d 671 , 1990 Ga. LEXIS 53 (1990).

4.Zoning

Police power to zone to prevent future use not subject to question or requirement for compensation. —

The police power of the state to zone property to prevent the property’s use for certain purposes in the future, as distinguished from the taking or damaging in respect to a use already in existence, is not open to question, and does not require the payment of any compensation. National Adv. Co. v. State Hwy. Dep't, 230 Ga. 119 , 195 S.E.2d 895 , 1973 Ga. LEXIS 830 (1973).

Local government zoning power exercisable through different ordinances at different times affecting different areas. —

Municipalities and counties which have had conferred upon them the power to zone property cannot always at one and the same time enact such a comprehensive scheme of zoning and planning as will particularly describe and embrace every piece of property by metes and bounds in the entire area of the county or municipality; but when reasonably and fairly done, such power may be exercised by the enactment of different ordinances affecting different areas at different times. Taylor v. Shetzen, 212 Ga. 101 , 90 S.E.2d 572 , 1955 Ga. LEXIS 561 (1955).

When zoning ordinance is clearly unconstitutional. —

A zoning ordinance in which no language appears providing for hearing and notice of hearing to the property affected thereby is clearly in contravention to the constitutional requirements of due process, and is therefore unconstitutional and void. Bell v. Studdard, 220 Ga. 756 , 141 S.E.2d 536 , 1965 Ga. LEXIS 624 (1965).

It is prerequisite to validity of municipal ordinance that notice be given and an opportunity for a hearing be accorded to anyone who has an interest or property right in the property which may be affected by the zoning regulation. Sikes v. Pierce, 212 Ga. 567 , 94 S.E.2d 427 , 1956 Ga. LEXIS 446 (1956).

City’s zoning ordinance restricting mobile homes to mobile home parks and subdivisions was not preempted by the National Manufactured Housing and Safety Standards Act of 1974, 42 U.S.C. § 5401 et seq., because the city did not infringe on the federal government’s control over safety and construction standards for mobile homes; thus, a mobile home owner, who was affected by such an ordinance, did not suffer a violation of substantive due process rights. King v. City of Bainbridge, 276 Ga. 484 , 577 S.E.2d 772 , 2003 Ga. LEXIS 246, cert. denied, 540 U.S. 876, 124 S. Ct. 228 , 157 L. Ed. 2 d 138, 2003 U.S. LEXIS 7020 (2003).

Zoning is subject to constitutional prohibition against taking private property without just compensation. Barrett v. Hamby, 235 Ga. 262 , 219 S.E.2d 399 , 1975 Ga. LEXIS 850 (1975).

Justification necessary for zoning classification. —

As the individual’s right to the unfettered use of the individual’s property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality, or general welfare. Lacking such justification, the zoning may be set aside as arbitrary or unreasonable. Barrett v. Hamby, 235 Ga. 262 , 219 S.E.2d 399 , 1975 Ga. LEXIS 850 (1975).

For unlawful confiscation to occur, requiring that the zoning be voided, it is not necessary that the property be totally useless for the purposes classified. When the damage to the owner is significant and is not justified by the benefit to the public, the zoning must be voided. Barrett v. Hamby, 235 Ga. 262 , 219 S.E.2d 399 , 1975 Ga. LEXIS 850 (1975).

If the zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner, the regulation is confiscatory and void. Barrett v. Hamby, 235 Ga. 262 , 219 S.E.2d 399 , 1975 Ga. LEXIS 850 (1975).

Application of zoning ordinance unreasonable when change of circumstances since passage. —

Evidence as to change of condition and circumstances since passage in 1939 of ordinance zoning the defendants’ property for residential and agricultural purposes because of uses of the property adjacent to or near the defendants’ property, was sufficient to warrant the conclusion that to apply the provisions of the ordinance of 1939 to the property of the defendants would render such ordinance arbitrary and unreasonable. Humthlett v. Reeves, 212 Ga. 8 , 90 S.E.2d 14 , 1955 Ga. LEXIS 524 (1955).

Determination made under circumstances and conditions at time of case. —

In determining the reasonableness of an ordinance based upon statutory authority, such determination must be made under the circumstances and conditions of the case at the present time, and not contemporaneous with the passage of the original ordinance. Humthlett v. Reeves, 212 Ga. 8 , 90 S.E.2d 14 , 1955 Ga. LEXIS 524 (1955).

With burden of proof on property owner. —

When it is claimed that a zoning ordinance is unreasonable as to a particular tract of property, or that a change of conditions has rendered the ordinance unreasonable when applied to the particular property, the burden is on the owner of such property to produce sufficient evidence from which the court can make findings of fact and law such as would justify a holding as a matter of law that the ordinance is arbitrary and unreasonable; there must be a showing of an abuse of discretion on the part of the zoning authority, and that there has been an unreasonable and unwarranted exercise of the police power. Humthlett v. Reeves, 212 Ga. 8 , 90 S.E.2d 14 , 1955 Ga. LEXIS 524 (1955).

Diminution of value alone resulting from a zoning classification does not constitute an unconstitutional deprivation. Gradous v. Board of Comm'rs, 256 Ga. 469 , 349 S.E.2d 707 , 1986 Ga. LEXIS 918 (1986).

Police power may not be exerted arbitrarily or unreasonably. —

A statute valid as to one set of facts may be invalid as to another, and a statute valid when enacted may become invalid by a change in the conditions to which it is applied; the police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably. Humthlett v. Reeves, 212 Ga. 8 , 90 S.E.2d 14 , 1955 Ga. LEXIS 524 (1955).

Court of equity justified in restraining enforcement because of particular unreasonable application. —

A zoning ordinance may in its general aspects be valid, and yet, as to a particular state of facts involving a particular parcel of real estate, be so clearly arbitrary and unreasonable as to result in confiscation, thereby justifying the interposition of a court of equity to restrain its enforcement. Humthlett v. Reeves, 212 Ga. 8 , 90 S.E.2d 14 , 1955 Ga. LEXIS 524 (1955).

When application completely deprives owner of beneficial use of property, attack on validity of regulation sustained. —

A zoning ordinance must not infringe the constitutional guaranties of national or state Constitutions by invading personal or property rights unnecessarily or unreasonably; and if the application of a zoning ordinance has the effect of completely depriving an owner of the beneficial use of the owner’s property by precluding all uses, or the only use to which it is reasonably adapted, an attack upon the validity of the regulation, as applied to the particular property involved, will be sustained. Humthlett v. Reeves, 212 Ga. 8 , 90 S.E.2d 14 , 1955 Ga. LEXIS 524 (1955).

Circumstances under which zoning ordinances have been held invalid, as applied to certain specific property, fall into three general classes: (1) when a small parcel of property is zoned for residential purposes, when it is entirely surrounded by commercial or business enterprises; (2) when property zoned for residential use is entirely unsuited for residential purposes; or (3) when the purpose of the ordinance is not to protect the public health, safety, morals, or general welfare. Humthlett v. Reeves, 212 Ga. 8 , 90 S.E.2d 14 , 1955 Ga. LEXIS 524 (1955).

Churches subject to reasonable regulations, but absolute zoning exclusion from residential area generally invalid. —

Generally, any zoning ordinance that absolutely excludes churches from a residential area is invalid under constitutional guarantees. Churches are, however, subject to reasonable regulation both referring to property in the zone generally and to churches specifically, provided the regulations are reasonable and contain some standards. Rogers v. Mayor of Atlanta, 110 Ga. App. 114 , 137 S.E.2d 668 , 1964 Ga. App. LEXIS 558 (1964).

City not authorized to refuse property owner’s permit for construction conforming to building regulations. —

The Act of the General Assembly granting to the City of Albany power to regulate garages and filling stations and other businesses (Ga. L. 1923, pp. 412, 416), to license them only in localities as may be least offensive to the public, and to revoke the license when they prove dangerous and injurious to health, is in conflict with the due process clause as found in this paragraph, and is also in conflict with Ga. Const. 1877, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I, Sec. III, Paras. I, II), which provides for compensation for private property taken or damaged for public purposes, insofar as the Act is interpreted by the public officials of the City of Albany to authorize a refusal of a permit sought by an owner of property to construct a filling station which conforms in every way to the building regulations of the city. Reynolds v. Brosnan, 170 Ga. 773 , 154 S.E. 264 , 1930 Ga. LEXIS 238 (1930).

When denial of building permit not deprivation of owner’s property. —

The denial of a permit to the owner of a residence lot to erect thereon a filling station, when the lot is located in a district zoned by ordinance exclusively for residences, apartments, churches, hospitals, schools, and hotels, is not a deprivation of the owner’s property within the meaning of the due process clauses of the Constitution of this state and of U.S. Const., amend. 14, especially when a lot has been improved and used for residential purposes long before the passage of such ordinance. Howden v. Mayor of Savannah, 172 Ga. 833 , 159 S.E. 401 , 1931 Ga. LEXIS 221 (1931).

In a declaratory judgment action brought by a developer against a county seeking to invalidate an ordinance which required denial of the developer’s land disturbance permit based on two soil-related ordinance violations existing, the judgment in favor of the developer was upheld on appeal with regard to the developer’s claim for damages under 42 U.S.C. § 1983 , for alleged violations of the developer’s equal protection rights in the county’s enforcement of the ordinance. The trial court properly determined that the developer was not required to prove a valid property right with regard to the developer’s equal protection challenge; the trial court properly awarded attorney fees to the developer under O.C.G.A. § 13-6-11 as the jury was authorized to award the attorney fees as an element of the damages it awarded on the developer’s federal equal protection claim, regardless of whether the developer could prevail on any state law claim for damages; but the trial court erred by failing to address the merits of the developer’s petition for a declaratory judgment since the overall enforceability of the ordinance, which was still the law, was not rendered moot by the withdrawal notice. Fulton County v. Legacy Inv. Group, LLC, 296 Ga. App. 822 , 676 S.E.2d 388 , 2009 Ga. App. LEXIS 332 (2009).

Notice of hearing required on rezoning matter before county governing authority. —

A party must have due and legal notice of the hearing on the matter of rezoning before the county governing authority, the body which can rezone land and thereby deprive a party of the party’s property rights. F.P. Plaza, Inc. v. Waite, 230 Ga. 161 , 196 S.E.2d 141 , 1973 Ga. LEXIS 844, cert. denied, 414 U.S. 825, 94 S. Ct. 129 , 38 L. Ed. 2 d 59, 1973 U.S. LEXIS 354 (1973).

Notice by publication proper and adequate. —

Notice by publication of a rezoning hearing to be held by a governing authority of a county is proper and adequate insofar as the requirements of procedural due process and equal protection are concerned. F.P. Plaza, Inc. v. Waite, 230 Ga. 161 , 196 S.E.2d 141 , 1973 Ga. LEXIS 844, cert. denied, 414 U.S. 825, 94 S. Ct. 129 , 38 L. Ed. 2 d 59, 1973 U.S. LEXIS 354 (1973).

Notice not required for preliminary hearing before planning commission. —

Defective notice or lack of notice of the preliminary hearing before the planning commission, which cannot rezone property so as to deprive a party of the party’s property rights, is not violative of procedural due process or equal protection. F.P. Plaza, Inc. v. Waite, 230 Ga. 161 , 196 S.E.2d 141 , 1973 Ga. LEXIS 844, cert. denied, 414 U.S. 825, 94 S. Ct. 129 , 38 L. Ed. 2 d 59, 1973 U.S. LEXIS 354 (1973).

The amendment of a zoning ordinance accomplished pursuant to defective notice is without any legal force or effect, and the party requesting the amendment does not acquire any additional rights in its property due to the invalid amendment of the zoning ordinance. Yost v. Fulton County, 256 Ga. 324 , 348 S.E.2d 638 , 1986 Ga. LEXIS 857 (1986).

Rezoning not violative of due process when notice and hearing. —

When proper notice is given and an actual hearing is had, the rezoning of property does not violate the due process provision of the Constitution. Atlantic Ref. Co. v. Spears, 214 Ga. 126 , 103 S.E.2d 547 , 1958 Ga. LEXIS 347 (1958).

Actual notice not required. —

Unpublished decision: Landowner’s procedural due process rights under the U.S. Constitution and the Georgia Constitution were not violated because, although the landowner did not receive actual notice of a cellular-tower application for the adjacent property, the evidence showed that notice was sent to the landowner’s record address by way of certified mail. The county did not have a duty under the zoning ordinance in effect at the time to ensure that the landowner received actual notice. Sanders v. Henry County, 484 Fed. Appx. 395, 2012 U.S. App. LEXIS 14560 (11th Cir. 2012).

Adequate state remedy for procedural irregularities in adoption of new zoning ordinance. —

Trial court did not err in granting the city’s motion for judgment on the pleadings on the plaintiffs’ procedural due process claims as Georgia’s Zoning Procedures Law (ZPL) provided the plaintiffs with an adequate state remedy for alleged procedural irregularities committed by the city in the adoption of a new zoning ordinance because the ZPL required local governments to provide property owners with a meaningful opportunity to be heard before enacting a zoning ordinance, not simply mere notice of a hearing, as the ZPL required that a local government conduct a public hearing on a proposed zoning ordinance before its adoption; and, if no public hearing was held, aggrieved property owners could sue to have the ordinance declared invalid. Schumacher v. City of Roswell, 344 Ga. App. 135 , 809 S.E.2d 262 , 2017 Ga. App. LEXIS 590 (2017).

Basis for review of zoning classifications. —

The only basis for judicial review of zoning classifications is when classification is arbitrary and unreasonable. Classification by zoning ordinance does not violate due process when it does not appear that all permitted uses are impossible. Riddle v. Waller, 127 Ga. App. 399 , 193 S.E.2d 895 , 1972 Ga. App. LEXIS 899 (1972).

Standard for review of constitutionality of state land use regulations. —

See Pope v. City of Atlanta, 242 Ga. 331 , 249 S.E.2d 16 , 1978 Ga. LEXIS 1198 (1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281 , 59 L. Ed. 2 d 494, 1979 U.S. LEXIS 1018 (1979).

Prerequisite requiring hearing before local zoning authority. —

When a landowner alleged having a vested right in the manner in which the owner’s property had been zoned, which would have allowed the owner to build the owner’s proposed project, the owner was obligated to bring that claim before the local zoning authority before a trial court had jurisdiction to consider it. Since the owner had not brought that claim before the zoning authority, the owner’s petition for a writ of mandamus to compel that authority to issue the owner the permit desired was properly dismissed. Cooper v. Unified Gov't of Athens-Clarke County, 277 Ga. 360 , 589 S.E.2d 105 , 2003 Ga. LEXIS 996 (2003).

City ordinance sufficiently definite. —

Trial court did not err in granting a city summary judgment in a lessee’s declaratory judgment action seeking an order declaring that City of Forest Park, Ga., Ordinance § 9-8-45 was unconstitutional because the ordinance was sufficiently definite so that a person of ordinary intelligence need not guess at its meaning; although the lessee contended that the phrase “without limitation of the generality of the foregoing” opened the definition of “public sidewalk” to include any space that the city later wished to assert fell under the ordinance, the specification of parking spaces and other areas intended for public travel did not permit the interpretation the lessee contended. Braley v. City of Forest Park, 286 Ga. 760 , 692 S.E.2d 595 , 2010 Ga. LEXIS 268 (2010).

Selection of Juries

Standards of intelligence, uprightness, and experience for jurors are not violative of the Constitution. White v. State, 230 Ga. 327 , 196 S.E.2d 849 , 1973 Ga. LEXIS 896 (1973).

Defendant may not complain of exclusion from jury of distinct class to which the defendant does not belong. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

Jurors’ employment status held as race-neutral strikes. —

Appeals court rejected the defendant’s challenge to the state’s use of peremptory jury strikes against two prospective jurors due to their unemployment, as this raised questions about their community commitment, a valid and accepted concern, and held such strikes to be race-neutral and free of discriminatory intent; further, a second juror was properly stricken on the basis of that juror’s unemployment, and not because the juror was a homemaker, and the record showed that the state struck a white juror on the basis of the juror’s periodic unemployment. Hodge v. State, 287 Ga. App. 750 , 652 S.E.2d 634 , 2007 Ga. App. LEXIS 1086 (2007), cert. denied, No. S08C0334, 2008 Ga. LEXIS 321 (Ga. Mar. 31, 2008).

When jury commissioners remiss as matter of law. —

Proportional representation of sufficient groups within the county is not required. However, when the evidence shows that in three major identifiable groups (sex, race, and age), women are 91.2 percent underrepresented in the grand jury pool and 69.7 percent in the traverse or petit jury pool; blacks are 49.5 percent underrepresented in the grand jury pool and 61.7 percent in the traverse or petit jury pools, coupled with the uncontroverted evidence from the jury commissioners that proportionally there are as many upright and intelligent women as men, blacks as whites, and young adults as those over 30 years of age, the conclusion that as a matter of law the jury commissioners were remiss in the execution of their statutory duties in compiling a jury list composed of “a fairly representative cross section of the intelligent and upright citizens of the county” is well-founded. Gould v. State, 131 Ga. App. 811 , 207 S.E.2d 519 , 1974 Ga. App. LEXIS 1566, aff'd in part and rev'd in part, 232 Ga. 844 , 209 S.E.2d 312 , 1974 Ga. LEXIS 1107 (1974).

Defendant has initial burden of proving existence of systematic racial exclusion in selection of jurors. Sullivan v. State, 225 Ga. 301 , 168 S.E.2d 133 , 1969 Ga. LEXIS 476 (1969), vacated, 408 U.S. 935, 92 S. Ct. 2854 , 33 L. Ed. 2 d 749, 1972 U.S. LEXIS 2295 (1972).

No inference arises because no member of defendant’s race on jury trying defendant. —

The arbitrary, systematic, and purposeful exclusion of members of defendant’s race from the defendant’s jury cannot be inferred merely from the fact that no one of that race is on such jury. Heard v. State, 210 Ga. 523 , 81 S.E.2d 467 , 1954 Ga. LEXIS 363 (1954).

Nonwhite defendant not entitled to racially mixed jury with members of defendant’s race. —

A black, or member of any other race, who is on trial is not entitled to a mixed jury composed of members of the defendant’s own race and members of the white race; no such right to a mixed jury is guaranteed by the due process and equal protection clauses of either the Constitution of the United States or of this state. Heard v. State, 210 Ga. 523 , 81 S.E.2d 467 , 1954 Ga. LEXIS 363 (1954).

Once prima-facie case of racial exclusion made, burden shifts. —

Once a prima-facie case of racial exclusion in the selection of jurors is made, the burden shifts to the prosecution to disprove the existence of racial exclusion. Sullivan v. State, 225 Ga. 301 , 168 S.E.2d 133 , 1969 Ga. LEXIS 476 (1969), vacated, 408 U.S. 935, 92 S. Ct. 2854 , 33 L. Ed. 2 d 749, 1972 U.S. LEXIS 2295 (1972).

Use of peremptory strikes to exclude African-Americans. —

The defendant was not denied due process of the law on the ground that the state used all of its peremptory strikes to exclude African-Americans from a petit jury. Avery v. State, 174 Ga. App. 116 , 329 S.E.2d 276 , 1985 Ga. App. LEXIS 2698 (1985).

State proffered race-neutral reasons for exercising its peremptory strikes to strike four African-American women, which included: a possible familiarity with defendant’s mother, a camaraderie with a witness in another trial in which both prosecutors participated, a concern that a prospective juror would have difficulty understanding the scientific evidence, inattention during voir dire, a possible preoccupation with a child at home, and sleeping during voir dire. Rakestrau v. State, 278 Ga. 872 , 608 S.E.2d 216 , 2005 Ga. LEXIS 38 (2005).

Appeals court rejected the defendant’s claim that the state committed a Batson violation in peremptorily striking two jurors, as: (1) the state’s reasons in striking the first juror appeared concrete and race-neutral and any question of doubt was decided in favor of the state, given the great deference to the determination that the state’s reason was not so wholly fantastic as to be pretextual; and (2) a second juror was properly stricken based on evidence that the juror worked nights, appeared to be extremely fatigued, and actually slept through portions of the voir dire. Woolfolk v. State, 282 Ga. 139 , 644 S.E.2d 828 , 2007 Ga. LEXIS 359 (2007).

Action of jury invalid when impaneling not in compliance with law. —

When the impaneling of a jury is not in compliance with law, the jury as a body is not competent to act, and its action is invalid. Allen v. State, 110 Ga. App. 56 , 137 S.E.2d 711 , 1964 Ga. App. LEXIS 546 (1964).

Sufficient race-neutral reasons existed for state’s peremptory strikes. —

While the defendant made out a prima facie case of racial discrimination regarding the state’s use of three peremptory strikes, because sufficient race-neutral reasons existed for those strikes, the defendant’s rights were not violated. LeMon v. State, 290 Ga. App. 527 , 660 S.E.2d 11 , 2008 Ga. App. LEXIS 224 (2008), cert. denied, No. S08C1297, 2008 Ga. LEXIS 589 (Ga. June 16, 2008).

State cannot deliberately exclude identifiable, distinct groups from jury lists. —

A defendant is not constitutionally entitled to a venire or jury roll of any particular composition, but U.S. Const., amend. 14, equal protection and due process clause, and U.S. Const., amend. 6, right to a jury trial, do require that the state not deliberately and systematically exclude identifiable and distinct groups from their jury lists. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

Burden is upon defendant to demonstrate that a particular class was the subject of discrimination in the jury selection procedures. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

Threshold question that must be answered by the defendant is whether the particular class constitutes an identifiable and distinct class for purposes of a jury challenge based on U.S. Const., amend. 14. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

In determining whether particular discrepancy is substantial or significant, some allowance may be made for the imprecision of the jury selection process and the operation of constitutionally inoffensive factors such as exemptions from jury duty based on occupation. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

In order to establish prima-facie case of discrimination, the defendant must demonstrate that there exists a substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population and that the selection procedures themselves are not racially neutral. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

To shift burden of proof. —

Statistical evidence establishing that blacks are underrepresented, together with evidence that the jury selection procedures are not racially neutral, establishes a prima-facie case of invidious racial discrimination thus shifting the burden of proof to the state. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

Batson challenge properly rejected. —

Defendant’s Batson challenge was properly rejected as the state gave racially neutral reasons for its strikes, including that a juror’s recollection abilities were called into question and that the juror had to care for a dependent aunt, that a juror’s son had recently been prosecuted for a driving under the influence charge, and that a juror was a social worker; defendant failed to show purposeful discrimination. Flanders v. State, 279 Ga. 35 , 609 S.E.2d 346 , 2005 Ga. LEXIS 139 (2005).

Complaint of exclusion of blacks from jury requires timely challenge. —

In the absence of a timely challenge to the grand jury or the traverse jury, the complaint of exclusion of blacks therefrom is not reviewable. Abrams v. State, 223 Ga. 216 , 154 S.E.2d 443 , 1967 Ga. LEXIS 471 (1967).

Failure to object at trial waives objection. —

An objection on the grounds of systematic racial exclusion on grand jury should have been presented in a proper way at the trial, and upon failure to do so it is to be considered as waived and does not present a ground for habeas corpus. Wilcoxon v. Aldredge, 192 Ga. 634 , 15 S.E.2d 873 , 1941 Ga. LEXIS 533 (1941).

In order for defendant’s motion to quash the indictment and challenge to the array of the grand jurors to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that the defendant had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned; otherwise, the objection is deemed to be waived. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 , 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800, 1976 U.S. LEXIS 1657 (1976).

Correctional officers. —

It is not error to refuse to dismiss for cause correctional officers. Kent v. State, 179 Ga. App. 131 , 345 S.E.2d 669 , 1986 Ga. App. LEXIS 1841 (1986).

Comment by court during voir dire. —

When, in ruling on a voir dire question, the trial court stated that “The defendant is the one that’s injected race into the case. The state hasn’t,” and the defendant argued that the comment put a chill on the voir dire process, denying the defendant an opportunity to get a racially unbiased jury in denial of the defendant’s due process rights, it was held that the record did not show either that the court’s comment somehow abridged the scope or effectiveness of the defendant’s voir dire questions or that the court’s comment prejudiced the minds of the jurors against the defendant. Walker v. State, 258 Ga. 443 , 370 S.E.2d 149 , 1988 Ga. LEXIS 304 (1988), overruled in part, Carter v. State, 298 Ga. 867 , 785 S.E.2d 274 , 2016 Ga. LEXIS 257 (2016).

Juror’s statement of impartiality. —

Because defendant waived an objection to the trial court’s ruling on the scope of defendant’s cross-examination of a witness by failing to object, and because a juror stated that the juror could be fair and impartial when hearing the case, the trial court did not abuse the court’s discretion in denying defendant’s motion for a new trial. Pinckney v. State, 285 Ga. 458 , 678 S.E.2d 480 , 2009 Ga. LEXIS 279 (2009).

Application
1.In General

Service on registered agent of corporation. —

The method of service properly authorized under former § 14-2-62(b) (see now O.C.G.A. § 14-2-504 ) is not subject to constitutional attack because it is in itself reasonably certain to inform those affected and is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Frazier v. HMZ Property Mgt., Inc., 161 Ga. App. 195 , 291 S.E.2d 4 , 1982 Ga. App. LEXIS 1811 (1982).

O.C.G.A. § 40-6-120 was unconstitutionally vague. —

In light of the conflict in the language of O.C.G.A. § 40-6-120(a)(2) , a person of common intelligence could not determine with reasonable definiteness that the statute prohibits the making of a left turn into the right lane of a multi-lane roadway. Accordingly, § 40-6-120(a)(2) is too vague to be enforced against a driver of a vehicle making a left turn into a multi-lane roadway that lacks official traffic-control devices directing the driver into which lane to turn and is, therefore, unconstitutional under the due process clauses of the Georgia and United States Constitutions. McNair v. State, 285 Ga. 514 , 678 S.E.2d 69 , 2009 Ga. LEXIS 298 (2009).

Patients had no constitutional right to dialysis treatment. —

Trial court did not err in granting a clinic’s motion under O.C.G.A. § 9-11-12(b)(6) to dismiss for failure to state a claim the patients’ action alleging that the closure of the clinic violated the due process clause of the Georgia Constitution, Ga. Const. 1983, Art. I, Sec. I, Para. I, because the patients had no constitutional right to the dialysis treatment; even if the patients depended for their lives upon the free dialysis treatment the patients voluntarily received from the clinic for several years, the patients were not forced by any state-imposed restriction to become dependent, and the patients acquired no constitutional right to continue to receive the treatment. Andrade v. Grady Mem'l Hosp. Corp., 308 Ga. App. 171 , 707 S.E.2d 118 , 2011 Ga. App. LEXIS 146 (2011).

Process for commitment to state mental institution comports with due process. —

Former Code 1933, § 27-1503 (see now O.C.G.A. § 17-7-131 ) afforded a person due process of the laws prior to a final order committing the person to a state mental institution whether or not the person is committed temporarily to a state mental institution for evaluation. Skelton v. Slaton, 243 Ga. 426 , 254 S.E.2d 704 , 1979 Ga. LEXIS 925 (1979).

Release from state mental institution. —

The provisions of former Code 1933, § 27-1503 (see now O.C.G.A. § 17-7-131 ) disallowing the filing of another application for release until one year has elapsed from the denial of the last preceding application and allowing release only upon court order did not offend current concepts of due process or equal protection of the laws. Skelton v. Slaton, 243 Ga. 426 , 254 S.E.2d 704 , 1979 Ga. LEXIS 925 (1979).

Inquiry into sanity of person at time of acquittal must be conducted so as to afford person due process of laws. Skelton v. Slaton, 243 Ga. 426 , 254 S.E.2d 704 , 1979 Ga. LEXIS 925 (1979).

Sheriff can be held liable on bond for acts of deputies outside presence and without knowledge. —

To hold sheriff liable on the sheriff’s bond for the acts of the sheriff’s deputies committed outside the sheriff’s presence and without the sheriff’s knowledge is not a violation of the due process clauses of the state and federal Constitutions, notwithstanding the fact that the sheriff does not have unlimited power in discharging or removing deputies. Standard Sur. & Cas. Co. v. Johnson, 74 Ga. App. 823 , 41 S.E.2d 576 , 1947 Ga. App. LEXIS 707 (1947).

Statutory liability for failure to report what is not known violates due process. —

Section providing that a section foreman shall be liable for double the value of the stock killed by the railroad upon the foreman’s failure to post the required notice, not only makes the foreman liable for the failure to report that of which the foreman has knowledge, but goes beyond this to subject the foreman to a liability for failing to report the killing of stock of which the foreman has no knowledge. This is a clear violation of the due process clause regardless of the fact that the penalty shall be recovered in the manner provided by law for the collection of other claims. Buchanan v. Heath, 210 Ga. 410 , 80 S.E.2d 393 , 1954 Ga. LEXIS 331 (1954).

Statute holding automobile owner liable for operator’s negligence violates due process. —

Georgia Laws 1955, p. 454, clearly violates the due process clause of both the federal and state Constitutions, for the reason that it makes the owner of a motor vehicle liable if the vehicle is being used in the prosecution of the business or for the benefit of the owner, even though operated without notice to the owner or without the owner’s knowledge and without the owner’s consent, express or implied. To hold this statute constitutional would be to hold a party liable for the negligent conduct of another, even though a trespasser were operating the vehicle against the express orders of the owner, and irrespective of how careful or free from negligence the owner was, the only condition being that it be operated for the benefit of the owner. Frankel v. Cone, 214 Ga. 733 , 107 S.E.2d 819 , 1959 Ga. LEXIS 327 (1959), overruled, Lott Inv. Corp. v. Gerbing, 242 Ga. 90 , 249 S.E.2d 561 , 1978 Ga. LEXIS 1106 (1978).

County’s sanitary landfill and fee schedules were not violative of due process or equal protection clauses of the United States and Georgia Constitutions. City of Covington v. Newton County, 243 Ga. 476 , 254 S.E.2d 855 , 1979 Ga. LEXIS 947 (1979).

“Property” defined. —

The term property comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of property, and the corresponding right to exclude others from the use. Therefore, no physical invasion damaging to the property need be shown; only an unlawful interference with the right of the owner to enjoy possession. Thus, increased noise and odors may result in an inverse condemnation of property by interfering with the use and enjoyment of land and endangering health. Duffield v. DeKalb County, 242 Ga. 432 , 249 S.E.2d 235 , 1978 Ga. LEXIS 1241 (1978).

Private property safeguarded. —

The Constitution of this state, by repeated declarations, leaves no room for doubt but that it intends to place around private property the same safeguards with which it shields life and liberty. Cox v. GE Co., 211 Ga. 286 , 85 S.E.2d 514 , 1955 Ga. LEXIS 300 (1955).

With property owner’s right to sell. —

The unshackled right to sell one’s own property for a lawful use is within itself property protected by the state Constitution and is beyond the reach of legislative impairment. The state Constitution forbids destruction, taking, or impairing of private property by any state bureau under any pretended legislative powers. Gray v. Georgia Real Estate Comm'n, 209 Ga. 301 , 71 S.E.2d 645 , 1952 Ga. LEXIS 537 (1952).

Georgia Real Estate Commission is wholly without power to require the owner of land to procure a license before selling the land or to otherwise interfere with the complete freedom of such owner in the sale of the owner’s own land. Gray v. Georgia Real Estate Comm'n, 209 Ga. 301 , 71 S.E.2d 645 , 1952 Ga. LEXIS 537 (1952).

Pledging political subdivision’s power was not taking of property without due process. —

Under Ga. L. 1975, p. 107, § 1 (see now O.C.G.A. T. 46, C. 3, Art. 3), the pledging of the full faith and credit and taxing power of the political subdivisions does not constitute a taking of property without due process of law. Thompson v. Municipal Elec. Auth., 238 Ga. 19 , 231 S.E.2d 720 , 1976 Ga. LEXIS 1077 (1976).

Public office is public trust or agency and is not property of incumbent thereof, and when the incumbent is suspended from such office, the incumbent is not deprived of any property. Felton v. Huiet, 178 Ga. 311 , 173 S.E. 660 , 1933 Ga. LEXIS 39 (1933).

Redistricting attempts for school board members. —

While voting rights and the right to run for public office are core constitutional rights, an attempted deprivation of constitutional or statutory rights is not the same as an actual deprivation. Furthermore, incurring legal fees to vindicate rights does not itself establish that those rights were violated. Thus, the plaintiff, a school board member, pursing attempted violations of the plaintiff’s right to run and hold a designated seat in a predefined district, could not succeed as an injunction in another lawsuit and failure of preclearance interfered with the implementation of the efforts of the defendants, the local voting registrars; since the attempt to deprive the plaintiff of the plaintiff’s constitutional rights did not succeed, neither can the plaintiff’s lawsuit succeed. Cook v. Randolph County, 573 F.3d 1143, 2009 U.S. App. LEXIS 15201 (11th Cir. 2009).

Legislative limitation of recoverable damages after tort committed not deprivation of property without due process. —

The fact that alleged libelous articles were published before the adoption of an Act limiting the plaintiff’s previously existing right to recover punitive damages did not render the law unconstitutional as violating federal and state provisions against the deprivation of property without due process of law. Kelly v. Hall, 191 Ga. 470 , 12 S.E.2d 881 , 1941 Ga. LEXIS 317 (1941).

Limitation on motor vehicle liability insurance benefits held constitutional. —

The limitation on income benefits in former O.C.G.A. § 33-34-4(a)(2)(B) and (a)(2)(C), as construed by the Supreme Court and the Court of Appeals, establishes a constitutionally permissible classification reasonably related to the purposes of the no-fault Act. Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574 , 277 S.E.2d 675 , 1981 Ga. LEXIS 780 (1981).

Hospital authority with standing to attack constitutionality of state law. —

A hospital authority or a private corporation has standing by statute to attack state law on the grounds that it violates the due process and equal protection clauses of the Georgia Constitution. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 , 1982 Ga. LEXIS 1100 (1982).

County or municipal corporation created by legislature without standing to invoke due process argument against legislature. —

A county or municipal corporation, created by the legislature, does not have standing to invoke the equal protection and due process clauses of the state or federal Constitution in opposition to the legislature. City of Atlanta v. Spence, 242 Ga. 194 , 249 S.E.2d 554 , 1978 Ga. LEXIS 1137 (1978).

Due process rights granted by university bulletin. —

A provision in a private university bulletin to the effect that no student shall be dismissed without “due process” does not contractually obligate an educational institution to provide the full range of constitutional due-process protections enjoyed by students at tax-supported institutions, but only those procedures specifically provided for in the bulletin itself. Life Chiropractic College, Inc. v. Fuchs, 176 Ga. App. 606 , 337 S.E.2d 45 , 1985 Ga. App. LEXIS 2927 (1985).

State’s interest did not outweigh patient’s right to refuse treatment. —

Hospital patient who was incapable of spontaneous respiration was entitled to declaratory relief permitting the patient to turn off a ventilator, which would result in the patient’s death, since the state’s interest in preserving life did not outweigh the patient’s right to refuse medical treatment. State v. McAfee, 259 Ga. 579 , 385 S.E.2d 651 , 1989 Ga. LEXIS 480 (1989).

Administering sedative was inseparable from right to refuse medical treatment. —

When hospital patient sought to have ventilator turned off, which would cause the patient’s death, the patient’s right to have a sedative administered before the ventilator was disconnected was inseparable from the patient’s right to refuse medical treatment. State v. McAfee, 259 Ga. 579 , 385 S.E.2d 651 , 1989 Ga. LEXIS 480 (1989).

Grant of official immunity to state employee providing medical services. —

Grant of official immunity from a malpractice suit to a state-employed doctor based on the patient’s status as a Medicaid patient did not violate the constitutional rights of the patient’s parents, as the due process and equal protection clauses of the U.S. and Georgia Constitutions protected only rights, and a waiver of sovereign immunity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., was merely a privilege. Porter v. Guill, 298 Ga. App. 782 , 681 S.E.2d 230 , 2009 Ga. App. LEXIS 791 (2009).

Garnishment may reach out-of-state wages. —

Allowing garnishment of wages earned wholly outside this state is not an unconstitutional extension of the laws of this state to a debt created outside the geographical limits of this state, thus depriving the garnishee of due process. United Merchants & Mfrs., Inc. v. Citizens & S. Nat'l Bank, 166 Ga. App. 468 , 304 S.E.2d 552 , 1983 Ga. App. LEXIS 3243 (1983).

Charitable immunity doctrine does not constitute a violation of the equal protection or due process clauses of the federal or state constitutions. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 , 353 S.E.2d 515 , 1987 Ga. LEXIS 654, cert. denied, 484 U.S. 863, 108 S. Ct. 181 , 98 L. Ed. 2 d 134, 1987 U.S. LEXIS 3281 (1987).

Provisions of the Tort Reform Act, O.C.G.A. § 51-12-5.1 , relating to punitive damages, violated the due process and equal protection clauses of the federal and state constitutions, violated the excessive fines provisions of both constitutions, and violated the double jeopardy provision of the Fifth Amendment to the federal constitution.McBride v. GMC, 737 F. Supp. 1563, 1990 U.S. Dist. LEXIS 5993 (M.D. Ga. 1990).

When Governor wishes to remove incumbent constitutional officer for abandonment, notice and hearing are required for due process. Partain v. Maddox, 227 Ga. 623 , 182 S.E.2d 450 , 1971 Ga. LEXIS 800 (1971).

Judgment creditor without right to deprive debtor of property without due process. —

The mere fact that a creditor has obtained a judgment does not give the creditor a right to enforce that judgment by depriving the alleged judgment debtor of property without due process of law. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699 , 240 S.E.2d 171 , 1977 Ga. App. LEXIS 2469 (1977).

Trial court deprived garnisher of due process. —

The trial court deprived the garnisher of due process in failing to afford a hearing on setting aside default and the propriety of modifying the amount of judgment. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699 , 240 S.E.2d 171 , 1977 Ga. App. LEXIS 2469 (1977).

Before public utility service cut off, consumer to be given opportunity to be heard. —

In Georgia, it is entirely constitutional to provide for cutting off water for failure to pay at stated times the rates therefor, provided only that a consumer cannot be deprived of an opportunity to, in good faith, present any reason why the consumer ought not to be required to pay and have the consumer’s claim adjudicated, providing the consumer insures the city or other party furnishing water against loss; this applies equally to charges for sewer services. Liner v. City of Rossville, 213 Ga. 756 , 101 S.E.2d 753 , 1958 Ga. LEXIS 272 (1958).

Postjudgment garnishment law is not unconstitutional for lack of due process. It meets the requirement of judicial supervision and notice. Morgan v. Morgan, 156 Ga. App. 726 , 275 S.E.2d 673 , 1980 Ga. App. LEXIS 3182 (1980).

Abandoned motor vehicle provisions violative of due process. —

Due process of law includes notice and hearing as a matter of right when one’s property rights are involved; Ga. L. 1977, p. 253 required notice prior to sale of abandoned motor vehicles, but made no provision for a judicial hearing as a matter of right on issues in controversy either prior to or following the sale of the vehicle. Due process does not permit such procedure. The Act dealing with abandoned motor vehicles violated due process under the state and federal Constitutions. Gore v. Davis, 243 Ga. 634 , 256 S.E.2d 329 , 1979 Ga. LEXIS 1015 (1979).

Foreclosure on automobile. —

Vehicle owner was denied due process when the trial court entered a default judgment against it, as the evidence showed that the wrecker company that was attempting to foreclose on its lien on the vehicle which the wrecker company found abandoned did not provide notice of the foreclosure action to the vehicle owner since the wrecker company sent notice of that action to the wrong address in a state other than that in which the vehicle owner was located. Mitsubishi Motors Credit of Am., Inc. v. Robinson & Stephens, Inc., 263 Ga. App. 168 , 587 S.E.2d 146 , 2003 Ga. App. LEXIS 1060 (2003), cert. denied, No. S04C0174, 2004 Ga. LEXIS 89 (Ga. Jan. 20, 2004), cert. denied, No. S04C0173, 2004 Ga. LEXIS 90 (Ga. Jan. 20, 2004).

Failure to provide a corporation that was the original owner of a car with notice of a foreclosure proceeding involving the car was a due process violation that was tantamount to a lack of personal jurisdiction; thus, the foreclosure judgment was void under O.C.G.A. § 9-12-16 . Mitsubishi Motors Credit of Am., Inc. v. Sheridan, 286 Ga. App. 791 , 650 S.E.2d 357 , 2007 Ga. App. LEXIS 817 (2007), cert. denied, No. S07C1842, 2007 Ga. LEXIS 751 (Ga. Oct. 9, 2007).

Charter assessment provision violative of due process because no notice or hearing on property valuation. —

The municipal charter of Dublin, Georgia, provides that the value for taxation of all real and personal property in the city subject to taxation shall be determined by three disinterested freeholders of the city, to be elected annually by the mayor and board of aldermen, who shall take an oath to assess all property in the city at a fair market value to the best of their skill and knowledge. In case any property holder or taxpayer is dissatisfied with any assessment so made by the assessors, the taxpayer may appeal to the mayor and board of aldermen, who shall review the assessment and whose decision thereon shall be final. As the charter provision in question failed to provide for notice to the taxpayer and afford as a matter of right a hearing before the assessors on the question as to valuation of the property, and as the hearing provided for by the ordinance was a mere matter of grace, such provision of the charter is repugnant to the due process clauses of the state and federal Constitutions. Swinson v. City of Dublin, 178 Ga. 323 , 173 S.E. 93 , 1934 Ga. LEXIS 47 (1934).

Review of Department of Natural Resources decisions. —

Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., and O.C.G.A. § 12-2-1 govern the procedure for judicial review of final decisions of the Department of Natural Resources; since the party seeking review failed to make a timely request therefor, affirmance of the final decision of the Department violated neither equal protection nor due process. Nix v. Long Mtn. Resources, Inc., 262 Ga. 506 , 422 S.E.2d 195 , 1992 Ga. LEXIS 923 (1992).

A hearing on an application for a certificate of public convenience and necessity, whether granted or denied, is not a judicial or quasi-judicial proceeding to which due process rights applicable in such proceedings attach. RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539 , 301 S.E.2d 896 , 1983 Ga. App. LEXIS 1939 (1983).

Summary suspension of driver’s license prior to hearing with no provision for automatic stay pending appeal was not violative of due process clauses of the United States Constitution and the Georgia Constitution. Williams v. Cofer, 246 Ga. 344 , 271 S.E.2d 486 , 1980 Ga. LEXIS 1134 (1980).

Due process rights applicable to hearing on suspension of driver’s license for refusal to submit to breath analysis test, see Hardison v. Fayssoux, 168 Ga. App. 398 , 309 S.E.2d 397 , 1983 Ga. App. LEXIS 2788 (1983).

License revocation order upheld when driver afforded sufficient due process. —

Administrative decision disqualifying a driver from driving a commercial motor vehicle for life based on the refusal to submit to state-administered chemical testing and a prior conviction for driving under the influence was upheld, as the arresting officer informed the driver that the driver could lose that driver’s license to drive upon refusing to submit to chemical testing, and the requirements of due process did not require the arresting officer to inform the driver of all the consequences of refusing to submit to chemical testing. Moreover, the driver requested and received a hearing under O.C.G.A. § 40-5-67.1(g)(1). Chancellor v. Dozier, 283 Ga. 259 , 658 S.E.2d 592 , 2008 Ga. LEXIS 254 (2008).

Appeal from suspension of driver’s license. —

Even though the defendant elected to first pursue an administrative appeal of a driver’s license suspension to the Department of Public Safety and was unsuccessful in that effort, the defendant was still entitled to file an appeal in the superior court under O.C.G.A. § 40-5-66 , at which the defendant could receive a meaningful hearing upon request and, accordingly, the defendant was not denied the right to procedural due process. Miles v. Shaw, 272 Ga. 475 , 532 S.E.2d 373 , 2000 Ga. LEXIS 495 (2000).

Trial judge’s inappropriate conduct of injunction hearing required reversal. —

Conduct resulting in reversible error was committed by a trial judge during an injunction hearing involving the alleged fraudulent refinancing of church property since the judge was found to have attempted to procure evidence and elicit testimony, conducted ex parte communications, and not afforded the parties the opportunity to offer evidence, give argument, or otherwise present the parties’ respective cases. Further, the trial judge erred by determining that one defendant committed criminal contempt without giving that defendant an opportunity to respond to or defend against the trial judge’s determination that the defendant’s testimony was untruthful. Cousins v. Maced. Baptist Church of Atlanta, 283 Ga. 570 , 662 S.E.2d 533 , 2008 Ga. LEXIS 441 (2008).

In a petition for declaratory judgment and an injunction against the defendants seeking use and control of a church, the trial court erred in entering final judgment in favor of the defendants because the trial court’s conduct at the final hearing deprived the plaintiff of the plaintiff’s right to due process since the trial court prohibited the plaintiff from presenting witnesses and evidence to support the plaintiff’s claims that it owned the church; and, at multiple times during the final hearing, counsel for the plaintiff asked to present witnesses, but the trial court did not permit counsel to do so, instead limiting the hearing to argument from counsel and testimony from a defense witness and an unsworn defendant. Thomas v. Johnson, 329 Ga. App. 601 , 765 S.E.2d 748 , 2014 Ga. App. LEXIS 735 (2014).

2.Attorneys

Disbarment of attorney. —

Attorney who was legally charged and convicted of a crime involving moral turpitude and then disbarred under Standard 66, Rule 4-102, Rules and Regulations of the State Bar of Georgia, was properly afforded due process. Rehberger v. State, 269 Ga. 576 , 502 S.E.2d 222 , 1998 Ga. LEXIS 732 (1998).

Georgia Board of Bar Examiners did not violate due process when it recalculated the scores only of those applicants who initially failed the bar examination by dropping a question; the applicant’s allegation, premised on the supposition that those who initially passed the exam would have failed if they were regraded without taking into account the question, was not supported by the record and, even if it were, the applicant could not show harm because the applicant was graded twice and failed both times. In the Matter of Hedge, 279 Ga. 241 , 610 S.E.2d 519 , 2005 Ga. LEXIS 148 (2005).

Attorney’s due process rights violated in contempt proceeding. —

Attorney’s alleged contumacious conduct during the course of a death penalty case constituted an indirect contempt, and the attorney was entitled, among other things, to reasonable notice of the charges, to counsel of the attorney’s own choosing, and to the opportunity to call witnesses; since the attorney was not given these opportunities when the contempt hearing was held at the end of the day of the death penalty trial, the attorney’s contempt hearing did not comply with due process and furthermore, the trial judge could preside over the contempt hearing as the conduct was not directed toward the judge and the judge did not react to the conduct in such manner as to become involved in the controversy. Ramirez v. State, 279 Ga. 13 , 608 S.E.2d 645 , 2005 Ga. LEXIS 114 (2005).

Although a judge informed an attorney of the conduct found to be criminally contemptuous, because the judge not only refused to afford that attorney an opportunity to be heard, but also became involved in the controversy, the criminal contempt finding entered against the attorney had to be reversed. In re Hatfield, 290 Ga. App. 134 , 658 S.E.2d 871 , 2008 Ga. App. LEXIS 276 (2008).

3.Employment Relationships and Employees

Application of Workers’ Compensation Law to public employees comports with due process. —

Former Code 1933, § 114-109 (see now O.C.G.A. § 34-9-3 ) was not invalid as being in violation of the due process clauses of the state and federal Constitutions, nor did the law deny to the defendant the equal protection of the laws. City of Macon v. Benson, 175 Ga. 502 , 166 S.E. 26 , 1932 Ga. LEXIS 280 (1932).

Constitutionality of employment security provisions. —

The fact that an employee is entitled to benefits based on employment by the hospital bears a substantial relationship to the purpose of the Employment Security Law. Compulsory contributions for employment security, like many other taxes, are payable without regard to fault; and it follows that employee’s eligibility for benefits and the hospital authority’s resulting liability do not offend the due process clause of Georgia’s Constitution. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 , 1982 Ga. LEXIS 1100 (1982).

Effect of state remedies redressing deprivation of procedural due process. —

School employee who was improperly dismissed did not have a claim for damages under 42 U.S.C. § 1983 when the employee was reinstated in the employee’s job with back pay as the result of state remedies that redressed any procedural due process deprivation that the employee suffered. Atlanta City Sch. Dist. v. Dowling, 266 Ga. 217 , 466 S.E.2d 588 , 1996 Ga. LEXIS 1160, cert. denied, 519 U.S. 812, 117 S. Ct. 59 , 136 L. Ed. 2 d 21, 1996 U.S. LEXIS 4694 (1996).

Seniority among railway workers is fundamentally and wholly contractual, does not arise from mere employment, and is not an inherent, natural, or constitutional right. Lamon v. Georgia S. & F. Ry., 212 Ga. 63 , 90 S.E.2d 658 , 1955 Ga. LEXIS 548 (1955).

Employee rights under contract do not extend beyond its life. —

An employee has no inherent right to seniority in service; and if seniority arises only out of contract, such rights created and arising under the contract do not extend beyond its life when it has been legally terminated. Lamon v. Georgia S. & F. Ry., 212 Ga. 63 , 90 S.E.2d 658 , 1955 Ga. LEXIS 548 (1955).

But violation or misapplication of existing bargaining agreement deprives employee of protectible rights. —

Violation or misapplication of an existing bargaining agreement, as by preferring an employee with less seniority over another with greater seniority when the employee is still in service of the employer under the contract, deprives the employee of the employee’s seniority rights, and such seniority rights, which are property rights, will be protected in the courts. Lamon v. Georgia S. & F. Ry., 212 Ga. 63 , 90 S.E.2d 658 , 1955 Ga. LEXIS 548 (1955).

Right to follow one’s profession, business, or occupation, or to labor is valuable property right, protected by the Constitution and laws of the state, subject only to such restrictions as the government may impose for the welfare and safety of society. Horne v. Skelton, 152 Ga. App. 654 , 263 S.E.2d 528 , 1979 Ga. App. LEXIS 2995 (1979).

Requirement of state professional license. —

Lactation care provider’s due process and equal protection challenge to the Georgia Lactation Consultant Practice Act, O.C.G.A. § 43-22A-1 et seq., which required such providers to obtain a state license, was improperly dismissed; the Georgia Constitution recognized a substantive due process right to work in one’s chosen profession. Jackson v. Raffensperger, 308 Ga. 736 , 843 S.E.2d 576 , 2020 Ga. LEXIS 344 (2020).

An evidentiary hearing subsequent to discharge of city employees meets the requirements of due process of law as it regards their property right in continued employment. City of Atlanta v. Mahony, 162 Ga. App. 5 , 289 S.E.2d 250 , 1982 Ga. App. LEXIS 1998 (1982).

Author or inventor has property right in product of mental labors, even though such product is not patentable. The right has been recognized at common law independently of copyright or letters patent. Monumental Properties of Ga., Inc. v. Frontier Disposal, Inc., 159 Ga. App. 35 , 282 S.E.2d 660 , 1981 Ga. App. LEXIS 2473 (1981).

Exclusivity of property right in unpatented product. —

A property right in the unpatented product is only exclusive until it becomes the property of the public by being placed on the market. Monumental Properties of Ga., Inc. v. Frontier Disposal, Inc., 159 Ga. App. 35 , 282 S.E.2d 660 , 1981 Ga. App. LEXIS 2473 (1981).

Right to accept private employment. —

A person’s right to work, namely the right to accept employment from private firms and individuals, is protected by the state due process clause. State v. McMillan, 253 Ga. 154 , 319 S.E.2d 1 , 1984 Ga. LEXIS 857 (1984).

The right of a person retired from state employment to accept employment from private firms and individuals cannot be abridged unless the law which abridges it furthers or protects some governmental interest which outweighs the intrusion upon personal liberty and property rights. State v. McMillan, 253 Ga. 154 , 319 S.E.2d 1 , 1984 Ga. LEXIS 857 (1984).

Specialty training for physicians. —

Public hospital bylaw requiring specific postgraduate specialty training or residency in order for physicians to be eligible for admission to the medical staff did not transgress the equal protection or due process rights of osteopathic physicians. Silverstein v. Gwinnett Hosp. Auth., 861 F.2d 1560, 1988 U.S. App. LEXIS 17589 (11th Cir. 1988).

Immunity granted employers in the workers’ compensation act does not violate the due process and equal protection provisions of the state and federal constitutions. Georgia Dep't of Human Resources v. Joseph Campbell Co., 261 Ga. 822 , 411 S.E.2d 871 , 1992 Ga. LEXIS 26 (1992).

Failure of an employee to appeal discharge within the time required by the employer’s personnel policy precluded employee from obtaining mandamus for a violation of due process. Camden County v. Haddock, 271 Ga. 664 , 523 S.E.2d 291 , 1999 Ga. LEXIS 787 (1999).

Due process denied if city employee discharged before notice and hearing prescribed by charter. —

When tenure is created by an Act which provides for notice and a hearing before discharge, failure to give the notice and accord the city fire department employee the right to be heard amounts to a denial of due process of law. Mulcay v. Murray, 219 Ga. 747 , 136 S.E.2d 129 , 1964 Ga. LEXIS 399 (1964).

Evidentiary hearing subsequent to discharge of county employee meets requirements of due process of law. Brownlee v. Williams, 233 Ga. 548 , 212 S.E.2d 359 , 1975 Ga. LEXIS 1374 (1975).

Delay in holding hearing on public employee’s appeal of termination. —

As a former police officer failed to show prejudice from a two-year delay in holding a hearing on the officer’s appeal of the officer’s termination, and the evidence supported the civil service board’s decision to uphold the officer’s dismissal, the delay of the appeal did not violate the officer’s due process rights under Ga. Const. 1983, Art. I, Sec. I, Para. I. Glass v. City of Atlanta, 293 Ga. App. 11 , 666 S.E.2d 406 , 2008 Ga. App. LEXIS 818 (2008).

When municipal police officer was not granted hearing prior to initial discharge, but was granted a trial type hearing on the officer’s appeal before the personnel review board when the officer was confronted by the witnesses and afforded the opportunity to cross examine the witnesses and to offer evidence in the officer’s own behalf, due process was not violated. In re Wiggins, 144 Ga. App. 707 , 242 S.E.2d 290 , 1978 Ga. App. LEXIS 1758 (1978).

Notice required for discharged public employees protected by merit system legislation. —

Due process requires that public employees protected by merit system legislation be notified specifically and in detail of the reasons for their discharge prior to their hearing. Sheppard v. DeKalb County Merit Council, 144 Ga. App. 115 , 240 S.E.2d 316 , 1977 Ga. App. LEXIS 2601 (1977).

No requirement employee be given hearing whenever superior’s decision might affect employment. —

There is no requirement under the due process provisions of the state Constitution that an employee be given a hearing on every decision made by a superior which might have an effect on the employee’s employment. Brown v. State Merit Sys. of Personnel Admin., 245 Ga. 239 , 264 S.E.2d 186 , 1980 Ga. LEXIS 755 (1980).

Civil employment which allows termination only “for cause” creates expectation of continued employment that is constitutionally protected. Glenn v. Newman, 614 F.2d 467, 1980 U.S. App. LEXIS 19305 (5th Cir. 1980).

Parties to employment contract not subject to Georgia law unless contract made or actual work done in state. —

Under former Code 1933, § 114-110 (see now O.C.G.A. § 34-9-7 ), the state acquires jurisdiction only by the act of the parties in coming within the state to execute a contract of employment. In the absence of the making of a contract within the state where no work thereunder in the state is required, the parties thereto could not be subjected to the terms of the Georgia law; for to do so would be to deny to them due process of law, as guaranteed by the state and federal Constitutions. Cramer v. American Mut. Liab. Ins. Co., 77 Ga. App. 236 , 47 S.E.2d 925 , 1948 Ga. App. LEXIS 523 (1948) (decided under former Code 1933, § 114-110 prior to amendment by Ga. L. 1972, p. 929, § 2).

Workers’ Compensation Act as voluntary statute. —

Former Code 1933, § 114-117 (see now O.C.G.A. § 34-9-106 ) providing for judgment in superior court based upon a memorandum of agreement approved by, or award of, the Department of Industrial Relations (now the Board of Workers’ Compensation) is not violative of the due process clauses of the state and federal Constitutions though it does not provide for notice of, or hearing on, the proceedings in the superior court. The Workers’ Compensation Act is a voluntary or elective statute. Generally, an attack on such a statute on the grounds that it denies due process of law is not sustained by the courts because the complaining party voluntarily submitted to the terms of the statute and cannot complain if usual forms of legal process are denied the party under the statute. Taylor v. Woodall, 183 Ga. 122 , 187 S.E. 697 , 1936 Ga. LEXIS 179 (1936).

Suspension or discharge of police officer. —

Due process required that police detective receive proper notice of the behavior for which the detective was suspended or discharged. Byrd v. City of Atlanta, 683 F. Supp. 804, 1988 U.S. Dist. LEXIS 2676 (N.D. Ga. 1988).

Discharge of at-will employee. —

School district employee’s claim that a termination based on race discrimination violated procedural due process rights survived summary judgment; although the employee was an at-will employee with no contract, genuine issues of material fact existed as to whether the employee was entitled to notice and a hearing to answer charges of misconduct. Palmer v. Stewart County Sch. Dist., No. 4:04-CV-21, 2005 U.S. Dist. LEXIS 35511 (M.D. Ga. June 17, 2005), aff'd in part, vacated in part, 178 Fed. Appx. 999, 2006 U.S. App. LEXIS 11663 (11th Cir. 2006).

Lawsuits and workers’ compensation proceedings. —

Every party to a lawsuit (or a workers’ compensation proceeding) must be afforded the opportunity to be heard and to present a claim or defense, i.e., to have a day in court. Hart v. Owens-Illinois, Inc., 165 Ga. App. 681 , 302 S.E.2d 701 , 1983 Ga. App. LEXIS 1987 (1983).

Adequate notice found. —

Employer received adequate notice of a workers’ compensation hearing under O.C.G.A. § 34-9-102(a) when the employer’s notice of the hearing was returned as undeliverable, the employer’s president and part owner was subpoenaed to appear at the hearing, the mailing address of the employer was the same as the address of another business and that business’s notice was not returned, the employer did not challenge the notice provided to the other business, and the employer failed to maintain a current notice on file with the Georgia State Board of Workers’ Compensation as was required by O.C.G.A. § 34-9-102(i) , which satisfied due process and focused on the mailing of the notice, rather than its receipt. High Voltage Vending, LLC v. Odom, 266 Ga. App. 537 , 597 S.E.2d 428 , 2004 Ga. App. LEXIS 291 (2004), cert. denied, No. S04C1321, 2004 Ga. LEXIS 761 (Ga. Sept. 7, 2004).

Term “employing unit” within employment security law certain enough for purposes of due process. —

Ga. L. 1937, p. 806 (employing unit) is not so vague and indefinite as not to be enforceable consistently with due process in that it provides no basis for imposing the tax or contribution other than the unbridled discretion of the administrator. Jeffreys-McElrath Mfg. Co. v. Huiet, 196 Ga. 710 , 27 S.E.2d 385 , 1943 Ga. LEXIS 410 (1943).

Even though contractor might have to contribute twice upon each employee’s wages. —

Ga. L. 1937, p. 806 is not lacking in due process because its enforcement could result in compelling the contractor, upon whom the burden ultimately falls, to contribute twice upon the wages of each employee, if perchance the contractor should devote a portion of a day to the performance of one contract, and the remainder to the performance of another. Jeffreys-McElrath Mfg. Co. v. Huiet, 196 Ga. 710 , 27 S.E.2d 385 , 1943 Ga. LEXIS 410 (1943).

Employing unit without control of amount of wages and without first-hand knowledge. —

The fact that the employing unit has no control over the amount of the wages and may have no first-hand knowledge of the amount does not render the statute invalid as violating the principle of due process as to such party. Jeffreys-McElrath Mfg. Co. v. Huiet, 196 Ga. 710 , 27 S.E.2d 385 , 1943 Ga. LEXIS 410 (1943).

At-will employee not denied due process. —

Because a terminated university registrar was an at-will employee, the registrar had no property interest in the registrar’s job and no due process claim. Moreover, by appealing directly to an administrative law judge, the registrar was afforded a full and fair hearing, fulfilling state and federal due process requirements. Bd. of Regents of the Univ. Sys. of Ga. v. Hogan, 298 Ga. App. 454 , 680 S.E.2d 518 , 2009 Ga. App. LEXIS 692 (2009), cert. denied, No. S10C2030, 2011 Ga. LEXIS 57 (Ga. Jan. 24, 2011).

4.Family Issues

Calling father as adverse witness in termination proceedings. —

Juvenile court did not err in a parental rights termination proceeding pursuant to O.C.G.A. § 15-11-94 when it allowed paternal grandparents who petitioned for permanent custody of their grandchildren to call the father as an adverse witness, subject to cross-examination pursuant to O.C.G.A. § 24-9-81, as there was no due process violation of the father’s rights pursuant to U.S. Const., amend. 14 and Ga. Const. 1983, Art. I, Sec. I, Para. I. In the Interest of D.J., 279 Ga. App. 355 , 631 S.E.2d 427 , 2006 Ga. App. LEXIS 560 (2006), cert. denied, No. S06C1675, 2006 Ga. LEXIS 715 (Ga. Sept. 8, 2006).

Termination of custody proceedings. —

Parents were not denied due process after evidence of psychosexual evaluations and allegations of sexual abuse, molestation, and sexual abuse by the children against other children were admitted in a termination of parental rights trial, despite the petition’s lack of allegations of sexual misconduct, as: (1) the trial court based the court’s findings of parental inability on the parents’ failure to comply with the case plan, especially their continued failure to obtain stable employment and suitable housing; (2) neither parent was accused of sexually abusing the children; (3) evidence of past sexual abuse was relevant to establish the complex psychological problems of the two older children, to demonstrate the special needs of those children, and to expose the danger that reunification would pose; and (4) as some of the children’s psychological problems were attributable to their victimization, evidence as to that issue could not have surprised the parents. In the Interest of M.E.S., 263 Ga. App. 132 , 587 S.E.2d 282 , 2003 Ga. App. LEXIS 1141 (2003).

Parent’s presence at deprivation hearing. —

Parent was not denied due process on the ground that the parent was not present at the deprivation hearings in which the trial court declared the parent’s three children to be deprived because deprivation proceedings and parental rights termination proceedings are separate and distinct, and a termination proceeding is not the proper time to assert error in the deprivation proceedings; further, the parent failed to show that the parent was harmed as a result of any alleged violation of due process since there was overwhelming evidence supporting the termination of the parent’s parental rights. In the Interest of M.S., 279 Ga. App. 254 , 630 S.E.2d 856 , 2006 Ga. App. LEXIS 520 (2006), overruled in part, In re J. M. B., 296 Ga. App. 786 , 676 S.E.2d 9 , 2009 Ga. App. LEXIS 339 (2009).

Refusal to consider equal protection argument at hearing in deprivation. —

In a deprivation proceeding when the parents were ordered to pay part of the costs for services mandated under their case plan, there was no due process violation in refusing to consider parents’ equal protection argument. Due process did not guarantee a litigant the right to have all of the litigants’ arguments considered at a particular hearing. In the Interest of P.N., 291 Ga. App. 512 , 662 S.E.2d 287 , 2008 Ga. App. LEXIS 546 (2008).

Determination of divorcing parties’ rights by judge or jury comports with due process. —

O.C.G.A. § 19-5-17 , providing for determination of rights and disabilities of the parties by the jury or the judge, as the case may be, is not violative of the due process and equal protection clauses of the state and federal Constitutions. Gary v. Johnson, 210 Ga. 686 , 82 S.E.2d 651 , 1954 Ga. LEXIS 421 (1954) (decided prior to amendment by Ga. L. 1960, p. 1024, § 1 and Ga. L. 1979, p. 466, § 5).

This paragraph does not mandate pretrial discovery in proceedings to terminate parental rights. In re L.L.W., 141 Ga. App. 32 , 232 S.E.2d 378 , 1977 Ga. App. LEXIS 1745 (1977); Ray v. Department of Human Resources, 155 Ga. App. 81 , 270 S.E.2d 303 , 1980 Ga. App. LEXIS 2466 (1980).

Father’s protectible interest in having child bear parental surname as customary is not property right within meaning of due process. Fulghum v. Paul, 229 Ga. 463 , 192 S.E.2d 376 , 1972 Ga. LEXIS 651 (1972).

Payment of costs of blood tests in paternity actions. —

Trial court’s denial of a putative father’s request to require the state to make pretrial payment of the costs of blood tests to determine paternity effectively denied the putative father access to blood test evidence and amounted to a violation of due process. Peterson v. Moffitt ex rel. Department of Human Resources, 253 Ga. 253 , 319 S.E.2d 449 , 1984 Ga. LEXIS 899 (1984).

Action for termination of parental rights. —

Juvenile court did not violate a parent’s constitutional rights to due process under Ga. Const. 1983, Art. I, Sec. I, Para. I, by denying the parent’s motions to secure the parent’s presence at the termination hearing and for a continuance; while the parent was in prison, an attorney was appointed to represent the parent at the hearing, and the parent did not specify how the parent suffered harm by not attending the hearing, and therefore, the parent showed no reversible error. In the Interest of B.L.H., 259 Ga. App. 482 , 578 S.E.2d 143 , 2003 Ga. App. LEXIS 158 (2003).

Due process requires that, prior to the termination of parental rights, a parent receive notice and an opportunity to be heard, but there is no constitutional entitlement mandating a parent’s right to appear personally at the termination of parental rights hearing; a trial court did not err in refusing the parent’s request to be transported from the prison where the parent was serving a sentence to court for the termination hearing. In the Interest of S.R.B., 270 Ga. App. 466 , 606 S.E.2d 655 , 2004 Ga. App. LEXIS 1506 (2004).

By not raising the issue below, a mother in a termination of parental rights case waived her arguments that the trial court violated equal protection and due process by not determining whether her mental health concerns affected her ability to complete the specific goals in her case plan; moreover, there was uncontradicted evidence that despite her mental health problems, the mother understood the case plan, appreciated its requirements, and could have completed it, but did not do so, and the mother testified that she was able both physically and mentally to care for the child. In the Interest of H.M., 287 Ga. App. 418 , 651 S.E.2d 527 , 2007 Ga. App. LEXIS 985 (2007).

In a termination of parental rights proceeding, as a parent had numerous opportunities to establish a life independent of that parent’s abusive spouse, the parent’s due process claim that the abusive spouse was the biggest obstacle preventing reunification lacked merit. In the Interest of D.O.R., 287 Ga. App. 659 , 653 S.E.2d 314 , 2007 Ga. App. LEXIS 1056 (2007).

Foster children have right to counsel in deprivation and termination-of-parental rights (TPR) proceedings under the due process clause of the Georgia Constitution. Kenny A. v. Perdue, 356 F. Supp. 2d 1353, 2005 U.S. Dist. LEXIS 1891 (N.D. Ga. 2005).

Grandparent visitation statute unconstitutional. —

O.C.G.A. § 19-7-3 , the grandparent visitation statute, is unconstitutional because it does not clearly promote the health or welfare of the child and does not require a showing of harm before state interference is authorized. Brooks v. Parkerson, 265 Ga. 189 , 454 S.E.2d 769 , 1995 Ga. LEXIS 157, cert. denied, 516 U.S. 942, 116 S. Ct. 377 , 133 L. Ed. 2 d 301, 1995 U.S. LEXIS 7206 (1995).

Order granting a grandparent visitation rights to the child of the grandparent’s deceased son under O.C.G.A. § 19-7-3(d) was reversed because the statute was unconstitutional under the Georgia Constitution as violating the right of parents to the care, custody, and control of their children since the statute did not require clear and convincing evidence of imminent harm to the child. Patten v. Ardis, 304 Ga. 140 , 816 S.E.2d 633 , 2018 Ga. LEXIS 455 (2018).

Parental rights proceedings. —

Putative father’s due process rights under Ga. Const. 1983, Art. I, Sec. I, Para. I were not violated by a determination that he had received proper notice of his case plan, as his claim that he was not notified was contradicted by testimony from the caseworker that the father in fact received proper notification, and the issue of credibility was within the trial court’s determination. In the Interest of T.A.M., 280.Ga. App. 494, 280 Ga. App. 494 , 634 S.E.2d 456 , 2006 Ga. App. LEXIS 884 (2006).

Parent unsuccessfully argued that the parent’s due process rights under Ga. Const. 1983, Art. I, Sec. I, Para. I were violated because the parent’s parental rights were terminated despite the fact that the parent never received a copy of the case plan; the parent was unable to establish harm, as the parent was incarcerated, and the parent’s crimes, including holding the children hostage and threatening to kill them, were so egregious as to justify termination. In the Interest of B.D., 281 Ga. App. 725 , 637 S.E.2d 123 , 2006 Ga. App. LEXIS 1229 (2006).

Delay in issuing order on child visitation/support issue. —

Eight-month delay between the trial of a child support and visitation question and entry of the final order did not deny a father his right to procedural due process under the Fourteenth Amendment of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. I, in part because the father filed a post-trial, pre-judgment motion requiring the trial court’s time and attention. Coppedge v. Coppedge, 298 Ga. 494 , 783 S.E.2d 94 , 2016 Ga. LEXIS 160 (2016).

Spouse whose assets are subject to garnishment under alimony judgment was accorded procedural due process by the fact that the affidavit for garnishment was approved by a judge before the summons of garnishment issued, under former Code 1933, § 46-102 (see now O.C.G.A. § 18-4-61), and by the fact that the spouse received timely notice on the garnishment, under former Code 1933, § 46-105 (see now O.C.G.A. § 18-4-64), as well as an early hearing on the spouse’s traverse in accordance with former Code 1933, § 46-401 (see now O.C.G.A. § 18-4-93). Antico v. Antico, 241 Ga. 294 , 244 S.E.2d 820 , 1978 Ga. LEXIS 973 (1978).

Paternity action costs payment. —

It is a violation of due process for the state to require a putative father to pay the costs of a blood test for the purpose of determining paternity when no hearing has been conducted on the merits of the case. Boone v. State, Dep't of Human Resources ex rel. Carter, 250 Ga. 379 , 297 S.E.2d 727 , 1982 Ga. LEXIS 1259 (1982).

5.Right of Privacy

Right of privacy guaranteed. —

The right of privacy within certain limits is a right derived from natural law, recognized by the principles of municipal law, and guaranteed to persons in this state both by the Constitutions of the United States and the State of Georgia, in those provisions which declare that no person shall be deprived of liberty except by due process of law. McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92 , 2 S.E.2d 810 , 1939 Ga. App. LEXIS 510 (1939).

Right of privacy does not embrace right to possess dangerous drugs. Blincoe v. State, 231 Ga. 886 , 204 S.E.2d 597 , 1974 Ga. LEXIS 1269 (1974).

Public interest in privacy may be subordinated and clandestine surveillance allowed. —

When the police have reasonable cause to believe that public toilet stalls are being used in the commission of crime, and when the police confine their activities to the times when such crimes are most likely to occur, the police are entitled to institute clandestine surveillance, even though the police do not have probable cause to believe that the particular persons whom they may thus catch in flagrante delicto have committed or will commit the crime. The public interest in its privacy must, to that extent, be subordinated to the public interest in law enforcement. Mitchell v. State, 120 Ga. App. 447 , 170 S.E.2d 765 , 1969 Ga. App. LEXIS 813 (1969).

Right of privacy in sexual activities. —

Right of privacy under Ga. Const. 1983, Art. I, Sec. I, Para. I, prohibited the state from prosecuting defendant for fornication under O.C.G.A. § 16-6-18 after defendant and defendant’s girlfriend, both age 16 and of legal age to consent to sex under O.C.G.A. § 16-6-3(a) , engaged in private, unforced, non-commercial sex. In re J.M., 276 Ga. 88 , 575 S.E.2d 441 , 2003 Ga. LEXIS 2 (2003).

Defendant’s right to privacy not violated when sexual battery victim under age of consent. —

Because the 13-year-old victim in a sexual battery case was under the age when the victim could legally consent to sexual conduct, prosecution of the defendant did not violate the defendant’s right to privacy for consensual touching within the context of their boyfriend/girlfriend relationship. Engle v. State, 290 Ga. App. 396 , 659 S.E.2d 795 , 2008 Ga. App. LEXIS 338 (2008), overruled in part, Watson v. State, 297 Ga. 718 , 777 S.E.2d 677 , 2015 Ga. LEXIS 663 (2015).

Standing to challenge Medicaid reimbursement for medically necessary abortion. —

The trial court erroneously dismissed a complaint filed by certain medical providers, alleging violations of the Georgia Constitution on privacy and equal protection grounds, and holding that the medical providers lacked third-party standing to assert a claim on behalf of their Medicaid-eligible patients, as: (1) the medical providers properly asserted an injury in fact insofar as they had a direct financial interest in obtaining state funding to reimburse them for the cost of abortion services provided to Medicaid-eligible women, and have alleged that they performed, and will continue to perform, medically necessary abortions for which they will not be reimbursed under Georgia’s Medicaid program; and (2) the relationship between the medical providers and their patients made them uniquely qualified to litigate the constitutionality of the state’s action interfering with a woman’s decision to terminate a pregnancy. Feminist Women's Health Ctr. v. Burgess, 282 Ga. 433 , 651 S.E.2d 36 , 2007 Ga. LEXIS 608 (2007).

Nonparty medical records. —

In a suit alleging medical malpractice and related claims, the trial court properly held that nonparty medical records were subject to discovery. Although personal medical records were protected by Georgia’s constitutional right of privacy, the trial court’s order afforded the nonparty patients with notice and an opportunity to object to the disclosure and also provided for further review to determine the scope of discovery. Ussery v. Children's Healthcare of Atlanta, Inc., 289 Ga. App. 255 , 656 S.E.2d 882 , 2008 Ga. App. LEXIS 60 (2008).

State prisoner on hunger strike has right of privacy to be protected from unwarranted intrusions on the prisoner’s person even though calculated to preserve the prisoner’s life. When the prisoner is not mentally incompetent or has dependents who rely on the prisoner for their livelihood, the prisoner has a right to refuse medical treatment. Zant v. Prevatte, 248 Ga. 832 , 286 S.E.2d 715 , 1982 Ga. LEXIS 707 (1982).

Prisoners’ right of privacy not violated by extraction of saliva for DNA profiling. —

Although prisoners retain a right to bodily privacy under Ga. Const. 1983, Art. I, Sec. I, Para. I, the extraction of saliva required by O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160 ) did not violate that right because the statute promotes law enforcement, and is narrowly tailored to promote that purpose by requiring DNA profiling on a limited population of incarcerated felons and forbidding release of DNA profiles except for law enforcement purposes. Padgett v. Donald, 401 F.3d 1273, 2005 U.S. App. LEXIS 3647 (11th Cir.), cert. denied, 546 U.S. 820, 126 S. Ct. 352 , 163 L. Ed. 2 d 61, 2005 U.S. LEXIS 6028 (2005).

Injured party’s invasion of privacy claim failed as the injured party signed an agreement authorizing a nurse and other home health care agency nurses to care for the party in the party’s home and to communicate with the injured party’s insurance company if necessary in order to receive proper payment; the injured party could not maintain an action for invasion of privacy based on the very actions that the injured party authorized the agency and its nurses to take. Canziani v. Visiting Nurse Health Sys., 271 Ga. App. 677 , 610 S.E.2d 660 , 2005 Ga. App. LEXIS 141 (2005).

6.Taxation

Tax law need not provide for rehearing. Vestel v. Edwards, 143 Ga. 368 , 85 S.E. 187 , 1915 Ga. LEXIS 441 (1915); Martin v. Pollock, 144 Ga. 605 , 87 S.E. 793 , 1916 Ga. LEXIS 54 (1916).

During tax assessment process taxpayer must have opportunity to be heard. —

The assessment of a tax is action judicial in its nature, requiring for the legal exertion of the power such opportunity to appear and be heard as the circumstances of the case require. Somewhere during the process of the assessment the taxpayer must have an opportunity to be heard, and this notice must be provided as an essential part of the statutory provisions, and not awarded as a mere matter of favor or grace. A denial of this right is a failure to afford due process of law within the intention of the federal and state Constitutions. Pullman Co. v. Suttles, 187 Ga. 217 , 199 S.E. 821 , 1938 Ga. LEXIS 753 (1938).

Notice and opportunity to be heard before property tax assessment final comported with due process. —

Georgia Law 1918, p. 232, providing for assessment for taxation of unreturned or grossly undervalued property, or property assessed at a figure grossly below its true value, is not unconstitutional as violating the due process and equal protection clauses of the state and federal Constitutions for the reason that it fails to provide for a hearing before assessment by the tax receiver, since it does provide for notice to the claimed delinquent, with opportunity to be heard by a suit in equity both as to excessiveness and taxability, before the assessment shall become final. Hardin v. Reynolds, 189 Ga. 534 , 6 S.E.2d 328 , 1939 Ga. LEXIS 731 (1939).

Taxpayer must have notice in time to contest proceeding before tax becomes absolute lien or liability. —

It has been shown that there are differences between proceedings for the levy and collection of taxes and judicial proceedings. As to what constitutes notice and opportunity to be heard, in compliance with this requirement of due process, no general rule can be laid down which will cover all cases. The general rule which may be laid down as applicable to all cases is that the taxpayer must have the notice in time to contest the proceeding before the tax becomes an absolute lien on the taxpayer’s property or before it becomes the taxpayer’s absolute personal liability. Simmons v. Newton, 178 Ga. 806 , 174 S.E. 703 , 1934 Ga. LEXIS 190 (1934).

Taxpayer must have notice and opportunity to contest validity and amount of tax. —

Due process of law requires that after such notice as may be appropriate the taxpayer have opportunity to be heard as to the validity of a tax and the amount thereof, by giving the taxpayer the right to appear for that purpose at some stage of the proceedings. City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 , 1934 Ga. LEXIS 280 (1934).

Criminal Cases
1.In General

Guarantees to person charged with crime. —

This paragraph guarantees to a person charged with crime, before the person can be called upon to answer, the right to be informed so plainly that the nature of the offense charged may be easily understood by the jury and that the accused will be enabled to prepare a defense. The legislature cannot authorize an accusation to be amended during the trial in a matter of substance, any more than it could authorize such an amendment of an indictment when the defendant is prejudiced by the amendment. Sutton v. State, 54 Ga. App. 349 , 188 S.E. 60 , 1936 Ga. App. LEXIS 575 (1936).

Registration requirements for homeless sex offenders unconstitutionally vague. —

Address registration requirement of O.C.G.A. § 42-1-12 is unconstitutional under the due process clause of the United States and Georgia constitutions on vagueness grounds as applied to homeless sex offenders who possess no street or route address for their residence. Santos v. State, 284 Ga. 514 , 668 S.E.2d 676 , 2008 Ga. LEXIS 849 (2008).

Vicarious criminal liability unconstitutional. —

Vicarious criminal liability in misdemeanor cases which involves as punishment a fine and not imprisonment violates due process. Davis v. City of Peachtree City, 251 Ga. 219 , 304 S.E.2d 701 , 1983 Ga. LEXIS 770 (1983).

When person indicted has been afforded due process. —

When one indicted has had full opportunity, under the Constitution and laws of the state, to defend one’s case in the courts of the state having jurisdiction thereof, in person, by attorney, or both, according to established constitutional rules of procedure one has been afforded due process of law. Shoemake v. Whitlock, 226 Ga. 771 , 177 S.E.2d 677 , 1970 Ga. LEXIS 680 (1970).

Despite the defendant’s claim that reversible error was premised on the state’s failure to comply with the required notice upon filing two charges of felony theft by taking, as the indictment failed to specifically allege either that the value of the items stolen exceeded $500, or that the items were motor vehicles, Georgia law did not establish two classifications for theft by taking crimes, but a determination as to the felony or misdemeanor status of a charge was based on the value of the property taken; moreover, because the defendant failed to furnish the appellate court with a transcript, it was left with no other alternative but to presume the trial judge properly considered the evidence in imposing sentence. Conley v. State, 281 Ga. App. 841 , 637 S.E.2d 438 , 2006 Ga. App. LEXIS 1190 (2006), cert. denied, No. S07C0315, 2007 Ga. LEXIS 67 (Ga. Jan. 22, 2007).

Due process requires that criminal defendant have right to counsel at critical stages. —

The mandate of U.S. Const., amend. 6, that every accused in a criminal prosecution has the right to the assistance of counsel for a defense at every critical stage of the case as an essential component of due process in a trial in a state court compels every agency of government concerned with the operation of the courts to acknowledge the necessity for and implement the means by which this necessary public purpose must be accomplished. The provisions of Georgia’s Constitution make the same demand. Weiner v. Fulton County, 113 Ga. App. 343 , 148 S.E.2d 143 , 1966 Ga. App. LEXIS 1062, cert. denied, 385 U.S. 958, 87 S. Ct. 393 , 17 L. Ed. 2 d 304, 1966 U.S. LEXIS 196 (1966).

Justice involves delicate judgment based on circumstances of each case. —

To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. State v. Madden, 242 Ga. 637 , 250 S.E.2d 484 , 1978 Ga. LEXIS 1308 (1978).

Failure to deny charges does not raise presumption of acknowledgment of guilt. —

An accused who is taken into custody cannot be presumed to acknowledge guilt just because the accused does not deny the charges. Emmett v. State, 243 Ga. 550 , 255 S.E.2d 23 , 1979 Ga. LEXIS 986 (1979).

Right to testify as witness is personal right and is an adjunct or portion of the fundamental concept of freedom and liberty protected by Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I) and Ga. Const. 1945, Art. I, Sec. I, Para. IV (see now Ga. Const. 1983, Art. I, Sec. I, Para. XII). Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494, 1974 U.S. Dist. LEXIS 6564 (S.D. Ga. 1974).

When court under no obligation to appoint counsel for accused. —

If the accused has means to employ counsel, and is out upon bond, and has opportunity to secure counsel, and neglects or refuses to do so, the court is under no obligation or duty to appoint counsel to represent the accused. Clarke v. Cobb, 195 Ga. 633 , 24 S.E.2d 782 , 1943 Ga. LEXIS 531 (1943).

Defendant cannot neglect procuring counsel. —

A defendant must be afforded the benefit of counsel, and this includes time sufficient for counsel to prepare for trial, but when the defendant was apprised of the charge against the defendant at a previous term of court and personally fails or neglects to procure counsel or ask the court to do so for the defendant there is no error in refusing a request for additional time on the ground that counsel has personally had insufficient time to prepare the defense. Bradshaw v. State, 132 Ga. App. 363 , 208 S.E.2d 173 , 1974 Ga. App. LEXIS 1690 (1974).

When representation by counsel comports with due process. —

When counsel, representing a defendant in a criminal case, is a member of the bar in good standing and, in representing a client in the trial of a case, gives the counsel’s complete loyalty to the client, serves the client in good faith to the best of the counsel’s ability, and counsel’s service is of such a character as to preserve the essential integrity of the proceedings in a court of justice, the requirements of due process within U.S. Const., amend. 14 and this paragraph are met. Hill v. Balkcom, 213 Ga. 58 , 96 S.E.2d 589 , 1957 Ga. LEXIS 301 (1957); Bolick v. State, 127 Ga. App. 542 , 194 S.E.2d 302 , 1972 Ga. App. LEXIS 1503, 1972 Ga. App. LEXIS 1505, 1972 Ga. App. LEXIS 946 (1972).

Right to counsel is right to effective counsel, not errorless counsel, and not counsel charged ineffective by hindsight. The defendant is entitled to counsel reasonably likely to render and the rendering of reasonably effective assistance. Rosser v. State, 156 Ga. App. 463 , 274 S.E.2d 812 , 1980 Ga. App. LEXIS 3068 (1980), aff'd, 247 Ga. 724 , 279 S.E.2d 217 , 1981 Ga. LEXIS 840 (1981).

Defense counsel did not provide ineffective assistance of counsel by failing to file a motion to suppress because the fact that defendants were in a police car during the show-ups did not taint the identifications obtained and there was no evidence that the victims knew that defendants were in handcuffs; further, there was nothing unfair in the officer’s statements to the victims. Young v. State, 272 Ga. App. 304 , 612 S.E.2d 118 , 2005 Ga. App. LEXIS 285 (2005).

Mere passage of time in criminal trial is not enough, without more, to constitute denial of due process. Dansby v. State, 140 Ga. App. 104 , 230 S.E.2d 64 , 1976 Ga. App. LEXIS 1362 (1976).

Constitutional right to a speedy trial did not require granting of defendant’s motion for discharge and acquittal since, inter alia, all but a couple of months of the time defendant was incarcerated before trial was attributable to service of other sentences, there was no evidence of the defendant’s anxiety and concern, and there was no evidence that the defendant’s defense was impaired as none of the witnesses who testified at the first trial were allegedly unavailable. Weldon v. State, 262 Ga. App. 782 , 586 S.E.2d 452 , 2003 Ga. App. LEXIS 1024 (2003).

Defendant failed to establish a due process violation for a 20 year delay in the prosecution of a murder case against the defendant because the defendant failed to show either that the delay actually prejudiced the defense or that the prosecution deliberately delayed the case to gain a tactical advantage, both of which showings were needed to prevail on that claim; while several witnesses died in the intervening years and some evidence was missing, this hindered the prosecution as much as the defendant. Holton v. State, 280 Ga. 843 , 632 S.E.2d 90 , 2006 Ga. LEXIS 450, cert. denied, 549 U.S. 1078, 127 S. Ct. 737 , 166 L. Ed. 2 d 563, 2006 U.S. LEXIS 9266 (2006).

While the length of the delay in bringing the appeal, 15 years, was excessive, the delay did not violate the defendant’s due process rights since the delay was largely attributable to the defendant, the defendant failed to show that the defendant asserted the defendant’s appellate rights for much of the 15-year period at issue, and the defendant failed to show actual prejudice to the defendant’s ability to assert arguments on appeal. Payne v. State, 289 Ga. 691 , 715 S.E.2d 104 , 2011 Ga. LEXIS 661 (2011).

When confessions can be introduced in evidence against defendant. —

When evidence shows that confessions were voluntarily made and were not induced by another by hope of award or fear of punishment, or when it is an issue of fact as to whether the confessions were properly obtained, the defendant is not denied due process of law, as guaranteed by the state and federal Constitutions, by their introduction in evidence against the defendant. Claybourn v. State, 190 Ga. 861 , 11 S.E.2d 23 , 1940 Ga. LEXIS 589 (1940).

Four factors relevant for consideration of whether speedy trial has been had: length of delay, reason for delay, prejudice to the defendant, and waiver by the defendant. Mays v. State, 229 Ga. 609 , 193 S.E.2d 825 , 1972 Ga. LEXIS 699 (1972).

When substantially all delay attributable to defendant’s conduct. —

There is no violation of due process in respect to a speedy trial when substantially all of the delay in bringing the defendant to trial appears to be directly or indirectly attributable to the conduct of the defendant. Mays v. State, 229 Ga. 609 , 193 S.E.2d 825 , 1972 Ga. LEXIS 699 (1972).

Since the issue of a seven-year trial delay was addressed previously, denial of a motion to dismiss was proper as the court properly found defendant was not prejudiced by a nine-month trial delay and lacked diligence finding witnesses. Brannen v. State, 262 Ga. App. 719 , 586 S.E.2d 383 , 2003 Ga. App. LEXIS 992 (2003).

Conviction upon a charge not made would be sheer denial of due process. Rowe v. State, 166 Ga. App. 836 , 305 S.E.2d 624 , 1983 Ga. App. LEXIS 3281 (1983).

2.Pre-Trial

No due process violation with delay in indictment and arrest. —

Superior court did not err in failing to dismiss the indictment on the ground that the delay in the defendant’s arrest and indictment violated the defendant’s rights to due process under the Fifth and Fourteenth Amendments and Ga. Const. 1983, Art. I, Sec. I, Para. I, because neither actual prejudice nor deliberate adverse action on the part of the state had been shown; the defendant was not in custody during the period in question. Higgenbottom v. State, 290 Ga. 198 , 719 S.E.2d 482 , 2011 Ga. LEXIS 944 (2011).

Delay in arrest did not warrant dismissal. —

When error was asserted because the trial court refused to grant the defendant’s motion to dismiss the defendant’s indictment made on the grounds of a violation of due process because there was a 55-day delay between the commission of the offense and the defendant’s arrest and it was argued that because of the delay the defendant could not remember the date of the alleged offense for which the defendant might have been able to provide an alibi defense, this was held not enough in itself to justify dismissing the indictment. Croom v. State, 165 Ga. App. 676 , 302 S.E.2d 598 , 1983 Ga. App. LEXIS 3178 (1983).

Charge must allege all necessary elements of crime. —

Juvenile court erred in adjudicating the juvenile delinquent on the ground that the juvenile violated the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 , as the state’s delinquency petition did not allege an essential element of the offense, namely, the predicate acts upon which the “pattern of criminal gang activity” was based; accordingly, the juvenile’s procedural due process rights were violated when the juvenile court adjudicated delinquency based on that offense, as the insufficiency in the state’s petition meant the juvenile was denied the juvenile’s due process rights because of an inability to prepare an adequate defense. In the Interest of E.S., 262 Ga. App. 768 , 586 S.E.2d 691 , 2003 Ga. App. LEXIS 1011 (2003).

Provision for substitute counsel may be justified at lineup. —

Although the right to counsel at a lineup usually means a right to the suspect’s own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel’s presence may eliminate the hazards which render the lineup a critical stage for the presence of the suspect’s own counsel. Summerville v. State, 226 Ga. 854 , 178 S.E.2d 162 , 1970 Ga. LEXIS 713 (1970).

Indictment must identify victim, if known. —

When the defendant was charged by indictment with crimes against a minor victim who was identified by initials only, the court found that such was insufficient because the defendant was entitled to be charged by an indictment in perfect form; failure to identify the victim with a full name, if known, violated the defendant’s constitutional rights to due process under Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 5, as well as the defendant’s double jeopardy rights under Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5. Sellers v. State, 263 Ga. App. 144 , 587 S.E.2d 276 , 2003 Ga. App. LEXIS 1144 (2003).

No fatal variance between indictment and proof. —

Fact that an indictment charged the defendant with aggravated assault and battery by slicing the victim’s neck with a knife, but the evidence showed the defendant used a box cutter, did not constitute a fatal variance between the indictment and the proof, because the defendant was sufficiently informed of the charges and faced no danger of further prosecution arising out of the incident. Lawson v. State, 278 Ga. App. 852 , 630 S.E.2d 131 , 2006 Ga. App. LEXIS 424 (2006).

Due process requires dismissal of indictment when preindictment delay causes substantial prejudice to defendant. —

Although there is no constitutional right to a speedy indictment or arrest, the due process clause requires dismissal of an indictment if it is shown at trial that preindictment delay caused substantial prejudice to defendant’s rights with respect to the events occurring prior to indictment. State v. Madden, 242 Ga. 637 , 250 S.E.2d 484 , 1978 Ga. LEXIS 1308 (1978).

Due process not denied by district attorney’s role as calendar clerk for arraignments. —

Internal Operating Procedure 2000-3 of the Appalachian Judicial Circuit, under which a district attorney set the time for a defendant’s arraignment for aggravated assault and related charges in a road rage incident, did not violate the defendant’s right to due process by precluding a challenge to the validity of the notice of arraignment; the defendant filed pre-trial motions related to that very issue and presented arguments during a hearing on the matter. Adams v. State, 282 Ga. App. 819 , 640 S.E.2d 329 , 2006 Ga. App. LEXIS 1462 (2006).

Subpoena of personal medical records in criminal case. —

In the absence of waiver and without notice to the accused or an opportunity to object, it is not “appropriate” under O.C.G.A. § 24-9-40 for the state in a criminal case to subpoena a defendant’s own personal medical records which are then in the possession of a physician, hospital, or health care facility. King v. State, 272 Ga. 788 , 535 S.E.2d 492 , 2000 Ga. LEXIS 308 (2000).

Right to preservation of evidence. —

Defendant’s due process rights were not violated by the failure of the investigating officer to preserve the physical evidence of a child molestation as defendant failed to show that the officer’s failure to preserve the evidence was in bad faith. Ingram v. State, 262 Ga. App. 304 , 585 S.E.2d 211 , 2003 Ga. App. LEXIS 914 (2003).

In light of the fact that the defendant was afforded the opportunity to cross-examine the victim at the rape trial, there was no error in the trial court’s refusal to dismiss the case based on the ground that police had lost or destroyed a videotape containing the victim’s initial statement to the police. Robbins v. State, 277 Ga. App. 843 , 627 S.E.2d 810 , 2006 Ga. App. LEXIS 157 (2006), cert. denied, No. S06C1138, 2006 Ga. LEXIS 540 (Ga. July 14, 2006).

Absent evidence that the state acted in bad faith in failing to preserve potentially exculpatory evidence, and because blood evidence found on a flashlight used by the victim to hit the defendant in the head after being stabbed was not material, but was cumulative of other evidence showing the undisputed fact that the state never denied that the victim hit the defendant in the head with the flashlight, and indeed offered testimony that the victim struck the defendant with enough force to knock the defendant to one knee, the defendant’s due process rights were not violated; hence, the trial court did not err in denying a mistrial based on the defendant’s allegation that the state failed to preserve potentially exculpatory evidence. Lonergan v. State, 281 Ga. 637 , 641 S.E.2d 792 , 2007 Ga. LEXIS 176 (2007).

The trial court’s order dismissing an indictment charging the defendant with rape, incest, aggravated child molestation, and child molestation on grounds that the state improperly failed to preserve lab samples taken from the victim was reversed because the defendant failed to show that the failure was the result of bad faith on the part of the state or the police, and the value of the sample to the defendant was only potentially exculpatory. State v. Brady, 287 Ga. App. 626 , 653 S.E.2d 72 , 2007 Ga. App. LEXIS 1043 (2007).

There was no merit to a defendant’s claim that due process had been violated because the state allowed a car in which a shooting took place to be sold from an impound lot before the car could be tested for fingerprints and other evidence. The defendant did not argue that the state had acted in bad faith, and the record did not show bad faith. Lockheart v. State, 284 Ga. 78 , 663 S.E.2d 213 , 2008 Ga. LEXIS 541 (2008).

As there was no showing that a videotape of a criminal incident and crime scene had “apparent exculpatory value” because the images were small, distorted, and non-identifiable, and the state did not act in bad faith when the state failed to preserve the tape, dismissal of an indictment against the defendant due to the state’s failure to preserve the videotape was error. State v. Brawner, 297 Ga. App. 817 , 678 S.E.2d 503 , 2009 Ga. App. LEXIS 550 (2009).

Trial court erred by dismissing criminal charges against the defendant because the master DVD recording of the traffic stop that led to the defendant’s arrest was destroyed when an investigator reformatted the DVD while attempting to get the DVD to play. The destruction of the master DVD was not a due process violation because the lost evidence was at best potentially exculpatory and there was no showing of bad faith on the part of the state. State v. McNeil, 308 Ga. App. 633 , 708 S.E.2d 590 , 2011 Ga. App. LEXIS 254 (2011).

Trial court is not obligated to appoint state-paid psychiatrist to evaluate a defendant even though a special plea of insanity has been filed. Blankenship v. State, 247 Ga. 590 , 277 S.E.2d 505 , 1981 Ga. LEXIS 801 (1981), overruled, Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 , 1993 Ga. LEXIS 320 (1993), cert. denied, 545 U.S. 1150, 125 S. Ct. 2964 , 162 L. Ed. 2 d 906, 2005 U.S. LEXIS 5192 (2005).

Trial court did not err in denying a defendant’s request as an indigent for funds to engage a psychologist to assist in the defense when the defendant had not shown that the defendant’s sanity at the time of the offense would likely be a significant factor at trial. Nelson v. State, 289 Ga. App. 326 , 657 S.E.2d 263 , 2008 Ga. App. LEXIS 84 (2008).

When denial of continuance or postponement unconstitutional abuse of discretion. —

When facts show that court-appointed attorney was wholly unprepared for trial, after retained counsel withdrew on the date of trial from case, and the court denied the motion for continuance or postponement, this was an unconstitutional abuse of discretion. Smith v. State, 215 Ga. 362 , 110 S.E.2d 635 , 1959 Ga. LEXIS 475 (1959).

Denial of continuance not error when co-counsel present and defendant uninjured. —

When none of the statutory requirements necessary for the granting of a continuance were put forth by co-counsel when the case was called, and there was no showing that the defendant was injured by the absence of lead counsel, there was no merit in the complaint that the trial court erred in denying the defendant’s motion for continuance because of the absence of counsel and that the defendant had been denied a Sixth Amendment right to counsel and a Fifth Amendment right to due process as guaranteed by the state and federal Constitutions. Blair v. State, 166 Ga. App. 434 , 304 S.E.2d 535 , 1983 Ga. App. LEXIS 2201 (1983).

Procedures used by county in appointing attorneys for indigent defendants did not violate due process when, in the event the public defender’s office was unavailable, attorneys were appointed from an alphabetical list in an equitable manner and special considerations were given in death penalty cases. Lewis v. State, 255 Ga. 101 , 335 S.E.2d 560 , 1985 Ga. LEXIS 944 (1985).

Because a police officer testified that the defendant sold methamphetamine from the defendant’s residence, the state met the state’s burden of proving beyond a reasonable doubt that venue of the crimes charged was properly in the county in which the defendant was tried; therefore, the trial court properly denied the defendant’s motion for a new trial. Borders v. State, 299 Ga. App. 100 , 682 S.E.2d 148 , 2009 Ga. App. LEXIS 836 (2009).

Court required to make findings on Mandarin Chinese speaker’s competency to stand trial without interpreter. —

Trial court erred in denying a defendant’s motion for new trial based on the defendant’s contention that the defendant did not understand the proceedings because an interpreter was not provided to the defendant without making findings; there was sufficient evidence to raise a question as to whether the defendant, whose native language was Mandarin Chinese, was competent to be tried without an interpreter, and the trial court was required to make findings as to the defendant’s competency on the record. Ling v. State, 288 Ga. 299 , 702 S.E.2d 881 , 2010 Ga. LEXIS 890 (2010).

Criminal Procedure Discovery Act constitutional. —

Because the Criminal Procedure Discovery Act (O.C.G.A. § 17-16-1 et seq.) provides for reciprocal discovery in criminal felony cases with any imbalance favoring the defendant, it does not violate the due process clause of the United States or Georgia Constitutions. State v. Lucious, 271 Ga. 361 , 518 S.E.2d 677 , 1999 Ga. LEXIS 587 (1999).

Prosecutor may not suppress material evidence favorable to the accused, whether or not a request for such information is made or an in-camera inspection conducted. Castell v. State, 250 Ga. 776 , 301 S.E.2d 234 , 1983 Ga. LEXIS 1026 (1983).

Defendant was entitled to be informed of the identity of a confidential informant under Brady, only if the informant was the individual seen accessing defendant’s car and was not a mere tipster. Johnson v. State, 274 Ga. App. 282 , 617 S.E.2d 252 , 2005 Ga. App. LEXIS 757 (2005), rev'd, 280 Ga. 511 , 630 S.E.2d 377 , 2006 Ga. LEXIS 338 (2006), vacated in part, 283 Ga. App. 630 , 642 S.E.2d 340 , 2007 Ga. App. LEXIS 147 (2007).

Not every nondisclosure of exculpatory information is error; rather, when the omitted evidence was not specifically requested, nondisclosure is error only if the omitted evidence creates a reasonable doubt that did not otherwise exist. Castell v. State, 250 Ga. 776 , 301 S.E.2d 234 , 1983 Ga. LEXIS 1026 (1983).

Defendant was not denied a fair trial because the state improperly withheld a post-arrest videotaped interview of a co-defendant; after review of both the co-defendant’s trial testimony and the co-defendant’s testimony from the videotaped interview, there was no evidence which would have likely resulted in a different outcome at trial, as at all times, contrary to defendant’s contentions, the co-defendant denied ownership of the marijuana. Morgan v. State, 263 Ga. App. 32 , 587 S.E.2d 177 , 2003 Ga. App. LEXIS 1078 (2003).

To establish constitutional violation for denial of motion for discovery of exculpatory material the defendant has the burden of showing that any of the information allegedly withheld improperly was favorable to the defendant, and that the withholding in any way denied the defendant a fair trial. Lewis v. State, 166 Ga. App. 428 , 304 S.E.2d 531 , 1983 Ga. App. LEXIS 3237 (1983).

Defendant’s right to exculpatory evidence. —

Violations of defendant’s due process right to a fair trial arise with the discovery, after trial, of information which had been known to the prosecution but unknown to the defense, or the trial court’s failure to order disclosure of materially exculpatory evidence; but the state is under no constitutional or procedural obligation to allow unrestricted discovery and, despite the defendant’s ignorance of what is in the state’s file, the defendant’s right to exculpatory evidence is met by the duty on the state, with or without request, to produce it. Barnes v. State, 157 Ga. App. 582 , 277 S.E.2d 916 , 1981 Ga. App. LEXIS 1924 (1981).

Defendant was not denied defendant’s constitutional right to due process by the state’s failure to secure exculpatory evidence since the defendant failed to identify any potential evidence that was not investigated or developed by the state; mere speculation that there may be exculpatory evidence was insufficient to show a due process violation. Cameron v. State, 262 Ga. App. 296 , 585 S.E.2d 209 , 2003 Ga. App. LEXIS 889 (2003).

There was no Brady violation when the information the defendant sought became available at trial; moreover, the defendant had not shown a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed. Jackson v. State, 284 Ga. App. 619 , 644 S.E.2d 491 , 2007 Ga. App. LEXIS 376 (2007), cert. denied, No. S07C1169, 2007 Ga. LEXIS 521 (Ga. June 25, 2007), overruled, Hill v. State, 360 Ga. App. 143 , 860 S.E.2d 893 , 2021 Ga. App. LEXIS 318 (2021).

Defendant did not establish Brady violation. —

A Brady violation was not established since the defendant knew the identity of a confidential informant (CI) before trial and that the CI had made a deal with the prosecution, had included the CI on the defense’s witness list, and introduced evidence of the CI’s indictment for drug trafficking. Even assuming, arguendo, that the defendant was not aware of all the circumstances surrounding the deal before trial, the defendant did not show that earlier disclosure would have benefitted the defendant and that any delay deprived the defendant of a fair trial. Therefore, the defendant was not entitled to a mistrial based on a Brady violation. Alford v. State, 293 Ga. App. 512 , 667 S.E.2d 680 , 2008 Ga. App. LEXIS 998 (2008).

Under Brady, a defendant did not show that the state agreed to any sort of deal with an accomplice witness in exchange for the witness’s testimony. To the extent that the witness or the witness’s counsel hoped that the witness’s testimony would later benefit the witness, their subjective hopes were not evidence that a deal existed; there was no evidence that the prosecutor encouraged the witness or the witness’s lawyer to believe that the witness would benefit from testifying against the defendant; and the fact that the state ultimately cooperated with counsel’s efforts to reduce the witness’s sentence did not prove that the state and the witness had a deal prior to the defendant’s trial. Varner v. State, 297 Ga. App. 799 , 678 S.E.2d 515 , 2009 Ga. App. LEXIS 549 (2009), cert. denied, No. S09C1545, 2009 Ga. LEXIS 588 (Ga. Sept. 8, 2009).

Rights not violated when evidence given to insurance company. —

Defendant’s due process rights were not violated by the state’s turning over of a vehicle to co-defendant’s insurance company since the state did not destroy or fail to preserve the alleged exculpatory evidence. King v. State, 262 Ga. App. 37 , 584 S.E.2d 652 , 2003 Ga. App. LEXIS 834 (2003).

Suppression of material evidence favorable to accused violative of due process. —

The suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Wallin v. State, 248 Ga. 29 , 279 S.E.2d 687 , 1981 Ga. LEXIS 878 (1981).

Forcing prisoner into lineup with other prisoners not violation of due process. —

Even though the constitutional provision that no person shall be compelled to give testimony, or do acts, tending to incriminate that person, is to be liberally construed in favor of the accused, forcibly causing a prisoner to take a position in prison in line with other prisoners, there passively to remain while the prisoner is being inspected by the alleged victims for identification as the perpetrator of the crimes, is not in contravention of the rights secured to the prisoner under such provision of the Constitution, nor would the fact that the prisoner had been illegally arrested and imprisoned alter this ruling. Meriwether v. State, 63 Ga. App. 667 , 11 S.E.2d 816 , 1940 Ga. App. LEXIS 523 (1940).

Identification procedure not overly suggestive. —

Identification procedure was not impermissibly suggestive since it was only after the officer had already been given the name of the individual from whom the officer had purchased cocaine that the officer viewed a photograph of the defendant to confirm that the defendant was in fact that individual. Thus, the photograph did not result in the officer’s identification of the defendant as the suspect, but merely corroborated that the suspect had been properly identified to the officer as the defendant. Hunter v. State, 202 Ga. App. 195 , 413 S.E.2d 526 , 1991 Ga. App. LEXIS 1730 (1991).

A photographic lineup was not impermissibly suggestive when all six photographs depicted people of the same race, gender, and general age range as the defendant, with similar hairstyles and facial hair; the defendant’s orientation to the camera was the same as that of several other photographs; the head shots in several of the pictures were similar to that of the defendant; and all of the pictures had slightly different backgrounds. It could not be assumed that the fact that the defendant’s picture was in the center of the top row gave it greater prominence. Russell v. State, 288 Ga. App. 372 , 654 S.E.2d 185 , 2007 Ga. App. LEXIS 1201 (2007).

Photographic lineup was not impermissibly suggestive even though defendant was the only suspect who was thin and had red hair as three of the six photographs were of men with red hair, the officer did not suggest to the witnesses that defendant was the perpetrator, but simply read the standard form to them and asked them to look at the pictures, all of the men pictured were approximately the same age, the witnesses identified defendant immediately when shown the lineup, and the witnesses both identified defendant at trial. Standfill v. State, 267 Ga. App. 612 , 600 S.E.2d 695 , 2004 Ga. App. LEXIS 731 (2004).

Trial court did not err by failing to suppress an out-of-court identification of defendant by a witness, even though the witness was told that defendant was in the photo line-up; the witness had already identified defendant by name and the photo identification was intended as confirmation that defendant was the person identified by name, not as an independent identification. Jackson v. State, 279 Ga. 449 , 614 S.E.2d 781 , 2005 Ga. LEXIS 436 (2005).

Victim’s in-court identification of defendant was not tainted by an impermissibly suggestive photo identification as the victim got a good look at defendant during the crime from seven or eight feet away in good lighting, recognized defendant the next day, and picked defendant out of a photo array before hearing any improper comments; further, at trial, the victim was “100 percent, absolutely sure” of the in-court identification. Graham v. State, 273 Ga. App. 187 , 614 S.E.2d 815 , 2005 Ga. App. LEXIS 442 (2005).

Identification of defendant was not impermissibly suggestive as the procedure used did not lead the identifier to the identification of defendant; the identifier immediately and with certainty identified defendant from a photo lineup and was not told the name of defendant until after the photo was chosen. Graham v. State, 273 Ga. App. 187 , 614 S.E.2d 815 , 2005 Ga. App. LEXIS 442 (2005).

In-court identification procedure was not impermissibly suggestive since a detective did not tell the victim that the suspect was going to be in the courtroom on the day in question, and since, before allowing the victim to look into the courtroom, the detective made sure that defendant did not stand out among the other people in the courtroom. Doublette v. State, 278 Ga. App. 746 , 629 S.E.2d 602 , 2006 Ga. App. LEXIS 412 (2006).

Trial court erred in granting a defendant’s motion to suppress a photographic identification as the two steps of the test for determining whether a photographic identification was admissible were erroneously conflated since, without ruling on whether the lineup procedure was impermissibly suggestive, the trial court applied the totality of the circumstances factors and ruled that the victim’s identification was without any substantial factual basis; thereafter, the trial court again applied the totality of the circumstances factors and found that there was a substantial likelihood of misidentification of the defendant as the intruder. State v. Norton, 280 Ga. App. 657 , 634 S.E.2d 810 , 2006 Ga. App. LEXIS 926 (2006).

Defendant’s identification in a line-up was not unduly suggestive in violation of due process under Ga. Const. 1983, Art. I, Sec. I, Para. I, and defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV for failing to file a motion to suppress the line-up identification; the testimony regarding the line-up established that the defendant was not showing gold teeth, that all of the participants held their numbers in the same place while the victims separately identified the defendant, and that the officers used no suggestive techniques during the line-up. Robinson v. State, 281 Ga. App. 76 , 635 S.E.2d 380 , 2006 Ga. App. LEXIS 1008 (2006).

Defendant’s motion to suppress two photographic identifications was properly denied as the defendant did not make a sufficient showing as to how the differences in the defendant’s photos would have rendered the lineups or procedures suggestive. Waters v. State, 281 Ga. 119 , 636 S.E.2d 538 , 2006 Ga. LEXIS 843 (2006).

A photographic lineup where the defendant was the only person wearing a hooded sweatshirt was not impermissibly suggestive because there was no evidence that the perpetrator had been wearing a hooded sweatshirt. Cooper v. State, 281 Ga. 760 , 642 S.E.2d 817 , 2007 Ga. LEXIS 245 (2007).

Because: (1) victim’s identification of defendant was based upon independent memory which victim fairly accurately recalled in developing the composite sketch; (2) there was independent basis for victim’s identifications; and (3) there was no substantial likelihood of misidentification under these circumstances, the trial court did not err in admitting the identification evidence and the trial court’s finding that there was no likelihood of misidentification was supported by the record. Price v. State, 289 Ga. App. 763 , 658 S.E.2d 382 , 2008 Ga. App. LEXIS 194 (2008).

Trial court did not err in concluding that one-on-one show-up identification was reliable despite any possible suggestion implied by officers when they told the victim that they had found the person that robbed the victim and were seeking a warrant; victim had adequate opportunity to view the robber at the scene in adequate lighting, the robber even demanded that the victim stop looking at the robber, clothing matching that of the robber matched clothing found in the defendant’s apartment, and length of time between the crime and confrontation was less than two hours. Ford v. State, 289 Ga. App. 865 , 658 S.E.2d 428 , 2008 Ga. App. LEXIS 210 (2008).

Photographic lineup was not impermissibly suggestive because the defendant was the only one pictured with an open mouth, revealing gold teeth, and the victim had identified the perpetrator as having bottom gold teeth. It was not readily apparent that the defendant’s top teeth, the only ones visible, were gold, and apart from the defendant’s mouth being open slightly, the lineup depicted people with similar skin color, hair, and overall appearance. Varner v. State, 297 Ga. App. 799 , 678 S.E.2d 515 , 2009 Ga. App. LEXIS 549 (2009), cert. denied, No. S09C1545, 2009 Ga. LEXIS 588 (Ga. Sept. 8, 2009).

Photographic array was not impermissibly suggestive. The people in the lineup had facial features similar to the defendant’s, and at least three had slanted eyes; the fact that the defendant’s picture was smaller, lighter in color, grainier, and less focused and the fact the defendant’s head was more tilted did not make the array impermissibly suggestive; and the defendant failed to explain how the “full-face” lineup conducted here (as opposed to a lineup obscuring all facial features other than the eyes) was impermissibly suggestive. Pinkins v. State, 300 Ga. App. 17 , 684 S.E.2d 275 , 2009 Ga. App. LEXIS 1026 (2009).

Photograph array and physical lineup not overly suggestive. —

Since the victim had ample opportunity to observe the defendant at the time of an armed robbery and kidnapping and the identification procedure used was to present the victim with certain photographs from which the victim tentatively identified the defendant, and subsequently, upon the arrest of the defendant, the victim identified the defendant from a physical lineup, the lineup was not unnecessarily suggestive, and even if it was suggestive, did not create a substantial likelihood of irreparable misidentification. Thus, considering the totality of the circumstances, there was no likelihood of misidentification so as to offend due process. Lee v. State, 165 Ga. App. 549 , 301 S.E.2d 906 , 1983 Ga. App. LEXIS 3168 (1983).

Claimed violation of due process in conduct of pretrial confrontation depends on totality of circumstances. —

A one-on-one showup, without more, does not necessarily violate due process. The primary evil to be avoided is the substantial likelihood of irreparable misidentification. Daniel v. State, 150 Ga. App. 798 , 258 S.E.2d 604 , 1979 Ga. App. LEXIS 2382 (1979).

For purposes of identification, accused may not be taken and placed within framework of scene of crime, for identification within the coordinating, incriminating circumstances of the scene. Meriwether v. State, 63 Ga. App. 667 , 11 S.E.2d 816 , 1940 Ga. App. LEXIS 523 (1940).

Showup found reliable. —

Although one-on-one showups are inherently suggestive, the identification need not be excluded as long as the identification was reliable notwithstanding any suggestive procedure under all the circumstances, including consideration of the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Thus, the trial court did not err in denying defendant’s motion to suppress an out-of-court showup identification by the manager of a store who identified defendant as the shoplifter of several store items given that: (1) the manager had a good opportunity to view defendant in the store parking lot as defendant was leaving with the items; (2) the manager quickly gave a physical identification to another store and defendant was soon observed in an apparent attempt to shoplift at the other store; and (3) the manager from the first store then positively identified defendant for the police at the scene within 30 minutes of the original shoplifting incident, all of which indicated that the identification was reliable. Horne v. State, 260 Ga. App. 640 , 580 S.E.2d 644 , 2003 Ga. App. LEXIS 447 (2003).

Showup identification was reliable when the identifying victim clearly saw the attacker, as the lights were on and they were 25 inches apart when they struggled, the victim correctly identified defendant, the showup occurred shortly after the crime, and the victim was certain of defendant’s identification both in and out of court. Patterson v. State, 274 Ga. App. 341 , 618 S.E.2d 81 , 2005 Ga. App. LEXIS 753 (2005).

Eyewitness identifications were not impermissibly suggestive as the police did not instruct armed robbery victims to identify a defendant at the showup but advised the victims that they would be asked if they could identify two individuals arrested in connection with another incident; the identifications, even if they had been suggestive, were reliable as the parking lot where the incident occurred was well-lit and the showup procedure occurred shortly after the robberies. Billingsley v. State, 294 Ga. App. 661 , 669 S.E.2d 699 , 2008 Ga. App. LEXIS 1305 (2008).

Motion to suppress out-of-court identification erroneously granted. —

Defendants’ motion to suppress an out-of-court identification of each of them pursuant to a single photograph showup was improperly granted because, in denying defendants’ motion to suppress an in-court identification by the same person, the trial court effectively ruled that, based on further evidence of the identifying individual’s knowledge of defendants, the trial court might determine that any suggestive out-of-court identification procedures would not render the in-court identification unreliable or subject to a substantial likelihood of misidentification; since the standard for permitting the identifying individual to make an in-court identification of defendants was the same as the standard for permitting the state to offer evidence of the identifying individual’s out-of-court identification, the trial court erred by suppressing evidence of the out-of-court identification. State v. Hattney, 279 Ga. 88 , 610 S.E.2d 44 , 2005 Ga. LEXIS 157 (2005).

In-court identification. —

Even assuming that the pre-trial identification procedures were improperly suggestive, a victim’s and a witness’s in-court identifications were admissible because they were based on their independent recollections of the incident since the victim testified in court that the victim was 100 percent certain the defendant was the robber and that the victim’s identification of the defendant was based on recognizing the defendant from the incident and the witness testified that the witness was certain the defendant was the person running with the gun on the day of the incident. Boatwright v. State, 281 Ga. App. 560 , 636 S.E.2d 719 , 2006 Ga. App. LEXIS 1167 (2006).

Booking photographs. —

Admission of a booking photograph was not irrelevant or so impermissibly suggestive that there was a substantial likelihood of mistaken identification in violation of the due process clause of U.S. Const., amend. 14 or Ga. Const. 1983, Art. I, Sec. I, Para. I since the witness testified that the witness could not identify defendant in court as defendant had grown a beard, grown a long ponytail, and was heavier than at the time of the incident, but the witness was able to identify the person in the booking photograph; thus, the photograph was relevant to identify defendant, and to show how defendant appeared at the time of the crime. Horner v. State, 257 Ga. App. 12 , 570 S.E.2d 94 , 2002 Ga. App. LEXIS 1437 (2002).

Letter voluntarily written by prisoner not product of “custodial interrogation.” —

A letter voluntarily written by a prisoner to a stranger to the proceedings which comes to the attention of the state through its power to maintain discipline in its detention facilities and not at the request of or by subterfuge of the state (i.e., not a custodial statement) is not the product of “custodial interrogation” and thus is a part of the work product of the state not subject to compelled discovery, except to the extent that such letter may be exculpatory and subject to disclosure under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 , 10 L. Ed. 2 d 215 (1963). Franklin v. State, 166 Ga. App. 375 , 304 S.E.2d 501 , 1983 Ga. App. LEXIS 3233 (1983).

Miranda like warnings not required for persons arrested for DUI before asking to submit to breath test. —

Supreme Court of Georgia held that neither Georgia’s right against compelled self-incrimination, Georgia’s right to due process, nor Georgia’s statute prohibiting compelled self-incrimination, O.C.G.A. § 24-5-506 , requires law enforcement to provide Miranda warnings to persons arrested for DUI before asking a person to submit to a breath test. State v. Turnquest, 305 Ga. 758 , 827 S.E.2d 865 , 2019 Ga. LEXIS 320 (2019).

Submitting to blood-alcohol tests. —

Since, under the Constitution of Georgia, the state may constitutionally take a blood sample from a defendant without the defendant’s consent, O.C.G.A. §§ 40-5-55 and 40-6-392 grant, rather than deny, a right to a defendant by providing for refusal to take such a test. Allen v. State, 254 Ga. 433 , 330 S.E.2d 588 , 1985 Ga. LEXIS 740 (1985).

The choice provided to a DUI defendant under Georgia law — submitting to a blood-alcohol test or refusing to submit, with resultant sanctions — is not so painful, dangerous, or severe, or so violative of religious beliefs, that no choice actually exists, and does not amount to compulsion on behalf of the state or a violation of due process. Allen v. State, 254 Ga. 433 , 330 S.E.2d 588 , 1985 Ga. LEXIS 740 (1985).

Preservation of breath sample used in auto-intoximeter test not required. —

Neither the federal nor the state constitutional guarantee of due process requires the state to preserve a sample of the breath used in the administration of the auto-intoximeter test. Hopper v. State, 175 Ga. App. 358 , 333 S.E.2d 201 , 1985 Ga. App. LEXIS 2801 (1985).

Admissibility of breath test results. —

Officers’ testimony that blood alcohol breath test machines were functioning properly, had been inspected, that no pieces or components were missing, that the officers performed all required tests, and that they prepared the instruments in accordance with their training showed substantial compliance with the required procedures, and admission of the test results was proper; defendants’ arguments that the breath test results should have been inadmissible because the machines registered increasing blood alcohol concentration readings as a person continued to blow into them went to the weight of the evidence, which was for the trial court to determine. Whittaker v. State, 279 Ga. App. 148 , 630 S.E.2d 560 , 2006 Ga. App. LEXIS 411 (2006), cert. denied, No. S06C1580, 2006 Ga. LEXIS 691 (Ga. Sept. 18, 2006), cert. denied, No. S06C1578, 2006 Ga. LEXIS 709 (Ga. Sept. 18, 2006).

Trial court properly denied the defendant’s amended motion for a new trial, holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I, given that: (1) the claim was raised for the first time in the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq.; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when it promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761 , 634 S.E.2d 883 , 2006 Ga. App. LEXIS 939 (2006), cert. denied, No. S06C2108, 2006 Ga. LEXIS 914 (Ga. Oct. 30, 2006).

The trial court did not err in denying the defendant’s motion in limine to suppress the results of a state-administered breath test, as an officer’s implied consent warning was substantively accurate so as to allow the defendant to make an informed decision about whether to consent to the test, and solely referred to the defendant’s privilege to drive within the state of Georgia with a Georgia driver’s license, and not the defendant’s Pennsylvania license; further, the officer’s initial statement was nothing more than an attention-grabbing preface, and as such did not constitute a substantive change that altered the meaning of the implied consent notice thereafter recited to the defendant. McHugh v. State, 285 Ga. App. 131 , 645 S.E.2d 619 , 2007 Ga. App. LEXIS 443 (2007).

Court of appeals did not err in reversing an order granting the defendant’s motion to suppress evidence of the state’s breath test results because the procedures followed by the state comported with the fundamental fairness required by due process; the police officer delivered to the defendant the required implied consent notice in an accurate and timely manner, thereby informing the defendant of the right to an independent test under O.C.G.A. § 40-6-392(a)(3), and thus, the state was under no constitutional duty to immediately inform the defendant of the results of the state-administered breath test. Padidham v. State, 291 Ga. 99 , 728 S.E.2d 175 , 2012 Ga. LEXIS 440 (2012).

No due process violation because hard choices on intoxication testing. —

State’s failure to immediately inform a defendant of the results of the state-administered test does not create a situation where the defendant is left with no, or so little information, that he or she is denied any meaningful choice in violation of due process; driving under the influence defendants must determine, often under difficult and stressful circumstances, whether to request an independent test, and that the choice may be difficult does not render it fundamentally unfair and this fact alone does not support a due process claim. Padidham v. State, 291 Ga. 99 , 728 S.E.2d 175 , 2012 Ga. LEXIS 440 (2012).

Results of field sobriety tests. —

Suppression of field sobriety tests was probably denied since the defendant: (1) was not in custody for the purposes of Miranda when asked to perform the tests; (2) did not make any statement or take any overt act which would have caused a reasonable person to believe that the encounter was anything more than a temporary detention; and (3) voluntarily submitted to the tests. McDevitt v. State, 286 Ga. App. 120 , 648 S.E.2d 481 , 2007 Ga. App. LEXIS 706 (2007), overruled in part, State v. Turnquest, 305 Ga. 758 , 827 S.E.2d 865 , 2019 Ga. LEXIS 320 (2019).

Trial court has discretion to order or allow psychiatric examination. —

Trial judge has the inherent power to order a psychiatric examination, but the refusal to do so will not be reversed unless it is shown that the want of an examination would infringe upon the defendant’s right to a fair trial as guaranteed by the Georgia Constitution. Williams v. Newsome, 254 Ga. 714 , 334 S.E.2d 171 , 1985 Ga. LEXIS 827 (1985).

Medical expert investigator’s notes from homicide scene were not a “written scientific report” within the purview of former O.C.G.A. § 17-7-211 and did not have to be furnished to defendant upon the latter’s request. Pierce v. State, 209 Ga. App. 366 , 433 S.E.2d 641 , 1993 Ga. App. LEXIS 883 (1993), cert. denied, No. S93C1648, 1993 Ga. LEXIS 962 (Ga. Oct. 12, 1993).

Applying four-part Barker speedy trial test. —

While the trial court was authorized to conclude that the “lead officer” in the prosecution against the defendant was a material and necessary witness who was unavailable for 14 months while the defendant’s case was pending, and thus a continuance during that period was proper under O.C.G.A. § 17-8-31 , despite the fact that no explanation was given for the remainder of the delay, given that the defendant failed to prove any of the other Barker v. Wingo factors in determining whether a speedy trial violation occurred, the defendant’s motion to dismiss the indictment on speedy trial grounds was properly denied. Bell v. State, 287 Ga. App. 300 , 651 S.E.2d 218 , 2007 Ga. App. LEXIS 944 (2007), cert. denied, No. S08C0031, 2007 Ga. LEXIS 811 (Ga. Oct. 29, 2007).

Defendant’s speedy trial right under the Sixth Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) was not violated when the defendant was arrested in 1998, indicted in 1999, and tried in 2004. Part of the delay was caused by the defendant’s mistaken release; defense counsel shared responsibility for the delay; the defendant had not asserted the right to a speedy trial until the day before the commencement of the defendant’s first trial; there was no oppressive pretrial incarceration because the defendant had been incarcerated for only four or five months; and the death of a witness was not prejudicial because the witness’s identification of a person fleeing the crime scene as someone other than the defendant did not preclude the possibility that the defendant was the other person seen running from the scene and because counsel evidently regarded the deceased witness’s observations as harmful to the defense. Smith v. State, 284 Ga. 17 , 663 S.E.2d 142 , 2008 Ga. LEXIS 542 (2008).

Trial court erred in denying a defendant’s motion to dismiss an indictment since there was a four-year delay between the defendant’s arrest and the trial court’s denial of the defendant’s speedy trial motion, and the trial court failed to address the reason for the lengthy delay and failed to make even a bare conclusion about how the Barker factors balanced against each other. Watkins v. State, 315 Ga. App. 708 , 727 S.E.2d 539 , 2012 Ga. App. LEXIS 419 (2012).

Denial of motion to sever. —

Because a second of two defendants failed to show the presence of any confusion engendered by the number of defendants or the law, the defenses were not antagonistic, and accomplice testimony against the first defendant did not involve or incriminate the second defendant, the trial court did not abuse its discretion in denying the second defendant’s motion to sever the trial from that of the first defendant; hence, the second defendant failed to show that the court’s refusal to sever caused prejudice or a due process violation. Williams v. State, 280 Ga. 584 , 630 S.E.2d 370 , 2006 Ga. LEXIS 262 (2006).

Trial court properly denied the defendant’s motion to sever a joint trial, as: (1) each of the co-defendants was jointly charged with the same offenses, and the offenses were committed simultaneously; (2) there was no danger of confusion as to the law and evidence applicable to each, as virtually all of the evidence tended to show their joint guilt; (3) severance was not required solely because each of the three defendants shared the same last name; and (4) the defenses were complimentary, not antagonistic, in that all argued that the State had charged the wrong men and had failed to prove its case. Hence, the defendant failed in the burden of showing prejudice and a denial of due process. Adkins v. State, 281 Ga. 301 , 637 S.E.2d 714 , 2006 Ga. LEXIS 973 (2006).

The denial of the defendant’s motion to sever the defendant’s trial from that of a codefendant did not deny the defendant a fair trial; the defendant had not shown harm caused by the failure to sever, and the defendant did not point to any testimony or other evidence introduced at the joint trial that could not have been introduced against the defendant in a separate trial. Jackson v. State, 284 Ga. App. 619 , 644 S.E.2d 491 , 2007 Ga. App. LEXIS 376 (2007), cert. denied, No. S07C1169, 2007 Ga. LEXIS 521 (Ga. June 25, 2007), overruled, Hill v. State, 360 Ga. App. 143 , 860 S.E.2d 893 , 2021 Ga. App. LEXIS 318 (2021).

3.Trial

Denial of motion for mistrial did not deny defendant fair trial. —

Because the trial court issued a prompt curative instruction in response to an alleged improper vouching of the victim by a police lieutenant and took corrective measures to ensure that the jury could follow those corrective measures, the court did not deny the defendant a right to a fair trial by denying a motion for a mistrial based upon that testimony. Cortez v. State, 286 Ga. App. 170 , 648 S.E.2d 488 , 2007 Ga. App. LEXIS 720 (2007).

While the trial court did not necessarily rebuke the prosecutor, because it did give curative instructions informing the jury that a cell phone used in the state’s closing argument was not evidence, the demonstration was not to be considered, and the demonstration was completely irrelevant to the case, the defendant was not entitled to a mistrial as a result; further, the appeals court agreed with the trial judge that the improper demonstration did not prejudice the defendant because enough other evidence existed for the jury to come to its conclusion without relying on the improper demonstration. Cook v. State, 287 Ga. App. 81 , 650 S.E.2d 757 , 2007 Ga. App. LEXIS 879 (2007), cert. denied, No. S07C1874, 2008 Ga. LEXIS 127 (Ga. Jan. 28, 2008).

Single, one-word reference to a previous trial, which reference occurred as a result of confusion as to which pretrial hearing defense counsel was referring, did not make a mistrial essential to the preservation of a defendant’s right to a fair trial. Accordingly, the trial court did not abuse the court’s discretion when the court denied the mistrial motion. Smith v. State, 284 Ga. 17 , 663 S.E.2d 142 , 2008 Ga. LEXIS 542 (2008).

Bifurcated proceedings. —

Trial court did not deprive the first and second defendants of due process under Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 5 in failing to sever, pursuant to O.C.G.A. § 17-8-4 , their trials in a case involving the three defendants, who were allegedly involved in a conspiracy; because each defendant was implicated by each defendant’s own statement, the defendants failed to show how they were prejudiced by the joint trial, and there was no showing of antagonistic defenses. Brooks v. State, 281 Ga. 14 , 635 S.E.2d 723 , 2006 Ga. LEXIS 603 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266 , 167 L. Ed. 2 d 91, 2007 U.S. LEXIS 2212 (2007).

Defendant’s conviction was affirmed as trying the issues of guilt and sentence before the same jury in bifurcated proceedings was not unconstitutional. Walker v. State, 281 Ga. 157 , 635 S.E.2d 740 , 2006 Ga. LEXIS 652 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60 , 169 L. Ed. 2 d 50, 2007 U.S. LEXIS 9247 (2007).

Due process not denied when evidence was admissible as prior inconsistent statement. —

Defendant was not denied due process when the trial court admitted hearsay testimony of a detective regarding statements made by a co-conspirator after the co-conspirator denied remembering the crime or giving the police any information; the testimony was admissible as substance evidence under the prior inconsistent statement exception to the hearsay rule. Robinson v. State, 278 Ga. 31 , 597 S.E.2d 386 , 2004 Ga. LEXIS 469 (2004).

Criminal defendant cannot be denied opportunity to have expert examine critical evidence. —

Fundamental fairness is violated when a criminal defendant on trial for the defendant’s liberty is denied the opportunity to have an expert of the defendant’s choosing, bound by appropriate safeguards imposed by the United States Supreme Court, examine a piece of critical evidence whose nature is subject to varying expert opinion. United States v. Gaultney, 606 F.2d 540, 1979 U.S. App. LEXIS 10526 (5th Cir. 1979), modified, 615 F.2d 642, 1980 U.S. App. LEXIS 18647 (5th Cir. 1980).

Similar crimes evidence. —

When a defendant was charged with violating O.C.G.A. § 16-8-60(b) , the admission of similar crimes evidence did not violate due process; evidence that following the defendant’s arrest on the Georgia charge, the defendant had been arrested in Florida for possession of illegally reproduced recordings was appropriate for showing scheme and course of conduct, and the Florida act was sufficiently similar to the Georgia charges. Hayward-El v. State, 284 Ga. App. 125 , 643 S.E.2d 242 , 2007 Ga. App. LEXIS 138 (2007).

Defendant not prohibited from challenging state’s evidence. —

Defendant’s claim that the defendant was denied due process because the state used “false evidence” to convict the defendant failed because the defendant was not prevented in any way from challenging the state’s evidence that the defendant contended was incorrect, evidence regarding the use of cell phone records to show location, and the defendant chose not to challenge the evidence. Davis v. State, 292 Ga. 90 , 734 S.E.2d 401 , 2012 Ga. LEXIS 955 (2012).

Refusal to disclose informant’s identity. —

Trial court did not err in refusing the defendant’s request to disclose the identity of a confidential informant in order to support an entrapment defense, as the defendant was unable to present an arguably persuasive case regarding the lack of a predisposition to commit the crime, based specifically on: (1) a discussion with a detective about the impending drug sale; (2) the defendant’s act of displaying a weapon considered to be protection against a robbery; and (3) the defendant’s act of coordinating the movements of the numerous participants in the large-scale transaction the defendant was a part of; hence, no due process violation resulted. Griffiths v. State, 283 Ga. App. 176 , 641 S.E.2d 169 , 2006 Ga. App. LEXIS 1516 (2006), cert. denied, No. S07C0652, 2007 Ga. LEXIS 333 (Ga. Apr. 24, 2007).

Right to testify not violated. —

Defendant’s constitutional right to testify in the defendant’s own behalf was not violated. The trial court established that the defendant knew that the defendant had the right to testify if the defendant wanted to but elected not to after consulting with defense counsel. Branford v. State, 299 Ga. App. 890 , 685 S.E.2d 731 , 2009 Ga. App. LEXIS 1018 (2009).

Cross-examination. —

Even if the state violated the defendant’s due process rights in asking whether the victim’s death was accidental on cross-examination, any error was harmless, based on the overwhelming evidence that the victim’s injuries were not accidental. Thomas v. State, 281 Ga. 550 , 640 S.E.2d 255 , 2007 Ga. LEXIS 35 (2007).

When the defendant’s conviction or acquittal is dependent upon identification of substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state; but the defendant does not have an absolute, unqualified right to examine such evidence. Emmett v. State, 243 Ga. 550 , 255 S.E.2d 23 , 1979 Ga. LEXIS 986 (1979).

Trial court’s comments on evidence. —

Claim that defendant’s rights to due process under Ga. Const. 1983, Art. I, Sec. I, Para. I and to effective assistance of counsel under Ga. Const. 1983, Art. I, Sec. I, Para. XIV were violated by the trial court’s comments on the evidence allegedly in violation of O.C.G.A. § 17-8-57 , failed; three of the comments were permissible because they were merely reflecting grounds for sustaining objections, another comment was not erroneous because the witness was permitted to answer the question over the state’s objection, the trial court’s questioning of victims was permissible because the questions were attempts to clarify the children’s testimony, and any error by the expert in bolstering the testimony of certain witnesses was a self-induced error. Zepp v. State, 276 Ga. App. 466 , 623 S.E.2d 569 , 2005 Ga. App. LEXIS 1285 (2005), cert. denied, No. S06C0610, 2006 Ga. LEXIS 224 (Ga. Mar. 27, 2006), overruled in part, Schofield v. Holsey, 281 Ga. 809 , 642 S.E.2d 56 , 2007 Ga. LEXIS 182 (2007), overruled in part, State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 , 2020 Ga. LEXIS 98 (2020).

No denial or abridgment of constitutionally secured right. —

Since the petitioner was not forced to go to trial without counsel; and the petitioner did not ask for counsel; and the petitioner was not denied the opportunity to procure counsel; and nothing done by the trial court forbade the petitioner from securing counsel or obtaining the benefit thereof, there was no denial, or even an abridgment, of any right secured to the petitioner by the Constitution of Georgia and that of the United States. Clarke v. Cobb, 195 Ga. 633 , 24 S.E.2d 782 , 1943 Ga. LEXIS 531 (1943).

Conviction reversed due to level of certainty of eyewitness identification instruction. —

Defendant’s armed robbery conviction was reversed as the only evidence implicating the defendant was the testimony of the two victims identifying the defendant as the perpetrator and as it was error to give the jury the pattern instruction stating that the jury could consider the level of certainty of the victims in their identification of defendant as the perpetrator of the crimes in evaluating the reliability of the identifications; one of the victims was unable to pick the defendant’s photo in a photo array and the other victim was able to describe to police the weapon used in the crimes but was unable to give any physical characteristics of the perpetrator. Brodes v. State, 279 Ga. 435 , 614 S.E.2d 766 , 2005 Ga. LEXIS 442 (2005).

It is not necessary for preservation of due process that defendant personally waive right to jury trial. Little v. Stynchcombe, 227 Ga. 311 , 180 S.E.2d 541 , 1971 Ga. LEXIS 683 (1971).

Constitutional right to jury trial may be waived by proceeding to trial without demanding jury. Clarke v. Cobb, 195 Ga. 633 , 24 S.E.2d 782 , 1943 Ga. LEXIS 531 (1943).

Speedy trial. —

The trial court did not abuse the court’s discretion in granting the defendants’ motions to dismiss the charges filed against the defendants because the court was authorized to find that, as the result of the state’s negligence, both of the defendants were subjected to an extraordinarily long delay in being brought to trial, that the defendants were not dilatory in asserting their right to a speedy trial, and that, as a result of the delay, their ability to defend against the belated murder charge was prejudiced. State v. White, 282 Ga. 859 , 655 S.E.2d 575 , 2008 Ga. LEXIS 5 (2008).

Trial according to procedures applicable to all similar cases not denial of due process. —

When a citizen is accorded a trial in a court of justice according to the modes of procedure applicable to all cases of a similar kind, it cannot be said that the citizen has been denied “due process of law.” Hicks v. State, 196 Ga. 671 , 27 S.E.2d 307 , 1943 Ga. LEXIS 397 (1943).

In the trial of accused for rape, the assistant solicitor-general (now district attorney) in the concluding argument made the statement, “anything less than the death penalty would be a mockery,” and when counsel for the accused promptly stated, “We object to that, and ask for a mistrial in this case,” and when the court denied that motion by stating, “I will strike the word ‘mockery’ and tell the jury to put it out of their minds,” the court did not err in refusing to declare a mistrial. There was no violation of the rights of the accused under the due process clause of the Constitution of this state, or under the provisions that the accused be given a trial “by an impartial jury.” Hicks v. State, 196 Ga. 671 , 27 S.E.2d 307 , 1943 Ga. LEXIS 397 (1943).

Due process requires state to prove beyond reasonable doubt every essential element of crime charged. Avery v. State, 138 Ga. App. 65 , 225 S.E.2d 454 , 1976 Ga. App. LEXIS 2057, rev'd, 237 Ga. 865 , 230 S.E.2d 301 , 1976 Ga. LEXIS 1425 (1976).

Defendant’s right to be present not violated. —

Delivery of two notes from the jurors in defendant’s absence, did not violate the defendant’s right to be present, as the allegedly improper communications were not prejudicial to defendant; one response dealt with a jury charge, which was not a critical stage of the trial, and the second was a denial of access to transcripts to the jury and an exhortation to rely upon their recollection of the evidence, which was harmless; a bailiff did not improperly relay information to the jurors, but instead only relayed the information that was expressly authorized by the trial court. Ford v. State, 274 Ga. App. 695 , 617 S.E.2d 262 , 2005 Ga. App. LEXIS 763 (2005), cert. denied, No. S05C1921, 2005 Ga. LEXIS 789 (Ga. Nov. 7, 2005).

Because the trial transcript failed to support the defendant’s claim that the trial court erroneously ordered the defendant be excluded from the courtroom during a critical stage of the proceeding, and in front of the jury, and given what transpired during the brief period that the defendant was absent from the courtroom, no due process violation occurred. Arnold v. State, 284 Ga. App. 598 , 645 S.E.2d 68 , 2007 Ga. App. LEXIS 371 (2007).

Trial court did not violate a defendant’s right to be present when the court responded to two jury questions, one asking if the crime was a misdemeanor or a felony, the other asking if there would be leniency considerations. The trial court responded only that these were not matters for the jury’s consideration, and the court formulated the court’s response in the presence of trial counsel. Engle v. State, 290 Ga. App. 396 , 659 S.E.2d 795 , 2008 Ga. App. LEXIS 338 (2008), overruled in part, Watson v. State, 297 Ga. 718 , 777 S.E.2d 677 , 2015 Ga. LEXIS 663 (2015).

Adequate accommodation for defendant’s hearing loss. —

Defendant’s claim of a due process violation because the defendant’s hearing impairment prevented the defendant from comprehending the witnesses’ testimony was properly rejected. The trial court accommodated the defendant by moving the defendant closer to the witness stand and obtaining a hearing device for the defendant to use, and the defendant’s conduct during the trial and statements to defense counsel indicated that the defendant was able to understand the testimony. Neugent v. State, 294 Ga. App. 284 , 668 S.E.2d 888 , 2008 Ga. App. LEXIS 1171 (2008).

Appellant’s constitutional right of cross-examination and confrontation of witnesses under U.S. Const., amend. 6, Ga. Const. 1945, Art. I, Sec. I, Para. V (see now Ga. Const. 1983, Art. I, Sec. I, Para. XIV), and this paragraph was not violated when the court allowed as evidence the recorded radio voice transmission of the deceased victim made while proceeding to the scene of the homicide, because it was allowed only for the purpose of explaining conduct to the satisfaction of the jury and not for the purpose of proving any fact. Callahan v. State, 229 Ga. 737 , 194 S.E.2d 431 , 1972 Ga. LEXIS 760 (1972).

Because defendant was provided a full opportunity for confrontation regarding the victim’s prior out-of-court statements, the trial court did not err in admitting a police investigator’s hearsay evidence. Gartrell v. State, 272 Ga. App. 726 , 613 S.E.2d 226 , 2005 Ga. App. LEXIS 376 (2005).

Standard of materiality to be used by the trial judge in determining whether material exculpatory evidence has been suppressed (either when deciding whether the judge must perform an in camera inspection or when refusing such evidence after examining it and then analyzing its significance again in the context of the full trial, which is the better method of determining materiality) is the same as that which applies on appeal, since absent a constitutional violation there is no breach of the prosecutor’s constitutional duty to disclose. Barnes v. State, 157 Ga. App. 582 , 277 S.E.2d 916 , 1981 Ga. App. LEXIS 1924 (1981).

Admission of child’s hearsay. —

Child molestation and aggravated child molestation convictions were upheld on appeal, as a videotaped statement from the victim accusing the defendant of requiring the victim to place the defendant’s penis in the victim’s mouth was corroborated by another witness; hence, the defendant was not denied due process and the Child Hearsay Statute, O.C.G.A. § 24-3-16, did not require corroboration of child hearsay. Simpson v. State, 282 Ga. App. 456 , 638 S.E.2d 900 , 2006 Ga. App. LEXIS 1423 (2006).

Confrontation rights were violated, but admission of hearsay evidence was harmless, given the overwhelming evidence of the defendant’s guilt, the fact that the victim’s taped account of the argument between the defendant and the defendant’s wife was cumulative to, and corroborative of, the defendant’s own testimony, and as the erroneously admitted hearsay evidence did not contribute to the verdict. Delgado v. State, 287 Ga. App. 273 , 651 S.E.2d 201 , 2007 Ga. App. LEXIS 936 (2007).

Identification of victims not a violation of the right to a fair trial. —

During a defendant’s trial for aggravated assault and other charges arising out of a road rage incident, the defendant’s right to a fair trial was not violated when the children who were in a car at which the defendant allegedly pointed a gun were brought into the courtroom so that their parent could identify them; even if the demonstration was irrelevant, it was not so prejudicial as to violate the right to a fair trial, and moreover, any error was rendered harmless when two of the three children testified at trial and were cross-examined by the defendant’s counsel. Adams v. State, 282 Ga. App. 819 , 640 S.E.2d 329 , 2006 Ga. App. LEXIS 1462 (2006).

Right to present evidence in support of defense. —

Defendant was properly denied the right to a new trial under O.C.G.A. § 5-5-23 , based on defendant’s claim that trial counsel rendered ineffective assistance of counsel, as defendant failed to show that the outcome of the criminal trial would have differed if trial counsel had acted in another manner; moreover, defendant’s claims lacked merit, in that defendant’s constitutional right, under Ga. Const. 1983, Art. I, Sec. I, Para. I, to present evidence of the victim’s prior violent acts was contingent upon defendant’s showing that the evidence was relevant to defendant’s claim of justification, which defendant failed at showing because there was an eyewitness and medical evidence that defendant shot the victim numerous times in the back. Robinson v. State, 277 Ga. 75 , 586 S.E.2d 313 , 2003 Ga. LEXIS 716 (2003).

Trial court erred in denying the defendant’s motion for an expert witness at the state’s expense, and motion for a continuance so that such expert could review the state’s DNA evidence, because without such an expert, the defendant was left with no favorable evidence, and the failure to appoint an expert rendered a trial unfair. Dingler v. State, 281 Ga. App. 721 , 637 S.E.2d 120 , 2006 Ga. App. LEXIS 1231 (2006).

When co-defendant presents no defense, no prejudice. —

When the defendant, to obtain a new trial for a denial of severance, must show prejudice and a denial of due process, but when the defendant argues the defendant was prejudiced in that the defendant’s defense was inconsistent with that of the co-defendant, the co-defendant’s defense cannot be inconsistent with the defendant’s when the co-defendant presented no evidence. Rampley v. State, 166 Ga. App. 521 , 304 S.E.2d 574 , 1983 Ga. App. LEXIS 2232 (1983).

Use of electronic device is subject to supervision of trial judge who may take reasonable measures to assure that the use of the device does not interfere with the dignity, order, and decorum of the court. Davey v. City of Atlanta, 130 Ga. App. 687 , 204 S.E.2d 322 , 1974 Ga. App. LEXIS 1229 (1974).

Trial judge’s arbitrary denial of use of recording device as work product denies due process. —

For the trial judge to arbitrarily deny use by counsel or a party of a microphonic recording device as a work product for their personal use in a possible retrial or appeal of the case is a denial of due process. Davey v. City of Atlanta, 130 Ga. App. 687 , 204 S.E.2d 322 , 1974 Ga. App. LEXIS 1229 (1974).

Presence of the defendant at defendant’s trial is a condition of due process to the extent that a fair and just hearing would be thwarted by the defendant’s absence; however, when the defendant is involuntarily absent from the court at the time the jury agrees upon a verdict there is no violation of the defendant’s rights if there was no interference with the jury’s deliberations, since the defendant has no right to be present while the jury is in seclusion or deliberation. Fowler v. Grimes, 198 Ga. 84 , 31 S.E.2d 174 , 1944 Ga. LEXIS 372, cert. denied, 323 U.S. 784, 65 S. Ct. 266 , 89 L. Ed. 626 , 1944 U.S. LEXIS 72 (1944).

No concomitant right of absence. —

Criminal defendant’s right to be present at the defendant’s trial does not include a concomitant right of absence. Lewis v. State, 164 Ga. App. 549 , 297 S.E.2d 303 , 1982 Ga. App. LEXIS 2864 (1982).

Electronic restraint device on defendant during trial was permissible. —

Trial court’s utilization on defendant of an electronic restraint device as a security measure during trial was not error since the device was shielded from the jury’s view and the defendant failed to show that the defendant was harmed by its use. Lovelace v. State, 262 Ga. App. 690 , 586 S.E.2d 386 , 2003 Ga. App. LEXIS 991 (2003), cert. denied, No. S03C1862, 2004 Ga. LEXIS 47 (Ga. Jan. 12, 2004).

No violation of defendant’s fair trial rights when shackles were used at trial. —

There was no error by a trial court’s denial of a defendant’s request to have leg shackles removed during the trial as the shackles could not be seen by the jurors, the trial court took additional measures to ensure that the jurors were unaware of the shackles, and consideration was given to appropriate circumstances; the shackles were not shown to interfere with the defendant’s ability to have a fair trial. Council v. State, 297 Ga. App. 96 , 676 S.E.2d 411 , 2009 Ga. App. LEXIS 353 (2009).

Defendant not deprived of due process because involuntarily absent during jury deliberation and reaching of verdict. —

The verdict and sentence in a murder case was not void upon the ground that the accused was involuntarily absent from the court during deliberations of the jury, and at the time the jury reached their verdict since the defendant was present in the courtroom at the time the verdict was published. Fowler v. Grimes, 198 Ga. 84 , 31 S.E.2d 174 , 1944 Ga. LEXIS 372, cert. denied, 323 U.S. 784, 65 S. Ct. 266 , 89 L. Ed. 626 , 1944 U.S. LEXIS 72 (1944).

Waiver of right to test constitutionality of statute making wife incompetent witness for husband. —

When, in the trial of a criminal case, the defendant offers his wife as a witness in his behalf and, on objection by the state, her testimony is rejected on the ground that she is not competent or compellable to testify for or against her husband; and when thereafter the objection is withdrawn by the state, and the defendant allowed to introduce his wife, and he refuses to do so, he will be considered as having waived the right to test the constitutionality of the statute making the wife an incompetent witness for her husband on the ground that he waived that right by his refusal to use his wife as a witness in his behalf when he was given an opportunity to do so. Williams v. State, 69 Ga. App. 863 , 27 S.E.2d 54 , 1943 Ga. App. LEXIS 198 (1943).

Failure to object to exclusion of defendant’s parents during child victim’s testimony. —

Because the defendant failed to object to the exclusion of the defendant’s parents from the courtroom, and the failure did not amount to plain error, the appeals court rejected the defendant’s contentions on appeal that O.C.G.A. § 17-8-54 was violated, as was the defendant’s right to public trial; moreover, the appeals court declined to extend the plain error doctrine to the instant facts. Delgado v. State, 287 Ga. App. 273 , 651 S.E.2d 201 , 2007 Ga. App. LEXIS 936 (2007).

Retrial did not violate due process. —

Retrial on child molestation charge did not violate due process, given the legislature’s clear intention to prosecute sexual intercourse only as statutory rape. Maynard v. State, 290 Ga. App. 403 , 659 S.E.2d 831 , 2008 Ga. App. LEXIS 343 (2008).

Admission of defendant’s taped telephone conversation not improper. —

Admission of the defendant’s secretly-taped telephone conversation with a coconspirator did not violate due process guarantees; the elicitation of the defendant’s unguarded response to a perceived confidante regarding the circumstances of the crimes in which they had both participated was clearly designed to procure an unfiltered, genuine statement from the defendant. Further, absent any evidence that the police investigative techniques were designed to induce the slightest hope of benefit or fear of injury, the resulting statements were not rendered involuntary. Thorpe v. State, 285 Ga. 604 , 678 S.E.2d 913 , 2009 Ga. LEXIS 390 (2009).

4.Jury Issues

Failure to object to jury. —

Because the defense counsel only sought to have a juror removed before the second day of a three-day jury trial based on that juror’s acquaintance with three state witnesses, did not ask the jury pool questions related to such information during voir dire, and did not move for a mistrial when the issue arose during trial, the defendant waived any claim that a Sixth Amendment right to a jury trial was violated, and the trial court was not required to grant a mistrial, sua sponte; moreover, because the excused juror was not questioned about any familiarity with the witnesses during voir dire, that juror’s selection to sit on the panel was not the result of any concealment or misleading statements. Artega v. State, 282 Ga. App. 751 , 639 S.E.2d 634 , 2006 Ga. App. LEXIS 1524 (2006).

Eyewitness identification pattern jury instruction cannot be endorsed. —

In light of the scientifically documented lack of correlation between a witness’s certainty in the witness’s identification of the perpetrator of a crime and the accuracy of that identification and the critical importance of accurate jury instructions, the pattern instruction authorizing jurors to consider the witness’s certainty in his or her identification as a factor to be used in deciding the reliability of that identification cannot be endorsed. Brodes v. State, 279 Ga. 435 , 614 S.E.2d 766 , 2005 Ga. LEXIS 442 (2005).

Replacement of trial judge after jury charged. —

A defendant failed to show that due process was violated when because of an emergency, the trial judge who heard the case and charged the jury was replaced by a different judge who accepted the verdict. Cooper v. State, 281 Ga. 760 , 642 S.E.2d 817 , 2007 Ga. LEXIS 245 (2007).

Jury charge on reliability of identification testimony was harmless error. —

Jury charge that provided that a witness’s level of certainty could be considered in assessing the reliability of identification testimony was harmless error as: (1) the identification witness was not the victim, viewed the crimes in daylight, already knew the defendant, recognized the defendant’s gold teeth, and identified the defendant in a photographic lineup by the defendant’s street name; (2) there was significant corroborating evidence, including a first witness’s testimony that the defendant intended to kill the victim and the testimony of two other witnesses; and (3) the jury was accurately instructed as to the state’s burden of proving the defendant’s identity and the possibility of mistaken identification. Woodruff v. State, 281 Ga. 235 , 637 S.E.2d 391 , 2006 Ga. LEXIS 925 (2006).

It is not necessary for preservation of due process that defendant personally waive right to jury trial. Little v. Stynchcombe, 227 Ga. 311 , 180 S.E.2d 541 , 1971 Ga. LEXIS 683 (1971).

Constitutional right to jury trial may be waived by proceeding to trial without demanding jury. Clarke v. Cobb, 195 Ga. 633 , 24 S.E.2d 782 , 1943 Ga. LEXIS 531 (1943).

Jury must be informed of agreement between prosecutor and alleged accomplice whose testimony is crucial. —

Due process mandates that the jury be informed of any understanding or agreement reached between the prosecutor and an alleged accomplice, on whose testimony the state’s case depends. Williams v. State, 151 Ga. App. 683 , 261 S.E.2d 430 , 1979 Ga. App. LEXIS 2747 (1979).

Jury instruction to conform to indictment. —

During a defendant’s trial for aggravated assault and other charges arising out of a road rage incident, the trial court’s failure to give a jury instruction regarding immunity or leniency granted to witnesses did not violate O.C.G.A. § 17-8-57 or the defendant’s due process rights; although the trial court began to give the instruction and stopped after a few words, the failure to provide the entire charge was not error because there was no evidence that any witness who testified at trial had been granted immunity or leniency. Adams v. State, 282 Ga. App. 819 , 640 S.E.2d 329 , 2006 Ga. App. LEXIS 1462 (2006).

Jury charge did not deprive defendant of alibi defense or fair trial right. —

Given that the exact date the charged child molestation offense was alleged to have been committed was not stated as a material allegation in the indictment, the trial court did not erroneously instruct the jury that the indicted offenses could be proven to have occurred at any time within the statute of limitations, as the defendant failed to show either the deprivation of an alibi defense or a right to a fair trial resulted by issuing the instruction. Brown v. State, 287 Ga. App. 857 , 652 S.E.2d 807 , 2007 Ga. App. LEXIS 1026 (2007), cert. denied, No. S08C0393, 2008 Ga. LEXIS 154 (Ga. Feb. 11, 2008).

Jurors’ visit to crime scene. —

In a vehicular homicide prosecution, unauthorized visits to the accident scene by some jurors did not mandate a new trial because the jurors’ unanimous affidavits stated that the visits had no effect upon their verdict. Hurston v. State, 278 Ga. App. 472 , 629 S.E.2d 18 , 2006 Ga. App. LEXIS 245 (2006).

Jurors as convicted felons. —

Although the state notified the defendant and the trial court soon after trial that two jurors were convicted felons, because there was no evidence establishing the identity of either juror, documenting the convictions, or showing that either had not had their rights restored, the defendant’s due process rights were not violated; thus, denial of a motion for new trial on this ground was proper. Jones v. State, 289 Ga. App. 767 , 658 S.E.2d 386 , 2008 Ga. App. LEXIS 195 (2008).

Jury instruction to conform to indictment. —

Giving instruction on an entire Code section that defined a crime in two ways, when the indictment alleged that defendant committed the crime in only one way, was misleading and violated due process without a limiting instruction directing the jury to consider only whether defendant committed the crime as charged in the indictment. Dukes v. State, 265 Ga. 422 , 457 S.E.2d 556 , 1995 Ga. LEXIS 348 (1995).

Allen charge was not fatally defective because, although the Allen charge contained some inaccurate language and the fact that the jury spent less than an hour deliberating after the charge was given did not prove coercion; it was not an abuse of discretion to deny defendant’s motion for a new trial as it was just as likely that the jury reached a verdict quickly after the Allen charge due to a fresh perspective after a night away from deliberations. Graham v. State, 273 Ga. App. 187 , 614 S.E.2d 815 , 2005 Ga. App. LEXIS 442 (2005).

Valid waiver of trial by jury. —

Because the state presented sufficient extrinsic evidence showing that the defendant knowingly and voluntarily waived a jury trial, even though this evidence conflicted with the defendant’s later testimony at the hearing on the motion for a new trial, the trial court did not err in denying the defendant a new trial. Davis v. State, 287 Ga. App. 783 , 653 S.E.2d 107 , 2007 Ga. App. LEXIS 1104 (2007).

4.Specific Crimes

Offense of defrauding or obtaining property from state, county, or public officer not violative of due process. —

It is an indictable offense in this state for any person to cheat and defraud the state of any of its money or other property by using any deceitful means or artful practice. It is a felony for any officer, servant or other person in any public department, station or office of government of this state to embezzle, steal, secrete, or fraudulently take and carry away any money or other property or effects belonging to the state. Hence, to defraud or obtain property from the state, county, or a public officer is clearly a substantive penal offense in this state, which does not offend the due process clause of the Constitution of the United States or the due process provision of Georgia’s Constitution. Rollins v. State, 215 Ga. 437 , 111 S.E.2d 63 , 1959 Ga. LEXIS 506 (1959).

Sexual intercourse between minors. —

Charges that the 13-year-old defendant violated the fornication statute, O.C.G.A. § 16-6-18 , by having sexual intercourse with the defendant’s 17-year-old step-brother did not violate Georgia’s right to privacy since the defendant did not have the legal capacity to decide whether to engage in sexual intercourse. In the Interest of L.A.N., 276 Ga. App. 477 , 623 S.E.2d 682 , 2005 Ga. App. LEXIS 1279 (2005).

O.C.G.A. § 16-10-20 was not unconstitutionally vague under Ga. Const. 1983, Art. I, Sec. I, Para. I, as: (1) the statute gave a defendant ample notice of the prohibited conduct; (2) the statute also provided sufficient objective standards to those who were charged with enforcing it; and (3) a defendant’s act was made criminal when a false statement was made, without regard to the result of that act, and the fact that application of the statute’s standards sometimes required an assessment of the surrounding circumstances to determine if the statute was violated, did not render it unconstitutional. Banta v. State, 281 Ga. 615 , 642 S.E.2d 51 , 2007 Ga. LEXIS 134 (2007).

O.C.G.A. § 20-2-690.1 is not unconstitutionally vague because the statute clearly punished the unjustified failure to send a child for whom one was responsible to school. Pitts v. State, 293 Ga. 511 , 748 S.E.2d 426 , 2013 Ga. LEXIS 639 (2013).

O.C.G.A. § 16-17-1 et seq. not void for vagueness. —

The trial court did not err in rejecting both the defendants’ equal protection and vagueness challenges to O.C.G.A. § 16-17-1 et seq., after the defendants were charged with violating O.C.G.A. § 16-17-2 , as both the defendants as in-state lenders, were not similarly situated with out-of-state banks designated in O.C.G.A. § 16-17-2 (a)(3), and hence were subject to state regulation restricting high interest rates on loans, whereas the out-of-state banks were not; the Georgia legislature had a rational basis for creating a class based on those in-state payday lenders who were subject to state regulation, and moreover the prohibition against payday loans in whatever form transacted, was sufficiently definite to satisfy due process standards. Glenn v. State, 282 Ga. 27 , 644 S.E.2d 826 , 2007 Ga. LEXIS 346 (2007).

Marijuana statute did not create mandatory presumption of guilt. —

O.C.G.A. § 16-13-2(b) did not violate due process by creating a mandatory presumption of guilt. The court interpreted the statute as the court had before to render the statute valid and to carry out the legislative intent of establishing that possession of an ounce or less of marijuana was a misdemeanor. In the Interest of D.H., 285 Ga. 51 , 673 S.E.2d 191 , 2009 Ga. LEXIS 3 (2009).

Exclusionary sperm test not required in rape trial. —

In a rape trial, the fact that an exclusionary sperm test (which purportedly classifies sperm into particular blood groupings for identification purposes) was not performed is not grounds for reversal, and due process does not require the performance of the test. Gray v. State, 151 Ga. App. 684 , 261 S.E.2d 402 , 1979 Ga. App. LEXIS 2748 (1979).

Contempt. —

Because a property owner was held in criminal contempt for violation of a six-month protective order in favor of a neighbor, but the owner was not given notice of the contempt allegations prior to the hearing on the matter, the owner’s due process rights under Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 14 were violated; as there was no evidence that the owner waived the issue, reversal of the contempt order was required. Knapp v. Cross, 279 Ga. App. 632 , 632 S.E.2d 157 , 2006 Ga. App. LEXIS 559 (2006), cert. denied, No. S06C1795, 2006 Ga. LEXIS 662 (Ga. Sept. 8, 2006).

Opportunity to be heard required when act of criminal contempt not in court’s presence. —

When a criminal contempt act is not in the court’s immediate presence, due process requires that the accused be given an opportunity to be heard. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979); McDaniel v. State, 202 Ga. App. 409 , 414 S.E.2d 536 , 1992 Ga. App. LEXIS 15 (1992), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 , 1999 Ga. LEXIS 786 (1999).

Hearing not required if contempt committed in presence of court. —

When a direct contempt is committed in the presence of the court, the offender is not entitled as a matter of right to a hearing before the court; the court may act on the court’s own knowledge of the facts and proceed to impose punishment for the contempt; or the court may in the court’s discretion allow a hearing; the refusal to allow a hearing does not deprive the defendant of the due process of law guaranteed by the state and federal Constitutions. Garland v. State, 99 Ga. App. 826 , 110 S.E.2d 143 , 1959 Ga. App. LEXIS 969 (1959); Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

Proof beyond reasonable doubt required in criminal contempt prosecution. —

It is a denial of a defendant’s right of due process of law under the federal and state constitutions and O.C.G.A. § 24-4-5 to fail to require proof beyond a reasonable doubt in a criminal contempt prosecution, because the result of such a conviction is to deny the contemner liberty and the levy of a penal fine. In re Crane, 253 Ga. 667 , 324 S.E.2d 443 , 1985 Ga. LEXIS 524 (1985).

5.Sentencing

Penalty under O.C.G.A. § 16-13-30.1 upheld. —

O.C.G.A. § 16-13-30.1 , which subjects a defendant to a greater penalty for the sale of a non-controlled substance than for the sale of some controlled substances, does not violate due process. Thompson v. State, 254 Ga. 393 , 330 S.E.2d 348 , 1985 Ga. LEXIS 731 (1985).

Death penalty for codefendant not proven to have directly committed murderous act. —

Since the defendant was not only present but active and participating throughout the commission of kidnapping, rape, murder and aggravated assault of which the defendant was convicted, imposition of the death penalty was not excessive or disproportionate to the penalty imposed in similar cases even though it was not established whether the defendant or the codefendant fired the gunshots which killed the victim. Johnson v. Zant, 249 Ga. 812 , 295 S.E.2d 63 , 1982 Ga. LEXIS 1205 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1236 , 75 L. Ed. 2 d 469 (1983).

When evidence inadmissible under evidentiary rule admissible in capital case in mitigation of punishment. —

Constitution requires that evidence which would be inadmissible under an evidentiary rule must not automatically be excluded if tendered in a capital case in mitigation of punishment: the potentially mitigating influence of the testimony must be weighed against the harm resulting from the violation of the evidentiary rule. In close cases, the doubt should be resolved in favor of admissibility. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 , 1979 Ga. LEXIS 1336 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled, Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 , 1993 Ga. LEXIS 320 (1993); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 , 1993 Ga. LEXIS 320 (1993), overruled in part, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 , 2002 Ga. LEXIS 155 (2002).

New date of execution entered without defendant’s presence did not violate due process. —

Although it was necessary for the defendant to have been present in court when the original sentence of execution was pronounced, as well as during other proceedings throughout the trial, in the absence of waiver, no violation of due process appears when the attack is not on the original sentence, but merely on an order fixing a new date of execution, entered without the presence of the defendant at that time, which became necessary after the date fixed in the original sentence had passed by reason of a supersedeas pending the determination of a writ of error in this court. Setting a new date of execution is not a new sentence of defendant as to which the judge has no discretion, but merely setting the time. Fowler v. Grimes, 198 Ga. 84 , 31 S.E.2d 174 , 1944 Ga. LEXIS 372, cert. denied, 323 U.S. 784, 65 S. Ct. 266 , 89 L. Ed. 626 , 1944 U.S. LEXIS 72 (1944).

Order of trial judge fixing new date for execution of sentence after original date has passed is not void because the defendant is involuntarily absent and has not waived or authorized anyone else to waive the defendant’s right to be present at the time and place of resentencing, and the passage of such order is not violative of the plaintiff’s rights under the several provisions of the state and federal Constitutions. McBurnett v. Balkcom, 207 Ga. 452 , 62 S.E.2d 180 , 1950 Ga. LEXIS 631 (1950).

Defendant not denied due process because assigned to formerly appropriate commission, not successor. —

Fact that trial court in sentencing the defendant assigned the defendant or ordered the defendant delivered to the Prison Commission, which has been abolished, instead of assigning the defendant or ordering the defendant delivered to the Board of Corrections, which succeeded to the powers and duties of the Commission, while not technically in the proper form, is not such an irregularity as is hurtful to any right of liberty nor is it such a defect as to vitiate the sentence and deprive the defendant of due process of law under either the state or federal Constitutions. Dixon v. State, 83 Ga. App. 227 , 63 S.E.2d 278 , 1951 Ga. App. LEXIS 839 (1951).

Convicted defendant not denied due process when telephone use prohibited but right to hearing granted. —

There was no denial of due process when a defendant was prohibited from making outgoing phone calls after the defendant’s conviction when the defendant was granted the right to a hearing upon the ruling and since the defendant failed to show in what manner the defendant’s access to counsel was unduly restricted, or to show any harm flowing from the alleged restriction. Wilson v. State, 151 Ga. App. 501 , 260 S.E.2d 527 , 1979 Ga. App. LEXIS 2584 (1979).

Mandatory life imprisonment for second drug conviction. —

O.C.G.A. § 16-13-30 , providing mandatory life imprisonment for a second drug conviction, does not violate due process or equal protection based on statistical evidence as to the high percentage of African-Americans serving life sentences for drug offenses, nor because it creates an irrational sentencing scheme. Stephens v. State, 265 Ga. 356 , 456 S.E.2d 560 , 1995 Ga. LEXIS 161, cert. denied, 516 U.S. 849, 116 S. Ct. 144 , 133 L. Ed. 2 d 90, 1995 U.S. LEXIS 5894 (1995).

Defendant must have notice and opportunity to be heard regarding possible violation of terms of sentence. —

To deprive a defendant of liberty upon the theory that the defendant has violated any of the rules and regulations prescribed in a suspended or probated sentence without giving the defendant a notice and opportunity to be heard upon the question of whether or not the defendant has violated such rules and regulations, would be to violate one of the fundamentals of our system of jurisprudence that a person shall not be deprived of a person’s liberty without due process of law, which includes notice and an opportunity to be heard. Lester v. Foster, 207 Ga. 596 , 63 S.E.2d 402 , 1951 Ga. LEXIS 476 (1951).

Increasing time served on remand. —

On remand, it was error for the trial court to increase the amount of time the defendant was to serve and to threaten to increase the time once again if the defendant took another appeal. Due process required that vindictiveness play no part in the sentence a defendant received. Schlanger v. State, 297 Ga. App. 785 , 678 S.E.2d 190 , 2009 Ga. App. LEXIS 530 (2009), cert. denied, No. S09C1542, 2010 Ga. LEXIS 127 (Ga. Feb. 1, 2010).

Due process in sentencing. —

Defendant was not denied due process in sentencing because the record indicated that the trial judge did not rely on the victim’s apparently false testimony in imposing the sentence, but relied on the severity of the crime. Stephenson v. State, 261 Ga. App. 402 , 582 S.E.2d 492 , 2003 Ga. App. LEXIS 570 (2003), cert. denied, No. S03C1448, 2003 Ga. LEXIS 880 (Ga. Oct. 6, 2003).

Defendant’s sentences on guilty pleas to the state’s amended accusation were not illegal and defendant’s due process rights were not violated by imposition of sentences as a recidivist; defendant was served with the amended accusation, was present at the guilty plea hearing when the prosecutor announced that the state was proceeding on the amended accusation and then set forth factual bases consistent with the amended accusation, and defendant did not file a demurrer or seek a continuance but confirmed that defendant understood all charges and then entered pleas of guilty. Payne v. State, 276 Ga. App. 577 , 623 S.E.2d 668 , 2005 Ga. App. LEXIS 1182 (2005), cert. denied, No. S06C0804, 2006 Ga. LEXIS 326 (Ga. Apr. 25, 2006).

Probation revocation. —

The notice given to a defendant that the defendant violated probation by committing robbery was sufficient notice that the defendant violated probation by committing the lesser included offense of theft by taking based on the same facts; under these circumstances, the defendant could not reasonably contend for due process purposes that the defendant was not aware of the grounds on which revocation was sought or that the defendant’s ability to prepare a defense was compromised. Franklin v. State, 286 Ga. App. 288 , 648 S.E.2d 746 , 2007 Ga. App. LEXIS 744 (2007).

Statutory aggravating circumstance. —

Defendant’s death sentence was affirmed as the defendant’s death sentence was based upon at least one valid statutory aggravating circumstance, even though the notice of the statutory aggravating circumstances upon which the state intended to rely was not filed until the first day of voir dire; one of the statutory aggravating circumstances relied upon by the state and found by the jury, that the murder was committed while the defendant was engaged in a kidnapping with bodily injury, was alleged in the indictment, and the defendant was on sufficient actual notice for due process purposes of the kidnapping statutory aggravating circumstance. Walker v. State, 281 Ga. 157 , 635 S.E.2d 740 , 2006 Ga. LEXIS 652 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60 , 169 L. Ed. 2 d 50, 2007 U.S. LEXIS 9247 (2007).

Vindictive sentencing not found. —

Reinstatement of the defendant’s original sentence after the defendant objected to a modification of that sentence was not a vindictive sentencing decision, since the original sentence had never been held constitutionally invalid. Williams v. State, 277 Ga. App. 841 , 627 S.E.2d 808 , 2006 Ga. App. LEXIS 153 (2006), cert. denied, No. S06C1198, 2006 Ga. LEXIS 364 (Ga. May 18, 2006).

When revocation of suspended sentence not denial of due process. —

Since it appears that full notice and hearing were afforded and that the defendant was represented by counsel both in the original trials and the subsequent revocation proceedings, the revocation of a suspended sentence is not a denial of due process. Cross v. State, 128 Ga. App. 774 , 197 S.E.2d 853 , 1973 Ga. App. LEXIS 1612 (1973).

Even if the grand jury entered a “No Bill” as to a charge against the defendant for criminal damage to property in the second degree and the trial judge in the hearing concerning revocation of probation found “criminal trespass,” there was no violation of the due process guarantee bestowed upon defendant by U.S. Const., amends. 5, 14 and the Constitution of this state. Mingo v. State, 155 Ga. App. 284 , 270 S.E.2d 700 , 1980 Ga. App. LEXIS 2558 (1980).

Revocation of the bond of a person charged with stalking lies within the discretion of the trial judge; however, because a bond revocation involves the deprivation of one’s liberty, the decision must comport with at least minimal state and federal due process requirements. Hood v. Carsten, 267 Ga. 579 , 481 S.E.2d 525 , 1997 Ga. LEXIS 93 (1997).

Due process requirements can be satisfied in unified revocation hearing. —

The failure of a trial court to afford a probationer a preliminary hearing to establish probable cause to conduct a revocation of probation hearing followed by an evidentiary show cause hearing does not violate due process. A probationer’s constitutional rights are fully protected in a single dispositional trial. Wilson v. State, 152 Ga. App. 695 , 263 S.E.2d 691 , 1979 Ga. App. LEXIS 3009 (1979), cert. denied, 449 U.S. 847, 101 S. Ct. 133 , 66 L. Ed. 2 d 57, 1980 U.S. LEXIS 2934 (1980).

Application of “slight evidence” rule did not deny defendant due process in probation revocation. —

When the defendant received written notice of the claimed violation of probation, the disclosure of the evidence against the defendant, an opportunity to be heard in person and to present witnesses and document evidence, and the right to confront and cross-examine adverse witnesses, heard by a neutral and detached judicial officer with a written statement by the fact finder as to the evidence relied on and reasons for revoking probation, application of the “slight evidence” rule did not deny the defendant due process and equal protection. Mingo v. State, 155 Ga. App. 284 , 270 S.E.2d 700 , 1980 Ga. App. LEXIS 2558 (1980).

Establishment of defendant’s guilt beyond reasonable doubt not necessary for revocation of probation. —

The benefit and protection afforded under the due process and equal protection clauses of the state and federal Constitutions have not been violated in that the establishment of a defendant’s guilt beyond a reasonable doubt is not necessary to justify the revocation of a sentence of probation. Mingo v. State, 155 Ga. App. 284 , 270 S.E.2d 700 , 1980 Ga. App. LEXIS 2558 (1980).

Parole revocation not part of criminal prosecution. —

Supreme Court of Georgia in Johnson v. State, 240 Ga. 526 , 242 S.E.2d 53 (1978), affirming Johnson v. State, 142 Ga. App. 124 , 235 S.E.2d 550 (1977), adopted the language of the Supreme Court of the United States in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 , 33 L. Ed. 2 d 484 (1972), which is as follows: “The revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Mingo v. State, 155 Ga. App. 284 , 270 S.E.2d 700 , 1980 Ga. App. LEXIS 2558 (1980).

Change of a tentative parole date by the state parole board did not constitute the revocation of a grant of parole entitling defendant to minimum requirements of due process. Vargas v. Morris, 266 Ga. 141 , 465 S.E.2d 275 , 1996 Ga. LEXIS 8, cert. denied, 517 U.S. 1108, 116 S. Ct. 1329 , 134 L. Ed. 2 d 480, 1996 U.S. LEXIS 2036 (1996).

Presumption of vindictiveness did not apply to sentence. —

When the defendant was convicted of aggravated assault, burglary, theft by taking, and carrying a concealed weapon, the trial court properly imposed a 111 year sentence of imprisonment, which was within the statutory limits and which was the maximum possible. The presumption of vindictiveness was absent when a trial court imposed a greater penalty after trial than the court would have after a guilty plea; furthermore, the trial court explained that the court imposed the sentence because the defendant’s actions were life-threatening, because the jury convicted the defendant of entering the dwelling with intent to commit murder, because the defendant’s actions against one victim, the defendant’s parent, had escalated from the defendant’s previous misdemeanor crimes against the parent, and because the defendant displayed no remorse. Townes v. State, 298 Ga. App. 185 , 679 S.E.2d 772 , 2009 Ga. App. LEXIS 637 (2009).

6.Appeals

Ineffectiveness of counsel not shown. —

Ineffective assistance of counsel claims regarding the defendant’s initial post-trial counsel’s performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel’s failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, and comprehended the proceedings, despite being under the influence of prescribed anti-depressants, and was capable of aiding the defense. Hampton v. State, 282 Ga. 490 , 651 S.E.2d 698 , 2007 Ga. LEXIS 723 (2007).

Postconviction delay caused no actual prejudice. —

Aggravated assault indictment was improperly dismissed because a defendant’s due process rights were not violated by a seven-year delay in granting the defendant’s motion for a new trial after the defendant was convicted; the delay was presumptively prejudicial, no reasonable explanation was provided, and the defendant asserted the right to a prompt disposition, but the defendant did not show actual prejudice resulting from the delay by demonstrating that the death of a witness, the unavailability of other witnesses, or the fading of memories prejudiced the defense in a new trial. Threatt v. State, 282 Ga. App. 884 , 640 S.E.2d 316 , 2006 Ga. App. LEXIS 1450 (2006), cert. denied, No. S07C0629, 2007 Ga. LEXIS 337 (Ga. Apr. 24, 2007).

Defendant was not entitled to relief based on a claim that the twelve year delay caused by appointed counsel’s failure to pursue the defendant’s post-conviction appeals violated the defendant’s due process rights, because the delay was due solely to the actions of the defendant’s previous appellate counsel and the defendant failed to show prejudice. Hargrove v. State, 291 Ga. 879 , 734 S.E.2d 34 , 2012 Ga. LEXIS 860 (2012), overruled in part, Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 , 2018 Ga. LEXIS 685 (2018).

Ten year postconviction delay caused no actual prejudice. —

While the 10-year delay between the defendant’s conviction and the appellate hearing was an inordinate delay and the defendant attempted to assert an appeal during the delay, the delay did not violate the defendant’s right to due process because the defendant failed to show prejudice. Brinkley v. State, 320 Ga. App. 275 , 739 S.E.2d 703 , 2013 Ga. App. LEXIS 169 (2013), cert. denied, No. S13C1058, 2013 Ga. LEXIS 585 (Ga. June 17, 2013), cert. denied, 571 U.S. 1166, 134 S. Ct. 1007 , 187 L. Ed. 2 d 855, 2014 U.S. LEXIS 658 (2014).

Burden on defendant to show how case materially prejudiced. —

Due process requires that there be no suppression by the state of evidence in its files favorable to the accused; this does not mean there is a burden on the state to open its file for general inspection by the defendant; an in camera inspection of the prosecution’s file by the judge is sufficient, and the defendant has the burden of showing how the defendant’s case has been materially prejudiced. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 , 1981 Ga. App. LEXIS 1867 (1981).

Delay in filing transcript. —

Defendant was not deprived of defendant’s due process rights by a seven-month delay in the filing of the transcript as defendant did not show that the delay impacted defendant’s ability to adequately present defendant’s appeal or impaired any defense that defendant might have had. Carter v. State, 267 Ga. App. 520 , 600 S.E.2d 637 , 2004 Ga. App. LEXIS 702 (2004).

Harm resulting from missing portions of transcript must be shown. —

Defendant’s general allegation of prejudice resulting from omission of portions of trial transcript due to mechanical malfunction was insufficient absent a specific showing of harm. Kelly v. State, 174 Ga. App. 424 , 330 S.E.2d 165 , 1985 Ga. App. LEXIS 2710 (1985).

Delay in preparing transcript. —

Although a four-year delay occurred in preparing the trial transcript in defendant’s criminal trial, that mere passage of time was not enough to constitute a denial of due process; indeed, the defendant could not show prejudice as a result of the delay. Glenn v. State, 279 Ga. 277 , 612 S.E.2d 478 , 2005 Ga. LEXIS 304 (2005).

Standard for evaluation of evidence in state criminal trial is of sufficiency of evidence. —

The standard by which this court must evaluate the evidence in a state criminal trial to determine whether the petitioner has been accorded constitutional due process was recently reformulated by the Supreme Court of the United States; instead of determining whether or not there is “any evidence” to support the petitioner’s conviction, the court must now go further and satisfy itself that the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt; the question, therefore, is not a question of the presence of evidence in the record but of the sufficiency of that evidence. Holloway v. McElroy, 474 F. Supp. 1363, 1979 U.S. Dist. LEXIS 10243 (M.D. Ga. 1979), aff'd, 632 F.2d 605, 1980 U.S. App. LEXIS 11507 (5th Cir. 1980).

Remedy of writ of habeas corpus when defendant denied due process in trial. —

Writ of habeas corpus is the appropriate remedy only when the court was without jurisdiction in the premises, or when it exceeded its jurisdiction in passing sentence by virtue of which the party is imprisoned, or when the defendant in the defendant’s trial was denied due process of law, in violation of U.S. Const., amend. 14 and this paragraph. Balkcom v. Parris, 215 Ga. 122 , 109 S.E.2d 48 , 1959 Ga. LEXIS 406 (1959).

Use of writ of habeas corpus. —

A person in custody under a sentence in a misdemeanor case is not entitled to be discharged on a writ of habeas corpus, on the ground that the person was denied the right to be tried by a jury, merely because the trial judge determined the case without a jury when the act governing the procedure of the court in which the person was tried contains a provision that a jury trial be had when demanded by the accused, and no demand therefor was made. Clarke v. Cobb, 195 Ga. 633 , 24 S.E.2d 782 , 1943 Ga. LEXIS 531 (1943).

Since the writ of habeas corpus cannot be used merely as a substitute for a writ of error or other remedial procedure to correct errors of law, of which the defendant had an opportunity to utilize, no question as to guilt or innocence or as to any irregularity can be so raised, unless it was such as to render the judgment wholly void. White v. George, 195 Ga. 465 , 24 S.E.2d 787 , 1943 Ga. LEXIS 532 (1943).

Discharge under writ of habeas corpus, after conviction, cannot be granted unless the judgment is absolutely void; as when the convicting court was without jurisdiction, or when the defendant in the defendant’s trial was denied due process of law, in violation of U.S. Const., amend. 14, Sec. 1 and the state Constitution. White v. George, 195 Ga. 465 , 24 S.E.2d 787 , 1943 Ga. LEXIS 532 (1943).

Writ of habeas corpus was properly denied when the contention that the plaintiff in error was denied certain constitutional rights, including due process of law, because of the refusal to continue the case was decided on the motion for new trial adversely to the contentions of the plaintiff in error. Starr v. Balkcom, 209 Ga. 680 , 75 S.E.2d 5 , 1953 Ga. LEXIS 355 (1953).

Preservation for review. —

When a due process issue a defendant raised on appeal was not raised in the trial court, the claim presented nothing for appellate review. Franklin v. State, 286 Ga. App. 288 , 648 S.E.2d 746 , 2007 Ga. App. LEXIS 744 (2007).

When representation by counsel comports with due process. —

Ineffective assistance of counsel claims regarding the defendant’s initial post-trial counsel’s performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel’s failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, comprehended the proceedings, despite being under the influence of prescribed anti-depressants, and was capable of aiding the defense. Hampton v. State, 282 Ga. 490 , 651 S.E.2d 698 , 2007 Ga. LEXIS 723 (2007).

Failure to provide a speedy appeal. —

Defendant’s state and federal due process rights were not violated by the lack of a speedy appeal as: (1) there was no evidence that the eight-year delay in filing the notice of appeal was due to the state or to defendant’s counsel; (2) since the post-trial motions for new trial filings were pro se, the inference was that defendant desired to proceed without counsel and without appealing; (3) defendant failed to show prejudice from the delay as the appeal was without merit; and (4) defendant’s attempt to show prejudice based on the death of trial counsel was rejected as trial counsel testified at the new trial hearing. Butler v. State, 277 Ga. App. 57 , 625 S.E.2d 458 , 2005 Ga. App. LEXIS 1364 (2005), aff'd, 281 Ga. 310 , 637 S.E.2d 688 , 2006 Ga. LEXIS 979 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Notice and hearing before administrative agency required before action to revoke license. — The due process clauses of U.S. Const., amend. 14, and this paragraph require notice and a hearing before an administrative agency before any action may be taken to revoke a license; this constitutional requirement must be met, even though the act granting the right to revoke the license provides for an appeal to the superior court. 1958-59 Ga. Op. Att'y Gen. 1.

It is necessary that law under which administrative hearings are conducted prescribe notice and hearing, and it is not sufficient that a notice and hearing are given, even though not required by law. 1958-59 Ga. Op. Att'y Gen. 1.

Industries’ requiring environmental protection division personnel to sign waivers of liability is unreasonable restriction on police power. — Requiring environmental protection division personnel to sign waivers of liability for industries for injuries to person or property sustained while on premises for the purpose of carrying out their duties of inspection constitutes an unreasonable restriction on the state’s police power and any such waiver is not binding on EPD personnel because of a lack of valid consideration. 1976 Op. Att'y Gen. No. 76-121.

Use of inactive railroad right-of-way as trail. — Under the Interstate Commerce Commission (ICC) procedures, a railroad may enter into an agreement which allows interim trail use of an inactive right-of-way, without triggering reversionary interests under state law; absent such agreement, upon approval of abandonment by the ICC, state law determines the nature, scope and duration of the interest held by the railroad. 1992 Op. Atty Gen. No. U92-11.

RESEARCH REFERENCES

Am. Jur. 2d. —

16A Am. Jur. 2d, Constitutional Law, § 420 et seq., 607 et seq.16B Am. Jur. 2d, Constitutional Law, § 942 et seq.

Am. Jur. Proof of Facts. —

Time of Death — Medicolegal Considerations, 16 POF2d 87.

Proof of Basis for Refusal or Discontinuance of Life-Sustaining Treatment on Behalf of Incapacitated Person, 40 POF3d 287.

Am. Jur. Trials. —

Incompetency and Commitment Proceedings, 8 Am. Jur. Trials 483.

Employment Discrimination Action Under Federal Civil Rights Acts, 21 Am. Jur. Trials 1.

Representing the Mentally Ill: Civil Commitment Proceedings, 26 Am. Jur. Trials 97.

Disability Discrimination Based on Dyslexia in Employment Actions Under the Americans with Disabilities Act, 74 Am. Jur. Trials 255.

C.J.S. —

16 C.J.S., Constitutional Law, § 5et seq. 16A C.J.S., Constitutional Law, §§ 725, 777, 780. 16C C.J.S., Constitutional Law, §§ 1883, 1890.

ALR. —

Clothing Worn by Criminal Defendant in Photograph in Array Shown by Police to Witness as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant, as Person in Photograph, Were Impermissibly Suggestive as Matter of State Constitutional Law, 60 A.L.R. 7 th 4.

Police Statements as Factor in Determination of Whether Circumstances of Witness's Identification of Criminal Defendant, as Person in Photograph Within Array, Were Impermissibly Suggestive as Matter of State Constitutional Law, 61 A.L.R.7th 5.

Mug Shot and Other Distinctive Characteristics of Criminal Defendant’s Photograph as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of State Constitutional Law, 62 A.L.R.7th 1.

Treatment or Manner of Display of Photographs of Defendant, or Presence of Defendant in Prior Physical Show-up, Physical Lineup, or Surveillance Video, or Police Officer’s Nonverbal Cues as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of State Constitutional Law, 63 A.L.R.7th 2.

Constitutionality and applicability of curative provisions of taxing statutes where sale is irregular, 5 A.L.R. 164 .

Constitutionality of statute or ordinance providing for destruction of animals, 8 A.L.R. 67 .

Constitutionality of statute requiring railroad to construct and maintain private crossing, 12 A.L.R. 227 .

Constitutionality of regulations as to milk, 18 A.L.R. 235 ; 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Constitutionality of statute for cumulative penalty for delay in paying claim, 26 A.L.R. 1200 .

Constitutionality of statute regulating the time of payment of wages, 26 A.L.R. 1396 .

Constitutionality of statutes relating to insurance contracts made and to be performed out of state, upon property or life within state, 32 A.L.R. 636 .

Inclusion in assessment for public improvement of amount to cover delinquencies as contrary to constitutional guaranties, 40 A.L.R. 1352 ; 42 A.L.R. 1185 .

Constitutionality of statutes or ordinances making one fact presumptive or prima-facie evidence of another, 51 A.L.R. 1139 ; 86 A.L.R. 179 ; 162 A.L.R. 495 .

Power to impose tax on estate in respect to property transferred in contemplation of death or by a conveyance intended to take effect in possession or enjoyment at death, 52 A.L.R. 1091 .

Constitutionality of statute in relation to oleomargarine or other substitute for butter, 53 A.L.R. 474 .

Validity of statute or ordinance in relation to doors, 53 A.L.R. 920 .

Constitutionality of provisions of Workmen’s Compensation Law applicable to public officers or employees, 53 A.L.R. 1290 .

Constitutionality of statute fixing minimum rate of speed at which carrier may transport special kinds of freight, 55 A.L.R. 1296 .

Constitutionality of statutes providing for lien on motor vehicles inflicting damage to person or property, 61 A.L.R. 655 .

Right of exclusion from or discrimination against patrons of library, 64 A.L.R. 304 .

Extraterritorial effect of confiscation of property and nationalization of corporations, 65 A.L.R. 1494 ; 139 A.L.R. 1209 .

Tax on automobile, or on its use, for cost of road or street construction, improvement, or maintenance, 68 A.L.R. 200 .

Constitutionality of statute which permits consideration of enhanced value of lands not taken, in fixing compensation for property taken or damaged in exercise of eminent domain, 68 A.L.R. 784 .

Constitutionality, construction, and applicability of statute making refusal to pay for commodities a criminal offense, 76 A.L.R. 1338 .

Constitutionality, construction, and applicability of statutes relating to service of process on unincorporated association, 79 A.L.R. 305 .

Rights and responsibilities, civil or criminal, of police officers in respect of examination of persons under arrest (“third degree”), 79 A.L.R. 457 .

Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 82 A.L.R. 345 ; 116 A.L.R. 209 ; 132 A.L.R. 91 ; 139 A.L.R. 673 .

Constitutionality of statute relating to taxation of state banks or stock therein as affected by inapplicability of statute to national banks or national bank stock, 82 A.L.R. 874 ; 83 A.L.R. 1441 .

Constitutionality, construction, and effect of legislation for protection of bank depositors or relief of banks or building and loan associations in need of cash or cash resources, 82 A.L.R. 1025 .

Validity of license law which requires security for payment of debts by licensee, 84 A.L.R. 640 ; 101 A.L.R. 827 .

Constitutionality, construction, and effect of statute relating specifically to rights, remedies, and obligations of parties to sale of farm machinery, 87 A.L.R. 290 .

Power to require filing of schedule of prices as a condition of license for a business or profession, 87 A.L.R. 519 .

Constitutionality, construction, application, and effect of statute requiring judicial approval before issuance or sale of municipal or county bonds or obligations, 87 A.L.R. 706 ; 102 A.L.R. 90 .

Constitutionality of statute which predicates criminality upon repute or reputation, 92 A.L.R. 1228 .

Constitutionality of statute changing rights of withdrawing members of building and loan association, 98 A.L.R. 82 ; 133 A.L.R. 1493 .

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284 .

Constitutionality of statutes and validity of regulations relating to optometry, 98 A.L.R. 905 ; 22 A.L.R.2d 939.

Damages resulting from temporary conditions incident to a public improvement as a taking or damaging within constitutional provisions, 98 A.L.R. 956 .

Validity of statute or ordinance regulating barbers, 98 A.L.R. 1088 .

Power to remove public officer without notice and hearing, 99 A.L.R. 336 .

Power of state to extend its taxing power by its definition of residence or its declared policy of domesticating foreign corporations, 100 A.L.R. 1216 .

Validity of license statute or ordinance which discriminates against nonresidents, 112 A.L.R. 63 .

Constitutionality of crop insurance statutes, 113 A.L.R. 739 .

Constitutionality of statutory provisions relating to current taxes on tax delinquent property, 113 A.L.R. 1092 .

Obstruction or diversion of, or other interference with, flow of surface water as taking or damaging property within constitutional provision against taking or damaging without compensation, 128 A.L.R. 1195 .

Constitutionality, construction, and application of statutes or governmental projects for improvement of housing conditions (slum clearance), 130 A.L.R. 1069 ; 172 A.L.R. 966 .

Constitutionality, construction, and application of statute authorizing condemnation of property by cross action, 130 A.L.R. 1226 .

Substituted service, service by publication, or service out of state in action in personam against resident or domestic corporation, as contrary to due process of law, 132 A.L.R. 1361 .

Constitutionality, construction, and application of statutes designed to prevent or limit control of retail liquor dealers by manufacturers, wholesalers, or importers, 136 A.L.R. 1238 .

Right of privacy, 138 A.L.R. 22 ; 57 A.L.R.2d 634; 57 A.L.R.3d 16.

Retrospective statute subjecting interests of trust beneficiaries to claims of creditors, 151 A.L.R. 1417 .

Validity of provision of statute or ordinance that requires vacation of premises which do not comply with building or sanitary regulations, upon notice to that effect, without judicial proceeding, 153 A.L.R. 849 .

Constitutionality, construction, and application of statute or contract regarding deduction from, or adjustment of, wages in respect of defective workmanship, 153 A.L.R. 866 .

Validity of commercial rent control legislation as applied to preexisting leases, 162 A.L.R. 202 .

Constitutionality of statutes or ordinances making one fact presumptive or prima-facie evidence of another, 162 A.L.R. 495 .

Applicability (constitutional or otherwise) to interstate passengers of statute requiring segregation of passengers according to race or color, 165 A.L.R. 589 .

Validity of zoning law as affected by limitation of area zoned (partial or “piecemeal” zoning), 165 A.L.R. 823 .

Effect of, and remedies for, exclusion of eligible class of persons from jury list in civil case, 166 A.L.R. 1422 .

Condemnation of materials for highway or other public or quasi-public works, 172 A.L.R. 131 .

Condemnation of land by public authority, to provide hunting and fishing, 172 A.L.R. 174 .

Discrimination between property within and that outside municipality or other governmental district as to public service or utility rates, 4 A.L.R.2d 595.

Federal Housing and Rent Act of 1947 and amendments, 10 A.L.R.2d 249.

Constitutionality, construction, and application of statute respecting sale, assignment, or transfer of retail installment contracts, 10 A.L.R.2d 447.

Constitutionality, construction, and application of statutory provisions respecting persons who may prepare tax returns for others, 10 A.L.R.2d 1443.

Absence of accused during making of tests or experiments as affecting admissibility of testimony concerning them, 17 A.L.R.2d 1078.

Pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional rights, 18 A.L.R.2d 796.

Requiring submission to physical examination or test as violation of constitutional rights, 25 A.L.R.2d 1407.

Right to cut off water supply because of failure to pay sewer service charge, 26 A.L.R.2d 1359.

Validity of municipal ordinance prohibiting house-to-house soliciting and peddling without invitation, 35 A.L.R.2d 355.

Prejudicial effect of trial court’s denial, or equivalent, of counsel’s right to argue case, 38 A.L.R.2d 1396.

Validity of minimum wage statutes relating to private employment, 39 A.L.R.2d 740.

Assertion of immunity as ground for removing or discharging public officer or employee, 44 A.L.R.2d 789.

Prejudicial effect of argument or comment that accused, if acquitted on ground of insanity, would be released from institution to which committed, 44 A.L.R.2d 978.

Validity of statute or ordinance providing for destruction of dogs, 56 A.L.R.2d 1024.

Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.

Continuance of criminal case because of illness of accused, 66 A.L.R.2d 232.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Right of accused to have his witnesses free from handcuffs, manacles, shackles, or the like, 75 A.L.R.2d 762.

Criminal trial of deaf, mute, or blind person, 80 A.L.R.2d 1084.

Conviction of criminal offense without evidence as denial of due process of law, 80 A.L.R.2d 1362.

Constitutionality and construction of statute or court rule relating to alternate or additional jurors or substitution of jurors during trial, 84 A.L.R.2d 1288; 15 A.L.R.4th 1127; 88 A.L.R.4th 711; 10 A.L.R. Fed. 185; 115 A.L.R. Fed. 381; 119 A.L.R. Fed. 589.

Admissibility on issue of value of real property of evidence of sale price of other real property, 85 A.L.R.2d 110.

Propriety and prejudicial effect of showing, in criminal case, withdrawn guilty plea, 86 A.L.R.2d 326.

Transiently occupied room in hotel, motel, or roominghouse as within provision forbidding unreasonable searches and seizures, 86 A.L.R.2d 984.

Right to file briefs in trial court, 86 A.L.R.2d 1233.

Prayers in public schools, 86 A.L.R.2d 1304.

Zoning: changes, repairs, or replacements in continuation of nonconforming use, 87 A.L.R.2d 4; 57 A.L.R.3d 419; 10 A.L.R.4th 1122.

Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950.

Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price of commodity or services, 89 A.L.R.2d 901; 80 A.L.R.3d 740.

Right, without judicial proceeding, to arrest and detain one who is, or is suspected of being, mentally deranged, 92 A.L.R.2d 570.

Furnishing free textbooks to sectarian school or student therein, 93 A.L.R.2d 986.

Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof, 97 A.L.R.2d 549.

Constitutional aspects of procedure for determining voluntariness of pretrial confession, 1 A.L.R.3d 1251; 132 A.L.R. Fed. 415.

Procedural due process requirements in proceedings involving applications for admission to bar, 2 A.L.R.3d 1266.

Accused’s right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.

Scope and extent and remedy or sanctions for infringement, of accused’s right to communicate with his attorney, 5 A.L.R.3d 1360.

Indefiniteness of automobile speed regulations as affecting validity, 6 A.L.R.3d 1326.

Modern status of doctrine of res judicata in criminal cases, 9 A.L.R.3d 203.

When criminal case becomes moot so as to preclude review of or attack on conviction or sentence, 9 A.L.R.3d 462.

Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738.

Validity of consent to search given by one in custody of officers, 9 A.L.R.3d 858.

Power of courts or other public agencies, in the absence of statutory authority, to order compulsory medical care for adult, 9 A.L.R.3d 1391.

Vagueness as invalidating statutes or ordinances dealing with disorderly persons or conduct, 12 A.L.R.3d 1448.

Right of publisher of newspaper or magazine, in absence of contractual obligation, to refuse publication of advertisement, 18 A.L.R.3d 1286.

Right of attorney appointed by court for indigent accused to, and court’s power to award, compensation by public, in absence of statute or court rule, 21 A.L.R.3d 819.

Failure of state prosecutor to disclose existence of plea bargain or other deals with witness as violating due process, 12 A.L.R.6th 267.

Violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused’s failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093; 32 A.L.R.4th 774.

Absence of judge from courtroom during trial of civil case, 25 A.L.R.3d 637.

Validity and effect of gift for charitable purposes which excludes otherwise qualified beneficiaries because of their race or religion, 25 A.L.R.3d 736.

Construction and application, as to isolated acts or transactions, of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations upon the doing of an act, or upon doing or transacting business or “any” business, within the state, 27 A.L.R.3d 397.

Validity and construction of gun control laws, 28 A.L.R.3d 845.

Right to assistance by counsel in administrative proceedings, 33 A.L.R.3d 229.

Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction, 34 A.L.R.3d 16.

Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.

Free exercise of religion as defense to prosecution for narcotic or psychedelic drug offense, 34 A.L.R.3d 939.

Prejudicial effect of trial judge’s remarks, during criminal trial, disparaging accused, 34 A.L.R.3d 1313.

Funds in hands of his attorney as subject of attachment or garnishment by client’s creditor, 35 A.L.R.3d 1094.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Validity and construction of statutes or ordinances regulating telephone answering services, 35 A.L.R.3d 1430.

Legality of voluntary nontherapeutic sterilization, 35 A.L.R.3d 1444.

Rights between landlord and tenant as affected by zoning regulations restricting contemplated use of premises, 37 A.L.R.3d 1018.

Discrimination on basis of illegitimacy as denial of constitutional rights, 38 A.L.R.3d 613.

Racial discrimination in punishment for crime, 40 A.L.R.3d 227.

“Fruit of the poisonous tree” doctrine excluding evidence derived from information gained in illegal search, 43 A.L.R.3d 385.

Propriety of requiring accused to give handwriting exemplar, 43 A.L.R.3d 653.

Validity and construction of statute or ordinance requiring land developer to dedicate portion of land for recreational purposes, or make payment in lieu thereof, 43 A.L.R.3d 862.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail instalment sales contract, 45 A.L.R.3d 1233.

Validity of municipal ordinance imposing income tax or license upon nonresident in taxing jurisdiction (commuter tax), 48 A.L.R.3d 343.

Residential swimming pool as nuisance, 49 A.L.R.3d 545.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

Relief to owner of motor vehicle subject to state forfeiture for use in violation of narcotics laws, 50 A.L.R.3d 172.

Validity and construction of statute or ordinance forbidding unauthorized persons to enter upon or remain in school building or premises, 50 A.L.R.3d 340.

Censorship and evidentiary use of unconvicted prisoners’ mail, 52 A.L.R.3d 548.

Necessity of alleging in indictment or information limitation-tolling facts, 52 A.L.R.3d 922.

Validity of statute establishing or authorizing minimum price schedules for barbers, 54 A.L.R.3d 916.

Zoning: right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by difficulties unrelated to governmental activity, 56 A.L.R.3d 14.

Zoning: right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by governmental activity, 56 A.L.R.3d 138.

Validity and application of provisions governing determination of residency for purpose of fixing fee differential for out-of-state students in public college, 56 A.L.R.3d 641.

Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.

Validity of regulations restricting size of free-standing advertising signs, 56 A.L.R.3d 1207.

Waiver or loss of right of privacy, 57 A.L.R.3d 16.

Zoning: right to repair or reconstruct building operating as nonconforming use, after damage or destruction by fire or other casualty, 57 A.L.R.3d 419.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Validity and construction of curfew statute, ordinance, or proclamation, 59 A.L.R.3d 321; 83 A.L.R.4th 1056.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337.

Garageman’s lien: modern view as to validity of statute permitting sale of vehicle without hearing, 64 A.L.R.3d 814.

Court’s presentence inquiry as to, or consideration of, accused’s intention to appeal, as error, 64 A.L.R.3d 1226.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.

Constitutionality of automobile and aviation guest statutes, 66 A.L.R.3d 532.

Construction and effect of tenure provisions of contract or statute governing employment of college or university faculty member, 66 A.L.R.3d 1018.

Constitutional restrictions on nonattorney acting as judge in criminal proceeding, 71 A.L.R.3d 562.

Disqualification of judge, justice of the peace, or similar judicial officer for pecuniary interest in fines, forfeitures, or fees payable by litigants, 72 A.L.R.3d 375.

Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 A.L.R.3d 431.

Validity of statute allowing attorney’s fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance, 73 A.L.R.3d 725.

Validity and construction of statute or ordinance requiring return deposits on soft drink or similar containers, 73 A.L.R.3d 1105.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Pretrial preventive detention by state court, 75 A.L.R.3d 956.

Validity, under state law, of self-help repossession of goods pursuant to UCC § 9-503, 75 A.L.R.3d 1061.

Constitutionality of statutory provision requiring reimbursement of public by child for financial assistance to aged parents, 75 A.L.R.3d 1159.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Validity and construction of state or local regulation prohibiting off-premises advertising structures, 81 A.L.R.3d 486.

Validity and construction of state or local regulation prohibiting the erection or maintenance of advertising structures within a specified distance of street or highway, 81 A.L.R.3d 564.

Validity of state or local regulation dealing with resale of tickets to theatrical or sporting events, 81 A.L.R.3d 655.

Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.

Validity, construction, and application of statutes making it a criminal offense to mistreat or wrongfully dispose of dead body, 81 A.L.R.3d 1071.

Validity of state statutory provision permitting administrative agency to impose monetary penalties for violation of environmental pollution statute, 81 A.L.R.3d 1258.

Modern status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 A.L.R.3d 174.

Validity, construction, and effect of Uniform Alcoholism and Intoxication Treatment Act, 85 A.L.R.3d 701.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination, 85 A.L.R.3d 940.

Regulation of private detectives, private investigators, and security agencies, 86 A.L.R.3d 691.

Accused’s right to discovery or inspection of records of prior complaints against, or similar personnel records of, peace officer involved in the case, 86 A.L.R.3d 1170.

State laws prohibiting sex discrimination as violated by dress or grooming requirements for customers of establishments serving food or beverages, 89 A.L.R.3d 7.

Validity and effect of criminal defendant’s express waiver of right to appeal as part of negotiated plea agreement, 89 A.L.R.3d 864.

Disruptive conduct of accused in presence of jury as ground for mistrial or discharge of jury, 89 A.L.R.3d 960.

Zoning: building in course of construction as establishing valid nonconforming use or vested right to complete construction for intended use, 89 A.L.R.3d 1051.

Use of abbreviation in indictment or information, 92 A.L.R.3d 494.

Necessity of trial or proceeding, separate from main condemnation trial or proceeding, to determine divided interest in state condemnation award, 94 A.L.R.3d 696.

Validity of zoning ordinances prohibiting or regulating outside storage of house trailers, motor homes, campers, vans, and the like, in residential neighborhoods, 95 A.L.R.3d 378.

Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property, 96 A.L.R.3d 497.

Unsightliness of powerline or otherwise, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Validity, construction, and application of interstate agreement on detainers, 98 A.L.R.3d 160.

Validity of statutory classifications based on population — zoning, building, and land use statutes, 98 A.L.R.3d 679.

Double jeopardy as bar to retrial after grant of defendant’s motion for mistrial, 98 A.L.R.3d 997.

Zoning regulations prohibiting or limiting fences, hedges, or walls, 1 A.L.R.4th 373.

Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking, 44 A.L.R.4th 366.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations, 48 A.L.R.4th 367.

Paternity proceedings: right to jury trial, 51 A.L.R.4th 565.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 A.L.R.4th 702.

Statute prohibiting reckless driving: definiteness and certainty, 52 A.L.R.4th 1161.

Statutes authorizing removal of body parts for transplant: validity and construction, 54 A.L.R.4th 1214.

Change in area or location of nonconforming use as violation of zoning ordinance, 56 A.L.R.4th 769.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

Addition of another activity to existing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 724.

Change in volume, intensity, or means of performing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 806.

Change in type of activity of nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 902.

Alteration, extension, reconstruction, or repair of nonconforming structure or structure devoted to nonconforming use as violation of zoning ordinance, 63 A.L.R.4th 275.

Right of indigent defendant in state criminal case to assistance of ballistics experts, 71 A.L.R.4th 638.

“Guilty but mentally ill” statutes: validity and construction, 71 A.L.R.4th 702.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty, 74 A.L.R.4th 1099.

Validity, construction, and effect of juvenile curfew regulations, 83 A.L.R.4th 1056.

Validity of state gun control legislation under state constitutional provisions securing the right to bear arms, 86 A.L.R.4th 931.

Parent’s child support liability as affected by other parent’s fraudulent misrepresentation regarding sterility or use of birth control, or refusal to abort pregnancy, 2 A.L.R.5th 337.

Propriety of telephone testimony or hearings in prison proceedings, 9 A.L.R.5th 451.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.

Activities in preparation for building as establishing valid nonconforming use or vested right to engage in construction for intended use, 38 A.L.R.5th 737.

Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup procedures, 55 A.L.R.5th 423.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process, 93 A.L.R.5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process, 94 A.L.R.5th 393.

Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process, 95 A.L.R.5th 611.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process, 101 A.L.R.5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process, 102 A.L.R.5th 327.

Federal constitutional right to bear arms, 37 A.L.R. Fed. 696.

Constitutionality of regulation or policy governing prayer, meditation, or “moment of silence” in public schools, 110 A.L.R. Fed. 211.

Substitution, under Rule 24c of Federal Rules of Criminal Procedure, of alternate juror for regular juror before jury retires to consider verdict in federal criminal case, 115 A.L.R. Fed. 381.

Construction and application of 18 USCS § 922(e), prohibiting delivery of firearms to common carrier, 125 A.L.R. Fed. 613.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases, 172 A.L.R. Fed. 1.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases, 178 A.L.R. Fed. 25.

Voluntary nature of confession as affected by appeal to religious beliefs, 20 A.L.R.6th 479.

Failure of state prosecutor to disclose exculpatory tape recorded evidence as violating due process, 24 A.L.R.6th 1.

What constitutes “custodial interrogation” at hospital by police officer within rule of Miranda v. Arizona requiring that suspect be informed of his or her federal constitutional rights before custodial interrogation — suspect injured or taken ill, 25 A.L.R.6th 379.

What constitutes “custodial interrogation” of juvenile by police officer within rule of Miranda v. Arizona requiring that suspect be informed of federal constitutional rights before custodial interrogation — at police station or sheriff’s office, 26 A.L.R.6th 451.

Application of stigma — plus due process claims to education context, 41 A.L.R.6th 391.

Construction and application of consent-once-removed doctrine, permitting warrantless entry into residence by law enforcement officers for purposes of effectuating arrest or search where confidential informant or undercover officer enters with consent and observes criminal activity or contraband in plain view, 50 A.L.R.6th 1.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process — weapons, 53 A.L.R.6th 81.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process — personal items other than weapons, 55 A.L.R.6th 391.

Witness’s identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed single witness fewer than six photographs in one session, 1 A.L.R.7th 6.

Clothing worn by criminal defendant in photograph in array shown by police to witness as factor in determination of whether circumstances of witness’s identification of defendant, as person in photograph, were impermissibly suggestive as matter of federal constitutional law, 2 A.L.R.7th 2.

Distinctive quality of criminal defendant’s photograph in array shown by police to witness as factor in determination of whether circumstances of witness’s identification of defendant, as person in photograph, were impermissibly suggestive as matter of federal constitutional law, 3 A.L.R.7th 5.

Criminal defendant’s hair color or style as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 5 A.L.R.7th 5.

Criminal defendant’s race or skin color as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 6 A.L.R.7th 5.

Criminal defendant’s facial hair as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 7 A.L.R.7th 4.

Manner in which photographic array shown by police to witness is displayed, or police officer’s alleged nonverbal cues, as factor in determination of whether circumstances of witness’s identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law, 8 A.L.R.7th 5.

Police statement, other than one that photographic array shown to witness contained or might contain criminal suspect or known criminal, as factor in determination of whether circumstances of witness’s identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law, 9 A.L.R.7th 3.

Witness’s identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed single witness photographs on more than one occasion, 10 A.L.R.7th 5.

Witness’s identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed photographs to multiple witnesses, 11 A.L.R.7th 3.

Police statement that photographic array shown to witness contained or might contain criminal suspect or known criminal as factor in determination of whether circumstances of witness’s identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law, 12 A.L.R.7th 3.

Witness’s identification of criminal defendant in photographic array shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed two or more photographs of defendant in same array, 15 A.L.R.7th 4.

Mug shot characteristics of criminal defendant’s photograph as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 16 A.L.R.7th 3.

Restrictions on ownership, possession, or sale of weapons as infringing federal constitutional right to travel, 3 A.L.R. Fed. 3d 8.

Use of Informant by Federal Law Enforcement Agencies as Infringement of Defendant’s Rights to Due Process, 36 A.L.R. Fed. 3d Art. 1.

Paragraph II. Protection to person and property; equal protection.

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

1976 Constitution. —

Art. I, Sec. II, Para. III.

Cross references.

Due process, Ga. Const. 1983, Art. I, Sec. I, Para. I.

Taking of private property for public purposes, Ga. Const. 1983, Art. I, Sec. III, Paras. I, II, and Ga. Const. 1983, Art. III, Sec. VI, Para. III.

General laws to operate uniformly throughout state, Ga. Const. 1983, Art. III, Sec. VI, Para. IV.

Prohibition against discrimination in the extending of credit or the making of loans, T. 7, Ch. 6.

Fair housing, § 8-3-200 et seq.

Penalty for hiring applicant with criminal record, § 31-7-353 .

Age discrimination in employment, § 34-1-2 .

Sex discrimination in employment, T. 34, Ch. 5.

Duty of common carriers to receive all passengers whom such carriers are able and accustomed to carry, § 46-9-130 .

Law reviews.

For article suggesting county unit system discriminates against classes of voters in violation of equal protection clause, see 14 Ga. B.J. 28 (1951).

For article, “Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,” see 9 Mercer L. Rev. 253 (1958).

For article suggesting potential problems of discrimination in municipal annexation statutes, see 2 Ga. L. Rev. 35 (1967).

For comment on Sams v. Olah, 225 Ga. 497 , 169 S.E.2d 790 (1969) as to the constitutionality of §§ 15-19-30 through 15-19-34 , see 21 Mercer L. Rev. 355 (1969).

For comment on City of Atlanta v. Mapel, 121 Ga. App. 567 , 174 S.E.2d 599 (1970), as to municipal corporation’s negligence liability for injuries sustained at municipal golf courses, see 22 Mercer L. Rev. 608 (1971).

For comment on Deal v. Seaboard C.L.R.R., 236 Ga. 629 , 224 S.E.2d 922 (1976), see 25 Emory L.J. 983 (1976).

For article on the effect on receiving government-issued licenses after a conviction based on a nolo contendere plea, see 13 Ga. L. Rev. 723 (1979).

For comment on Crim v. McWhorter, 242 Ga. 863 , 252 S.E.2d 421 (1979), see 31 Mercer L. Rev. 341 (1979).

For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982).

For survey article on local government law, see 34 Mercer L. Rev. 225 (1982).

For survey article on torts, see 34 Mercer L. Rev. 271 (1982).

For annual survey on constitutional law, see 36 Mercer L. Rev. 137 (1984).

For article, “The Georgia Bill of Rights: Dead or Alive?,” see 34 Emory L.J. 341 (1985).

For annual survey of law of business associations, see 38 Mercer L. Rev. 57 (1986).

For article, “Regulating Business Activity by Means of the Substantive Due Process and Equal Protection Doctrines Under the Georgia Constitution: An Analysis and a Proposal,” see 3 Ga. St. U.L. Rev. 1 (1987).

For article, “Wheel of Fortune: A Critique of the ‘Manifest Imbalance’ Requirement for Race-Conscious Affirmative Action under Title VII,” see 43 Ga. L. Rev. 993 (2009).

For note, “Workin’ 9:00-5:00 for Nine Months: Assessing Pregnancy Discrimination Laws in Georgia,” see 33 Ga. St. U.L. Rev. 771 (2017).

For comment, “ ‘A Fresh Look’: Title VII’s New Promise for LGBT Discrimination Protection Post-Hively,” see 68 Emory L.J. 1101 (2019).

For article, “Age, Time, and Discrimination,” see 53 Ga. L. Rev. 845 (2019).

JUDICIAL DECISIONS

Analysis

General Consideration

This paragraph is a safeguard against the dangers of arbitrary power. Cutsinger v. City of Atlanta, 142 Ga. 555 , 83 S.E. 263 , 1914 Ga. LEXIS 461 (Oct. 3, 1914).

Unpublished decision: Pro se litigant sued government and court officials alleging Georgia’s alimony provisions, O.C.G.A. § 19-6-1 et seq., violated (1) the right to privacy, protections of the equal protection clause, and prohibitions against involuntary servitude, as contained in the U.S. Constitution; and (2) the right to privacy, due process provisions, equal protection provisions, privileges and immunities clause, prohibitions on involuntary servitude, and prohibitions against legislation based on social status, as guaranteed by the Georgia Constitution. However, the federal court determined that plaintiff must raise these constitutional challenges as part of the litigant’s state divorce proceedings, and, furthermore, that Georgia had an important state interest in enforcing these provisions. Cormier v. Green, 141 Fed. Appx. 808, 2005 U.S. App. LEXIS 14034 (11th Cir. 2005).

Behavior prescribed by O.C.G.A. § 17-10-30(b) did not involve fundamental right. —

Defendants equal protection challenge under U.S. Const., amend. XIV and Ga. Const. 1983, Art. I, Sec. I, Para. II failed since the defendants were similarly situated to the defendants against whom the state sought the death penalty under one or more of the statutory aggravating circumstances as provided in O.C.G.A. § 17-10-30(b) . The trial court did not err in refusing to apply strict scrutiny analysis in considering the defendants’ equal protection challenge on the basis that the punishment prescribed by the criminal statute involves an interference with a fundamental right. The proper inquiry was whether the behavior involved a fundamental right, and the obvious answer was that the behavior did not. Fair v. State, 288 Ga. 244 , 702 S.E.2d 420 , 2010 Ga. LEXIS 893 (2010).

O.C.G.A. § 44-13-100(a)(9) is constitutional. —

O.C.G.A. § 44-13-100(a)(9) did not violate Ga. Const. 1983, Art. I, Sec. I, Para. II, when the legislature rationally balanced the needs of creditors and bankruptcy debtors in requiring the debtors to sacrifice more of the debtor’s penumbral property in order to obtain greater relief on property more central to a fresh start. McFarland v. Wallace (In re McFarland), 790 F.3d 1182, 2015 U.S. App. LEXIS 10451 (11th Cir. 2015).

Protection of Property

Protection of private property. —

The Constitution of this state, by repeated declarations, leaves no room for doubt but that it intends to place around private property the same safeguards with which it shields life and liberty. Cox v. GE Co., 211 Ga. 286 , 85 S.E.2d 514 , 1955 Ga. LEXIS 300 (1955).

The right of the humblest individual in the enjoyment of property must be protected. The power to take private property from the owner for public use often works extreme hardship and savors of oppression. Williams v. City of La Grange, 213 Ga. 241 , 98 S.E.2d 617 , 1957 Ga. LEXIS 349 (1957).

If one is granted the liberty to invade another’s private property over the objection of the owner, the result is destruction of property without due process. Clark v. State, 219 Ga. 680 , 135 S.E.2d 270 , 1964 Ga. LEXIS 363 (1964).

Any invasion of the owner’s dominion over the use or sale of the owner’s private property, regardless of its degree, is interdicted by this paragraph. Clark v. State, 219 Ga. 680 , 135 S.E.2d 270 , 1964 Ga. LEXIS 363 (1964); Durham v. State, 219 Ga. 830 , 136 S.E.2d 322 , 1964 Ga. LEXIS 420 (1964).

Deprivation of property is denial of constitutional protection. —

Protection of the citizen and the citizen’s property is not afforded when courts deprive the citizen of the possession of the citizen’s property when the citizen’s right thereto has not been forfeited under some rule of law. Frankel v. Frankel, 212 Ga. 643 , 94 S.E.2d 728 , 1956 Ga. LEXIS 478 (1956).

Right to transact business in a manner not contrary to public health, safety, morals, or public policy is a protected constitutional right and must be preserved to the citizens without discrimination. Hughes v. Reynolds, 223 Ga. 727 , 157 S.E.2d 746 , 1967 Ga. LEXIS 675 (1967).

Right to use property for business purpose. —

In the absence of valid zoning regulations or restrictive covenants to the contrary, the right to use one’s property for a lawful business purpose is a right inherent in the ownership of the property, and is protected by the law. Sikes v. Pierce, 212 Ga. 567 , 94 S.E.2d 427 , 1956 Ga. LEXIS 446 (1956).

Right to sell property. —

The unshackled right to sell one’s own property for a lawful use is within itself property protected by the Constitution and is beyond the reach of legislative impairment. Gray v. Georgia Real Estate Comm'n, 209 Ga. 301 , 71 S.E.2d 645 , 1952 Ga. LEXIS 537 (1952).

Billboard restrictions. —

Denial of permission to a landowner to raise a billboard following reconstruction of a highway which reduced visibility of the billboard to traffic was not a denial of equal protection since the landowner failed to show that the landowner received treatment dissimilar to others similarly situated. Moreton Rolleston, Jr. Living Trust v. DOT, 242 Ga. App. 835 , 531 S.E.2d 719 , 2000 Ga. App. LEXIS 360 (2000), cert. denied, No. S00C1160, 2000 Ga. LEXIS 556 (Ga. June 30, 2000).

Protection applies to children. —

See In re G.L.H., 209 Ga. App. 146 , 433 S.E.2d 357 , 1993 Ga. App. LEXIS 808 (1993).

This constitutional right of protection extends equally to children as well as adults. In re S.H., 204 Ga. App. 135 , 418 S.E.2d 454 , 1992 Ga. App. LEXIS 710 (1992).

Public office is not property within the sense of constitutional guaranties. Walton v. Davis, 188 Ga. 56 , 2 S.E.2d 603 , 1939 Ga. LEXIS 463 (1939).

A licensee facing the possibility of the loss of a license/livelihood must be allowed access to information held by the board that is exculpatory in order for the application of O.C.G.A. §§ 43-1-19(h)(2) and 43-34-37(d) to reach a constitutional result. Wills v. Composite State Bd. of Medical Exmrs., 259 Ga. 549 , 384 S.E.2d 636 , 1989 Ga. LEXIS 415 (1989).

Legislative control of statutory remedies. —

Whatever legal remedies holders of security deeds have are given by virtue of statutes, and these remedies are subject to legislative control. Once given, they are subject to subsequent change when they do not violate vested rights. Hill v. Perkins, 218 Ga. 354 , 127 S.E.2d 909 , 1962 Ga. LEXIS 499 (1962).

Equal Protection

State and federal provisions are substantially equivalent. —

This paragraph guarantees equal protection of the laws. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 , 1906 Ga. LEXIS 229 (1906), rev'd, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 , 1907 U.S. LEXIS 1209 (1907); Atlantic Coast Line R.R. v. State, 135 Ga. 545 , 69 S.E. 725 , 1910 Ga. LEXIS 28 (1910), aff'd, 234 U.S. 280, 34 S. Ct. 829 , 58 L. Ed. 1312 , 1914 U.S. LEXIS 1149 (1914).

This paragraph is the equivalent of a declaration that no person shall be denied the equal protection of the laws. Hobbs v. New England Ins. Co., 93 Ga. App. 687 , 92 S.E.2d 636 , 1956 Ga. App. LEXIS 831 (1956); State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 , 1964 Ga. LEXIS 412 (1964); Dansby v. Dansby, 222 Ga. 118 , 149 S.E.2d 252 , 1966 Ga. LEXIS 412 (1966).

“Equal protection” provisions of Georgia Constitution, though employing different phraseology than U.S. Const., amend. 14, are substantially equivalent of equal protection of the laws under the United States Constitution.

The equal protection clause of the Georgia Constitution is “substantially equivalent” to the equal protection clause of the Fourteenth Amendment of the federal constitution. Thus, a female plaintiff must show that she was intentionally discriminated against on the basis of sex in order to recover on her equal protection claim. Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736, 1989 U.S. Dist. LEXIS 11357 (S.D. Ga. 1989).

The protection of Ga. Const. 1983, Art. I, Sec. I, Para. II and the equal protection clause of the federal constitution are coextensive. Rucks v. State, 201 Ga. App. 142 , 410 S.E.2d 206 , 1991 Ga. App. LEXIS 1267 (1991).

The protection of the equal protection clause in the 1983 Georgia Constitution and the United States Constitution is coextensive; yet this court may interpret the equal protection clause in the Georgia Constitution to offer greater rights than the federal equal protection clause as interpreted by the U.S. Supreme Court. Grissom v. Gleason, 262 Ga. 374 , 418 S.E.2d 27 , 1992 Ga. LEXIS 560 (1992).

Intent of equal protection. —

The equal protection provisions of the state and federal Constitutions are intended to prevent extraordinary benefits or burdens from flowing to any one group. Bickford v. Nolen, 240 Ga. 255 , 240 S.E.2d 24 , 1977 Ga. LEXIS 1467 (1977).

Trial court erred in finding that a county board of commissioners violated a property owner’s equal protection rights by refusing to re-zone the owner’s property even though the board re-zoned the property of a landowner just five miles away on the same day it refused to re-zone the property owner’s property; the landowner and the property owner were not similarly situated property owners, as required for equal protection purposes, because the landowner’s property involved the existence of a pre-existing, non-conforming use of property and the property owner’s property did not have that same designation. Rockdale County v. Burdette, 278 Ga. 755 , 604 S.E.2d 820 , 2004 Ga. LEXIS 1000 (2004).

Protection for rights alone. —

The equal protection clauses of the federal and state Constitutions protect rights alone, and have no reference to mere concessions or mere privileges which may be bestowed or withheld by the state or municipality at will. Bunn v. City of Atlanta, 67 Ga. App. 147 , 19 S.E.2d 553 , 1942 Ga. App. LEXIS 346, cert. denied, 317 U.S. 666, 63 S. Ct. 73 , 87 L. Ed. 535 , 1942 U.S. LEXIS 204 (1942).

Protection not for privileges. —

Discrimination in the grant of favors by the state or municipality is not a denial of the equal protection of the law to those not favored when the privileges may be bestowed or withheld at will. Bunn v. City of Atlanta, 67 Ga. App. 147 , 19 S.E.2d 553 , 1942 Ga. App. LEXIS 346, cert. denied, 317 U.S. 666, 63 S. Ct. 73 , 87 L. Ed. 535 , 1942 U.S. LEXIS 204 (1942).

Equal protection applies to all. —

An employer is entitled to the equal and impartial protection of the law just as much as the employer’s employee. Ellis v. Parks, 212 Ga. 540 , 93 S.E.2d 708 , 1956 Ga. LEXIS 437 (1956).

Like treatment with no arbitrary governmental power. —

This constitutional guaranty requires that all persons shall be treated alike under like circumstances and conditions. Our system of government does not allow the exercise of arbitrary power. Dorsey v. City of Atlanta, 216 Ga. 778 , 119 S.E.2d 553 , 1961 Ga. LEXIS 338 (1961); Reed v. Hopper, 235 Ga. 298 , 219 S.E.2d 409 , 1975 Ga. LEXIS 859 (1975).

So long as the law operates alike on all members of the class, which includes all persons and property similarly situated, it is not subject to any objection that it is special or class legislation. Blackmon v. Monroe, 233 Ga. 656 , 212 S.E.2d 827 , 1975 Ga. LEXIS 1410 (1975).

Equal protection requires uniformity upon all those coming within a class. Citizens & S Nat'l Bank v. Mann, 234 Ga. 884 , 218 S.E.2d 593 , 1975 Ga. LEXIS 1314 (1975).

This paragraph interdicts discrimination in laws. —

It demands uniformity and impartiality and hence, forbids discrimination. Simpson v. State, 218 Ga. 337 , 127 S.E.2d 907 , 1962 Ga. LEXIS 492 (1962).

Party claiming equal protection violation must be similarly situated. —

Landowners were not similarly situated to their neighbors, who had sought and received a permit and license to build a dock in a coastal marshland area, and the landowners failed to show that they would not have been able to build a dock had they so chosen. Therefore, the landowners’ equal protection claim arising out of the issuance of the license to their neighbors failed. Hitch v. Vasarhelyi, 302 Ga. App. 381 , 691 S.E.2d 286 , 2010 Ga. App. LEXIS 133 (2010), cert. denied, No. S10C1029, 2010 Ga. LEXIS 577 (Ga. July 12, 2010).

Individuals who perform same work are similarly situated for equal protection purposes. —

Lactation care provider’s equal protection challenge to the Georgia Lactation Consultant Practice Act, O.C.G.A. § 43-22A-1 et seq., which required such providers to obtain a state license, was improperly dismissed; the Act treated similarly situated individuals differently in that the Act recognized certification of providers as International Board Certified Lactation Consultants (IBCLC) but not certification as Certified Lactation Consultants (CLC), while both performed the same services. Jackson v. Raffensperger, 308 Ga. 736 , 843 S.E.2d 576 , 2020 Ga. LEXIS 344 (2020).

Discrimination not shown in composing grand jury array. —

Plea in abatement of a defendant’s indictment for aggravated assault and other charges arising out of a road rage incident on the ground that the grand jury was not a fair and representative cross-section of the community was properly denied because an alleged disparity between the gender distribution in the county and the gender distribution on the grand jury was not indicative of prima facie discrimination; there was no constitutional guarantee that the grand or petit juries impaneled in a particular case would constitute a representative cross-section of the entire community, and the defendant offered no evidence that gender discrimination occurred with regard to the composition of the grand jury array. Adams v. State, 282 Ga. App. 819 , 640 S.E.2d 329 , 2006 Ga. App. LEXIS 1462 (2006).

Number of peremptory challenges afforded codefendants not violative of equal protection. —

O.C.G.A. § 17-8-4(b) , which allows defendants tried jointly 14 peremptory challenges (while O.C.G.A. § 15-12-165 allows a defendant tried alone nine such challenges) does not violate equal protection as there are valid reasons for discriminating between the peremptory challenges of single defendants and codefendants: the avoidance of undue delay and a needless burden on the public. Dixon v. State, 285 Ga. 312 , 677 S.E.2d 76 , 2009 Ga. LEXIS 154 (2009), overruled in part, Whitehead v. State, 287 Ga. 242 , 695 S.E.2d 255 , 2010 Ga. LEXIS 412 (2010).

Differing treatment in similar circumstances is denial of equal protection. —

It is only when laws are applied differently to different persons under the same or similar circumstances that the equal protection of the law is denied. Franklin v. Mayor of Savannah, 199 Ga. 426 , 34 S.E.2d 506 , 1945 Ga. LEXIS 423 (1945); Hughes v. Reynolds, 223 Ga. 727 , 157 S.E.2d 746 , 1967 Ga. LEXIS 675 (1967); City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759 , 213 S.E.2d 596 , 1975 Ga. LEXIS 1438 (1975).

Exclusion of one witness pursuant to rule of sequestration did not violate equal protection. —

Application of the rule of sequestration to exclude a single witness, the defendant’s father, from trial, while allowing the victim’s mother to attend the proceedings, notwithstanding that the mother was a witness at trial, did not violate the guarantee of equal protection. Nicely v. State, 291 Ga. 788 , 733 S.E.2d 715 , 2012 Ga. LEXIS 840 (2012).

Contract bidding process. —

Bidding insurer’s summary judgment motion was properly granted as to its equal protection claim against a county as the county did not exercise arbitrary power but acted rationally and reasonably in rejecting all bids across the board after it was discovered that a consultant lacked a counselor’s license under O.C.G.A. §§ 33-23-1.1 and 33-23-4 ; because of the taint to the process, all bids were rejected, no classification was created at all, and all similarly situated persons were treated alike. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825 , 637 S.E.2d 763 , 2006 Ga. App. LEXIS 1267 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. Feb. 26, 2007).

Traffic consideration was rational basis for denying conditional use permit. —

City’s rationale for granting a conditional use permit to a school, but disallowing it to built a 1500-seat football stadium, did not violate the school’s equal protection rights, as evidence that the school’s proposed stadium would exacerbate an already existing traffic problem in the area was a rational basis for the denial of that part of the permit; moreover, even if the school had shown it was similarly situated with other property owners whose applications were granted, it failed to show that the city’s decision was not rationally related to a legitimate government interest. City of Roswell v. Fellowship Christian Sch., Inc., 281 Ga. 767 , 642 S.E.2d 824 , 2007 Ga. LEXIS 254 (2007).

Although statute providing special benefits may not deny equal protection. —

A statute does not deny equal protection merely because certain persons may derive special benefits when all persons within its purview are subject to like conditions. Hancock v. Board of Tax Assessors, 226 Ga. 570 , 176 S.E.2d 102 , 1970 Ga. LEXIS 599 (1970).

Seduction statute (O.C.G.A. § 51-1-16 ), giving parents a cause of action for the seduction of their unmarried daughter, violates the equal protection clause because only men may be civilly liable under the statute. Franklin v. Hill, 264 Ga. 302 , 444 S.E.2d 778 , 1994 Ga. LEXIS 478 (1994).

O.C.G.A. § 46-3-204 is constitutional. —

One-year statute of limitations under O.C.G.A. § 46-3-204 is constitutional because the statute does not violate the Equal Protection Clause of the Georgia Constitution and is not unconstitutionally vague. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437 , 711 S.E.2d 709 , 2011 Ga. LEXIS 507 (2011).

Use of direct recording electronic equipment does not deny equal protection. —

Trial court did not err in granting the Secretary of State, the Governor, and the Georgia State Election Board summary judgment in voters’ action challenging the use of direct recording electronic equipment on the ground that it denied the voters equal protection under the equal protection clause of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. II because all Georgia voters had the option of casting an absentee ballot or using the touch screen electronic voting machines on election day, and in deciding to forego the privilege of voting early on a paper ballot, voters assumed the risk of necessarily different procedures if a recount was required; since every Georgia citizen could vote by absentee ballot or by utilizing the touch screen voting system, the voters’ contention that there was some state based classification between voters was false. Favorito v. Handel, 285 Ga. 795 , 684 S.E.2d 257 , 2009 Ga. LEXIS 486 (2009).

Election districts unconstitutional. —

Citizen was successful in the citizen’s 42 U.S.C. § 1983 equal protection challenge to the sizes of board of education districts in a county in Georgia; using the one person, one vote principle, the court declared the districts unconstitutional given their unacceptable deviations from the ideal district population size, enjoined further elections using the old districts, and implemented an interim new district map based on the 2000 census results taking care to ensure that the new map also satisfied the requirements of §§ 2 and 5 of the Voting Rights Act, 42 U.S.C. § 1973 et seq. Markham v. Fulton County Bd. of Registrations & Elections, No. 1:02-CV-1111-WBH, 2002 U.S. Dist. LEXIS 27505 (N.D. Ga. May 29, 2002).

Redistricting attempts for school board members. —

While voting rights and the right to run for public office are core constitutional rights, an attempted deprivation of constitutional or statutory rights is not the same as an actual deprivation. Furthermore, incurring legal fees to vindicate rights does not itself establish that those rights were violated. Thus, plaintiff, a school board member, pursing attempted violations of plaintiff’s right to run and hold a designated seat in a predefined district, could not succeed as an injunction in another lawsuit and failure of preclearance interfered with the implementation of the efforts of defendants, the local voting registrars; since the attempt to deprive plaintiff of plaintiff’s constitutional rights did not succeed, neither can plaintiff’s lawsuit succeed. Cook v. Randolph County, 573 F.3d 1143, 2009 U.S. App. LEXIS 15201 (11th Cir. 2009).

Photo identification requirement. —

In an action by a political party challenging the 2006 Photo ID Act, amending O.C.G.A. § 21-2-417 , the photo ID requirement was not an impermissible qualification on voting in violation of Ga. Const. 1983, Art. I, Sec. I, Para. II because the Act did not deprive any Georgia voter from casting a ballot in any election. Democratic Party of Ga., Inc. v. Perdue, 288 Ga. 720 , 707 S.E.2d 67 , 2011 Ga. LEXIS 184 (2011).

Differing terms of court. —

O.C.G.A. §§ 15-6-3 (15.1) and 17-7-171 did not combine to deprive a criminal defendant of equal protection of the law by permitting the county of the defendant’s adjudication to operate with only two terms of court, while other similar-sized counties operate with more terms of court. Although defendant may have had to wait months longer for the defendant’s trial than similarly situated defendants in other counties, the presumptive validity of the statutes stood. Henry v. State, 263 Ga. 417 , 434 S.E.2d 469 , 1993 Ga. LEXIS 643 (1993).

Conflicting rules. —

Fact that one rule precludes defendant from commenting on state’s failure to produce certain witnesses and another rule permits state to comment on defendant’s failure to produce certain witnesses does not violate equal protection, as there is a rational reason for the disparity. Wilson v. Zant, 249 Ga. 373 , 290 S.E.2d 442 , 1982 Ga. LEXIS 1137, cert. denied, 459 U.S. 1092, 103 S. Ct. 580 , 74 L. Ed. 2 d 940, 1982 U.S. LEXIS 4768 (1982), but see, Morgan v. State, 267 Ga. 203 , 476 S.E.2d 747 , 1996 Ga. LEXIS 885 (1996).

Nonresident aliens. —

O.C.G.A. § 34-9-265 , regarding the award of workers’ compensation death benefits, clearly discriminates between U.S. and Canadian citizens and residents on the one hand and all other nonresident aliens on the other. However, the discrimination is not an unlawful one. Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190 , 429 S.E.2d 671 , 1993 Ga. LEXIS 456, cert. denied, 510 U.S. 1003, 114 S. Ct. 579 , 126 L. Ed. 2 d 477, 1993 U.S. LEXIS 7514 (1993).

Hearing impaired suspects. —

Defendant failed to meet the defendant’s burden to show that the procedure whereby criminal suspects who are hearing impaired are not interrogated for up to one hour except in the presence of a translator was arbitrary or otherwise not rationally related to a legitimate state interest. Sisson v. State, 232 Ga. App. 61 , 499 S.E.2d 422 , 1998 Ga. App. LEXIS 574 (1998), overruled in part, State v. Turnquest, 305 Ga. 758 , 827 S.E.2d 865 , 2019 Ga. LEXIS 320 (2019).

Jury pool. —

Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIII for failing to properly pursue an equal protection objection under Ga. Const. 1983, Art. I, Sec. I, Para. II based on the exclusion of African-Americans from the jury and from the pool of available jurors; the only evidence showed that the population of available African-American jurors in the trial court’s county was very small, and the defendant did not show that the jury list failed to contain a fair cross section of the community or that there was purposeful discrimination in the selection of the panel. Martin v. State, 281 Ga. App. 64 , 635 S.E.2d 358 , 2006 Ga. App. LEXIS 1002 (2006).

A defendant’s Batson challenge was properly denied. The prosecutor stated that one juror had an incarcerated relative, and although the defendant showed that the juror stated that the relationship was not close, the trial court had to decide the credibility of the race-neutral explanation. Nelson v. State, 289 Ga. App. 326 , 657 S.E.2d 263 , 2008 Ga. App. LEXIS 84 (2008).

When the prosecutor struck a juror because the prosecutor thought that the juror as an immigrant might apply an improper standard of proof, the trial court properly denied the defendant’s Batson challenge. Batson did not extend to national origin; moreover, the prosecutor’s other reason for striking the juror, that the juror’s child had been charged with a crime, was race-neutral. Nelson v. State, 289 Ga. App. 326 , 657 S.E.2d 263 , 2008 Ga. App. LEXIS 84 (2008).

Trial counsel was not ineffective for not using the word “pretextual” in making Batson challenges. Although counsel did not use the word “pretextual,” counsel sought to rebut the prosecutor’s explanations by arguing either that the strike was not race-neutral or that, considering the totality of the jury’s responses to questions on voir dire examination, there was no factual basis for the strike. Nelson v. State, 289 Ga. App. 326 , 657 S.E.2d 263 , 2008 Ga. App. LEXIS 84 (2008).

Peremptory striking of all black prospective jurors in a case is not per se a denial of equal protection, but presumption protecting prosecutor may well be overcome by proof of systematic exclusion of black jurors by use of peremptory challenges by district attorney resulting in no Negroes ever serving on petit juries in that circuit. Blackwell v. State, 248 Ga. 138 , 281 S.E.2d 599 , 1981 Ga. LEXIS 939 (1981).

Use of peremptory strikes to exclude white males. —

Despite defendant’s ostensibly race-neutral reason for a single contested peremptory strike, after failing to express any reason why the juror’s friendship with a district attorney was case-related, and the record failed to indicate that defendant did not challenge at least one other juror with a friend who worked as a prosecutor in the same judicial circuit, upon a showing by the state of a prima facie case of racial discrimination by virtue of defendant’s use of all of defendant’s peremptory strikes to remove whites from the jury, the trial court’s finding that defendant’s reliance on non-racial explanations to defend the strike was implausible and a mere pretext to disguise discrimination against white males was not clearly erroneous. Allen v. State, 280 Ga. 678 , 631 S.E.2d 699 , 2006 Ga. LEXIS 458 (2006).

While the trial court found that the state established a prima facie case of defendant’s use of racial discrimination in using peremptory challenges, asked defense counsel to explain the basis for each of the strikes, and listened to rebuttal by the prosecuting attorney, based on the assumption that defense counsel had used the peremptory strikes to remove all white males from the venire, the court erred by not applying the three-step Batson/McCollum process in disallowing defendant’s exercise of peremptory strikes against jurors 5, 7, and 10 and by ordering those panel members reseated. Moon v. State, 280 Ga. App. 84 , 633 S.E.2d 418 , 2006 Ga. App. LEXIS 753 (2006).

Use of peremptory strikes to exclude minorities. —

Trial court did not err in denying the Batson claim raised by defendant in a rape case after the state used two peremptory strikes to strike two African-American jurors; defendant did not carry the burden of proving that the state engaged in purposeful discrimination and, thus, did not show that the jury selection in defendant’s case violated defendant’s equal protection rights. Walker v. State, 270 Ga. App. 733 , 607 S.E.2d 912 , 2004 Ga. App. LEXIS 1590 (2004).

Trial court erred in ruling that defendants had not shown discriminatory intent and in overruling their Batson challenge because the prosecutor’s own explanation established that a discriminatory purpose was involved in the decision; the prosecutor stated that the juror was struck because the juror was black and had a black son in an interracial marriage. McCastle v. State, 276 Ga. App. 218 , 622 S.E.2d 896 , 2005 Ga. App. LEXIS 1208 (2005).

Reasons given by a prosecutor for striking three jurors were sufficiently race neutral to withstand the defendant’s Batson challenge, and the trial court did not clearly err in denying the Batson challenge, since the prosecutor explained that the prosecutor struck the first juror because that juror was quite young, had no world experience, the prosecutor had no rapport with the juror, and the juror worked as a police cadet, that the prosecutor struck the second juror because the juror was an extremely young, recent high school graduate, with no job, that the prosecutor could not establish a rapport with this juror, and that the juror had no life experience to give the juror a framework in which to fit the alleged crime, and that the prosecutor struck the third juror because, based on the juror’s statements, the prosecutor was concerned that this juror would rely on “karmic justice,” instead of making a decision based on the evidence. Mayes v. State, 279 Ga. App. 499 , 631 S.E.2d 724 , 2006 Ga. App. LEXIS 620 (2006).

Upon appellate review of an order denying defendant’s Batson challenge, the appeals court found that after considering that the ratio of African-American jurors to white jurors exceeded the ratio of potential African-American jurors to potential white jurors, defendant failed to make out a prima facie showing of racial discrimination in jury selection. Goldberg v. State, 280 Ga. App. 600 , 634 S.E.2d 419 , 2006 Ga. App. LEXIS 734 (2006), aff'd, 282 Ga. 542 , 651 S.E.2d 667 , 2007 Ga. LEXIS 577 (2007).

While the defendant made out a prima facie case of racial discrimination regarding the state’s use of three peremptory strikes, because sufficient race-neutral reasons existed for those strikes, the defendant’s rights were not violated. LeMon v. State, 290 Ga. App. 527 , 660 S.E.2d 11 , 2008 Ga. App. LEXIS 224 (2008), cert. denied, No. S08C1297, 2008 Ga. LEXIS 589 (Ga. June 16, 2008).

State provided sufficient race-neutral reasons for using nine of the state’s 10 peremptory strikes against non-white prospective jurors, including that one stricken prospective juror worked for a group home with boys about the defendant’s age, one had multiple conflicts with the criminal justice system, and one had been falsely accused of a crime but acted in self-defense, the same legal theory advanced by the defendant. Stacey v. State, 292 Ga. 838 , 741 S.E.2d 881 , 2013 Ga. LEXIS 373 (2013).

Use of peremptory strikes to exclude unmarried jurors. —

Defendant made a prima facie showing of race and gender discrimination in use of peremptory challenges; the prosecutor presented a race and gender neutral explanation, in accordance with Ga. Const. 1983, Art. I, Sec. I, Para. II, by stating that defendant struck every unmarried juror in the jury pool because the prosecutor thought that family-oriented jurors might have been more likely to convict defendant of domestic violence related offenses. Floyd v. State, 281 Ga. App. 72 , 635 S.E.2d 366 , 2006 Ga. App. LEXIS 1000 (2006), cert. denied, No. S07C0121, 2007 Ga. LEXIS 86 (Ga. Jan. 8, 2007), cert. denied, 552 U.S. 840, 128 S. Ct. 80 , 169 L. Ed. 2 d 62, 2007 U.S. LEXIS 9587 (2007).

Use of peremptory strikes to exclude minorities and females. —

Claim by a defendant, an African-American woman, that the prosecutor violated Batson by striking potential jurors based on race and gender, failed. The prosecutor’s explanations for the strikes were race and gender neutral because the strikes were not based on a characteristic that was peculiar to any race or on a stereotypical belief, the reasons proffered were specific and related to the case, and three African-Americans and seven women were chosen to serve on the jury. McKenzie v. State, 294 Ga. App. 376 , 670 S.E.2d 158 , 2008 Ga. App. LEXIS 1201 (2008).

Death penalty statutes not racially discriminatory. —

Petitioner, a death row inmate, challenged the imposition of the death penalty in a federal habeas petition, arguing that the death penalty was being administered in a racially discriminatory manner; however, the argument failed because the statistical evidence was not so strong as to permit no inference other than that the results were the product of a racially discriminatory intent or purpose in that the death penalty was sought in 58 percent of the possible death penalty cases when the defendant was black but in only 40 percent of the cases when the defendant was white, and sought in only 25 percent of the cases when the victim was black and 54 percent of the cases when the victim was white. Jefferson v. Terry, 490 F. Supp. 2d 1261, 2007 U.S. Dist. LEXIS 44368 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283, 2009 U.S. App. LEXIS 14129 (11th Cir. 2009), vacated, No. 07-12502, 2010 U.S. App. LEXIS 26989 (11th Cir. July 19, 2010).

O.C.G.A. § 17-10-30(b)(8) bears a rational relationship to the legitimate state purposes of providing deterrence of possible harm to peace officers and, thus, of protecting officers. Accordingly, the statutory aggravating circumstance does not violate equal protection under U.S. Const., amend. XIV or Ga. Const. 1983, Art. I, Sec. I, Para. II. Fair v. State, 288 Ga. 244 , 702 S.E.2d 420 , 2010 Ga. LEXIS 893 (2010).

Court not required to appoint state-paid psychiatrist for defendant filing special plea of insanity. —

Trial court is under no constitutional or statutory duty to appoint a state-paid psychiatrist to evaluate a defendant even though a special plea of insanity has been filed. Blankenship v. State, 247 Ga. 590 , 277 S.E.2d 505 , 1981 Ga. LEXIS 801 (1981), overruled, Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 , 1993 Ga. LEXIS 320 (1993), cert. denied, 545 U.S. 1150, 125 S. Ct. 2964 , 162 L. Ed. 2 d 906, 2005 U.S. LEXIS 5192 (2005).

Private corporation may attack state statute on due process and equal protection grounds. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 , 1982 Ga. LEXIS 1100 (1982).

A hospital authority has standing by statute to attack state law on grounds that it violates due process and equal protection clauses of Georgia Constitution. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 , 1982 Ga. LEXIS 1100 (1982).

Separate classification and treatment of architects, engineers, and contractors by O.C.G.A. § 9-3-51 from owners, tenants, and manufacturers is reasonable and not arbitrary. Mullis v. Southern Co. Servs., 250 Ga. 90 , 296 S.E.2d 579 , 1982 Ga. LEXIS 1014 (1982).

Specialty training for physicians. —

Public hospital bylaw requiring specific postgraduate specialty training or residency in order for physicians to be eligible for admission to the medical staff did not transgress the equal protection or due process rights of osteopathic physicians. Silverstein v. Gwinnett Hosp. Auth., 861 F.2d 1560, 1988 U.S. App. LEXIS 17589 (11th Cir. 1988).

Public hospital bylaws excluding osteopathic physicians, who have not completed allopathic postgraduate training, from the medical staff do not violate the equal protection clause if the bylaws are rationally related to differences in osteopathic and allopathic training and promote a legitimate state interest in promoting quality health care. Silverstein v. Gwinnett Hosp. Auth., 672 F. Supp. 1444, 1987 U.S. Dist. LEXIS 10531 (N.D. Ga. 1987), aff'd, 861 F.2d 1560, 1988 U.S. App. LEXIS 17589 (11th Cir. 1988).

Grant of official immunity to state employee providing medical services. —

Grant of official immunity from a malpractice suit to a state-employed doctor based on the patient’s status as a Medicaid patient did not violate the constitutional rights of the patient’s parents, as the due process and equal protection clauses of the U.S. and Georgia Constitutions protected only rights, and a waiver of sovereign immunity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., was merely a privilege. Porter v. Guill, 298 Ga. App. 782 , 681 S.E.2d 230 , 2009 Ga. App. LEXIS 791 (2009).

Plumbers. —

O.C.G.A. § 43-14-8 is unconstitutional insofar as it denies to formerly locally licensed plumbers the rights extended to formerly state-licensed plumbers by § 43-14-8 . Waller v. State Constr. Indus. Licensing Bd., 250 Ga. 529 , 299 S.E.2d 554 , 1983 Ga. LEXIS 557 (1983) (decided prior to 1983 amendment of O.C.G.A. § 43-14-8).

Arbitration of attorney fee disputes. —

Neither State Bar Rule 6-303(a) nor Rule 6-502 violate the state and federal constitutional rights to equal protection as the interest of a state in regulating the legal profession and attorney-client relationship is a “compelling” one. Nodvin v. State Bar, 273 Ga. 559 , 544 S.E.2d 142 , 2001 Ga. LEXIS 259 (2001).

Punitive damages law. —

Paragraph (e)(2) of O.C.G.A. § 51-12-5.1 , requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not violate the equal protection clauses of the United States and Georgia Constitutions. Mack Trucks, Inc. v. Conkle, 263 Ga. 539 , 436 S.E.2d 635 , 1993 Ga. LEXIS 800 (1993); State v. Moseley, 263 Ga. 680 , 436 S.E.2d 632 , 1993 Ga. LEXIS 799 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101 , 128 L. Ed. 2 d 663, 1994 U.S. LEXIS 3803 (1994).

Allocation of a portion of the fines and forfeitures collected in this state to the Peace Officers’ Annuity and Benefit Fund is not a violation of this paragraph because of the possibility that peace officers will institute prosecutions for the sole purpose of building the fund, as public officers are presumed to do their duty. Cole v. Foster, 207 Ga. 416 , 61 S.E.2d 814 , 1950 Ga. LEXIS 490 (1950).

Employees’ equal protection challenge to the reduction in their retirement benefits was belied by evidence that an age reduction factor was applied to employees retiring both before and after July 1, 1998. Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 , 2005 Ga. App. LEXIS 204 (2005), cert. denied, No. S05C1223, 2005 Ga. LEXIS 618 (Ga. Sept. 19, 2005).

Unconstitutionality of wrongful death provisions. —

Because the rights of children whose mothers had been wrongfully killed were protected by former O.C.G.A. § 51-4-3 in ways in which the rights of children whose fathers had been wrongfully killed were not protected, O.C.G.A. § 51-4-2 deprived children of deceased fathers who left widows equal protection of the law in violation of Ga. Const. 1983, Art. I, Sec. I, Para. II. Henceforth, children of deceased fathers who left widows were to be afforded rights afforded children under former O.C.G.A. § 51-4-3 . Tolbert v. Murrell, 253 Ga. 566 , 322 S.E.2d 487 , 1984 Ga. LEXIS 995 (1984).

Classification of minors in statute of limitations. —

The 1987 amendment to O.C.G.A. § 9-3-73 which altered tolling provisions otherwise applicable to tort claims by injured minors in cases in which tort claims arose from health care professionals’ malpractice, did not violate a brain-damaged child’s right to equal protection or right of access to the courts. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566 , 423 S.E.2d 235 , 1992 Ga. LEXIS 987 (1992).

Disparate treatment of individual and corporate insureds under paragraphs (b)(2) (now paragraph (b)(3)) and (e) of O.C.G.A. § 33-24-45 is not a violation of equal protection in that it bears a real relation to the object of the legislation, which is to protect unsophisticated and, more likely, unwary insureds by assuring that insurance remains in effect pending written notice of intention not to renew. Home Materials, Inc. v. Auto Owners Ins. Co., 250 Ga. 599 , 300 S.E.2d 139 , 1983 Ga. LEXIS 586 (1983).

Denial of insurance coverage to resident operating vehicle registered out of state constitutional. —

This provision is not violated by the denial of the $45,000 optional no-fault coverage, otherwise available under Flewellen v. Atlantic Cas. Co., 250 Ga. 709 , 300 S.E.2d 673 (1983), to a Georgia resident who was injured in the course of employment in Georgia while operating a vehicle licensed outside of the state and insured under a policy issued outside of the state to an out-of-state resident, but that the parties understood would be used and garaged in Georgia. Doran v. Travelers Indem. Co., 254 Ga. 63 , 326 S.E.2d 221 , 1985 Ga. LEXIS 605 (1985).

Statutory scheme providing different procedures for handling service upon foreign and domestic corporations does not deny domestic corporations equal protection under the state and federal Constitutions. Ticor Constr. Co. v. Brown, 255 Ga. 547 , 340 S.E.2d 923 , 1986 Ga. LEXIS 628 (1986).

O.C.G.A. § 34-9-285 , in authorizing disparate treatment of occupational diseases and other injuries compensable under the Workers’ Compensation Act, does not violate constitutional guarantees of equal protection. Price v. Lithonia Lighting Co., 256 Ga. 49 , 343 S.E.2d 688 , 1986 Ga. LEXIS 692 (1986).

Ability to pay court costs. —

When the defendant did not claim that the defendant was being treated differently from other individuals similarly situated in regard to O.C.G.A. § 9-15-2 , which provides that findings of the court concerning the ability of a party to pay costs shall be final, there was no merit to the defendant’s claim that the defendant was suffering discrimination because the defendant was indigent. Penland v. State, 256 Ga. 641 , 352 S.E.2d 385 , 1987 Ga. LEXIS 564 (1987).

Charitable immunity doctrine does not constitute a violation of the equal protection or due process clauses of the federal or state constitutions. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 , 353 S.E.2d 515 , 1987 Ga. LEXIS 654, cert. denied, 484 U.S. 863, 108 S. Ct. 181 , 98 L. Ed. 2 d 134, 1987 U.S. LEXIS 3281 (1987); Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 , 384 S.E.2d 205 , 1989 Ga. App. LEXIS 933 (1989).

Child testimony statute not void. —

O.C.G.A. § 24-3-16 is not unconstitutional by allowing the state to bolster the testimony of the victim while denying the same opportunity to the defendant. Weathersby v. State, 262 Ga. 126 , 414 S.E.2d 200 , 1992 Ga. LEXIS 211 (1992).

The 1995 amendment of O.C.G.A. § 24-3-16, allowing the admission into evidence of hearsay statements made by a child under the age of 14 years who witnessed an act of physical or sexual abuse inflicted upon another, violates constitutional principles of equal protection. Woodard v. State, 269 Ga. 317 , 496 S.E.2d 896 , 1998 Ga. LEXIS 289 (1998), overruled in part, Bunn v. State, 291 Ga. 183 , 728 S.E.2d 569 , 2012 Ga. LEXIS 565 (2012), overruled in part as stated in Wofford v. State, 329 Ga. App. 195 , 764 S.E.2d 437 , 2014 Ga. App. LEXIS 653 (2014).

Juvenile court jurisdiction statute does not violate the separation of powers doctrine of the state constitution, nor does it violate the due process and equal protection provisions of the federal and state constitutions. Bishop v. State, 265 Ga. 821 , 462 S.E.2d 716 , 1995 Ga. LEXIS 838 (1995); Murphy v. State, 267 Ga. 100 , 475 S.E.2d 590 , 1996 Ga. LEXIS 531 (1996).

Sentencing juvenile as adult. —

Juvenile defendant was tried in superior court for murder and conspiracy to commit armed robbery, but was convicted only of the latter charge. The superior court’s decision to sentence the defendant as an adult under O.C.G.A. § 15-11-28(b)(2)(A)(i) did not violate the defendant’s due process or equal protection rights as the defendant had no constitutional right to be treated as a juvenile. Pascarella v. State, 294 Ga. App. 414 , 669 S.E.2d 216 , 2008 Ga. App. LEXIS 1202 (2008), cert. denied, No. S09C0426, 2009 Ga. LEXIS 188 (Ga. Feb. 23, 2009).

Reckless conduct statute vague regarding child care. —

Because the reckless conduct statute failed to provide defendant with fair notice that the defendant could be held criminally responsible for leaving children in the care of the defendant’s older son, it failed to clearly define its prohibitions, rendering it unconstitutionally vague as applied. Hall v. State, 268 Ga. 89 , 485 S.E.2d 755 , 1997 Ga. LEXIS 186 (1997).

Immunity granted employers in the Workers’ Compensation Act, O.C.G.A. § 34-9-1 et seq., does not violate the due process and equal protection provisions of the state and federal Constitutions. Georgia Dep't of Human Resources v. Joseph Campbell Co., 261 Ga. 822 , 411 S.E.2d 871 , 1992 Ga. LEXIS 26 (1992).

Provisions of the Tort Reform Act (O.C.G.A. § 51-12-5.1 ), relating to punitive damages, violated the due process and equal protection clauses of the federal and state constitutions, violated the excessive fines provisions of both constitutions, and violated the double jeopardy provision of the Fifth Amendment to the federal constitution.McBride v. GMC, 737 F. Supp. 1563, 1990 U.S. Dist. LEXIS 5993 (M.D. Ga. 1990).

Georgia witness competency statutes present a reasonable requirement regarding the minimal level of understanding for people participating in one of the most important functions of government and do not violate the equal protection clause. Ambles v. State, 259 Ga. 406 , 383 S.E.2d 555 , 1989 Ga. LEXIS 348 (1989).

State had standing to challenge Georgia witness competency statutes. Ambles v. State, 259 Ga. 406 , 383 S.E.2d 555 , 1989 Ga. LEXIS 348 (1989).

Public officers’ malpractice statute not unconstitutional. —

O.C.G.A. § 45-11-4 , by affording only certain enumerated officials the privilege of appearing before the grand jury prior to indictment for malpractice, does not violate the equal protection clauses of the state and federal Constitutions. State v. Deason, 259 Ga. 183 , 378 S.E.2d 120 , 1989 Ga. LEXIS 175 (1989).

Implied consent statute does not violate the dictates of equal protection set forth in the Georgia and federal Constitutions. Lutz v. State, 274 Ga. 71 , 548 S.E.2d 323 , 2001 Ga. LEXIS 450 (2001), overruled in part, Olevik v. State, 302 Ga. 228 , 806 S.E.2d 505 , 2017 Ga. LEXIS 898 (2017).

Municipal affirmative action program providing favored treatment for minority and female-owned business enterprises in the award of city contracts violated the equal protection clause since the city failed to identify the need for a race-conscious program in the awarding of the city’s public contracts and the program was not “narrowly tailored” to remedy prior discrimination. American Subcontractors Ass'n v. City of Atlanta, 259 Ga. 14 , 376 S.E.2d 662 , 1989 Ga. LEXIS 203 (1989).

Affirmative action programs. —

Because genuine issues of fact existed as to whether the defendants violated the equal protection clause in connection with the operation of a county’s minority and female business enterprise program, they were not entitled to summary judgment as a matter of law as to plaintiff’s state equal protection claim. Webster v. Fulton County, 44 F. Supp. 2d 1359, 1999 U.S. Dist. LEXIS 12325 (N.D. Ga. 1999).

Standing to challenge administration of municipal programs. —

City employees did not have standing to make equal protection challenges against the administration of retirement incentive programs when the employees retired prior to adoption of the programs or at a time when the administration of a particular program did not affect their rights. Smith v. City of LaGrange, 218 Ga. App. 394 , 461 S.E.2d 550 , 1995 Ga. App. LEXIS 746 (1995), cert. denied, No. S95C1949, 1995 Ga. LEXIS 1192 (Ga. Nov. 9, 1995).

Standing to challenge Medicaid reimbursement for medically necessary abortion. —

The trial court erroneously dismissed a complaint filed by certain medical providers, alleging violations of the Georgia Constitution on privacy and equal protection grounds, and holding that the medical providers lacked third-party standing to assert a claim on behalf of their Medicaid-eligible patients as: (1) the medical providers properly asserted an injury in fact insofar as they had a direct financial interest in obtaining state funding to reimburse them for the cost of abortion services provided to Medicaid-eligible women, and have alleged that they performed, and will continue to perform, medically necessary abortions for which they will not be reimbursed under Georgia’s Medicaid program; and (2) the relationship between the medical providers and their patients made them uniquely qualified to litigate the constitutionality of the state’s action interfering with a woman’s decision to terminate a pregnancy. Feminist Women's Health Ctr. v. Burgess, 282 Ga. 433 , 651 S.E.2d 36 , 2007 Ga. LEXIS 608 (2007).

Tractor-trailer length limits. —

Enforcement of total length limits, i.e., combination of vehicle and load, for general freight transport that are different from those total length limits enforced as to live poultry transport violates the equal protection clause. State v. Moore, 259 Ga. 139 , 376 S.E.2d 877 , 1989 Ga. LEXIS 94 (1989).

Pay for public officials. —

The payment plan for police officers in Columbus, Georgia did not deny the officers equal protection under either U.S. Const., amend. 14 or Ga. Const. 1983, Art. I, Sec. I, Para. II, as there were legitimate government purposes, which satisfied rational basis review, and the pay plan at issue enjoyed a strong presumption of constitutionality; improving the educational quality of the police force was a legitimate government purpose, as was increasing pay for new officers, which was rationally related to the legitimate purpose of recruiting and retaining the best qualified new officers. Ackerman v. Columbus, Ga., 269 F. Supp. 2d 1354, 2003 U.S. Dist. LEXIS 11209 (M.D. Ga. 2003), aff'd, 97 Fed. Appx. 907, 2004 U.S. App. LEXIS 10924 (11th Cir. 2004).

Pension funds for county employees. —

Court fines and forfeitures were county funds and, thus, the payment of those monies into a court clerk’s state retirement plan were contributions made with county funds; the county’s determination to exclude the clerk from the county’s pension plan, based on the county’s decision that it should contribute to each constitutional officer’s retirement plan only once, did not violate equal protection, since it was based on a rational distinction between the various constitutional officers, and furthered the legitimate governmental purpose of equalizing the county’s pension contributions and fostering financial responsibility in the funding of its retirement plans. Morgan County Bd. of Comm'rs v. Mealor, 280 Ga. 241 , 626 S.E.2d 79 , 2006 Ga. LEXIS 19 (2006).

Prior service credit for retirement. —

Employee Retirement System classification system, providing differing methods of credit for military service based upon the dates and conditions of service, does not violate equal protection rights. Horton v. State Employee Retirement Sys., 262 Ga. 458 , 421 S.E.2d 703 , 1992 Ga. LEXIS 878 (1992).

Review of Department of Natural Resources decisions. —

The Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., and O.C.G.A. § 12-2-1 govern the procedure for judicial review of final decisions of the Department of Natural Resources; since the party seeking review failed to make a timely request therefor, affirmance of the final decision of the Department violated neither equal protection nor due process. Nix v. Long Mtn. Resources, Inc., 262 Ga. 506 , 422 S.E.2d 195 , 1992 Ga. LEXIS 923 (1992).

Statute of repose for medical malpractice claims is rationally related to a legitimate legislative attempt to reduce the uncertainties and costs related to malpractice litigation long after the medical services have been rendered and does not violate equal protection guarantees. Hanflik v. Ratchford, 848 F. Supp. 1539, 1994 U.S. Dist. LEXIS 4980 (N.D. Ga. 1994), aff'd, 56 F.3d 1391, 1995 U.S. App. LEXIS 14382 (11th Cir. 1995).

Statute of repose for medical malpractice suits under O.C.G.A. § 9-3-71(b) did not violate the equal protection clauses of the federal or Georgia Constitutions. There was a rational basis for treating medical malpractice differently from other forms of professional malpractice and for the five-year repose period itself, based on the considerations that uncertainty over the causes of illness and injury made it difficult for insurers to adequately assess premiums and that the passage of time made it more difficult to determine the cause of injury. Nichols v. Gross, 282 Ga. 811 , 653 S.E.2d 747 , 2007 Ga. LEXIS 871 (2007).

1994 Sign Ordinance. —

The 1994 Sign Ordinance, a comprehensive regulatory framework for the posting of all signs within the City of Atlanta, does not violate equal protection or free speech. Outdoor Sys. v. City of Atlanta, 885 F. Supp. 1572, 1995 U.S. Dist. LEXIS 12185 (N.D. Ga. 1995).

Classification of property as part of Airport Noise Abatement Program. —

Classifications drawn by a city between single-family and multi-family residences as part of its Airport Noise Abatement Program did not violate constitutional guarantees of equal protection. City of Atlanta v. Watson, 267 Ga. 185 , 475 S.E.2d 896 , 1996 Ga. LEXIS 709 (1996).

Mandatory minimum sentences. —

O.C.G.A. § 17-10-6.1 , imposing mandatory minimum sentences in certain cases, does not violate equal protection because the legislation bears a reasonable relationship to the legitimate legislative concern of deterring crime and ensuring that a court imposed sentence will be served in its entirety. Campbell v. State, 268 Ga. 44 , 485 S.E.2d 185 , 1997 Ga. LEXIS 184 (1997).

Exclusion from drug court program did not violate equal protection. —

Defendant was not admitted into a drug court program under O.C.G.A. § 16-13-2(a) not because of the defendant’s HIV status, but because the defendant had a mental illness, was under a doctor’s supervision, and was taking four prescription medications. As the state’s interest in preserving the defendant’s health was rationally related to the state’s decision to exclude the defendant from the program, there was no equal protection violation. Evans v. State, 293 Ga. App. 371 , 667 S.E.2d 183 , 2008 Ga. App. LEXIS 945 (2008).

AIDS testing of convicts. —

O.C.G.A. § 17-10-15(b) does not violate the Fourth Amendment because the government’s interest outweighs the individual’s and the results are kept confidential and cannot be used against the individual in a criminal prosecution; nor does O.C.G.A. § 17-10-15(b) violate the right to privacy under the due process clause of the Fourteenth Amendment or the state or federal equal protection clauses. Adams v. State, 269 Ga. 405 , 498 S.E.2d 268 , 1998 Ga. LEXIS 442 (1998).

Driving under the influence by minor. —

O.C.G.A. § 40-6-391(k) (minor driving under the influence) does not violate the right to equal protection under the federal or state constitutions. Barnett v. State, 270 Ga. 472 , 510 S.E.2d 527 , 1999 Ga. LEXIS 1 (1999).

Purity requirement of drugs. —

O.C.G.A. § 16-13-31(e) did not violate principles of equal protection of the law because the statute contained no purity requirement, as was required for cocaine. Because the legislature was under no duty to treat all drugs and drug offenders the same, the mere fact that cocaine and methamphetamine were both listed as Schedule II controlled substances did not mean that the legislature had to enact identical statutes pertaining to those substances, and the statute treated all those charged with methamphetamine trafficking equally. Hardin v. State, 277 Ga. 242 , 587 S.E.2d 634 , 2003 Ga. LEXIS 889 (2003).

Inheritance through out of wedlock children. —

O.C.G.A. § 53-2-4(b)(2) creates a gender-based classification in violation of the equal protection clauses of both the United States and Georgia Constitutions; it provides that a father of a child born out of wedlock cannot inherit from his child if he failed or refused to openly treat the child as his own, but that a mother who acts in the same manner can inherit from the child, and there is no legitimate state interest achieved by not subjecting mothers of illegitimate children to the same standards of conduct. Rainey v. Chever, 270 Ga. 519 , 510 S.E.2d 823 , 1999 Ga. LEXIS 58, cert. denied, 527 U.S. 1044, 119 S. Ct. 2411 , 144 L. Ed. 2 d 808, 1999 U.S. LEXIS 4558 (1999).

Deprived children. —

Treating deprived children who were placed in the legal custody of the Department of Families and Children Services because there was no relative committed to the child who was available for immediate placement differently from deprived children who did have a committed parent or guardian available for immediate placement did not violate the equal protection clause or Ga. Const. 1983, Art. I, Sec. I, Para. II, as the classes were not similarly situated and the laws were rationally related to the goal of minimizing government intervention while ensuring that children were reared in a familial environment. In the Interest of A.N., 281 Ga. 58 , 636 S.E.2d 496 , 2006 Ga. LEXIS 655 (2006).

Action for termination of parental rights. —

By not raising the issue below, a mother in a termination of parental rights case waived her arguments that the trial court violated equal protection and due process by not determining whether her mental health concerns affected her ability to complete the specific goals in her case plan; moreover, there was uncontradicted evidence that despite her mental health problems, the mother understood the case plan, appreciated its requirements, and could have completed it, but did not do so, and the mother testified that she was able both physically and mentally to care for the child. In the Interest of H.M., 287 Ga. App. 418 , 651 S.E.2d 527 , 2007 Ga. App. LEXIS 985 (2007).

Parents required to pay part of costs of case plan in deprivation. —

In a deprivation proceeding, the department of family and child services did not violate equal protection by requiring the parents to pay part of the costs for services mandated under their case plan. The department was not drawing a distinction between similarly situated parties in that a parent who could afford to contribute financially was not similarly situated to one who could not afford to do so; moreover, even if the parents were similarly situated to others who were not required to pay for a portion of services, the goals served by the contribution requirement of calling for parents to take responsibility for conduct that harmed their children and of increasing the likelihood of success for family reunification represented legitimate governmental purposes. In the Interest of P.N., 291 Ga. App. 512 , 662 S.E.2d 287 , 2008 Ga. App. LEXIS 546 (2008).

Rational basis for disparate treatment of utility companies. —

Trial court properly granted summary judgment to the county, particularly because the telecommunications company did not show its equal protection rights had been violated. Although the telecommunications company argued that the county, through its ordinance, imposed a permit fee on telecommunication companies that it did not charge other utilities, the county was able to show that the telecommunication companies filed for a disproportionately high number of the permits to use the county’s rights of way and also that their installations had caused a disproportionately high amount of damages and disruption in the county, which meant there existed a rational basis for imposing permit fees on telecommunication companies, but not on other utilities. BellSouth Telecomms., Inc. v. Cobb County, 277 Ga. 314 , 588 S.E.2d 704 , 2003 Ga. LEXIS 949 (2003).

Driving under the influence jury charges. —

Equal protection clause was not violated in charging the jury to convict if defendant was under the influence of alcohol to the extent that it was “less safe” for defendant to drive, rather than if defendant was “rendered incapable of driving safely”; the standards were legally equivalent. Johnson v. State, 268 Ga. App. 426 , 602 S.E.2d 177 , 2004 Ga. App. LEXIS 940 (2004).

State conduct is required. —

Former employee’s claims that the employee was dismissed because of expressive activity, failed under both Georgia’s equal protection provisions and freedom of speech guarantees because the former employer and the two managers, were not state actors or private parties acting under the color of state law. Johnson v. Shoney's, Inc., No. 7:04-CV-68, 2005 U.S. Dist. LEXIS 18101 (M.D. Ga. Aug. 18, 2005).

Education. —

Claim that the equal protection clause imposed an obligation on the state to equalize education opportunities, and that education was a “fundamental right” subject to strict scrutiny has been rejected and a trial court properly dismissed a complaint alleging violations of constitutional rights arising from the closing of an elementary school. Williams v. State of Ga., 277 Ga. App. 850 , 627 S.E.2d 891 , 2006 Ga. App. LEXIS 219 (2006).

The mere fact that a defendant who pled guilty was treated differently than one who was convicted after trial did not violate the equal protection clause because the defendants were not similarly situated; thus, the defendant’s equal protection claim, based on the rule requiring that a motion to withdraw a guilty plea be filed in the same term as that in which the defendant was sentenced, failed. Smith v. State, 283 Ga. 376 , 659 S.E.2d 380 , 2008 Ga. LEXIS 304 (2008).

Unpublished decision: Elementary school orchestra and band teachers’ equal protection claims failed because: (1) the school district had a rational basis for treating those teachers and Grades 1 through 3 paraprofessionals differently with regard to which employees would be retained since, inter alia, “teachers” and “paraprofessionals” were treated differently under Georgia law; and (2) the district was not collaterally estopped from defending against the equal protection claims since the district was not subject to offensive, non-mutual collateral estoppel. Demaree v. Fulton County Sch. Dist., 515 Fed. Appx. 859, 2013 U.S. App. LEXIS 6994 (11th Cir. 2013), cert. denied, 571 U.S. 1126, 134 S. Ct. 901 , 187 L. Ed. 2 d 777, 2014 U.S. LEXIS 390 (2014).

O.C.G.A. § 20-2-690.1 did not violate equal protection because the defendant failed to show any potential variation in application of the statute without a rational basis and the statute was reasonably related to the legitimate governmental interest of ensuring that children residing in Georgia are afforded the opportunity of an education. Pitts v. State, 293 Ga. 511 , 748 S.E.2d 426 , 2013 Ga. LEXIS 639 (2013).

O.C.G.A. § 42-1-12 , pertaining to registration of convicted sex offenders, does not violate the concept of equal protection under the law. —

Trial court did not err in revoking a convicted sexual offender’s probation for failing to register an address change after the offender moved into a motel because the offender failed to establish that the offender was treated differently from a similarly situated nonresident sexual offender entering the state; if O.C.G.A. § 42-1-12(e)(7) applies to a hypothetical nonresident sexual offender, that person must update his or her information within 72 hours of a change of address as required in § 42-1-12(f)(5), and any nonresident sexual offender who is required to register by virtue of the specification of § 42-1-12(e)(7) is equally subject to the requirement that he or she register a new address within 72 hours of changing that address and equally subject to being charged with a violation. Dunn v. State, 286 Ga. 238 , 686 S.E.2d 772 , 2009 Ga. LEXIS 736 (2009).

Age classification in criminal statute of limitation tolling provision. —

Supreme Court of Georgia holds that the age classification chosen in the tolling statute of O.C.G.A. § 17-3-2.2 does not violate the Equal Protection clauses of Ga. Const. 1983, Art. I, Sec. I, Para. II, and U.S. Const., amend. XIV. Harper v. State, 292 Ga. 557 , 738 S.E.2d 584 , 2013 Ga. LEXIS 145 (2013).

Classification

Three generally accepted standards for determining constitutionality under equal protection provisions of both United States and state Constitutions: (1) rational relationship test; (2) intermediate level of scrutiny; and (3) strict judicial scrutiny standard. Under the rational relationship test a statutory classification is presumed valid and will comport with constitutional standards as long as it bears a reasonable relationship to a legitimate governmental purpose. Intermediate level of judicial scrutiny requires that the classification be substantially related to an important governmental objective. Under the strict judicial scrutiny standard, which is employed when the classification involves socially stigmatic inequalities, such as those based on race, the governmental classification will fall unless it demonstrates that the classification is necessarily related to a compelling governmental objective. McDaniel v. Thomas, 248 Ga. 632 , 285 S.E.2d 156 , 1981 Ga. LEXIS 1091 (1981).

Strict scrutiny test means that classification is not entitled to usual presumption of validity and that the state bears the burden of proving that classification system “has been structured with ‘precision’ and is ‘tailored’ narrowly to serve legitimate objectives and that it has selected less ‘drastic means’ for effectuating its objectives.” McDaniel v. Thomas, 248 Ga. 632 , 285 S.E.2d 156 , 1981 Ga. LEXIS 1091 (1981).

State has right to classify. —

A very wide discretion must be conceded to the legislative power of the state in the classification of trades, callings, businesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. Nance v. Harrison, 176 Ga. 674 , 169 S.E. 22 , 1933 Ga. LEXIS 251 (1933).

The State of Georgia has an inherent, sovereign right to properly classify all businesses carried on within the state’s borders. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1 , 187 S.E. 648 , 1936 Ga. LEXIS 166 (1936), rev'd, 301 U.S. 459, 57 S. Ct. 838 , 81 L. Ed. 1223 , 1937 U.S. LEXIS 301 (1937).

The right of the legislature to make reasonable classifications of persons and things for the purpose of legislation is clearly recognized by all authorities. The mere fact that legislation is based on a classification, and is made to apply to certain persons and not to others, does not affect its validity, if it be so made that all persons subject to its terms are treated alike under like circumstances and conditions. Rourke v. U.S. Fid. & Guar. Co., 187 Ga. 636 , 1 S.E.2d 728 , 1939 Ga. LEXIS 758 (1939).

Reasonable classification permitted. —

The lawmaking power may classify and provide penalties applicable to different classes, so long as the classification is fair and reasonable, and all coming within the same class are treated alike. Leonard v. American Life & Annuity Co., 139 Ga. 274 , 77 S.E. 41 , 1913 Ga. LEXIS 401 (1913); Commercial Sec. Co. v. Lee, 148 Ga. 597 , 97 S.E. 516 , 1918 Ga. LEXIS 459 (1918); Assets Realization Co. v. Lewis, 150 Ga. 301 , 103 S.E. 463 , 1920 Ga. LEXIS 154 (1920).

The constitutional guaranty of equal protection requires that all persons shall be treated alike under like circumstances and conditions. However, it does not prevent a reasonable classification relating to the purpose of the legislation. Reed v. Hopper, 235 Ga. 298 , 219 S.E.2d 409 , 1975 Ga. LEXIS 859 (1975).

Trial court did not err in denying defendant’s motion in arrest of judgment, as the indictment filed against defendant arising out of the offense of first-degree homicide by vehicle, which contained a predicate offense making it easier to convict defendant because defendant was under 21-years-old and had a blood alcohol concentration of .02 or more at the time of the accident that killed defendant’s passenger, did not violate defendant’s equal protection rights under the state and federal constitutions because the predicate offense did not operate to disadvantage a suspect class or interfere with a fundamental right; rather, it was rationally related to the state’s legitimate purpose in deterring younger, more inexperienced drivers from drinking and driving. David v. State, 261 Ga. App. 468 , 583 S.E.2d 135 , 2003 Ga. App. LEXIS 609 (2003), cert. denied, No. S03C1430, 2003 Ga. LEXIS 881 (Ga. Oct. 6, 2003).

Because the legislative purpose of O.C.G.A. § 51-1-29.5(c) is legitimate, and the classification drawn has some reasonable relation to furthering that purpose, the classification passes constitutional muster, and, although § 51-1-29.5(c) raises the burden of proof in certain cases, it does not deprive one of the right to a jury trial or any other fundamental right. Promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are legitimate legislative purposes, and it is entirely logical to assume that emergency medical care provided in hospital emergency rooms is different from medical care provided in other settings and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals. Gliemmo v. Cousineau, 287 Ga. 7 , 694 S.E.2d 75 , 2010 Ga. LEXIS 218 (2010).

When classification is based on rational distinctions. —

Under the equal protection guarantee of the Georgia Constitution, classification in legislation is permitted when the classification is based on rational distinctions, and the basis of the classification bears a direct and real relation to the object or purpose of the legislation. Cannon v. Georgia Farm Bureau Mut. Ins. Co., 240 Ga. 479 , 241 S.E.2d 238 , 1978 Ga. LEXIS 769 (1978); State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 , 271 S.E.2d 844 , 1980 Ga. LEXIS 1157 (1980); Home Materials, Inc. v. Auto Owners Ins. Co., 250 Ga. 599 , 300 S.E.2d 139 , 1983 Ga. LEXIS 586 (1983).

Classification must have reasonable basis. —

The fact that a revenue or tax-raising statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction. Nance v. Harrison, 176 Ga. 674 , 169 S.E. 22 , 1933 Ga. LEXIS 251 (1933).

Municipal ordinances which are intended to regulate lawful occupations and businesses must be reasonable, otherwise they are void. Bunn v. City of Atlanta, 67 Ga. App. 147 , 19 S.E.2d 553 , 1942 Ga. App. LEXIS 346, cert. denied, 317 U.S. 666, 63 S. Ct. 73 , 87 L. Ed. 535 , 1942 U.S. LEXIS 204 (1942).

Classification is permitted, provided it is made upon reasonable basis. City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759 , 213 S.E.2d 596 , 1975 Ga. LEXIS 1438 (1975).

Classification must relate to object of legislation. —

In order to constitutionally classify for legislation, the basis for classification must relate to the object or purpose of the legislation. City of Atlanta v. Wilson, 209 Ga. 527 , 74 S.E.2d 455 , 1953 Ga. LEXIS 309 (1953); Citizens & S Nat'l Bank v. Mann, 234 Ga. 884 , 218 S.E.2d 593 , 1975 Ga. LEXIS 1314 (1975).

This paragraph allows classification by legislation only when the basis of such classification bears a direct and real relation to the object or purpose of the legislation, and when thus classified, uniformity upon all those coming within the class satisfies the Constitution. Simpson v. State, 218 Ga. 337 , 127 S.E.2d 907 , 1962 Ga. LEXIS 492 (1962).

If the legislative purpose is legitimate and the classification drawn has some reasonable relation to furthering that purpose, the classification passes muster. Wilder v. State, 232 Ga. 404 , 207 S.E.2d 38 , 1974 Ga. LEXIS 964 (1974).

Limitation on income benefits in former Code 1933, § 56-3404, as construed by the Supreme Court and the Court of Appeals, established a constitutionally permissible classification reasonably related to the purposes of the no-fault Act. Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574 , 277 S.E.2d 675 , 1981 Ga. LEXIS 780 (1981).

That employee is entitled to benefits based on employment by hospital bears substantial relationship to purpose of Employment Security Law. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 , 1982 Ga. LEXIS 1100 (1982).

Any reasonable state of facts will sustain classification. —

A classification, even though discriminatory, is not a violation of the equal protection clause of the Fourteenth Amendment if any state of facts reasonably may be conceived that would sustain it. Wilder v. State, 232 Ga. 404 , 207 S.E.2d 38 , 1974 Ga. LEXIS 964 (1974); Citizens & S Nat'l Bank v. Mann, 234 Ga. 884 , 218 S.E.2d 593 , 1975 Ga. LEXIS 1314 (1975); State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 , 271 S.E.2d 844 , 1980 Ga. LEXIS 1157 (1980).

Arbitrary classification not allowed. —

The law recognizes the right and power of a municipal government to make reasonable classifications of subjects for taxation and to make subclassifications of such classes. But it does not permit an arbitrary classification, the basis for which has no reasonable relationship to the purpose for which classification is made. Elder v. Smith, 188 Ga. 65 , 2 S.E.2d 670 , 1939 Ga. LEXIS 784 (1939).

An arbitrary classification, when there exists no real difference as concerns the purpose of the legislation, is not allowed and constitutes a violation of the Constitution notwithstanding an arbitrary attempt to classify and then discriminate as between those in the different classifications. Simpson v. State, 218 Ga. 337 , 127 S.E.2d 907 , 1962 Ga. LEXIS 492 (1962).

Standard for valid classification. —

If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law. Nance v. Harrison, 176 Ga. 674 , 169 S.E. 22 , 1933 Ga. LEXIS 251 (1933).

If the legislature has the power to enact discriminatory legislation, the discrimination is not invalid under the equal protection provision of the Constitution, if not so arbitrary as to be unreasonable and beyond the wide discretion that a legislature may exercise. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1 , 187 S.E. 648 , 1936 Ga. LEXIS 166 (1936), rev'd, 301 U.S. 459, 57 S. Ct. 838 , 81 L. Ed. 1223 , 1937 U.S. LEXIS 301 (1937).

Classification for taxation. —

All that the law requires is that classification of persons who are to be exempt from taxation shall not be arbitrary and unreasonable. Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 752 , 164 S.E.2d 803 , 1968 Ga. LEXIS 938 (1968).

Uniformity within classes satisfies Constitution. —

When a proper basis for classification exists, the law may classify; and uniformity within the classes thus created satisfies the Constitution. Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 752 , 164 S.E.2d 803 , 1968 Ga. LEXIS 938 (1968).

Imperfect classifications not necessarily violative. —

The validity of the state’s classifications does not depend upon their absolute correctness nor upon the absence of any under- or over-inclusiveness in the categories drawn. Wilder v. State, 232 Ga. 404 , 207 S.E.2d 38 , 1974 Ga. LEXIS 964 (1974).

In the area of economics and social welfare, a state does not violate the equal protection clause merely because the classifications made by its laws are imperfect. State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 , 271 S.E.2d 844 , 1980 Ga. LEXIS 1157 (1980).

Mathematical precision not required. —

In its regulation of business and industry, the state is not bound to make classifications which are perfectly symmetrical or mathematically precise, so long as the classifications are not arbitrary or unreasonable. State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 , 271 S.E.2d 844 , 1980 Ga. LEXIS 1157 (1980).

If a classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 , 271 S.E.2d 844 , 1980 Ga. LEXIS 1157 (1980).

Court need not agree with soundness of categories. —

The court must necessarily agree with the soundness of the distinction maintained by the statutory scheme. If the legislative purpose is legitimate and the classification drawn has some reasonable relation to furthering that purpose, the classification passes muster. Wilder v. State, 232 Ga. 404 , 207 S.E.2d 38 , 1974 Ga. LEXIS 964 (1974).

Basis for separate classification of businesses. —

A mere difference in the nature or character of two businesses which it is sought to regulate by legislative enactment will not be sufficient to justify separate classification of each business into different classes. But if a business is affected with a great public interest in which all of the citizens of the state are concerned, and injury will result to the general public unless regulatory control is applied, a right of classification arises on behalf of the general public. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1 , 187 S.E. 648 , 1936 Ga. LEXIS 166 (1936), rev'd, 301 U.S. 459, 57 S. Ct. 838 , 81 L. Ed. 1223 , 1937 U.S. LEXIS 301 (1937).

Distinction between residents and nonresidents is permissible classification. —

An ordinance, which provides that rates for water service shall be higher in territory outside the corporate limits, is not unconstitutional and void as denying equal protection under the federal and state Constitutions. Barr v. City Council, 206 Ga. 753 , 58 S.E.2d 823 , 1950 Ga. LEXIS 570 (1950).

When the city has the right under the city’s charter to furnish water to resident and nonresident users, and to classify the rates for such service, an ordinance, increasing the rates and fixing rates for nonresident users higher than for resident users, is not violative of the equal protection clauses of the federal and state Constitutions. Messenheimer v. Windt, 211 Ga. 575 , 87 S.E.2d 402 , 1955 Ga. LEXIS 396 (1955).

The incest statute’s classification on the basis of step-parent and step-child bears a rational relationship to the governmental interest in protecting children and family unity and does not violate equal protection guarantees. Benton v. State, 265 Ga. 648 , 461 S.E.2d 202 , 1995 Ga. LEXIS 708 (1995), overruled in part, State v. Burns, 306 Ga. 117 , 829 S.E.2d 367 , 2019 Ga. LEXIS 400 (2019).

Classification of procedural rules by amount in controversy permitted. —

Classification by the General Assembly of procedural rules based upon the amount in controversy does not deny poor persons equal protection of the laws under the Georgia and federal Constitutions. Sellers v. Home Furnishing Co., 235 Ga. 831 , 222 S.E.2d 34 , 1976 Ga. LEXIS 1458 (1976).

Population is discriminatory basis for classification. —

Population as the sole basis for the attempted classification of counties to be excluded from the privilege of fishing noncommercially on Sunday is discriminatory and repugnant to this paragraph. McAllister v. State, 220 Ga. 570 , 140 S.E.2d 828 , 1965 Ga. LEXIS 560 (1965).

Present customers and future customers of a utility do not form discrete classes for purposes of equal protection analysis because customers are a constantly fluctuating group. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227 , 319 S.E.2d 824 , 1984 Ga. LEXIS 869 (1984).

O.C.G.A. § 46-2-26.3 does not create an unconstitutional classification although its application is in fact limited to only one power plant, because it is possible to conclude that the section does not confer a special benefit upon the utility. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227 , 319 S.E.2d 824 , 1984 Ga. LEXIS 869 (1984).

Improper classification found. —

Directives which the University System of Georgia’s Board of Regents gave the institutions for calculating pay raises resulted in some faculty members being treated unfairly and not receiving the full pay to which they were entitled under their contracts, and violated the equal protection rights of the affected faculty members, as there was no standard delineating what sets of circumstances would authorize the use of each method, and instead conferred upon the institutions uncontrolled discretion in deciding which of the two methods to use in calculating pay; the classification was also defective in that it drew a line between otherwise identical groups without an objective basis for doing so. Bd. of Regents of the Univ. Sys. v. Rux, 260 Ga. App. 760 , 580 S.E.2d 559 , 2003 Ga. App. LEXIS 312 (2003).

DUI cases ineligible for first offender treatment. —

O.C.G.A. § 40-6-391(f) did not violate equal protection under the Fourteenth Amendment or Ga. Const. 1983, Art. I, Sec. I, Para. II by excluding driving-under-the-influence offenses from First Offender Act, O.C.G.A. § 42-8-60 et seq., coverage. The defendant did not show the absence of a rational relationship between the state’s compelling interest in protecting the public’s safety and the classification; the defendant’s equal protection argument boiled down to no more than the claim that the legislature made a bad policy judgment about which offenders should be eligible for First Offender Act treatment. Rhodes v. State, 283 Ga. 361 , 659 S.E.2d 370 , 2008 Ga. LEXIS 300 (2008).

Judicial Relief

Courts of equity to provide relief. —

If by mistake the constitutional protection provided for in this paragraph is denied the citizen, and it is not voluntarily rectified, courts of equity will command its rectification. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 , 1958 Ga. LEXIS 482 (1958).

A citizen who has been wronged by an arbitrary or capricious exercise of the power to grant licenses may not be prevented from seeking aid from the courts to protect the citizen. Jenkins v. Manry, 216 Ga. 538 , 118 S.E.2d 91 , 1961 Ga. LEXIS 271 (1961).

Consumer has standing to challenge a rate schedule on the ground that the schedule discriminates against the consumer or a class of consumers in violation of the equal protection guarantees of the state and federal Constitutions. Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558 , 212 S.E.2d 628 , 1975 Ga. LEXIS 1375 (1975).

Individuals outside affected class lack standing. —

When none of the petitioners come within the class of individuals who are alleged to have been discriminated against, those petitioners are not in a position to raise the question of violation of this paragraph. Villyard v. Regents of Univ. Sys., 204 Ga. 517 , 50 S.E.2d 313 , 1948 Ga. LEXIS 471 (1948).

Municipal corporation may not protest denial of equal protection. —

A municipal corporation created by the state for the better ordering of government cannot make the point that a provision of the state law is invalid because it denies to the municipality the equal protection of the laws. V.C. Ellington Co. v. City of Macon, 177 Ga. 541 , 170 S.E. 813 , 1933 Ga. LEXIS 352 (1933).

A county or municipal corporation, created by the legislature, does not have standing to invoke the equal protection clause of the state or federal Constitution in opposition to the legislature. City of Atlanta v. Spence, 242 Ga. 194 , 249 S.E.2d 554 , 1978 Ga. LEXIS 1137 (1978).

Collateral source damages provision unconstitutional. —

O.C.G.A. § 51-12-1(b) , which authorizes the admission of evidence of collateral sources of recovery available to a plaintiff seeking special damages for tortious injury, violates the provision of Ga. Const. 1983, Art. I, Sec. I, Para. II, which proclaims that the paramount duty of government is the protection of person and property and that the protection shall be impartial and complete. Denton v. Con-Way S. Express, Inc., 261 Ga. 41 , 402 S.E.2d 269 , 1991 Ga. LEXIS 127 (1991), overruled, Grissom v. Gleason, 262 Ga. 374 , 418 S.E.2d 27 , 1992 Ga. LEXIS 560 (1992).

Police Power

Laws for protection of public permitted. —

To be able to prevent the construction or maintenance of fire hazards is as much within the scope of the general powers of a municipality as the building of a school house. Irwin v. Torbert, 204 Ga. 111 , 49 S.E.2d 70 , 1948 Ga. LEXIS 565 (1948).

The state in the exercise of its police powers may make, repeal, alter, or modify laws for the protection of the public. Bailey v. State, 210 Ga. 52 , 77 S.E.2d 511 , 1953 Ga. LEXIS 465 (1953).

A municipality can, in the exercise of its police power, make reasonable regulations to protect its citizens, including measures designed to preclude the use of water unfit for human consumption or other use. City of Midway v. Midway Nursing & Convalescent Ctr., Inc., 230 Ga. 77 , 195 S.E.2d 452 , 1973 Ga. LEXIS 817 (1973).

Act must bear reasonable relation to public health. —

An Act which, considered as a whole, does not bear any reasonable or substantial relation to the public health, safety, or morality, or other phase of the general welfare, is unconstitutional and void as an exercise of the police power. Bramley v. State, 187 Ga. 826 , 2 S.E.2d 647 , 1939 Ga. LEXIS 771 (1939).

No power to arbitrarily discriminate. —

A municipal government is without power under the “police power” to arbitrarily and without cause discriminate between licensees by revoking one license and not those of others who occupy exactly the same position, since the licensee has something more than a “mere privilege” and is entitled to the equal protection guaranteed by the Constitution. Mayor of Savannah v. Savannah Distrib. Co., 202 Ga. 559 , 43 S.E.2d 704 , 1947 Ga. LEXIS 483 (1947).

State not victim has interest in prosecutions. —

Trial court abused the court’s discretion by dismissing charges alleging that the defendant violated state statutes prohibiting affrays, disrupting a public school, and criminal trespass by fighting on school grounds, over the state’s objection, after defense counsel told the court that school officials wanted the charges dismissed. State v. Perry, 261 Ga. App. 886 , 583 S.E.2d 909 , 2003 Ga. App. LEXIS 803 (2003).

Zoning

Power to zone established. —

The police power of the state to zone property to prevent its use for certain purposes in the future, as distinguished from the taking or damaging in respect to a use already in existence, is not open to question, and does not require the payment of any compensation. National Adv. Co. v. State Hwy. Dep't, 230 Ga. 119 , 195 S.E.2d 895 , 1973 Ga. LEXIS 830 (1973).

Power to zone limited. —

When substantial expenditures are made in the acquisition of property or in preparations for the construction of a building in reliance upon the granting of a permit, vested rights are acquired which cannot be displaced by the passage of a new ordinance. Clairmont Dev. Co. v. Morgan, 222 Ga. 255 , 149 S.E.2d 489 , 1966 Ga. LEXIS 451 (1966).

Criteria for valid zoning ordinances. —

A zoning ordinance does not offend equal protection if it has some fair and substantial relation to the object of the legislation and furnishes a legitimate ground of differentiation. Parking Ass'n v. City of Atlanta, 264 Ga. 764 , 450 S.E.2d 200 , 1994 Ga. LEXIS 899 (1994), cert. denied, 515 U.S. 1116, 115 S. Ct. 2268 , 132 L. Ed. 2 d 273, 1995 U.S. LEXIS 3621 (1995).

Notice and hearing required. —

It is a prerequisite to the validity of a municipal ordinance that notice be given and an opportunity for a hearing be accorded to anyone who has an interest or property right in the property which may be affected by the zoning regulation. Sikes v. Pierce, 212 Ga. 567 , 94 S.E.2d 427 , 1956 Ga. LEXIS 446 (1956).

A zoning ordinance, in which no language appears providing for hearing and notice of hearing to the property affected thereby, is clearly in contravention of the constitutional requirements of due process, and is therefore unconstitutional and void. Bell v. Studdard, 220 Ga. 756 , 141 S.E.2d 536 , 1965 Ga. LEXIS 624 (1965).

Notice by publication of a rezoning hearing is proper and adequate insofar as the requirements of equal protection are concerned. F.P. Plaza, Inc. v. Waite, 230 Ga. 161 , 196 S.E.2d 141 , 1973 Ga. LEXIS 844, cert. denied, 414 U.S. 825, 94 S. Ct. 129 , 38 L. Ed. 2 d 59, 1973 U.S. LEXIS 354 (1973).

Exercise of zoning power to be reasonably and fairly done. —

Municipalities and counties which have had conferred upon them the power to zone property cannot always at one and the same time enact such a comprehensive scheme of zoning and planning as will particularly describe and embrace every piece of property in the entire area of the county or municipality. When reasonably and fairly done, however, such power may be exercised by the enactment of different ordinances affecting different areas at different times. Taylor v. Shetzen, 212 Ga. 101 , 90 S.E.2d 572 , 1955 Ga. LEXIS 561 (1955).

Zoning ordinance which changed rear-yard setback for properties zoned for multi-family use after the date the ordinance was passed but which retained a prior and more restrictive setback requirement for properties zoned prior to that date was arbitrary and unreasonable and, thus, violated the equal protection clauses of the United States and Georgia Constitutions. Bailey Inv. Co. v. Augusta-Richmond County Bd. of Zoning Appeals, 256 Ga. 186 , 345 S.E.2d 596 , 1986 Ga. LEXIS 773 (1986).

Detriment to owner by zoning. —

In a suit by a property buyer against the county alleging that the zoning was unconstitutional, the trial court erred in granting summary judgment to the county on the ground that the owner did not prove a significant detriment, because the evidence authorized inferences that the buyer could not feasibly develop the property for residential use under the current agricultural zoning, and that the property only had economic value for residential uses. Legacy Inv. Group, LLC v. Kenn, 279 Ga. 778 , 621 S.E.2d 453 , 2005 Ga. LEXIS 717 (2005).

Ordinance banning permit applications if two or more ordinance violations existed. —

In a declaratory judgment action brought by a developer against a county seeking to invalidate an ordinance which required denial of the developer’s land disturbance permit based on two soil-related ordinance violations existing, the judgment in favor of the developer was upheld on appeal with regard to the developer’s claim for damages under 42 U.S.C. § 1983 , for alleged violations of the developer’s equal protection rights in the county’s enforcement of the ordinance. The trial court properly determined that the developer was not required to prove a valid property right with regard to the developer’s equal protection challenge; the trial court properly awarded attorney fees to the developer under O.C.G.A. § 13-6-11 as the jury was authorized to award the attorney fees as an element of the damages it awarded on the developer’s federal equal protection claim, regardless of whether the developer could prevail on any state law claim for damages; but the trial court erred by failing to address the merits of the developer’s petition for a declaratory judgment since the overall enforceability of the ordinance, which was still the law, was not rendered moot by the withdrawal notice. Fulton County v. Legacy Inv. Group, LLC, 296 Ga. App. 822 , 676 S.E.2d 388 , 2009 Ga. App. LEXIS 332 (2009).

Taxation

This paragraph does not affect the right of the legislature to tax occupations and to classify the occupations for taxation. Williams v. Fears, 110 Ga. 585 , 35 S.E. 699 , 50 L.R.A. 685 (1900).

Unequal taxation forbidden. —

The discrimination in taxation which the equal protection clause forbids is the failure of the taxing authorities to tax all like property which is subject to taxation equally or to tax the property of one owner and exempt like property belonging to another owner. Delta Air Lines v. Coleman, 219 Ga. 12 , 131 S.E.2d 768 , 1963 Ga. LEXIS 352, cert. denied, 375 U.S. 904, 84 S. Ct. 195 , 11 L. Ed. 2 d 145, 1963 U.S. LEXIS 263 (1963).

Unequal benefit did not violate equal protection. —

County’s approval of a tax assessment of each property in the county in order to pay for medical care for indigent patients did not violate due process and equal protection under U.S. Const., amends. 5 and 14 and under Ga. Const. 1983, Art. I, Sec. I, Paras. I and II even though not all taxpayers benefitted; the question of the benefit to each taxpayer was for the legislature except in extraordinary cases, and the instant case was not extraordinary. Greene County Bd. of Comm'rs v. Higdon, 277 Ga. App. 350 , 626 S.E.2d 541 , 2006 Ga. App. LEXIS 83 (2006), cert. denied, No. S06C1011, 2006 Ga. LEXIS 511 (Ga. July 13, 2006).

Meaning of uniform taxation. —

The requirement in the Constitution that the rule of taxation shall be uniform means that all kinds of property of the same class not absolutely exempt must be taxed alike, by the same standard of valuation, equally with other taxable property of the same class, and coextensively with the territory to which it applies. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 , 1962 Ga. LEXIS 542 (1962).

Property valuation by method other than standard method. —

The uniformity clause of the state constitution and the equal protection clauses of the state and federal Constitutions were not offended by a county’s valuation of a motel by a method other than the standard method for motels, since the motel property was not actually being operated as a motel and there was no income stream from which to calculate room revenue for use with the standard gross income multiplier method. Coastal Equities, Inc. v. Chatham County Bd. of Tax Assessors, 201 Ga. App. 571 , 411 S.E.2d 540 , 1991 Ga. App. LEXIS 1528 (1991), cert. denied, No. S92C0226, 1991 Ga. LEXIS 1023 (Ga. Dec. 4, 1991).

Statute creating special districts for the purpose of implementing a hotel/motel tax did not violate state and federal constitutional due process and equal protection guarantees. Youngblood v. State, 259 Ga. 864 , 388 S.E.2d 671 , 1990 Ga. LEXIS 53 (1990).

County homestead tax exemptions did not violate equal protection. —

County homestead exemptions from ad valorem and education taxes did not violate due process or equal protection because they were rationally related to the legitimate government interests of the encouragement of neighborhood preservation, continuity, and stability, and the protection of reliance interest of existing homeowners, and the limits placed on the exemptions were not arbitrary. Blevins v. Dade County Bd. of Tax Assessors, 288 Ga. 113 , 702 S.E.2d 145 , 2010 Ga. LEXIS 818 (2010).

Ordinance imposing an occupational tax on attorneys. —

City ordinance imposing an occupational tax on attorneys who maintain an office and practice law in the city did not violate constitutional equal protection because the tax paid for a variety of city services that benefited all citizens within the city, including attorneys. It was reasonable for the city to require attorneys with offices inside city limits to help pay for city services from which the attorneys benefit, and all attorneys subject to the ordinance were taxed uniformly. Moss v. City of Dunwoody, 293 Ga. 858 , 750 S.E.2d 326 , 2013 Ga. LEXIS 868 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Inconsistent state action is denial of equal protection. — Allowing students who move into fraternity housing to void their university housing contracts while not extending the same privilege to other students is state action which denies equal protection of the laws. 1971 Op. Att'y Gen. No. 71-93.

Unreasonable restriction on police power. — Requiring state personnel to sign waivers of liability for injuries sustained while carrying out their duties of inspection constitutes an unreasonable restriction on the state’s police power. 1976 Op. Att'y Gen. No. 76-121.

Fulton County’s obligation to accord equal treatment to all superior court judges of the Atlanta Judicial Circuit is applicable to all county funded support services, including staffing (e.g., law clerks, secretaries, court reporters, case managers and the like) and the operating budget required for a superior court judge to properly perform the judge’s constitutional and statutory duties. 2002 Op. Atty Gen. No. U2002-6.

RESEARCH REFERENCES

Am. Jur. Trials. —

Age Discrimination in Employment under ADEA, 75 Am. Jur. Trials 363.

ALR. —

Constitutionality of statute as affected by discrimination in punishment for same offense based upon age, color, or sex, 8 A.L.R. 854 .

Constitutionality of regulations as to milk, 18 A.L.R. 235 ; 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Constitutionality of statutes restricting right of aliens to bear arms, 34 A.L.R. 63 .

Constitutionality of statutes imposing absolute liability on private persons or corporations, irrespective of negligence or breach of a specific statutory duty, for injury to person or property, 53 A.L.R. 875 .

Statute regulating banks and trust companies as special or class legislation, or as denying the equal protection of the laws, 111 A.L.R. 140 .

Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

Exception of existing buildings or businesses from statute or ordinance enacted in exercise of police or license taxing power, as unconstitutional discrimination, 136 A.L.R. 207 .

Racial segregation, 38 A.L.R.2d 1188.

What businesses or establishments fall within state civil rights statute provisions prohibiting discrimination, 87 A.L.R.2d 120.

Preconviction procedure for raising contention that enforcement of penal statute or law is unconstitutionally discriminatory, 4 A.L.R.3d 404.

Validity of statutes restricting political activities of public officers or employees, 28 A.L.R.3d 717.

Indigency of offender as affecting validity of imprisonment as alternative to payment of fine, 31 A.L.R.3d 926.

Racial discrimination in punishment for crime, 40 A.L.R.3d 227.

Validity and construction of statute or ordinance respecting employment of women in places where intoxicating liquors are sold, 46 A.L.R.3d 369.

Zoning provisions protecting landowners who applied for or received building permit prior to change in zoning, 49 A.L.R.3d 1150.

Discrimination in provision of municipal services or facilities as civil rights violation, 51 A.L.R.3d 950.

Application of state law to sex discrimination in sports, 66 A.L.R.3d 1262.

Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination, 85 A.L.R.3d 940.

State laws prohibiting sex discrimination as violated by dress or grooming requirements for customers of establishments serving food or beverages, 89 A.L.R.3d 7.

Validity, construction, and effect of state statutes affording preferential property tax treatment to land used for agricultural purposes, 98 A.L.R.3d 916.

Validity of statutory classifications based on population — tax statutes, 98 A.L.R.3d 1083.

Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.

Identification of jobseeker by race, religion, national origin, sex, or age, in “Situation Wanted” employment advertising as violation of state civil rights laws, 99 A.L.R.3d 154.

Validity of state statutes restricting right of aliens to bear arms, 28 A.L.R.4th 1096.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 A.L.R.4th 702.

Court appointment of attorney to represent, without compensation, indigent in civil action, 52 A.L.R.4th 1063.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

“Guilty but mentally ill” statutes: validity and construction, 71 A.L.R.4th 702.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty, 74 A.L.R.4th 1099.

Power of court or other public agency to order medical treatment over parental religious objections for child whose life is not immediately endangered, 21 A.L.R.5th 248.

Voir dire exclusions of men from state trial jury or jury panel — Post-J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), cases, 88 A.L.R.5th 67.

Federal and state constitutional provisions as prohibiting discrimination in employment on basis of gay, lesbian, or bisexual sexual orientation or conduct, 96 A.L.R.5th 391.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 , 147 L. Ed. 2 d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 , 153 L. Ed. 2 d 556 (2002) to state death penalty proceedings, 110 A.L.R.5th 1.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship, 123 A.L.R.5th 411.

Class-of-one equal protection claims based upon real estate development, zoning, and planning, 68 A.L.R.6th 229.

When intervention as matter of right is appropriate under Rule 24(a)(2) of Federal Rules of Civil Procedure in civil rights action, 132 A.L.R. Fed. 147.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — private employment cases, 150 A.L.R. Fed. 1.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — nonemployment cases, 152 A.L.R. Fed. 1.

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes — public employment cases, 153 A.L.R. Fed. 609.

What constitutes reverse sex or gender discrimination against males violative of federal constitution or statutes — nonemployment cases, 166 A.L.R. Fed. 1.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — public employment cases, 168 A.L.R. Fed. 1.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases, 172 A.L.R. Fed. 1.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases, 178 A.L.R. Fed. 25.

Forcible administration of antipsychotic medication to pretrial detainees — Federal cases, 188 A.L.R. Fed. 285.

Construction and application of constitutional rule of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 , 90 L. Ed. 2 d 69 (1986) — United States Supreme Court cases, 8 A.L.R. Fed. 2d 547.

Paragraph III. Freedom of conscience.

Each person has the natural and inalienable right to worship God, each according to the dictates of that person’s own conscience; and no human authority should, in any case, control or interfere with such right of conscience.

1976 Constitution. —

Art. I, Sec. I, Para. II.

Cross references.

Freedom of speech and religion, U.S. Const., amend. 1.

Declaration of Sunday as a religious holiday, § 1-4-2 .

Common day of rest, § 10-1-570 et seq.

Interference by courts with management of church, § 14-5-45 .

Teaching of divisive concepts in education, § 20-1-11 .

Prohibition against exclusion of persons from University of Georgia on account of religious beliefs, § 20-3-65 .

Freedom from religious discrimination in employment, § 45-19-29 .

Right of employee of county board of health, county department of family and children services, and other governmental agencies to refuse to accept duty of offering family-planning services on religious grounds, § 49-7-6 .

Law reviews.

For article, “Freedoms of the First Amendment in Georgia,” see 15 Ga. B.J. 405 (1953).

For note discussing compulsory medical attention in light of constitutional protection of freedom of religion, see 22 Ga. B.J. 558 (1960).

For note, “Christmas Carols in School Assemblies May Be Constitutional,” see 31 Mercer L. Rev. 627 (1980).

For article, “Religious Liberty Law and the States,” see 3 Ga. St. U.L. Rev. 19 (1987).

For comment, “I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships,” see 59 Emory L.J. 259 (2009).

JUDICIAL DECISIONS

Right to adopt, profess, entertain, or advocate any religious views, or to fail or refuse to do so, is unlimited, and cannot be controlled by any law. There is no authority under the system of jurisprudence to alter, modify, or infringe upon this right. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943).

Acts inimical to societal order not allowed. —

While there is no power to control what a person may believe about religion or the type of religion the person may adopt or profess, there is a power under the law to limit the person’s acts, even though to do such acts may be part of the person’s religious belief. The constitutional guarantee of the exercise of religious freedom does not extend to acts which are inimical to the peace, good order, and morals of society. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943); Ferguson v. City of Moultrie, 71 Ga. App. 15 , 29 S.E.2d 786 , 1944 Ga. App. LEXIS 256 (1944).

Right to exercise religious freedom ceases when others’ rights transgressed. —

A person’s right to exercise religious freedom, which may be manifested by acts, ceases when it overlaps and transgresses the rights of others. Everyone’s rights must be exercised with due regard to the rights of others. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943); Ferguson v. City of Moultrie, 71 Ga. App. 15 , 29 S.E.2d 786 , 1944 Ga. App. LEXIS 256 (1944); Anderson v. State, 84 Ga. App. 259 , 65 S.E.2d 848 , 1951 Ga. App. LEXIS 672 (1951).

When professed creed not subversive of societal order not concern of government. —

So long as professed creed is not subversive of the peace and good order of society, it is not within the province of any department of the government to settle differences in creeds or to determine what ought or ought not to be a fundamental religious belief. Crosby v. Lee, 88 Ga. App. 589 , 76 S.E.2d 856 , 1953 Ga. App. LEXIS 1142 (1953).

Questions of faith and practice not concern of court when civil rights not involved. —

All questions relating to the faith and practice of the church and of its members belong to the church judicatories, to which the members have voluntarily subjected themselves. When a person becomes a member of a church, the person does so upon the condition of submission to its ecclesiastical jurisdiction, and the person has no right to invoke the supervisory power of a civil court so long as none of the person’s civil rights are involved. Crosby v. Lee, 88 Ga. App. 589 , 76 S.E.2d 856 , 1953 Ga. App. LEXIS 1142 (1953).

Communications in proceeding for expulsion from church membership privileged. —

Communications allegedly defaming plaintiff were privileged when made in the course of proceedings expelling a member from a church. Crosby v. Lee, 88 Ga. App. 589 , 76 S.E.2d 856 , 1953 Ga. App. LEXIS 1142 (1953).

Determination of church property rights. —

In a dispute over control of church property, after the trial court found that a genuine issue of material fact existed as to which of the two competing factions represented a majority of the congregation and established a procedure for holding an election to resolve the issue, judgment for the deacons was affirmed since: (1) it appeared that the church meeting may have been manipulated to exclude the deacons and their supporters and that non-members may have been allowed to cast votes, the trial court properly ordered and supervised an election process to determine which faction had majority support of the congregation on the issue of church property; and (2) the trial court did not exceed its authority in violation of Ga. Const. 1983, Art. I, Sec. I, Para. III, as it limited the election procedures to resolving the issue of which faction represented the majority of church members. Howard v. Johnson, 264 Ga. App. 660 , 592 S.E.2d 93 , 2003 Ga. App. LEXIS 1446 (2003).

In a dispute over ownership of a church’s property and assets, a trial court erred by granting summary judgment to the plaintiffs, who claimed to be the majority of the church’s membership, because the record was insufficient to allow the trial court to determine whether the plaintiffs represented a majority of the church. God's Hope Builders, Inc. v. Mount Zion Baptist Church of Oxford, Georgia, Inc., 321 Ga. App. 435 , 741 S.E.2d 185 , 2013 Ga. App. LEXIS 300 (2013).

Ordinance forbidding use of public address system from vehicle on public streets upheld. —

An ordinance forbidding any person, firm, or corporation to operate a loud speaker or public address system from any vehicle on public streets, alleys, or thoroughfares is not an infringement upon the rights of the defendant granted to the defendant by the provisions of the Constitution of the State of Georgia or of the United States. The thoroughfares of cities are maintained by the public and to say that anyone has a constitutional right to use a loud speaker or public address system from any vehicle on these streets seems to overlap and interfere with the constitutional rights of other people. It makes no difference whether the violation is using the loud speaker to broadcast what one terms recorded sermons or using the loud speaker for vending goods or promoting some political candidate or for some other purpose. Brinkman v. City of Gainesville, 83 Ga. App. 508 , 64 S.E.2d 344 , 1951 Ga. App. LEXIS 895 (1951).

Ordinance forbidding sales on certain sidewalks during certain hours reasonable regulation. —

A municipal ordinance making it illegal for any person, firm, or corporation to sell or offer for sale any goods, wares, merchandise, pamphlets, magazines, maps, or other articles of value, on any Saturday between the hours of 12 Noon and 9 P.M. on certain congested sidewalks and setting a penalty is a valid and reasonable regulation for public safety and convenience, under the police power of the city. When the plaintiffs seek to enjoin enforcement of the ordinance against them, on the grounds that the magazines sold and offered for sale are devoted to religious subjects, and advocate the adoption of a particular form of religion, the distribution of which is a part of their religious belief, and urge that to prohibit the sale of the magazines would be in violation of their rights of religious freedom under the state and federal Constitutions, it is not error to deny an injunction. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943).

County commission’s invocational practice. —

County commission’s sectarian invocational practice did not violate the Freedom of Conscience Clause, Ga. Const. 1983, Art. I, Sec. I, Para. III, because county taxpayers and residents failed to persuasively explain how being exposed to prayers with sectarian references interfered with their right of conscience within the meaning of the Georgia Constitution and did not show any government-imposed obstacle to their ability to worship, or not, in a manner that they saw fit. Bats v. Cobb County, 410 F. Supp. 2d 1324, 2006 U.S. Dist. LEXIS 1428 (N.D. Ga. 2006), aff'd, 547 F.3d 1263, 2008 U.S. App. LEXIS 22422 (11th Cir. 2008).

RESEARCH REFERENCES

Am. Jur. 2d. —

16A Am. Jur. 2d, Constitutional Law, § 612 et seq.

C.J.S. —

16A C.J.S., Constitutional Law, § 855 et seq.

ALR. —

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes, 128 A.L.R. 1361 ; 130 A.L.R. 1504 .

Constitutional guaranty of freedom of religion as applied to license taxes or regulations, 141 A.L.R. 538 ; 146 A.L.R. 109 ; 152 A.L.R. 322 .

Power of legislature or school authorities to prescribe and enforce oath of allegiance, salute to flag, or other ritual of a patriotic character, 141 A.L.R. 1030 ; 147 A.L.R. 698 .

Sectarianism in schools, 141 A.L.R. 1144 .

Right of school authorities to release pupils during school hours for purpose of attending religious education classes, 2 A.L.R.2d 1371.

Religious beliefs of parents as defense to prosecution for failure to comply with compulsory education law, 3 A.L.R.2d 1401.

Suspension or expulsion from church or religious society and the remedies therefor, 20 A.L.R.2d 421.

Bible distribution or reading in public schools, 45 A.L.R.2d 742.

Wearing of religious garb by public schoolteachers, 60 A.L.R.2d 300.

Zoning regulations as affecting churches, 74 A.L.R.2d 377; 62 A.L.R.3d 197.

Prayers in public schools, 86 A.L.R.2d 1304.

Power of courts or other public agencies, in the absence of statutory authority, to order compulsory medical care for adult, 9 A.L.R.3d 1391.

Provision of religious facilities for prisoners, 12 A.L.R.3d 1276.

Validity and effect of gift for charitable purposes which excludes otherwise qualified beneficiaries because of their race or religion, 25 A.L.R.3d 736.

Free exercise of religion as defense to prosecution for narcotic or psychedelic drug offense, 35 A.L.R.3d 939.

Erection, maintenance, or display of religious structures or symbols on public property as violation of religious freedom, 36 A.L.R.3d 1256.

Constitutionality, under state constitutional provision forbidding financial aid to religious sects, of public provision of schoolbus service for private school pupils, 41 A.L.R.3d 344.

Validity of blasphemy statutes or ordinances, 41 A.L.R.3d 519.

Censorship of convicted prisoners’ “nonlegal” mail, 47 A.L.R.3d 1192.

Determination of property rights between local church and parent church body: modern view, 52 A.L.R.3d 324.

What constitutes “church,” “religious use,” or the like within zoning ordinance, 62 A.L.R.3d 197.

Right of clergyman appearing in court as professional attorney to be in clerical garb, 84 A.L.R.3d 1143.

Wills: condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith, 89 A.L.R.3d 984.

Validity, under establishment of religion clause of federal or state constitution, of provision making day of religious observance a legal holiday, 90 A.L.R.3d 752.

Religion as factor in child custody and visitation cases, 22 A.L.R.4th 971.

Validity, under state constitutions, of private shopping center’s prohibition or regulation of political, social, or religious expression or activity, 38 A.L.R.4th 1219.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Power of court or other public agency to order medical treatment over parental religious objections for child whose life is not immediately endangered, 21 A.L.R.5th 248.

Constitutionality of teaching or otherwise promoting secular humanism in public schools, 103 A.L.R. Fed. 538.

Constitutionality of regulation or policy governing prayer, meditation, or “moment of silence” in public schools, 110 A.L.R. Fed. 211.

Bible distribution or use in public schools — modern cases, 111 A.L.R. Fed. 121.

Validity, construction, and application of Religious Freedom Restoration Act (42 USCS § 2000bb et seq.), 135 A.L.R. Fed 121.

What constitutes “hybrid rights” claim under Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595 , 108 L. Ed. 2 d 876 (1990), 163 A.L.R. Fed. 493.

Constitutional claims of persons placed on federal government’s no-fly list or other terrorist watch lists, 5 A.L.R. Fed. 3d 5.

Application of federal constitutional guarantees or federal statutory provisions to discipline or punishment of students with disabilities, 12 A.L.R. Fed. 3d 1.

Paragraph IV. Religious opinions; freedom of religion.

No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.

1976 Constitution. —

Art. I, Sec. I, Para. III.

Cross references.

Freedom of religion, U.S. Const., art. VI, para. III, and U.S. Const., amend. 1.

Adult’s reliance on prayer or religious nonmedical means of treatment of dependent, § 15-11-107 .

Elective course in history and literature of the Old and New Testaments, § 20-2-148 .

Moment of quiet reflection in schools, §§ 20-2-1050 and 20-2-1051 .

Prohibition against exclusion of persons from University of Georgia on account of religious beliefs, § 20-3-65 .

Freedom from religious discrimination in employment, § 45-19-29 .

Law reviews.

For article, “Freedoms of the First Amendment in Georgia,” see 15 Ga. B.J. 405 (1953).

For article, “Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,” see 9 Mercer L. Rev. 253 (1958).

For comment, “Jurisdiction over Nonresidents in Georgia: Crowder v. Ginn,” see 17 Ga. L. Rev. 201 (1982).

For note, “Holy Moses: What Do We Do With the Ten Commandments?,” see 57 Mercer L. Rev. 645 (2006).

For comment, “I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships,” see 59 Emory L.J. 259 (2009).

For article, “Religious Symbols on Government Property: Lift High the Cross? Contrasting the New European and American Cases on Religious Symbols on Government Property,” see 25 Emory Int’l L. Rev. 5 (2011).

For comment, “For God and Money: The Place of the Megachurch Within the Bankruptcy Code,” see 27 Emory Bankr. Dev. J. 609 (2011).

For comment, “In Combination: Using Hybrid Rights to Expand Religious Liberty,” see 64 Emory L.J. 1175 (2015).

For article, “Revisiting a Classic Problem in Statutory Interpretation: Is a Minister a Laborer?,” see 36 Ga. St. U.L. Rev. 491 (2020).

JUDICIAL DECISIONS

Right to adopt, profess, entertain, or advocate any religious views, or to fail or refuse to do so, is unlimited, and cannot be controlled by any law. There is no authority under the system of jurisprudence to alter, modify, or infringe upon this right. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943).

Acts inimical to societal order not allowed. —

While there is no power to control what a person may believe about religion or the type of religion a person may adopt or profess, yet there is a power under the law to limit a person’s acts, even though to do such acts may be part of a person’s religious belief. The constitutional guarantee of the exercise of religious freedom does not extend to acts which are inimical to the peace, good order, and morals of society. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943); Ferguson v. City of Moultrie, 71 Ga. App. 15 , 29 S.E.2d 786 , 1944 Ga. App. LEXIS 256 (1944).

Right to exercise religious freedom ceases when others’ rights transgressed. —

A person’s right to exercise religious freedom, which may be manifested by acts, ceases when it overlaps and transgresses the rights of others. Everyone’s rights must be exercised with due regard to the rights of others. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943).

Party’s religious belief cannot be accepted as justification for committing an overt act made criminal by law of the land. Coleman v. City of Griffin, 55 Ga. App. 123 , 189 S.E. 427 , 1936 Ga. App. LEXIS 440 (1936).

Ordinance prohibiting distribution of literature without permission valid. —

Ordinance prohibiting the distributing of literature within the city limits without prior written permission from the city manager did not deprive the defendant, a Jehovah’s Witness, of the defendant’s constitutional right of the free exercise and enjoyment of religious profession and worship, even though it prohibited the defendant from introducing and carrying out a scheme or purpose which the defendant saw fit to claim as a part of the defendant’s religious system. Coleman v. City of Griffin, 55 Ga. App. 123 , 189 S.E. 427 , 1936 Ga. App. LEXIS 440 (1936).

Ordinance forbidding sales on certain sidewalks during certain hours reasonable regulation. —

A municipal ordinance making it illegal for any person, firm, or corporation to sell or offer for sale any goods, wares, merchandise, pamphlets, magazines, maps, or other articles of value, on any Saturday between the hours of 12 Noon and 9 P.M. on certain congested sidewalks and setting a penalty is a valid and reasonable regulation for public safety and convenience, under the police power of the city. When plaintiffs seek to enjoin enforcement of the ordinance against them, on the grounds that the magazines sold and offered for sale are devoted to religious subjects and advocate the adoption of a particular form of religion, the distribution of which is a part of their religious belief, and urge that to prohibit the sale of the magazines would be in violation of their rights of religious freedom under the state and federal Constitutions, it is not error to deny an injunction. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 , 1943 Ga. LEXIS 388 (1943).

Civil courts forbidden from determining ecclesiastical issues. —

Courts of Georgia are prohibited from determining issues of expulsion of members, pastors, and the internal procedures of a religious entity. United Baptist Church, Inc. v. Holmes, 232 Ga. App. 253 , 500 S.E.2d 653 , 1998 Ga. App. LEXIS 556 (1998).

Trial court did not involve itself in ecclesiastical matters in church property dispute case. —

A trial court did not violate the principle of separation of church and state by exercising jurisdiction in a civil case brought by a church and its board of deacons against the pastor and others to have the pastor removed and to have the pastor relinquish control of the church’s property because the trial court did not involve itself in ecclesiastical matters when it ordered that persons eligible to vote on whether to retain or discharge the pastor were limited to those in membership with the church under the church’s existing bylaws. Further, because the petition in the case involved a dispute over the control of church property, it presented a civil matter over which the trial court had jurisdiction. Smith v. Mount Salem Missionary Baptist Church, 289 Ga. App. 578 , 657 S.E.2d 642 , 2008 Ga. App. LEXIS 154 (2008).

Depiction of ten commandments on seal not violation. —

Court’s seal used to authenticate legal documents did not violate the establishment clause when it depicted the ten commandments with a sword on a relatively small and discreet seal and the text of the ten commandments did not appear. King v. Richmond County, 331 F.3d 1271, 2003 U.S. App. LEXIS 10943 (11th Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

Statutory provisions deemed constitutional. — The “respect for the creator” portion of the character education program authorized by O.C.G.A. § 20-2-145 and the provision of O.C.G.A. § 50-3-4.1 allowing display of the motto “In God We Trust” in public do not violate the separation of church and state provisions of either the state or federal Constitution. 2000 Op. Atty Gen. No. 00-9.

RESEARCH REFERENCES

Am. Jur. 2d. —

16A Am. Jur. 2d, Constitutional Law, § 432 et seq.

ALR. —

Right of association to expel or discipline member for exercising a right, or performing duty, as a citizen, 14 A.L.R. 1446 .

Power of legislature or school authorities to prescribe and enforce oath of allegiance, “salute to flag,” or other ritual of a patriotic character, 120 A.L.R. 655 ; 127 A.L.R. 1502 ; 141 A.L.R. 1030 ; 147 A.L.R. 698 .

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes, 128 A.L.R. 1361 ; 130 A.L.R. 1504 .

Use of streets or parks for religious purposes, 133 A.L.R. 1402 .

Constitutional guaranty of freedom of religion as applied to license taxes or regulations, 141 A.L.R. 538 ; 146 A.L.R. 109 ; 152 A.L.R. 322 .

Sectarianism in schools, 141 A.L.R. 1144 .

Race or religious belief as permissible consideration in choosing tenants or purchasers of real estate, 14 A.L.R.2d 153.

Wearing of religious garb by public schoolteachers, 60 A.L.R.2d 300.

Defamatory nature of statements reflecting on plaintiff’s religious beliefs, standing, or activities, 87 A.L.R.2d 453.

Validity and effect of gift for charitable purposes which excludes otherwise qualified beneficiaries because of their race or religion, 25 A.L.R.3d 736.

Validity of vagrancy statutes and ordinances, 25 A.L.R.3d 792.

Validity of loitering statutes and ordinances, 25 A.L.R.3d 836.

Erection, maintenance, or display of religious structures or symbols on public property as violation of religious freedom, 36 A.L.R.3d 1256.

Validity of blasphemy statutes or ordinances, 41 A.L.R.3d 519.

Censorship of convicted prisoners’ “nonlegal” mail, 47 A.L.R.3d 1192.

Religion as factor in adoption proceedings, 48 A.L.R.3d 383.

Topless or bottomless dancing or similar conduct as offense, 49 A.L.R.3d 1084.

Determination of property rights between local church and parent church body: modern view, 52 A.L.R.3d 324.

Power of court to impose standard of personal appearance or attire, 73 A.L.R.3d 353.

Criminal offenses under statutes and ordinances regulating charitable solicitations, 76 A.L.R.3d 924.

Right of clergyman appearing in court as professional attorney to be in clerical garb, 84 A.L.R.3d 1143.

Wills: condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith, 89 A.L.R.3d 984.

Regulation of astrology, clairvoyancy, fortunetelling, and the like, 91 A.L.R.3d 766.

Religious belief, affiliation, or prejudice of prospective jurors as proper subject of inquiry or grounds for challenge on voir dire, 95 A.L.R.3d 172.

Validity, under federal and state establishment of religion provisions, of prohibition of sale of intoxicating liquors on specific religious holidays, 27 A.L.R.4th 1155.

Validity, under state constitutions, of private shopping center’s prohibition or regulation of political, social, or religious expression or activity, 38 A.L.R.4th 1219.

Validity of local or state denial of public school courses or activities to private or parochial school students, 43 A.L.R.4th 776.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Power of court or other public agency to order medical treatment over parental religious objections for child whose life is not immediately endangered, 21 A.L.R.5th 248.

Judicial construction and application of state legislation prohibiting religious discrimination in employment, 37 A.L.R.5th 349.

Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number, 93 A.L.R.5th 1.

First amendment challenges to display of religious symbols on public property, 107 A.L.R.5th 1.

Landlord’s refusal to rent to unmarried couple as protected by landlord’s religious beliefs, 10 A.L.R.6th 513.

Wearing of religious symbols in courtroom as protected by first amendment, 18 A.L.R.6th 775.

State constitutional challenges to the display of religious symbols on public property, 26 A.L.R.6th 145.

Constitutionality of legislative prayer practices, 30 A.L.R.6th 459.

Application of First Amendment’s “ministerial exception” or “ecclesiastical exception” to state civil rights claims, 53 A.L.R.6th 569.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights, 65 A.L.R.6th 93.

Constitutionality of teaching or suppressing teaching of Biblical creationism or Darwinian evolution theory in public schools, 102 A.L.R. Fed. 537.

Constitutionality of teaching or otherwise promoting secular humanism in public schools, 103 A.L.R. Fed. 538.

Constitutionality of regulation or policy governing prayer, meditation, or “moment of silence” in public schools, 110 A.L.R. Fed. 211.

Bible distribution or use in public schools — modern cases, 111 A.L.R. Fed. 121.

Validity, construction, and application of Religious Freedom Restoration Act (42 USCS § 2000bb et seq.), 135 A.L.R. Fed 121.

What constitutes “hybrid rights” claim under Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595 , 108 L. Ed. 2 d 876 (1990), 163 A.L.R. Fed. 493.

Prohibition of federal agency’s keeping of records on methods of individual exercise of First Amendment rights, under Privacy Act of 1974 ( 5 U.S.C. § 552 a(e)(7)), 20 A.L.R. Fed. 2d 437.

Ineffective assistance of counsel in removal proceedings — Particular acts, 59 A.L.R. Fed. 2d 151.

Comment note: ineffective assistance of counsel in removal proceedings — particular acts, 59 A.L.R. Fed. 2d 151.

Validity, application, and construction of religion-based challenges to health insurance contraceptive coverage mandated by Patient Protection and Affordable Care Act preventive services requirement, 42 U.S.C.A § 300gg-13(a)(4), and its regulations, 82 A.L.R. Fed. 2d 585.

Prisoner beard regulations as religious discrimination under First Amendment or Religious Land Use and Institutionalized Persons Act, 93 A.L.R. Fed. 2d 439.

Constitutional claims of persons placed on federal government’s no-fly list or other terrorist watch lists, 5 A.L.R. Fed. 3d 5.

Application of federal constitutional guarantees or federal statutory provisions to discipline or punishment of students with disabilities, 12 A.L.R. Fed. 3d 1.

Free Exercise Clause of First Amendment — U.S. Supreme Court Cases, 37 A.L.R. Fed. 3d Art. 12.

Paragraph V. Freedom of speech and of the press guaranteed.

No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.

1976 Constitution. —

Art. I, Sec. I, Para. IV.

Cross references.

Liberty of speech or of the press generally, U.S. Const., amend. 1.

Invasion of privacy through electronic mediums, T. 16, C. 11, Pt. 3.

Limits to free speech: abusive or obscene language, §§ 16-5-25 , 16-11-39 , 16-11-39.1 , and 38-2-549.

Publication of name or identity of female raped or assaulted with intent to commit rape, § 16-6-23 .

False alarms, § 16-10-27 et seq.

Inciting insurrection, § 16-11-3 et seq.

Exercise of rights of freedom of speech and right to petition government for redress of grievances; legislative findings; verification of claims; definitions; procedure on motions; exception; attorney’s fees and expenses, § 9-11-11.1 .

Illegal advertising, § 16-11-26 et seq.

Terroristic threats or acts, § 16-11-37 .

Defamation, § 16-11-40 .

Disclosure of information obtained in business of preparing federal or state income tax returns or assisting in preparation, § 16-11-81 .

Obscene publications, §§ 16-12-80 et seq. and 36-60-3 .

Teaching of divisive concepts in education, § 20-1-11 .

Forming Open and Robust University Minds Act, P. 1D, A. 2, Ch. 3, T. 20.

Open and public meetings, § 50-14-1 et seq.

Newspaper libel, § 51-5-2 .

Slander, § 51-5-4 .

Law reviews.

For article, “Freedoms of the First Amendment in Georgia,” see 15 Ga. B.J. 405 (1953).

For article discussing the weaknesses in Georgia statutes prohibiting lobbying, and the effect of such law on lawyers, see 5 Mercer L. Rev. 311 (1954).

For article, “Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,” see 9 Mercer L. Rev. 253 (1958).

For comment on Atlanta Newspapers, Inc. v. State, 101 Ga. App. 105 , 113 S.E.2d 148 (1960), appearing below, see 12 Mercer L. Rev. 284 (1960).

For comment on Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 , 114 S.E.2d 421 (1960), see 23 Ga. B.J. 406 (1961).

For comment on Atlanta v. Twentieth Century-Fox Film Corp., 219 Ga. 271 , 133 S.E.2d 12 (1963), see 26 Ga. B.J. 475 (1964).

For note on defamation in radio and television, see 15 Mercer L. Rev. 450 (1964).

For comment on City of Atlanta v. Twentieth Century-Fox Film Corp., 219 Ga. 271 , 133 S.E.2d 12 (1963), and movie censorship with regard to freedom of speech and press, see 15 Mercer L. Rev. 514 (1964).

For note on broadcast negligence and the first amendment, see 33 Mercer L. Rev. 423 (1981).

For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982).

For annual survey of constitutional law, see 35 Mercer L. Rev. 73 (1983).

For article, “Contempt of Court in Georgia,” see 23 Ga. St. B.J. 66 (1987).

For comment, “The Reporter’s Privilege in Georgia: ‘Qualified’ to do the Job?,” see 9 Ga. St. U.L. Rev. 495 (1993).

For comment, “You’ve Got Libel: How the Can-Spam Act Delivers Defamation Liability to Spam-Fighters and Why the First Amendment Should Delete the Problem,” see 58 Emory L.J. 1013 (2009).

For article, “ ‘I’m Not Gay, M’Kay?’: Should Falsely Calling Someone a Homosexual be Defamatory?,” see 44 Ga. L. Rev. 739 (2010).

For note, “A Bridge Too Far? Directive 1344.10 and the Military’s Inroads on Core Political Speech in Campaign Media,” see 44 Ga. L. Rev. 837 (2010).

For article, “Bullying in Public Schools: The Intersection Between the Student’s Free Speech Rights and the School’s Duty to Protect,” see 62 Mercer L. Rev. 407 (2011).

For comment, “Room for Error Online: Revising Georgia’s Retraction Statute to Accommodate the Rise of Internet Media,” see 28 Ga. St. U.L. Rev. 923 (2012).

For annual survey on local government law, see 64 Mercer L. Rev. 213 (2012).

For comment, “State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms,” see 69 Emory L.J. 111 (2019).

For comment, “Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police,” see 71 Mercer L. Rev. 1125 (2020).

JUDICIAL DECISIONS

Analysis

General Consideration

No absolute right to speak or publish. —

It is a fundamental principle, long established that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Carr v. State, 176 Ga. 55 , 166 S.E. 827 , 1932 Ga. LEXIS 383 (1932).

Exercise of freedom must be compatible with preservation of other essential, guaranteed freedoms. —

Freedom of speech and of the press, as guaranteed by the Constitution, is essential to the preservation of a free society; but its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by the Constitution. The independence of the judiciary and the fair and impartial administration of justice are also necessary to a free society. Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 , 1960 Ga. LEXIS 485 (1960).

Free speech does not necessarily exempt one from regulation, license, or payment of tax, which, under some other theory of law, is a protected public or private right. That which may be a permissible regulation even though it restricts the right of free speech to some extent must bear some genuine and reasonable relation to the general welfare, and to the public health, safety, or morals. Wolfe v. City of Albany, 104 Ga. App. 264 , 121 S.E.2d 331 , 1961 Ga. App. LEXIS 656 (1961).

Free speech does not give one right to malign another or do act injurious to another’s person or property. Wolfe v. City of Albany, 104 Ga. App. 264 , 121 S.E.2d 331 , 1961 Ga. App. LEXIS 656 (1961).

Restraints on freedom of speech must be reasonably related to community welfare. —

When there is no reasonable relationship between the restraints imposed on freedom of speech and the general welfare of the community, the ordinance is unconstitutional. Wolfe v. City of Albany, 104 Ga. App. 264 , 121 S.E.2d 331 , 1961 Ga. App. LEXIS 656 (1961).

All speech and press that lie outside of an “abuse of that liberty” are protected by this paragraph. The protection is absolute and cannot be abridged, curtailed, or restrained in any degree for any period of time no matter how short. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784 , 125 S.E.2d 207 , 1962 Ga. LEXIS 392 (1962).

Abuses of liberty may be suppressed, restrained, enjoined, or punished. —

“Abuses of that liberty” are outside the protection of the Constitution and may be suppressed, restrained, enjoined, or punished without violating the Constitution, provided constitutional means for so doing are employed. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784 , 125 S.E.2d 207 , 1962 Ga. LEXIS 392 (1962).

No prior restraints upon publications but no freedom from censure when criminal matter published. —

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free person has an undoubted right to lay what sentiments the person pleases before the public; to forbid this, is to destroy the freedom of the press; but if the person publishes what is improper, mischievous, or illegal, the person must take the consequence of the person’s own temerity. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389, 1972 U.S. Dist. LEXIS 15272 (M.D. Ga. 1972), aff'd, 482 F.2d 280, 1973 U.S. App. LEXIS 8695 (5th Cir. 1973).

Liberty of the press was intended to prevent all previous restraints upon publications as had been practiced by other governments, and in early times, to stifle the efforts of patriots to enlighten their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but one who used it was to be responsible in case of its abuse. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389, 1972 U.S. Dist. LEXIS 15272 (M.D. Ga. 1972), aff'd, 482 F.2d 280, 1973 U.S. App. LEXIS 8695 (5th Cir. 1973).

When injunction not invalid as illegal prior restraint. —

If prior to the issuance of an injunction an adequate determination is made that certain communication is unprotected by constitutional provisions safeguarding freedom of speech; that the order is based on a continuing course of repetitive conduct; and that the order is clear and sweeps no more broadly than necessary, then the injunction is not invalid as an illegal prior restraint. Retail Credit Co. v. Russell, 234 Ga. 765 , 218 S.E.2d 54 , 1975 Ga. LEXIS 1253 (1975).

Regulatory statute not intended to control content of speech upheld when justified by valid governmental interest. —

The freedom of expression guaranteed under the Constitution has been consistently recognized as being narrower than an unlimited license to talk; and regulatory statutes not intended to control the content of speech but incidentally limiting its unfettered exercise are not regarded as violating the constitutional guarantee when justified by a valid governmental interest. Hodnett v. City of Atlanta, 145 Ga. App. 285 , 243 S.E.2d 605 , 1978 Ga. App. LEXIS 1951 (1978).

State conduct is required. —

Former employee’s claim that the employee was dismissed because of expressive activity, failed under both Georgia’s equal protection provisions and freedom of speech guarantees because the former employer and the two managers, were not state actors or private parties acting under the color of state law. Johnson v. Shoney's, Inc., No. 7:04-CV-68, 2005 U.S. Dist. LEXIS 18101 (M.D. Ga. Aug. 18, 2005).

Freedom of the Press

Newspaper libel as limitation on publication privilege. —

Certain newspaper publications are privileged; but the privilege is conditional, not absolute; and the “liberty of the press” will not authorize a violation of O.C.G.A. § 51-5-2 . Horton v. Georgian Co., 175 Ga. 261 , 165 S.E. 443 , 1932 Ga. LEXIS 231, vacated, 45 Ga. App. 525 , 165 S.E. 450 , 1932 Ga. App. LEXIS 599 (1932).

Libel is abuse of liberty of press for which laws of state hold press answerable in damages. McGill v. State, 209 Ga. 500 , 74 S.E.2d 78 , 1953 Ga. LEXIS 294 (1953).

Liberty of press is subordinate to independence of judiciary and proper administration of justice. McGill v. State, 209 Ga. 500 , 74 S.E.2d 78 , 1953 Ga. LEXIS 294 (1953); Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 , 114 S.E.2d 421 , 1960 Ga. LEXIS 391 (1960); Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 , 1960 Ga. LEXIS 485 (1960).

Obstructing administration of justice by state courts is abuse of liberty of speech and of press. —

Constitution of Georgia guarantees the liberty of speech and of the press, but does not protect an abuse of that liberty. Obstructing the administration of justice by the courts of this state is an abuse of that liberty and will subject the abuser to punishment for contempt of court. McGill v. State, 209 Ga. 500 , 74 S.E.2d 78 , 1953 Ga. LEXIS 294 (1953); Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 , 1960 Ga. LEXIS 485 (1960).

Liberty of the press is not synonymous with license, and it does not give the press any right or license to publish libelous matter without responsibility to those who are innocent victims of such libelous publication. Freedom of the press gives the right to print the truth and to comment fairly about the truth; freedom of the press does not give a license to print untruths or half-truths, which are equivalent to untruths and which, in their effect on a person’s character and reputation are often more damaging and devastating than would be an outright falsehood. Davis v. Macon Tel. Publishing Co., 93 Ga. App. 633 , 92 S.E.2d 619 , 1956 Ga. App. LEXIS 821 (1956).

Courts may stop press when interfering with conducting court proceedings. —

Courts may stop conduct of representatives of the press in any field of activity interfering with orderly conduct of court procedure or creating distractions interfering therewith. Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 , 114 S.E.2d 421 , 1960 Ga. LEXIS 391 (1960) (commented on in 23 Ga. B.J. 406 (1961)).

When restraint upon newspaper’s liberty of speech and of press unwarranted. —

A restraining order which prohibited a newspaper from publishing any information on an alleged suspect in a murder case obtained through discovery without the newspaper’s first following a procedure of notifying the court of its intent to disclose any information and obtaining the permission of the court to disclose the information in the event an objection was filed constituted an unwarranted restraint upon the newspaper’s liberty of speech and of the press. Georgia Gazette Publishing Co. v. Ramsey, 248 Ga. 528 , 284 S.E.2d 386 , 1981 Ga. LEXIS 1064 (1981).

No right to keep news source confidential. —

The guaranty of freedom of the press does not afford a reporter a right not to disclose a confidential news source. Vaughn v. State, 259 Ga. 325 , 381 S.E.2d 30 , 1989 Ga. LEXIS 324 (1989).

Liberty of the press balanced against right to privacy. —

Newspaper articles naming a high school student as the victim of a vicious attack by fellow students, and containing a graphic description of the attack, were not an actionable invasion of privacy, in light of the public’s legitimate interest in the arrest and prosecution of the perpetrators. Tucker v. News Publishing Co., 197 Ga. App. 85 , 397 S.E.2d 499 , 1990 Ga. App. LEXIS 1181 (1990).

Publishing 20-year-old nude photos of an aspiring model who later became a professional wrestler and whose murder was highly publicized did not fall within Georgia’s right of publicity newsworthiness exception; the photos were unrelated to the incident of public concern, the model’s death, and thus, a right of publicity case filed by the plaintiff, the mother and personal representative for the model’s estate, against the defendant publisher, could be pursued; under the First Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. V, every private fact disclosed in an otherwise truthful, newsworthy publication had to have some substantial relevance to a matter of legitimate public interest in order to fall within the newsworthiness exception. Toffoloni v. LFB Publ'g Group, 572 F.3d 1201, 2009 U.S. App. LEXIS 14135 (11th Cir. 2009), cert. denied, 559 U.S. 988, 130 S. Ct. 1689 , 176 L. Ed. 2 d 206, 2010 U.S. LEXIS 1920 (2010).

Newspaper acted with actual malice. —

Given that defendants, a newspaper, its editor, and a columnist, so doubted the truthfulness of their articles (alleging that a deputy sheriff beat an arrestee to death with a flashlight) that they refused to print contradictory versions of the events, actual malice could be inferred; as a result, the trial court properly denied their motions for a directed verdict and awarded compensatory and punitive damages to a deputy sheriff in the deputy’s libel action. Lake Park Post, Inc. v. Farmer, 264 Ga. App. 299 , 590 S.E.2d 254 , 2003 Ga. App. LEXIS 1467 (2003), cert. denied, No. S04C0630, 2004 Ga. LEXIS 373 (Ga. Apr. 27, 2004), cert. denied, 543 U.S. 875, 125 S. Ct. 104 , 160 L. Ed. 2 d 125, 2004 U.S. LEXIS 6635 (2004).

Plaintiff failed to prove newspaper acted with actual malice. —

Former police officer sued a newspaper for libel based on a letter to the editor the newspaper printed. As a public figure, the officer had to establish actual malice on the part of the newspaper under O.C.G.A. § 51-5-7(9) and New York Times Co. v. Sullivan, 376 U.S. 254 (1964), but failed to do so because the statements at issue were opinions that were not susceptible of being proved true or false. Evans v. Sandersville Georgian, Inc., 296 Ga. App. 666 , 675 S.E.2d 574 , 2009 Ga. App. LEXIS 307 (2009).

Application
1.In General

State may penalize utterances openly advocating overthrow of government. —

A state may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several states, by violence or other unlawful means. Carr v. State, 176 Ga. 55 , 166 S.E. 827 , 1932 Ga. LEXIS 383 (1932).

Freedom of speech and press does not protect disturbances to public peace or attempt to subvert government. —

Freedom of speech and press does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. Carr v. State, 176 Ga. 55 , 166 S.E. 827 , 1932 Ga. LEXIS 383 (1932).

Constitutionality of false statement statute. —

False statement statute, O.C.G.A. § 16-10-20 , when properly construed to require that the defendant make the false statement with knowledge and intent that the statement may come within the jurisdiction of a state or local government agency, is constitutional because correctly interpreted, the statute raises no substantial constitutional concern on the statute’s face; the statute requires a defendant to know and intend, that is, to contemplate or expect, that his or her false statement will come to the attention of a state or local department or agency with the authority to act on the statement, and as properly construed, O.C.G.A. § 16-10-20 may only be applied to conduct that persons of common intelligence would know was wrongful because the statement could result in harm to the government. Haley v. State, 289 Ga. 515 , 712 S.E.2d 838 , 2011 Ga. LEXIS 556 (2011), cert. denied, 567 U.S. 952, 133 S. Ct. 60 , 183 L. Ed. 2 d 711, 2012 U.S. LEXIS 4896 (2012).

Ordinance forbidding use of public address system from vehicle on public streets upheld. —

An ordinance forbidding any person, firm, or corporation to operate a loud speaker or public address system from any vehicle on public streets, alleys, or thoroughfares is not an infringement upon the rights of the defendant granted to the defendant by the provisions of the Constitution of Georgia or of the United States. The thoroughfares of cities are maintained by the public and to say that anyone has a constitutional right to use a loud speaker or public address system from any vehicle on these streets seems to overlap and interfere with the constitutional rights of other people. It makes no difference whether the violator is using the loud speaker to broadcast what the violator terms recorded sermons, or using the loud speaker for vending goods, or promoting some political candidate, or for some other purpose. Brinkman v. City of Gainesville, 83 Ga. App. 508 , 64 S.E.2d 344 , 1951 Ga. App. LEXIS 895 (1951).

Ordinance regulating the volume of noise upheld. —

Local ordinance regulating the volume of noise from mechanical sound-making devices, Athens-Clarke County, Ga. Ordinance § 3-5-24(c)(2)(a) , did not violate Ga. Const. 1983, Art. I, Sec. I, Para. V since the ordinance served a significant government interest in protecting both the community in general and individual citizens from noises which could have affected their comfort, repose, health, or safety, the provision left open ample alternatives for expression, and the ordinance was the least restrictive means of promoting the county’s significant interest in protecting the comfort and repose of the county’s citizens. Grady v. Unified Gov't of Athens-Clarke County, 289 Ga. 726 , 715 S.E.2d 148 , 2011 Ga. LEXIS 653 (2011).

Vagueness finding reversed since party lacked standing to challenge constitutionality of county zoning provision. —

Because a lessor and a lessee did not preserve an “as applied” challenge to two county zoning code provisions, did not seek a special use permit, and lacked standing to make a constitutional challenge, the trial court erred in finding the provisions unconstitutionally vague, regardless of whether they had an otherwise viable facial challenge. Catoosa County v. R.N. Talley Props., LLC, 282 Ga. 373 , 651 S.E.2d 7 , 2007 Ga. LEXIS 524 (2007).

Malevolent picketing to injure employer and aid unlawful strike not constitutionally protected. —

The judicial theory that peaceful picketing is a form of free speech, which is protected by the Constitutions, both federal and state, cannot be stretched to shield malevolent picketing for the purpose of injuring the employer and aiding an unlawful strike. Ellis v. Parks, 212 Ga. 540 , 93 S.E.2d 708 , 1956 Ga. LEXIS 437 (1956); NAACP v. Overstreet, 221 Ga. 16 , 142 S.E.2d 816 , 1965 Ga. LEXIS 369 (1965), cert. dismissed, 384 U.S. 118, 86 S. Ct. 1306 , 16 L. Ed. 2 d 409, 1966 U.S. LEXIS 2833 (1966).

Prohibition against showing motion pictures until permit obtained held unconstitutional. —

A charter and ordinance provision, requiring inspection of protected as well as unprotected pictures, and requiring a permit from the city authorities before any picture can be exhibited in the theater, violate this paragraph and are void. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784 , 125 S.E.2d 207 , 1962 Ga. LEXIS 392 (1962).

A section of a city’s charter amending act and an ordinance of the city adopted pursuant thereto which prohibit the display of all motion pictures, the good as well as the bad, until a permit to display any of them has been obtained from the city’s Board of Censorship offend this section of Georgia’s Constitution since the section of the charter amending act authorizes, and the ordinance imposes, a prior restraint of speech on good as well as bad or objectionable pictures. City of Atlanta v. Twentieth Century-Fox Film Corp., 219 Ga. 271 , 133 S.E.2d 12 , 1963 Ga. LEXIS 428 (1963) (commented on in 26 Ga. B.J. 475 (1964)).

Government-instituted proceeding must place defendant exhibitor or seller on notice as to what film or publication the defendant has exhibited, sold, or held for sale that the government seeks to seize or suppress. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 , 1974 Ga. LEXIS 1160 (1974).

Non-disparagement clause was not a restraint on free speech. —

Interlocutory injunction enforcing a non-disparagement clause in the parties’ agreement was not an impermissible prior restraint on free speech because the parties could waive the free speech protections. Wood v. Wade, 363 Ga. App. 139 , 869 S.E.2d 111 , 2022 Ga. App. LEXIS 54 (2022).

Freedom of teachers to comment upon matters of public importance and concern. —

The question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the school board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question, free and open debate is vital to informed decision-making by the electorate; teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent; accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal. Lindsey v. Board of Regents, 607 F.2d 672, 1979 U.S. App. LEXIS 10128 (5th Cir. 1979).

When a questionnaire solicits the views of faculty on a broad range of issues, such as the degree of mutual confidence existing between administration and faculty, the extent to which good teaching and good research are rewarded, the extent to which faculty opinions are listened to and respected, the effectiveness of the administration in dealing with grievances, the accuracy and completeness of information used to evaluate teachers, and other matters that are of public importance and concern, comment upon them is protected speech. Lindsey v. Board of Regents, 607 F.2d 672, 1979 U.S. App. LEXIS 10128 (5th Cir. 1979).

Former school district employee’s claim that the right to free speech under Ga. Const. 1983, Art. I, Sec. I, Para. V was violated when the employee was terminated after complaining of discriminatory acts by a Superintendent was dismissed upon summary judgment because the employee’s speech did not involve a matter of public concern but was related to the employee’s own private interest in receiving benefits and a certain pay level. Palmer v. Stewart County Sch. Dist., No. 4:04-CV-21, 2005 U.S. Dist. LEXIS 35511 (M.D. Ga. June 17, 2005), aff'd in part, vacated in part, 178 Fed. Appx. 999, 2006 U.S. App. LEXIS 11663 (11th Cir. 2006).

When restraint upon newspaper’s liberty of speech and of press unwarranted. —

A restraining order which prohibited a newspaper from publishing any information on an alleged suspect in a murder case obtained through discovery without the newspaper’s first following a procedure of notifying the court of its intent to disclose any information and obtaining the permission of the court to disclose the information in the event an objection was filed constituted an unwarranted restraint upon the newspaper’s liberty of speech and of the press. Georgia Gazette Publishing Co. v. Ramsey, 248 Ga. 528 , 284 S.E.2d 386 , 1981 Ga. LEXIS 1064 (1981).

Material printed by law publisher rating attorneys is protected by U.S. Const., amend. 1 and this paragraph. Bergen v. Martindale-Hubbell, Inc., 248 Ga. 599 , 285 S.E.2d 6 , 1981 Ga. LEXIS 1096 (1981).

Business license tax. —

When the purpose of a business license tax was for the purpose of revenue raising and not for the control of solicitation it was not in violation of Ga. Const. 1983, Art. I, Sec. I, Para. V. Miles v. City Council, 551 F. Supp. 349, 1982 U.S. Dist. LEXIS 15801 (S.D. Ga. 1982), aff'd, 710 F.2d 1542, 1983 U.S. App. LEXIS 25215 (11th Cir. 1983).

Statement is contemptuous and therefore not constitutionally protected when the statement poses a present danger to the orderly administration of justice but neither an inherent nor a reasonable tendency to do so is enough to justify a restriction of free expression. Garland v. State, 253 Ga. 789 , 325 S.E.2d 131 , 1985 Ga. LEXIS 558 (1985).

Equity will not enjoin libel and slander. Brannon v. American Micro Distribs., Inc., 255 Ga. 691 , 342 S.E.2d 301 , 1986 Ga. LEXIS 663 (1986); High Country Fashions, Inc. v. Marlenna Fashions, Inc., 257 Ga. 267 , 357 S.E.2d 576 , 1987 Ga. LEXIS 838 (1987).

Injunction restricting activities of abortion protesters. —

Injunction issued pursuant to a city ordinance declaring the actions of abortion protesters to be a public nuisance was not unconstitutional since the protesters were permitted to exercise their right of free speech by engaging in social protest, limited only by reasonable time, place, and manner restrictions. Hirsh v. City of Atlanta, 261 Ga. 22 , 401 S.E.2d 530 , 1991 Ga. LEXIS 128, cert. denied, 501 U.S. 1221, 111 S. Ct. 2836 , 115 L. Ed. 2 d 1004, 1991 U.S. LEXIS 3510 (1991), cert. denied, 502 U.S. 818, 112 S. Ct. 75 , 116 L. Ed. 2 d 49, 1991 U.S. LEXIS 4398 (1991).

Statute regulating profane words on bumper stickers unconstitutionally restricts freedom of expression as guaranteed by the First and Fourteenth Amendments of the United States Constitution and by the Georgia Constitution. Cunningham v. State, 260 Ga. 827 , 400 S.E.2d 916 , 1991 Ga. LEXIS 70 (1991).

Ordinance prohibiting the distribution of printed materials to homes violated the freedom of speech and press clauses under the United States and Georgia Constitutions because it was not narrowly tailored to meet the city’s interest in preventing litter and failed to provide for meaningful alternatives of communication. Statesboro Publ. Co. v. City of Sylvania, 271 Ga. 92 , 516 S.E.2d 926 (1999).

Soliciting in privately owned shopping mall. —

Policy of a privately owned shopping mall that prohibited all mall visitors from engaging in solicitation or leafleting in the mall’s common areas did not violate Ga. Const. 1983, Art. I, Sec. I, Para. V. Cahill v. Cobb Place Assocs., L.P., 271 Ga. 322 , 519 S.E.2d 449 , 1999 Ga. LEXIS 615 (1999).

Intent of the Anti-Strategic Lawsuits Against Public Participation statute, O.C.G.A. § 9-11-11.1 , is to encourage the exercise of free speech and afford a procedural protection to acts of communication on public issues; in connection with this procedural protection, the appellate court held that the mere procedural filing of a verification does not end the matter as to whether a claim could go forward under O.C.G.A. § 9-11-11.1(b) and (d). Harkins v. Atlanta Humane Soc'y, 264 Ga. App. 356 , 590 S.E.2d 737 , 2003 Ga. App. LEXIS 1423 (2003), aff'd in part and rev'd in part, 278 Ga. 451 , 603 S.E.2d 289 , 2004 Ga. LEXIS 819 (2004).

Unauthorized practice of law could be limited. —

O.C.G.A. § 15-19-51(a)(7) did not limit defendant’s right to free speech under U.S. Const., amend. 1, or Ga. Const. 1983, Art. I, Sec. I, Para. V, as defendant had no right to engage in speech which was calculated to deceive or mislead people into thinking that defendant was qualified to practice law. Marks v. State, 280 Ga. 70 , 623 S.E.2d 504 , 2005 Ga. LEXIS 861 (2005).

Festival permits. —

City’s moratorium on the issuance of festival permits was not an unconstitutional prior restraint under either U.S. Const., amend. 1, or Ga. Const. 1983, Art. I, Sec. I, Para. V because the moratorium did not abridge the right of free speech, the moratorium was content-neutral, and in the absence of a festivals ordinance, the city was not obligated to provide municipal services pertaining to outdoor festivals. Camp Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 2006 U.S. App. LEXIS 14407 (11th Cir. 2006).

Ninety-day advance application requirement of the Atlanta Outdoor Festivals Ordinance of 2003, Atlanta, Ga., Code of Ordinances §§ 138-186 to 138-209, was not an unconstitutional prior restraint under either U.S. Const., amend. 1, or Ga. Const. 1983, Art. I, Sec. I, Para. V because the requirement was content-neutral, the requirement was the least restrictive means of regulation, and the requirement left open alternative channels of communication. Camp Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 2006 U.S. App. LEXIS 14407 (11th Cir. 2006).

Content-neutral regulation that incidentally affected protected expression should not have been analyzed using rational basis test. —

When a night club asserted violations of the club’s free speech rights under Ga. Const. 1983, Art. I, Sec. I, Para. V, the trial court erred in applying the rational basis test in denying the night club’s petition for an interlocutory injunction. The challenged content-neutral amendments to county ordinances, which provided that one hour after the end of the legal period for selling alcoholic beverages, a business must be cleared of customers, close, and not reopen until 9:00 A.M., should have been analyzed using the appropriate legal standard: whether the regulation furthered an important government interest, whether the government interest was unrelated to the suppression of speech, and whether the incidental restriction of speech was no greater than was essential to the furtherance of that interest. Great Am. Dream, Inc. v. DeKalb County, 290 Ga. 749 , 727 S.E.2d 667 , 2012 Ga. LEXIS 334 (2012).

2.Criminal Matters

This paragraph does not guarantee freedom of speech or right of assembly in perpetration of crime. Lowry v. Herndon, 182 Ga. 582 , 186 S.E. 429 , 1936 Ga. LEXIS 499 (1936), rev'd, 301 U.S. 242, 57 S. Ct. 732 , 81 L. Ed. 1066 , 1937 U.S. LEXIS 290 (1937), vacated, 184 Ga. 613 , 192 S.E. 387 , 1937 Ga. LEXIS 602 (1937).

Anti-Mask Act held constitutional. —

Georgia “Anti-Mask Act”, O.C.G.A § 16-11-38 , which proscribes intimidating or threatening mask-wearing behavior, does not violate the constitutional rights of freedom of speech, freedom of association, and equal protection of the law. State v. Miller, 260 Ga. 669 , 398 S.E.2d 547 , 1990 Ga. LEXIS 459 (1990).

“Fighting words” not protected speech. —

“Fighting words” constitute one of those narrow speech areas not constitutionally protected. State v. Klinakis, 206 Ga. App. 318 , 425 S.E.2d 665 , 1992 Ga. App. LEXIS 1669 (1992), cert. denied, No. S93C0385, 1993 Ga. LEXIS 330 (Ga. Apr. 8, 1993).

Rape Victim Confidentiality Statute. —

The victim of a sexual assault could not recover damages from a newspaper for invasion of privacy, since, when the victim shot and killed the perpetrator of the assault, the victim became the object of legitimate public interest and the newspaper had the right under the United States and Georgia Constitutions to accurately report facts regarding the incident, including the victim’s name. Macon Tel. Publishing Co. v. Tatum, 263 Ga. 677 , 263 Ga. 678 , 436 S.E.2d 655 , 1993 Ga. LEXIS 825 (1993).

Prior restraint of freedom of speech. —

A city’s refusal to issue a building permit because the business intended to violate O.C.G.A. § 16-12-80(c) did not constitute an unconstitutional prior restraint of free speech. Chamblee Visuals v. City of Chamblee, 270 Ga. 33 , 506 S.E.2d 113 , 1998 Ga. LEXIS 816 (1998).

Obscene material not protected. —

Devices “designed or marketed as useful primarily for the stimulation of human genital organs,” prohibited from distribution under O.C.G.A. § 16-12-80 , are not protected expressions under either the First Amendment of the federal constitution or Ga. Const. 1983, Art. I, Sec. I. Morrison v. State, 272 Ga. 129 , 526 S.E.2d 336 , 2000 Ga. LEXIS 91 (2000).

“Fighting words” construed narrowly. —

To ensure no abridgment of constitutional rights, the application of O.C.G.A. § 16-11-39(a)(3)’s proscription on “fighting words” must necessarily be narrow and limited; since the only statements shown in the evidence to have been uttered by defendant to an officer during an incident at a store were, “Arrest me” and “Damn, I’m calling corporate office” did not rise to the level of required “fighting words,” defendant’s conviction of disorderly conduct, O.C.G.A. § 16-11-39(a)(3), was not supported by sufficient evidence. Sandidge v. State, 279 Ga. App. 86 , 630 S.E.2d 585 , 2006 Ga. App. LEXIS 448 (2006).

Constitutionality of O.C.G.A. § 16-11-34 . —

O.C.G.A. § 16-11-34(a) was overbroad and was unconstitutional; the literal language of the statute was so overbroad in its scope that it led to an absurdity manifestly not intended by the legislature, and its constitutionality could not have been preserved by judicial construction. State v. Fielden, 280 Ga. 444 , 629 S.E.2d 252 , 2006 Ga. LEXIS 247 (2006).

Constitutionality of O.C.G.A. § 16-8-60(b) . —

Trial court did not err in finding that O.C.G.A. § 16-8-60(b) was not unconstitutionally vague nor overbroad and was not preempted by federal law, as: (1) the statute aimed to protect the public and entertainment industry from piracy and bootlegging, a legitimate governmental interest unrelated to free speech concerns; (2) it did not impinge upon pure speech, but, at most, regulated a combination of commercial conduct and speech; (3) its deterrent effect on legitimate expression was minimal; and (4) it plainly prohibited the sale, or possession for the purposes of sale, of an article that did not prominently display the name and address of the individual (or entity) who transferred the sounds to the article. Briggs v. State, 281 Ga. 329 , 638 S.E.2d 292 , 2006 Ga. LEXIS 1025 (2006).

Constitutionality of Georgia Street Gang Terrorism and Prevention Act. —

Trial court properly denied the appellants’ motion to dismiss various counts charging the appellants with gang-related crimes under the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., since properly construed O.C.G.A. § 16-15-4(a) did not directly or indirectly infringe upon the First Amendment right to freedom of association as, to support a conviction, gang conduct or participation was required. Further, reading of § 16-15-4(a) according to the natural and obvious import of the statute’s language and in conjunction with the specific definitions in O.C.G.A. § 16-15-3 , the statute provided a sufficiently definite warning to persons of ordinary intelligence of the prohibited conduct and was not susceptible to arbitrary and discriminatory enforcement and did not reach a substantial amount of constitutionally protected conduct, thus, the statute was not unconstitutionally vague or overbroad. Rodriguez v. State, 284 Ga. 803 , 671 S.E.2d 497 , 2009 Ga. LEXIS 14 (2009).

O.C.G.A. § 16-5-5(b) is unconstitutional

under the free speech provisions of the United States and Georgia Constitutions, U.S. Const., amend. 1 and Ga. Const. 1983, Art. I, Sec. I, Para. V, because it is not all assisted suicides that are criminalized but only those that include a public advertisement or offer to assist; because the state failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity was sufficiently problematic to justify an intrusion on protected speech rights, it could not, consistent with the United States and Georgia Constitutions, make the public advertisement or offer to assist in a suicide a criminal offense. Final Exit Network, Inc. v. State, 290 Ga. 508 , 722 S.E.2d 722 , 2012 Ga. LEXIS 145 (2012).

Restricting internet as condition of probation. —

Trial court did not abuse the court’s discretion by declining to modify a probation condition that restricted the defendant’s internet access because the condition did not unduly burden the defendant’s free speech rights as the defendant had used the internet to facilitate the commission of the offense by communicating online with the supposed underage girl in order to solicit sexual acts from the girl. Rutledge v. State, 360 Ga. App. 824 , 861 S.E.2d 793 , 2021 Ga. App. LEXIS 399 (2021).

Prohibition on possessing pornography as probation condition. —

Trial court did not abuse the court’s discretion by declining to modify the probation condition that prohibited the defendant from possessing pornography because the defendant pled guilty to attempt to commit aggravated child molestation, the basis for the plea included the fact that the defendant had sent pornographic images to someone the defendant believed was a 13-year-old child and, therefore, the condition was rationally related to the circumstances of the offense and the rehabilitative goals of probation. Rutledge v. State, 360 Ga. App. 824 , 861 S.E.2d 793 , 2021 Ga. App. LEXIS 399 (2021).

Freedom to choose own counsel. —

Trial court did not abuse the court’s discretion by denying the defendant’s motion for a continuance and ruling that the defendant had three options: proceed to trial with old counsel, proceed with new counsel instanter, or self-represent when the trial court engaged in a proper balancing test by weighing the fact that the defendant and trial counsel, who was prepared for trial, disagreed regarding trial strategy against what the court determined was an undue delay in trying the case. Alwi v. State, 331 Ga. App. 903 , 773 S.E.2d 387 , 2015 Ga. App. LEXIS 104 (2015), cert. denied, No. S15C1271, 2015 Ga. LEXIS 559 (Ga. Sept. 8, 2015).

3.Sign Ordinances

Sign ordinance’s content-based restrictions were invalid. —

In grandfathering a condominium development sign pursuant to Avondale Estates, Ga., Sign Ordinance § 5-370, while prohibiting all other commercial signs in residential areas, the city imposed differential burdens upon speech based on its content. Kennedy v. Avondale Estates, 414 F. Supp. 2d 1184, 2005 U.S. Dist. LEXIS 40160 (N.D. Ga. 2005).

Selective enforcement of sign ordinance prohibited. —

Grandfather provision of Avondale Estates, Ga., Sign Ordinance § 5-370, was unconstitutional to the extent that city sign ordinance enforcement officials chose not to enforce the sign ordinance against any non-compliant sign in place before their jobs began; having decided to enact a rigorous sign ordinance, the city was prohibited from selectively applying its provisions for the sake of convenience; moreover, if aesthetics were a concern, as the city stated, that concern was not promoted by allowing non-compliant signs, no matter when they were erected. Kennedy v. Avondale Estates, 414 F. Supp. 2d 1184, 2005 U.S. Dist. LEXIS 40160 (N.D. Ga. 2005).

1994 Sign Ordinance. —

The 1994 Sign Ordinance, a comprehensive regulatory framework for the posting of all signs within the City of Atlanta, does not violate equal protection or free speech. Outdoor Sys. v. City of Atlanta, 885 F. Supp. 1572, 1995 U.S. Dist. LEXIS 12185 (N.D. Ga. 1995).

City sign ordinance that prohibited the display of noncommercial messages at locations where commercial messages were permitted was unconstitutional. Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393 , 467 S.E.2d 875 , 1996 Ga. LEXIS 106 (1996).

Ordinance that restricted signs in residential zoning districts to on-premise signs and certain temporary or special signs, allowing temporary political signs, but not providing for permanent signs expressing the political, religious, or other noncommercial views of residents, was unconstitutional. Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393 , 467 S.E.2d 875 , 1996 Ga. LEXIS 106 (1996).

Trial court properly granted summary judgment to a city in a suit brought by an outdoor sign company challenging the constitutionality of the city’s sign ordinance as the company’s sign applications failed to meet the city’s height and size restrictions and the restrictions were constitutional. Since the company lacked standing to challenge any other provision of the ordinance, the trial court should not have addressed the company’s constitutional arguments concerning other provisions of the ordinance, though that appellate court determination did not change the grant of summary judgment to the city. Granite State Outdoor Adver., Inc. v. City of Roswell, 283 Ga. 417 , 658 S.E.2d 587 , 2008 Ga. LEXIS 246, cert. denied, 555 U.S. 882, 129 S. Ct. 222 , 172 L. Ed. 2 d 143, 2008 U.S. LEXIS 5541 (2008).

Standing to object to city ordinance. —

In a corporation’s suit alleging that a city’s denial of the corporation’s variance applications under the September 20, 1983, Cumming, Georgia zoning ordinance, as amended on June 20, 2006, violated Ga. Const. 1983, Art. I, Sec. 1, Para. V, the corporation lacked standing to assert the corporation’s claims regarding the actual denial of the variances; those claims were not redressible because the corporation did not challenge the height or spacing requirements upon which the denials were predicated. However, the corporation had standing to assert the corporation’s claims regarding the city’s long delay in processing the applications because such injury was redressible. Roma Outdoor Creations, Inc. v. City of Cumming, 599 F. Supp. 2d 1332, 2009 U.S. Dist. LEXIS 15878 (N.D. Ga. 2009).

County sign ordinance. —

A county ordinance which prohibited off-premise signs in commercially-zoned areas, including all commercial signs, and then permitted the county to decide on a case-by-case basis which signs were allowed, violated the First Amendment. By initially declaring all signs as illegal and allowing the county to exempt from the ban only on a case-by-case basis, the ordinance was more extensive than was necessary to protect against misleading commercial speech and provided insufficient protection for protected speech, both commercial and otherwise. Fulton County v. Galberaith, 282 Ga. 314 , 647 S.E.2d 24 , 2007 Ga. LEXIS 467 (2007).

Standard for determining constitutionality of sign ordinance. —

Trial court erred by holding that there was a rational relationship between a county’s sign restrictions and its interests in aesthetics and traffic safety in denying a request filed by two residents to temporarily enjoin the enforcement of certain provisions of the county ordinance; the court should have applied a time, place, and manner standard as required by the U.S. Constitution, or a least restrictive means analysis as required by the Georgia Constitution, drawing regulations to suppress no more speech than was necessary to achieve the county’s goals. Coffey v. Fayette County, 279 Ga. 111 , 610 S.E.2d 41 , 2005 Ga. LEXIS 165 (2005).

In considering the constitutionality of ordinances restricting free speech, the courts were required to review the ordinance closely to ensure that it was narrowly drawn to serve the governmental interest and were not permitted to merely defer to the discretion of the governmental entity; a trial court erred in upholding a county’s sign ordinance without taking evidence and in deferring without question to the decisions made at the discretion of the county. Coffey v. Fayette County, 280 Ga. 656 , 631 S.E.2d 703 , 2006 Ga. LEXIS 448 (2006).

Ban on signs in public right of way not unconstitutional. —

City clearly had the right to prohibit the erection of signs on the public right of way; therefore, the provision of the city sign ordinance, banning signs on the public right of way, Avondale Estates, Ga., Sign Ordinance § 5-372(e), was not unconstitutional. Kennedy v. Avondale Estates, 414 F. Supp. 2d 1184, 2005 U.S. Dist. LEXIS 40160 (N.D. Ga. 2005).

Holiday decoration exemption unconstitutional. —

Although the general setback provision of the city sign ordinance, Avondale Estates, Ga., Sign Ordinance § 5-374(a), requiring signs to be set back 10 feet from the edge of the sidewalk or 15 feet from the edge of the road where there was no sidewalk, was constitutional since it was narrowly drawn to ensure that yard signs did not block the view of traffic or otherwise obstruct intersections, but otherwise allowed those passing by to be able to read the signs, the exemption for seasonal displays and decorations found in Avondale Estates, Ga., Sign Ordinance § 5-363(f) was not constitutional; if the city did not wish a sign near its right of way because of traffic and visibility concerns, allowing a large holiday decoration near the sidewalk would have posed the same problems. Kennedy v. Avondale Estates, 414 F. Supp. 2d 1184, 2005 U.S. Dist. LEXIS 40160 (N.D. Ga. 2005).

Content-based ban on flags unconstitutional. —

City’s arbitrary enforcement of Avondale Estates, Ga., Sign Ordinance § 5-376(e), which banned all commercial flags on residential property, was unconstitutional, based on the city’s own definition of a “commercial message,” found in Avondale Estates, Ga., Sign Ordinance § 5-362; the city’s failure to enforce the ban on the posting of commercial messages in residential areas against the flags of professional sports teams constituted content-based discrimination since non-sports team commercial messages were at a disadvantage; accordingly, such content-based restrictions were presumptively invalid. Kennedy v. Avondale Estates, 414 F. Supp. 2d 1184, 2005 U.S. Dist. LEXIS 40160 (N.D. Ga. 2005).

Content-neutral sign ordinance constitutionally valid. —

Cherokee County, Ga., sign ordinance did not violate the state or federal constitution because the number, height, and area requirements under which the permit applications were denied were constitutionally valid; the sign ordinance allowed a maximum area of 120 square feet, a maximum height of 35 feet and restricted businesses to only one freestanding sign. Furthermore, the ordinance was content-neutral and did not grant unfettered discretion to government officials, as the ordinance itself contained adequate standards to guide the official’s decision and render it subject to judicial review. Douglas Outdoor Adver. of Ga., Inc. v. Cherokee County, No. 1:03-CV-1677-JOF, 2004 U.S. Dist. LEXIS 14113 (N.D. Ga. July 13, 2004).

Because there was a reasonable fit between the city’s stated goals of public and traffic safety and aesthetic harmony and the city sign ordinance’s restrictions on the size and height of real estate signs and the number and location of yard sale signs, Avondale Estates, Ga., Sign Ordinance §§ 5-361(a) and 5-380(a)(4), the court found that the restrictions, limiting real estate signs to four square feet in area and three square feet in height, as well as the number and location of yard sale signs, were constitutional limitations on commercial speech. Kennedy v. Avondale Estates, 414 F. Supp. 2d 1184, 2005 U.S. Dist. LEXIS 40160 (N.D. Ga. 2005).

Sign ordinance’s content based restrictions were invalid. —

Corporation was successful in the corporation’s suit alleging that a city’s denial of the corporation’s variance applications under the September 20, 1983, Cumming, Georgia zoning ordinance, as amended on June 20, 2006, violated Ga. Const. 1983, Art. I, Sec. I, Para. V since the ordinance, which limited billboard content to travel services and attractions, was unconstitutional on the ordinance’s face because the ordinance was a prior restraint that was content-based and lacked time limits, and the city’s delay of more than 150 days in processing the corporation’s billboard variance applications violated the corporation’s rights. Roma Outdoor Creations, Inc. v. City of Cumming, 599 F. Supp. 2d 1332, 2009 U.S. Dist. LEXIS 15878 (N.D. Ga. 2009).

4.Sexual Expression

When allegedly obscene materials or films are suppressed or seized, a judicial proceeding must provide for a prompt and final judicial determination of the obscenity of the film or material. Temporary restraints to preserve the status quo in this regard are authorized after an adversary hearing and when followed by a prompt final determination of obscenity. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 , 1974 Ga. LEXIS 1160 (1974).

Injunctive procedures are available to stop obscene expressions. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 , 1974 Ga. LEXIS 1160 (1974).

Government must bear burden of proof of obscenity. —

In each case, the government must institute judicial proceedings whereby the material or film is seized or suppressed and the government bears the burden of proof of the obscenity of the material or film. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 , 1974 Ga. LEXIS 1160 (1974).

Sexually-oriented communication. —

Statute prohibiting certain nude and sexual conduct on premises where alcoholic beverages are sold or dispensed for consumption on the premises infringes upon protected speech and must fall as an improper exercise of the state’s police power. Harris v. Entertainment Sys., 259 Ga. 701 , 386 S.E.2d 140 , 1989 Ga. LEXIS 532 (1989).

Although a state may have a certain amount of its police power restored to it under the Twenty-first Amendment that would otherwise be limited under the First Amendment, the expression involved in an establishment offering sexually-oriented communication where alcohol is served is still within the purview of the First Amendment, and is still protected by Georgia’s free expression guarantees. Because Georgia has no constitutional equivalent to the Twenty-first Amendment, the state’s police power, though possibly not limited under the U.S. Constitution, is limited by Georgia’s Constitution. Harris v. Entertainment Sys., 259 Ga. 701 , 386 S.E.2d 140 , 1989 Ga. LEXIS 532 (1989).

O.C.G.A. § 16-12-103(b)(2) prohibiting the admission of persons between 18 and 21 years of age to premises where sexually explicit performances are exhibited is unconstitutional as an infringement on free speech rights without proof of a compelling state interest justifying the application of such a restriction. State v. Cafe Erotica, Inc., 269 Ga. 486 , 500 S.E.2d 574 , 1998 Ga. LEXIS 561 (1998).

“Total nude dancing” municipal ordinance unconstitutional. —

Municipal ordinance prohibiting total nude dancing and placing restrictions on partial nude dancing was an unconstitutional infringement on protected expression as overly broad, and void for vagueness for lack of sufficient warning as to proscribed conduct. Pel Assoc., Inc. v. Joseph, 262 Ga. 904 , 427 S.E.2d 264 , 1993 Ga. LEXIS 325 (1993).

Ordinance prohibiting sale of alcohol in adult entertainment establishments. —

City ordinance prohibiting the sale of alcohol at an erotic dance establishment was constitutional. The adult entertainment establishment ordinance was narrowly drawn to promote the city’s interest in combating the secondary effects of adult entertainment establishments. Gravely v. Bacon, 263 Ga. 203 , 429 S.E.2d 663 , 1993 Ga. LEXIS 461 (1993).

County ordinance restricting adult entertainment establishments offering nude dancing and alcohol was sufficiently narrow in its descriptions of prohibited attire and conduct to pass constitutional challenges for “overbreadth”. S.J.T., Inc. v. Richmond County, 263 Ga. 267 , 430 S.E.2d 726 , 1993 Ga. LEXIS 490, cert. denied, 510 U.S. 1011, 114 S. Ct. 601 , 126 L. Ed. 2 d 567, 1993 U.S. LEXIS 7655 (1993).

A legislative restriction on adult entertainment must satisfy a tripartite test in order to comport with the free speech guarantees of the federal and state constitutions. The constitutionality of a law regulating adult entertainment will be upheld only: (1) if it furthers an important government interest; (2) if that government interest is unrelated to the suppression of speech; and (3) if the incidental restriction of speech is no greater than is essential to the furtherance of that government interest. Discotheque, Inc. v. City Council, 264 Ga. 623 , 449 S.E.2d 608 , 1994 Ga. LEXIS 885 (1994).

When the stated purpose of a municipal ordinance regulating adult entertainment on premises licensed to sell alcoholic beverages was to reduce criminal activity and deterioration of neighborhoods as pernicious secondary effects of adult entertainment establishments, the city failed to show there was no genuine issue of material fact as to these issues. Discotheque, Inc. v. City Council, 264 Ga. 623 , 449 S.E.2d 608 , 1994 Ga. LEXIS 885 (1994).

A city ordinance adopted pursuant to the authority of Ga. Const. 1983, Art. III, Sec. VI, Para. VII, and providing that a liquor license would not be issued for a location where adult entertainment licenses were required did not violate constitutional free speech guarantees. Goldrush II v. City of Marietta, 267 Ga. 683 , 482 S.E.2d 347 , 1997 Ga. LEXIS 99, cert. denied, 522 U.S. 818, 118 S. Ct. 70 , 139 L. Ed. 2 d 31, 1997 U.S. LEXIS 4734 (1997).

Nightclub’s First Amendment challenge to a city’s ordinances restricting the sale of alcohol in nude dancing establishments was rejected because under intermediate scrutiny, the ordinances furthered important government interests of preserving the quality of urban life and reducing criminal activity. Maxim Cabaret, Inc. v. City of Sandy Springs, 304 Ga. 187 , 816 S.E.2d 31 , 2018 Ga. LEXIS 435 (2018).

Restricting off-site advertising of nude dance establishments. —

A statute proscribing any form of off-site advertising for commercial establishments featuring nude dancing impedes the free flow of information and far exceeds the state’s legitimate interest in preventing hazards to the traveling public, and, thus, impermissibly infringes the right of free speech. State v. Cafe Erotica, Inc., 270 Ga. 97 , 507 S.E.2d 732 , 1998 Ga. LEXIS 1043 (1998).

Indecent or obscene speech. —

Defendant’s conviction for violating O.C.G.A. § 46-5-21(a)(1) was reversed as the statute was an overbroad infringement on defendant’s First Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. V rights to free speech; the statute does not contain the necessary language setting out the least restrictive means to further a compelling state interest as it applies to indecent or obscene speech, whether heard by children or adults, and whether not welcomed by listeners or spoken with intent to please. McKenzie v. State, 279 Ga. 265 , 626 S.E.2d 77 , 2005 Ga. LEXIS 295 (2005).

RESEARCH REFERENCES

Am. Jur. 2d. —

16A Am. Jur. 2d, Constitutional Law, §§ 424 et seq., 465 et seq.

Am. Jur. Trials. —

Homeowners’ Association Defense: Free Speech, 93 Am. Jur. Trials 293.

C.J.S. —

16B C.J.S., Constitutional Law, §§ 740 et seq., 841 et seq., 918 et seq.

ALR. —

Validity of legislation directed against social or industrial propaganda deemed to be of a dangerous tendency, 1 A.L.R. 336 ; 20 A.L.R. 1535 ; 73 A.L.R. 1494 .

Right of association to expel or discipline member for exercising a right, or performing duty, as a citizen, 14 A.L.R. 1446 .

What amounts to vagrancy, 14 A.L.R. 1482 .

Constitutionality of statute regulating newspapers or magazines, 35 A.L.R. 7 ; 110 A.L.R. 327 .

Validity of statute or ordinance against picketing, 35 A.L.R. 1200 ; 108 A.L.R. 1119 ; 122 A.L.R. 1043 ; 125 A.L.R. 963 ; 130 A.L.R. 1303 .

Constitutionality of statute or ordinance prohibiting or regulating advertising by physician, surgeon, or other person professing healing arts, 54 A.L.R. 400 .

Constitutionality, construction, and effect of censorship laws, 64 A.L.R. 505 .

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines, 110 A.L.R. 327 .

Power of legislature or school authorities to prescribe and enforce oath of allegiance, “salute to flag,” or other ritual of a patriotic character, 110 A.L.R. 383 ; 120 A.L.R. 655 ; 127 A.L.R. 1502 ; 141 A.L.R. 1030 ; 147 A.L.R. 698 .

Injunction against picketing per se, where past picketing has been accompanied by violence or other improper conduct, 132 A.L.R. 1218 .

Right of privacy, 138 A.L.R. 22 ; 57 A.L.R.2d 634; 57 A.L.R.3d 16.

Validity, construction, and application of statute or ordinance prohibiting solicitation of passers-by in street in front of place of business, 139 A.L.R. 1197 .

Unfair labor practice, within National Labor Relations Act or similar state statute, predicated upon expressions of opinion or statements by employer concerning labor unions, 146 A.L.R. 1024 .

Freedom of speech and press as limitation on power to punish for contempt, 159 A.L.R. 1379 .

Governmental control of actions or speech of public officers or employees in respect of matters outside the actual performance of their duties, 163 A.L.R. 1358 .

Constitutionality of statute respecting employer’s control of or interference with political affiliations or activities of employees, 166 A.L.R. 707 .

Validity, construction, and application of statute or ordinance regarding solicitation of persons to join an organization or society or to pay membership fees or dues, 167 A.L.R. 697 .

Picketing of place of business by persons not employed therein, 1 A.L.R.2d 1274.

Public regulation and prohibition of sound amplifiers or loud-speaker broadcasts in streets and other public places, 10 A.L.R.2d 627.

Defamatory nature of statements reflecting on plaintiff’s religious beliefs, standing, or activities, 87 A.L.R.2d 453.

Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price of commodity or services, 89 A.L.R.2d 901; 80 A.L.R.3d 740.

Nonlabor picketing or boycott, 93 A.L.R.2d 1284.

Modern concept of obscenity, 5 A.L.R.3d 1158.

Validity of procedures designed to protect the public against obscenity, 5 A.L.R.3d 1214; 93 A.L.R.3d 297.

Legality of peaceful labor picketing on private property, 10 A.L.R.3d 846.

Invasion of privacy by publication dealing with one other than plaintiff, 18 A.L.R.3d 873.

Right of publisher of newspaper or magazine, in absence of contractual obligation, to refuse publication of advertisement, 18 A.L.R.3d 1286.

Validity and construction of statutes or ordinances regulating telephone answering services, 35 A.L.R.3d 1430.

Student organization registration statement, filed with public school or state university or college, as open to inspection by public, 37 A.L.R.3d 1311.

Attacks on judiciary as a whole as indirect contempt, 40 A.L.R.3d 1204.

Validity of statute or ordinance forbidding pharmacist to advertise prices of drugs or medicines, 44 A.L.R.3d 1301.

Censorship of convicted prisoners’ “legal” mail, 47 A.L.R.3d 1150.

Censorship of convicted prisoners’ “nonlegal” mail, 47 A.L.R.3d 1192.

Right of accused to have press or other media representatives excluded from criminal trial, 49 A.L.R.3d 1007.

Validity and construction of statute or ordinance forbidding unauthorized persons to enter upon or remain in school building or premises, 50 A.L.R.3d 340.

Exhibition of obscene motion pictures as nuisance, 50 A.L.R.3d 969.

Invasion of privacy by radio or television, 56 A.L.R.3d 386.

Waiver or loss of right of privacy, 57 A.L.R.3d 16.

Consumer picketing to protest products, prices, or services, 62 A.L.R.3d 227.

Application of state law to sex discrimination in employment advertising, 66 A.L.R.3d 1237.

Criminal offenses under statutes and ordinances regulating charitable solicitations, 76 A.L.R.3d 924.

Power of corporation to make political contribution or expenditure under state law, 79 A.L.R.3d 491.

Validity and construction of state or local regulation prohibiting off-premises advertising structures, 81 A.L.R.3d 486.

Validity and construction of state or local regulation prohibiting the erection or maintenance of advertising structures within a specified distance of street or highway, 81 A.L.R.3d 564.

Restricting public access to judicial records of state courts, 84 A.L.R.3d 598.

Right of clergyman appearing in court as professional attorney to be in clerical garb, 84 A.L.R.3d 1143.

Publication of address as well as name of person as invasion of privacy, 84 A.L.R.3d 1159.

Unemployment compensation: eligibility as affected by claimant’s refusal to comply with requirements as to dress, grooming, or hygiene, 88 A.L.R.3d 150.

Validity, construction, and effect of statutes or ordinances prohibiting the sale of obscene materials to minors, 93 A.L.R.3d 297.

State regulation of the giving or making of political contributions or expenditures by private individuals, 94 A.L.R.3d 944.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass, 95 A.L.R.3d 411.

Privilege of newsgatherer against disclosure of confidential sources of information, 99 A.L.R.3d 37.

Identification of jobseeker by race, religion, national origin, sex, or age, in “Situation Wanted” employment advertising as violation of state civil rights laws, 99 A.L.R.3d 154.

Defamation: publication of “Letter to Editor” in newspaper as actionable, 99 A.L.R.3d 573; 54 A.L.R.5th 443.

Validity of “war zone” ordinances restricting location of sex-oriented businesses, 1 A.L.R.4th 1297.

Validity and construction of state statute or ordinance prohibiting picketing, parading, demonstrating, or appearing in public while masked or disguised, 2 A.L.R.4th 1241.

Validity and construction of statute or ordinance prohibiting use of “obscene” language in public, 2 A.L.R.4th 1331.

Validity of ordinances restricting location of “adult entertainment” or sex-oriented business, 10 A.L.R.4th 524; 10 A.L.R.5th 538.

Discharge from employment on ground of political views or conduct as affecting right to unemployment compensation, 29 A.L.R.4th 287; 38 A.L.R.5th 39.

Validity, under state constitutions, of private shopping center’s prohibition or regulation of political, social, or religious expression or activity, 38 A.L.R.4th 1219.

Validity and construction of “terroristic threat” statutes, 45 A.L.R.4th 949.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 A.L.R.4th 702.

False light invasion of privacy — cognizability and elements, 57 A.L.R.4th 22.

False light invasion of privacy — defenses and remedies, 57 A.L.R.4th 244.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation—post-New York Times cases, 57 A.L.R.4th 404.

Libel or slander: defamation by statement made in jest, 57 A.L.R.4th 520.

Intrusion by news-gathering entity as invasion of right of privacy, 69 A.L.R.4th 1059.

Liability for discharge of employee from private employment on ground of political views or conduct, 38 A.L.R.5th 39.

Propriety of exclusion of press or other media representatives from civil trial, 39 A.L.R.5th 103.

Propriety of publishing identity of sexual assault victim, 40 A.L.R.5th 787.

Validity, construction, and application of state statutes or ordinances regulating sexual performance by child, 42 A.L.R.5th 291.

Validity of regulation by public-school authorities as to clothes or personal appearance of pupils, 58 A.L.R.5th 1.

Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.

First Amendment protection afforded to commercial and home video games, 106 A.L.R.5th 337.

First Amendment protection afforded to comic books, comic strips, and cartoons, 118 A.L.R.5th 213.

Construction and application of federal and state constitutional and statutory speech or debate provisions, 24 A.L.R.6th 255.

Amendment protection afforded to web site operators, 30 A.L.R.6th 299.

First Amendment protection afforded to blogs and bloggers, 35 A.L.R.6th 407.

Validity of restrictions imposed during national political conventions impinging upon rights to freedom of speech and assembly under First Amendment, 46 A.L.R.6th 465.

Restrictive covenants or homeowners’ association regulations restricting or prohibiting flags, signage, or the like on homeowner’s property as restraint on free speech, 51 A.L.R.6th 533.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights, 65 A.L.R.6th 93.

Construction and application of Supreme Court’s holding in Citizens United v. Federal Election Com’n, 130 S. Ct. 876 , 175 L. Ed. 2 d 753, 187 L.R.R.M. (BNA) 2961, 159 Lab. Cas. (CCH) P 10166 (2010), that government may not prohibit independent and indirect corporate expenditures on political speech, 65 A.L.R.6th 503.

Constitutionality of restricting public speech in street, sidewalk, park, or other public forum — Characteristics of forum, 70 A.L.R.6th 513.

Constitutionality of restricting public speech in street, sidewalk, park, or other public forum — Manner of restriction, 71 A.L.R.6th 471.

Constitutional challenges to compelled speech — General principles, 72 A.L.R.6th 513.

Constitutional challenges to compelled speech — Particular situations or circumstances, 73 A.L.R.6th 281.

Constitutionality of teaching or otherwise promoting secular humanism in public schools, 103 A.L.R. Fed. 538.

Protection of commercial speech under first amendment — Supreme Court Cases, 164 A.L.R. Fed. 1.

Construction and application of establishment clause of First Amendment — U.S. Supreme Court cases, 15 A.L.R. Fed. 2d 573.

First Amendment protection for members of military subjected to discharge, transfer, or discipline because of speech, 40 A.L.R. Fed. 2d 229.

Application of First Amendment’s “ministerial exception” or “ecclesiastical exception” to federal civil rights claims, 41 A.L.R. Fed. 2d 445.

Application of First Amendment in school context — Supreme Court cases, 57 A.L.R. Fed. 2d 1.

Constitutionality of Restricting public speech in street, sidewalk, park, or other public forum — characteristics of forum, 70 A.L.R.6th 513.

Constitutionality of restricting public speech in street, sidewalk, park, or other public forum — manner of restriction, 71 A.L.R.6th 471.

Constitutional challenges to compelled speech — general principles, 72 A.L.R.6th 513.

Constitutional challenges to compelled speech — particular situations or circumstances, 73 A.L.R.6th 281.

Expectation of privacy in and discovery of social networking web site postings and communications, 88 A.L.R.6th 319.

Provisions of divorce, child custody, or child support orders as infringing on federal or state constitutional guarantees of free speech, 2 A.L.R.7th 6.

Invasion of privacy by use of plaintiff’s name or likeness in advertising — First Amendment cases, 15 A.L.R.7th 6.

Validity Under First Amendment of Statutes Limiting Automatic Dialing and Announcing Device (ADAD) and Robocalls, 48 A.L.R.7th Art. 1.

Validity Under First Amendment of State Disclosure or Reporting Requirements of Political Contributions or Expenditures by Private Individuals or Entities, 51 A.L.R.7th 1.

State Law Liability and Relief for “Revenge Porn,” 54 A.L.R.7th 2.

First Amendment protection for school principals subjected to demotion, transfer, or reassignment because of speech, 4 A.L.R. Fed. 3d 5.

Constitutional claims of persons placed on federal government’s no-fly list or other terrorist watch lists, 5 A.L.R. Fed. 3d 5.

Application of federal constitutional guarantees or federal statutory provisions to discipline or punishment of students with disabilities, 12 A.L.R. Fed. 3d 1.

University code or policy forbidding speech or conduct that is offensive, degrading, or the like as violative of First Amendment Rights, 13 A.L.R. Fed. 3d 2.

Partisan Gerrymandering as Violation of First Amendment, 37 A.L.R. Fed. 3d Art. 7.

What Constitutes False Representation or Implication that Debt Collector Is Vouched for, Bonded by, or Affiliated with United States or Any State in Violation of Fair Debt Collection Practices Act (15 U.S.C.A. § 1692e(1)), 38 A.L.R. Fed. 3d Art. 1.

First Amendment Protection Against Curtailment of Access to, or Retaliation for Communications on, Social Media, 38 A.L.R. Fed. 3d Art. 5.

Status and Effect of Public Access Channels as “Public Forums” Under First Amendment, 38 A.L.R. Fed. 3d Art. 8.

What Constitutes “Antecedent Debt” in Bankruptcy Preference Statute, 11 U.S.C.A. § 547(b)(2), 39 A.L.R. Fed. 3d Art. 4.

Extraterritorial Application of Bankruptcy Code’s Fraudulent Transfer Provisions (11 U.S.C.A. §§ 548, 550), 39 A.L.R. Fed. 3d Art. 5.

Paragraph VI. Libel.

In all civil or criminal actions for libel, the truth may be given in evidence; and, if it shall appear to the trier of fact that the matter charged as libelous is true, the party shall be discharged.

1976 Constitution. —

Art. I, Sec. I, Para. VIII.

Cross references.

Truth evidence in libel cases, § 51-5-6 .

Law reviews.

For comment, “You’ve Got Libel: How the Can-Spam Act Delivers Defamation Liability to Spam-Fighters and Why the First Amendment Should Delete the Problem,” see 58 Emory L.J. 1013 (2009).

RESEARCH REFERENCES

ALR. —

State constitutional protection of allegedly defamatory statements regarding private individual, 33 A.L.R.4th 212.

Defamation: designation as scab, 65 A.L.R.4th 1000.

Paragraph VII. Citizens, protection of.

All citizens of the United States, resident in this state, are hereby declared citizens of this state; and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges, and immunities due to such citizenship.

1976 Constitution. —

Art. I, Sec. II, Para. IX.

Cross references.

United States citizen residents of Georgia being citizens of this state, U.S. Const., amend. 14.

Rights of Georgia citizens generally, § 1-2-6 .

Rights of persons not citizens of Georgia generally, § 1-2-9 et seq.

JUDICIAL DECISIONS

Equality of the civil rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the employment of this principle, if within its power. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446 , 58 S.E. 93 , 1907 Ga. App. LEXIS 260 (1907).

Safeguarding the right of the people to exercise their civil rights and to be free from violence and intimidation is not only a compelling interest, it is the General Assembly’s affirmative constitutional duty. State v. Miller, 260 Ga. 669 , 398 S.E.2d 547 , 1990 Ga. LEXIS 459 (1990).

Access to courts. —

The 1987 amendment to O.C.G.A. § 9-3-73 , which altered tolling provisions otherwise applicable to tort claims by injured minors in cases in which tort claims arose from health care professionals’ malpractice, did not violate a brain-damaged child’s right to equal protection or right of access to the courts. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566 , 423 S.E.2d 235 , 1992 Ga. LEXIS 987 (1992).

Punishment for violent or repeat offenders constitutional. —

O.C.G.A. § 17-10-6.1 , which dictates the punishment for serious violent offenders, in conjunction with O.C.G.A. § 17-10-7 , the sentencing statute applicable to recidivist armed robbers, does not violate either the federal or the state constitutions. Byrd v. State, 236 Ga. App. 485 , 512 S.E.2d 372 , 1999 Ga. App. LEXIS 213 (1999), cert. denied, No. S99C0811, 1999 Ga. LEXIS 564 (Ga. May 28, 1999).

Failure to conduct Faretta hearing. —

Trial court deprived the defendant of the defendant’s constitutional right to self-representation by summarily ruling that the defendant could not represent oneself at trial without conducting a Faretta hearing and apprising the defendant of the dangers and disadvantages of self-representation. Smith v. State, 332 Ga. App. 849 , 775 S.E.2d 211 , 2015 Ga. App. LEXIS 412 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Legal resident is synonymous with domiciliary, a domiciliary being one whose permanent home is in a particular place, known as the domicile. 1958-59 Ga. Op. Att'y Gen. 91.

Requirements for state citizenship. — A person must be a citizen, either natural born or naturalized, of the United States and must reside within this state in order to be a citizen of the State of Georgia. 1984 Op. Atty Gen. No. 84-55.

Resident need not retain legal residence in Georgia. — It is not necessary to retain a legal residence in Georgia in order to be a resident of the state. 1958-59 Ga. Op. Att'y Gen. 91.

Legal resident is not actual resident. — The fact that one is a legal resident of Georgia does not, of itself, render one an actual resident of the state. One can only be an actual resident by living in the state. 1958-59 Ga. Op. Att'y Gen. 91.

Effect of temporary change of residence. — Loss of citizenship does not result from a change of residence not intended to be permanent. 1958-59 Ga. Op. Att'y Gen. 92.

County citizenship. — Since a county is only a subdivision of the state and is not a sovereign, citizenship of a county means only domicile or residence within the county. 1984 Op. Att'y Gen. No. 84-55.

RESEARCH REFERENCES

Am. Jur. 2d. —

16A Am. Jur. 2d, Constitutional Law, §§ 332 et seq., 408.

ALR. —

Constitutionality of discrimination as regards degree of penalty or punishment for violation of Sunday law, 8 A.L.R. 566 .

Constitutionality of provisions of Workmen’s Compensation Acts which are limited to residents of the state, 12 A.L.R. 1207 ; 147 A.L.R. 925 .

Constitutionality of “civil rights” legislation by state, 49 A.L.R. 505 .

Diversity of citizenship, for purposes of federal jurisdiction, in stockholders’ derivative action, 68 A.L.R.2d 824.

What businesses or establishments fall within state civil rights statute provisions prohibiting discrimination, 87 A.L.R.2d 120.

Power of municipal corporation to enact civil rights ordinance, 93 A.L.R.2d 1028.

Civil rights: racial or religious discrimination in furnishing of public utilities services or facilities, 53 A.L.R.3d 1027.

Construction and application of state equal rights amendments forbidding determination of rights based on sex, 90 A.L.R.3d 158.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property, 96 A.L.R.3d 497.

Sex discrimination in treatment of jail or prison inmates, 12 A.L.R.4th 1219.

Paragraph VIII. Arms, right to keep and bear.

The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

1976 Constitution. —

Art. I, Sec. I, Para. V.

Cross references.

Right to bear arms, U.S. Const., amend. 2, and § 1-2-6 .

Firearms industry nondiscrimination, T. 10, C. 1, A. 15, P. 7.

Restrictions on the right to bear arms, § 16-11-100 et seq.

Law reviews.

For note, “Education Under Fire?: An Analysis of Campus Carry and University Autonomy in Georgia,” see 54 Ga. L. Rev. 387 (2019).

For article, “Proposed Constitutional Carry Act of 2019: To Amend Title 12 of the Official Code of Georgia Annotated, Relating to the Use or Possession of Any Handgun in Parks, Historic Sites, or Recreational Areas; and to Amend Title 16 of the Official Code of Georgia Annotated, Relating to the Definition of Carrying and Possession of Firearms & Executive Order by the Governor Temporarily Extending Renewal Requirements for Weapons Carry Licenses,” see 37 Ga. St. U.L. Rev. 219 (2020).

JUDICIAL DECISIONS

Right to bear arms is common-law right, and is for the purpose of securing a well qualified militia. Nunn v. State, 1 Ga. 243 , 1846 Ga. LEXIS 64 (1846); Strickland v. State, 137 Ga. 1 , 72 S.E. 260 , 1911 Ga. LEXIS 271 (1911).

Legislature may inhibit wearing of concealed weapons. Stockdale v. State, 32 Ga. 225 , 1861 Ga. LEXIS 162 (1861).

Provision requiring one carrying revolver to obtain license does not violate this paragraph. Strickland v. State, 137 Ga. 1 , 72 S.E. 260 , 1911 Ga. LEXIS 271 (1911); Glenn v. State, 10 Ga. App. 128 , 72 S.E. 927 , 1911 Ga. App. LEXIS 682 (1911); McCoy v. State, 157 Ga. 767 , 122 S.E. 200 , 1924 Ga. LEXIS 243 (1924).

Prohibition of keeping and carrying certain kinds of weapons is justified for purpose of preventing crime under the general police power of regulation of the state, the question in each case being whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts to a deprivation of the constitutional right to keep and bear arms. Carson v. State, 241 Ga. 622 , 247 S.E.2d 68 , 1978 Ga. LEXIS 1062 (1978).

Prohibition of possessing weapons in context of visitation order. —

Trial court’s order that the parties not have any weapons in their possession when exchanging their children did not infringe on a parent’s right under Ga. Const. 1983, Art. I, Sec. I, Para. VIII to keep and bear arms as the parent’s possession of a firearm was not restricted except in the context of a narrowly tailored condition of visitation justified by the evidence. Moore v. Moore-McKinney, 297 Ga. App. 703 , 678 S.E.2d 152 , 2009 Ga. App. LEXIS 544 (2009).

Marketing of handguns not unreasonably dangerous or socially unacceptable. —

The enactment of comprehensive licensing provisions for suppliers and purchasers of handguns indicates that the General Assembly is not inclined to ban the use of such weapons and that legislators do not consider the marketing of handguns to be an unreasonably dangerous or socially unacceptable activity. Rhodes v. R.G. Indus., Inc., 173 Ga. App. 51 , 325 S.E.2d 465 , 1984 Ga. App. LEXIS 2724 (1984).

O.C.G.A. § 16-11-131 is a reasonable regulation authorized by the police power and thus is not violative of Ga. Const. 1976, Art. I, Sec. I, Para. V (see now Ga. Const. 1983, Art. I, Sec. I, Para. VIII). Landers v. State, 250 Ga. 501 , 299 S.E.2d 707 , 1983 Ga. LEXIS 571 (1983).

O.C.G.A. § 16-11-129 not unconstitutional. —

O.C.G.A. § 16-11-129 , which regulated the ability of citizens to carry a weapon in public, was justified by the goal to protect the safety of individuals who are in public places, which was a legitimate and compelling government interest. The statute was not unconstitutional as applied to an applicant who pled nolo contendre to violent felonies in Florida more than 20 years earlier, under either U.S. Const., amend. II or Ga. Const. 1983, Art. I, Sec. I, Para. VIII. Hertz v. Bennett, 294 Ga. 62 , 751 S.E.2d 90 , 2013 Ga. LEXIS 896 (2013).

Interpretation of private property under O.C.G.A. § 16-11-127(c) . —

Supreme Court of Georgia determined that for purposes of O.C.G.A. § 16-11-127(c) , property may be considered private only if the holder of the present estate in the property is a private person or entity. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829 , 834 S.E.2d 27 , 2019 Ga. LEXIS 639 (2019).

If the city, a public entity, was the holder of a present estate under the lease, the leased premises was not private property within the meaning of O.C.G.A. § 16-11-127(c) , thus, the garden would have no right to exclude the carrying of firearms on the leased premises because it was not in legal control of private property through a lease; however, since the lease was not in the record on appeal the garden was not entitled to summary judgment. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829 , 834 S.E.2d 27 , 2019 Ga. LEXIS 639 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Applicant seeking Georgia pistol toter’s permit need not be United States citizen. 1976 Op. Atty Gen. No. U76-69.

RESEARCH REFERENCES

Am. Jur. 2d. —

79 Am. Jur. 2d, Weapons and Firearms, § 8 et seq.

Am. Jur. Pleading and Practice Forms. —

25 Am. Jur. Pleading and Practice Forms, Weapons and Firearms, § 2.

C.J.S. —

94 C.J.S., Weapons, § 7 et seq.

ALR. —

Validity and construction of gun control laws, 28 A.L.R.3d 845.

Application of statute or regulation dealing with registration or carrying of weapons to transient nonresident, 68 A.L.R.3d 1253.

Validity of state statutes restricting the right of aliens to bear arms, 28 A.L.R.4th 1096.

Validity of state statute proscribing possession or carrying of knife, 47 A.L.R.4th 651.

Validity of state gun control legislation under state constitutional provisions securing the right to bear arms, 86 A.L.R.4th 931.

Federal constitutional right to bear arms, 37 A.L.R. Fed. 696.

Substitution, under Rule 24c of Federal Rules of Criminal Procedure, of alternate juror for regular juror before jury retires to consider verdict in federal criminal case, 115 A.L.R. Fed. 381.

Construction and application of 18 USCS § 922(e), prohibiting delivery of firearms to common carrier, 125 A.L.R. Fed. 613.

Construction and application of United States Supreme Court holdings in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 , 171 L. Ed. 2 d 637 (2008) and McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 , 177 L. Ed. 2 d 894 (2010) respecting Second Amendment right to keep and bear arms, to state or local laws regulating firearms or other weapons, 64 A.L.R. 6 th 131.

Validity of state gun control legislation under state constitutional provisions securing right to bear arms — convicted felons, 85 A.L.R.6th 641.

Paragraph IX. Right to assemble and petition.

The people have the right to assemble peaceably for their common good and to apply by petition or remonstrance to those vested with the powers of government for redress of grievances.

1976 Constitution. —

Art. I, Sec. I, Para. VI.

Cross references.

Freedom of assembly, U.S. Const., amend. 1.

A citizen’s obligation to disperse in certain situations, §§ 16-10-30 and 38-2-304 .

Unlawful assembly, § 16-11-33 .

Mass gatherings by permit only, T. 31, C. 27.

Unlawful picketing, §§ 34-6-3 and 34-6-5 .

Law reviews.

For article discussing the weaknesses in Georgia statutes prohibiting lobbying, and the effect of such law on lawyers, see 5 Mercer L. Rev. 311 (1954).

For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims pursuant to Ga. Const. 1976, Art. VI, Sec. V, Para. I, see 27 Emory L.J. 717 (1978).

For note on the Georgia right against self-incrimination, see 15 Ga. L. Rev. 1104 (1981).

JUDICIAL DECISIONS

No duty on officials to effectuate presentation and consideration of petition. —

While every citizen of this state is given a constitutional right to petition to those vested with the powers of government for redress of grievances, it does not follow that there was a duty upon the defendants, Speaker and Clerk of the House of Representatives, to effectuate its presentation and consideration, and their failure, therefore, to present a petition seeking the impeachment of certain officers to the House did not constitute a violation of a legal duty to petitioner which would form the basis for a right of action for even nominal damages. Richter v. Harris, 62 Ga. App. 64 , 7 S.E.2d 432 , 1940 Ga. App. LEXIS 596 (1940).

Invalidity of statute restricting right of application. —

A law authorizing a court to restrain any person from applying to either department of the government for a right to which that person claims to be entitled is invalid. Northeastern R.R. v. Morris, 59 Ga. 364 , 1877 Ga. LEXIS 276 (1877).

Unified city/ county government was not a municipality for purposes of the waiver of sovereign immunity by operation of O.C.G.A. § 36-33-1 , because the charter creating the unified government expressly provided that its tort and nuisance liability would follow the law and rules of tort liability applicable to counties in Georgia. Athens-Clarke County v. Torres, 246 Ga. App. 215 , 540 S.E.2d 225 , 2000 Ga. App. LEXIS 1195 (2000).

Requirement that one judge of a court of limited jurisdiction be available on a 24-hour basis to issue warrants does not infringe on the right to assemble as guaranteed in the state and federal constitutions. McCray v. Cobb County, 251 Ga. 24 , 302 S.E.2d 563 , 1983 Ga. LEXIS 699 (1983).

No right to solicit in privately-owned shopping malls. —

Nothing in the Georgia Constitution or the Recall Act of 1989, either separately or together, establishes a right of private citizens to enter onto privately-owned shopping malls to solicit signatures for a recall petition. Citizens for Ethical Gov't, Inc. v. Gwinnett Place Assoc., 260 Ga. 245 , 392 S.E.2d 8 , 1990 Ga. LEXIS 231 (1990).

RESEARCH REFERENCES

Am. Jur. 2d. —

16A Am. Jur. 2d, Constitutional Law, §§ 397, 554, 559, 567.

C.J.S. —

16A C.J.S., Constitutional Law, §§ 740 et seq., 1134 et seq. 16B C.J.S., Constitutional Law, §§ 1134, 1135.

ALR. —

Validity of statute or ordinance against picketing, 35 A.L.R. 1200 ; 108 A.L.R. 1119 ; 122 A.L.R. 1043 ; 125 A.L.R. 963 ; 130 A.L.R. 1303 .

Right of signer of petition or remonstrance to withdraw therefrom or revoke withdrawal, and time therefor, 126 A.L.R. 1031 ; 27 A.L.R.2d 604.

Nonlabor picketing or boycott, 93 A.L.R.2d 1284.

Participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly, or similar offense, 32 A.L.R.3d 551.

Validity, construction, and application of statute prohibiting loitering for the purpose of using or possessing dangerous drugs, 48 A.L.R.3d 1271.

Validity and construction of statute or ordinance forbidding unauthorized persons to enter upon or remain in school building or premises, 50 A.L.R.3d 340.

Validity of regulation of college or university denying or restricting right of student to receive visitors in dormitory, 78 A.L.R.3d 1109.

Validity of restrictions imposed during national political conventions impinging upon rights to freedom of speech and assembly under First Amendment, 46 A.L.R.6th 465.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights, 65 A.L.R.6th 93.

State Constitutional Right of Freedom to Assembly Provisions, 41 A.L.R.7th Art. 7.

Partisan Gerrymandering as Violation of First Amendment, 37 A.L.R. Fed. 3d Art. 7.

What Constitutes False Representation or Implication that Debt Collector Is Vouched for, Bonded by, or Affiliated with United States or Any State in Violation of Fair Debt Collection Practices Act (15 U.S.C.A. § 1692e(1)), 38 A.L.R. Fed. 3d Art. 1.

First Amendment Protection Against Curtailment of Access to, or Retaliation for Communications on, Social Media, 38 A.L.R. Fed. 3d Art. 5.

Status and Effect of Public Access Channels as “Public Forums” Under First Amendment, 38 A.L.R. Fed. 3d Art. 8.

What Constitutes “Antecedent Debt” in Bankruptcy Preference Statute, 11 U.S.C.A. § 547(b)(2), 39 A.L.R. Fed. 3d Art. 4.

Extraterritorial Application of Bankruptcy Code’s Fraudulent Transfer Provisions (11 U.S.C.A. §§ 548, 550), 39 A.L.R. Fed. 3d Art. 5.

Paragraph X. Bill of attainder; ex post facto laws; and retroactive laws.

No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed.

1976 Constitution. —

Art. I, Sec. I, Para. VII.

Cross references.

Bill of attainder, U.S. Const., art. I, sec. X, Cl. 1 and § 1-3-5 .

Statute of limitation defense to contracts, §§ 9-3-24 et seq. and 11-2-725 .

Statute of frauds defense, §§ 11-1-206 , 11-2-201 , and 11-8-319.

Unconscionable contracts, § 11-2-302 .

Capacity of parties, § 13-3-20 et seq.

Grounds to deny the obligations of contracts, §§ 13-4-22 , 13-4-60 et seq., 13-4-81 et seq., 13-5-1 et seq.

Fraud, § 13-5-5 .

Duress, § 13-5-6 .

Illegal and void contracts generally, § 13-8-1 et seq.

Law reviews.

For comment on Winston v. State, 186 Ga. 573 , 198 S.E. 667 (1938), see 1 Ga. B.J. 46 (1939).

For note, “Annexation by Municipalities in Georgia,” see 2 Mercer L. Rev. 423 (1951).

For article, “Constitutionality of Economic Regulations,” see 2 J. of Pub. L. 98 (1953).

For article discussing Georgia alimony provisions allowing modification of judgments with respect to federal and state constitutional limitations, see 18 Ga. B.J. 153 (1955).

For article, “Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,” see 9 Mercer L. Rev. 253 (1958).

For comment on General Motors Acceptance Corp. v. Saliba, 260 F.2d 262 (5th Cir. 1958), see 11 Mercer L. Rev. 235 (1959).

For comment on Sanders v. Harper, 220 Ga. 649 , 141 S.E.2d 156 (1965), see 17 Mercer L. Rev. 311 (1965).

For note, “Restrictive Covenants: A Need For Reappraisal of the Limitations Period,” see 17 Ga. St. B.J. 137 (1981).

For article discussing the effect of Texaco, Inc. v. Short, 454 U.S. 516 (1982) on marketable title laws, see 34 Mercer L. Rev. 1005 (1983).

For article, “Federal Preemption, Federal Conscription Under the New Superfund Act,” see 38 Mercer L. Rev. 643 (1987).

For comment on revival prosecutions and the ex post facto clauses, see 50 Emory L.J. 397 (2001).

For annual survey on local government law, see 64 Mercer L. Rev. 213 (2012).

JUDICIAL DECISIONS

Analysis

General Consideration

Status analogous to contractual relation could not be impaired by subsequent provisions. —

The approval of school bonds by the electors and their validation according to statute created a status analogous to a contractual relation between such electors and the state, which could not be destroyed or impaired by a subsequent statute or constitutional provision. Wheeler v. Board of Trustees, 200 Ga. 323 , 37 S.E.2d 322 , 1946 Ga. LEXIS 396 (1946).

Contract between state and individual is protected by this constitutional prohibition. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 , 1935 Ga. LEXIS 531 (1935).

No bar to tax legislation effective upon business or occupation in year in which enacted. —

It is competent for the legislature to enact that a person entering upon the business or occupation upon which the tax provided in an ordinance has been imposed, by the terms thereof, should pay the amount of the tax named for the year, or for any period of time within the year, during which the person should choose to apply for a license. Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 752 , 164 S.E.2d 803 , 1968 Ga. LEXIS 938 (1968).

Statute made no irrevocable grant of right of taxation. —

Former Code 1933, § 56-1310, (see now O.C.G.A. § 33-8-8 ) was not unconstitutional because it neither made any irrevocable grant of special privileges and immunities nor did it irrevocably give, grant, limit, or restrain the state’s sovereign right of taxation as proscribed by this paragraph and Ga. Const. 1945, Art. VII, Sec. I, Para. I (see now Ga. Const. 1983, Art. VII, Sec. I, Para. I). Nash v. National Preferred Life Ins. Co., 222 Ga. 14 , 148 S.E.2d 402 , 1966 Ga. LEXIS 385 (1966).

Statute regulating coin operated amusement machines. —

In a suit for tortious interference with contractual relations, the trial court erred by granting partial summary judgment against the owners of coin-operated amusement machines because O.C.G.A. § 50-27-70 et seq. did not void preexisting contracts and it was error to interpret the statute otherwise. All Star, Inc. v. Ga. Atlanta Amusements, LLC, 332 Ga. App. 1 , 770 S.E.2d 22 , 2015 Ga. App. LEXIS 206 (2015).

Constitutional issue on zoning ordinance. —

Trial court erred by failing to address whether a 1993 county zoning ordinance was constitutional because the record established that the landfill permit applicant raised a constitutional challenge to the zoning ordinance before the trial court in its response to the challengers’ motion for partial summary judgment and, in fact, in its transfer order to the appellate court, the trial court specifically stated that the court did not rule on the applicant’s constitutional argument. Southern States-Bartow County, Inc. v. Riverwood Farm Prop. Owners Ass'n, Inc., 331 Ga. App. 878 , 769 S.E.2d 823 , 2015 Ga. App. LEXIS 190 (2015).

Application of amendments to criminal history record information statute. —

Recent amendments to Georgia’s criminal history record information statute, O.C.G.A. § 35-3-37 , are to be applied to information regarding arrests occurring prior to the amendments’ effective date as the statute itself made clear that the statute does apply to information regarding arrests pre-dating the amendments, and such application presents no constitutional problem. Mosley v. Lowe, 298 Ga. 363 , 782 S.E.2d 43 , 2016 Ga. LEXIS 78 (2016).

Expert affidavit requirement in medical malpractice cases did not extend special privileges and immunities. —

O.C.G.A. § 24-7-702(c)(2)(A), governing expert qualifications in medical malpractice cases, was not unconstitutionally vague, did not violate equal protection, separation of powers, or the right to jury trial, did not make irrevocable grants of special privileges and immunities, and was not a special law; however, the trial court erred in rejecting an expert simply because the expert had not performed the specific procedure at issue. The proper consideration was the expert’s level of knowledge. Zarate-Martinez v. Echemendia, 299 Ga. 301 , 788 S.E.2d 405 , 2016 Ga. LEXIS 450 (2016).

County’s resolution deciding not to commercialize airport was not state legislative action. —

Contractor who argued that a county violated the Contracts Clause of the federal and state constitutions when the county passed a resolution withdrawing the county’s consent to an FAA application to expand the county’s airport failed to allege any state legislative action and, thus, there could be no violation of the Contracts Clause. Avery v. Paulding County Airport Auth., 343 Ga. App. 832 , 808 S.E.2d 15 , 2017 Ga. App. LEXIS 566 (2017).

Bill of Attainder

Removal of county commissioner from office. —

Local act, which had the effect of removing a county commissioner from office before the end of the two-year term to which the commissioner had been appointed to fill a vacancy left by a deceased commissioner, was a bill of attainder prohibited by both the Georgia and United States Constitutions. Fulton v. Baker, 261 Ga. 710 , 410 S.E.2d 735 , 1991 Ga. LEXIS 1008 (1991).

Discovery. —

The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. is not a bill of attainder, which refers to legislative imposition of punishment on specific persons or on a class of persons without any judicial proceeding. Stinski v. State, 281 Ga. 783 , 642 S.E.2d 1 , 2007 Ga. LEXIS 128 (2007).

Local deannexation statute that included the area of the city in which the mayor resided, making the mayor ineligible to hold office, was not an unconstitutional bill of attainder because it neither singled out the mayor nor punished the mayor as an officeholder. Lee v. City of Villa Rica, 264 Ga. 606 , 449 S.E.2d 295 , 1994 Ga. LEXIS 871 (1994).

Local act providing for selection of chair of board of education was unconstitutional bill of attainder. —

H.B. 563 was an unconstitutional bill of attainder under Ga. Const. 1983, Art. I, Sec. I, Para. X, as applied to the chairperson of the Randolph County Board of Education because prior to the passage of the bill, the chairperson’s term was not set to expire until December 31, 2010, but the bill operated to cut short the chairperson’s four-year term that had previously been established by O.C.G.A. § 20-2-57(a) and local board policy. Cook v. Smith, 288 Ga. 409 , 705 S.E.2d 847 , 2010 Ga. LEXIS 887 (2010).

Ex Post Facto Laws

Ex post facto laws are prohibited. Akins v. State, 231 Ga. 411 , 202 S.E.2d 62 , 1973 Ga. LEXIS 724 (1973).

The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. is not an ex post facto law because it affects purely procedural rights and duties. Stinski v. State, 281 Ga. 783 , 642 S.E.2d 1 , 2007 Ga. LEXIS 128 (2007).

General aspects of ex post facto laws. —

A statute cannot be an ex post facto law if it is apparent that the legislature in enacting the statute involved did not make that a criminal act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence and require less or different evidence than the law required at the time of the commission of the offense; and did not deprive the accused of any substantial right or immunity possessed by the defendant at the time of the commission of the offense. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , 1972 Ga. LEXIS 896 (1972).

As a general rule, any law is ex post facto which is enacted after the offense was committed, and which, in relation to it or its consequences, alters the situation of the accused to the accused’s disadvantage. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , 1972 Ga. LEXIS 896 (1972).

Construction of ex post facto prohibitions. —

The ex post facto laws prohibited by the state and federal Constitutions refer only to laws which aggravate the crime, increase the punishment, or allow conviction on a less or different weight of evidence, and not to those which reduce or mollify the penalty. Barton v. State, 81 Ga. App. 810 , 60 S.E.2d 173 , 1950 Ga. App. LEXIS 1004 (1950).

Term ex post facto refers to criminal statutes. Williams v. State, 213 Ga. 221 , 98 S.E.2d 373 , 1957 Ga. LEXIS 342 (1957); Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605 , 234 S.E.2d 165 , 1977 Ga. App. LEXIS 2014 (1977), overruled in part, Deal v. Coleman, 294 Ga. 170 , 751 S.E.2d 337 , 2013 Ga. LEXIS 965 (2013).

The taking of a urine sample from a fireman by a city was not a legislative enactment and therefore did not violate the ex post facto clause. Smith v. City of E. Point, 189 Ga. App. 454 , 376 S.E.2d 215 , 1988 Ga. App. LEXIS 1433 (1988).

Ex post facto law relates to criminal cases only and is a law that alters the situation of the accused to the accused’s disadvantage. Bailey v. State, 210 Ga. 52 , 77 S.E.2d 511 , 1953 Ga. LEXIS 465 (1953).

Prohibition of ex post facto laws applies only to substantive, not procedural, rights. Cannon v. State, 246 Ga. 754 , 272 S.E.2d 709 , 1980 Ga. LEXIS 1260 (1980).

Act which is procedural in nature does not violate ex post facto rule when applied to previously committed offense unless it results in the infliction of greater punishment for the crime or alters the situation of the accused to the accused’s disadvantage. Walker v. State, 132 Ga. App. 274 , 208 S.E.2d 5 , 1974 Ga. App. LEXIS 1673 (1974).

Statute that only regulates procedure is outside constitutional prohibitions. —

While it is the rule that no one has a vested right in a mere mode of procedure, so that a statute merely regulating procedure, and leaving untouched “all the substantial protections with which existing law surrounds the person accused of crime,” is not within the constitutional inhibition against ex post facto laws, yet a statute is void and ineffective as related to previous offenses, if it takes from the accused a substantial right given to the accused by the law in force at the time to which the accused’s guilt relates, and such a statute “cannot be sustained simply because, in a general sense, it may be said to regulate procedure.” Winston v. State, 186 Ga. 573 , 198 S.E. 667 , 1938 Ga. LEXIS 640 (1938) (commented on in 1 Ga. B.J. 46 (1939)); Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , 1972 Ga. LEXIS 896 (1972).

In order for statute to violate prohibition against ex post facto laws it must affect substantive right of accused and an accused does not have a vested right in a mere mode of procedure. Eades v. State, 232 Ga. 735 , 208 S.E.2d 791 , 1974 Ga. LEXIS 1075 (1974).

Upon the defendant’s constitutional challenge to the retrospective application of three provisions of the Criminal Justice Act, Ga. L. 2005, p. 20, no reversible error resulted from challenges to the closing arguments and admission of character evidence, as: (1) the former was not distinctly ruled upon by the lower court; and (2) the lower court sustained objections to the admissibility of character evidence, and thus, the state could not introduce character evidence regarding the defendant’s prior criminal convictions; moreover, a change in the number of the defendant’s peremptory challenges by the Act did not affect any protected right by the application of the amended version of O.C.G.A. § 15-12-165 , as strikes were procedural and not substantive in nature. Madison v. State, 281 Ga. 640 , 641 S.E.2d 789 , 2007 Ga. LEXIS 180 (2007).

Jury determination of sentence is not a substantive right so as to come within the proscriptions of “ex post facto laws”. Adkins v. State, 134 Ga. App. 507 , 215 S.E.2d 270 , 1975 Ga. App. LEXIS 2056 (1975); Mealor v. State, 134 Ga. App. 564 , 215 S.E.2d 272 , 1975 Ga. App. LEXIS 2083 (1975).

Changes deemed necessary for orderly and just conduct of criminal trials is outside ex post facto prohibitions. —

When the changes effected by the enactment of a law constitute merely an alteration in the conditions deemed necessary for the orderly and just conduct of criminal trials, they do not deprive the defendant of any substantial personal right within the meaning of the constitutional prohibitions of ex post facto laws. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , 1972 Ga. LEXIS 896 (1972).

Statute may use conviction as element of future offense. —

Even though a statute, passed after a conviction, uses the conviction as an element of a future offense, this is not an ex post facto law, because the defendant’s punishment for an earlier conviction is not increased, because the statute punishes only for a future offense, and because punishment is rationally enhanced by the prior conviction. State v. Dean, 235 Ga. App. 847 , 510 S.E.2d 605 , 1998 Ga. App. LEXIS 1621 (1998).

Prior conviction as an element of a future offense. —

Even though O.C.G.A. § 42-1-13 was passed after a sex offender’s statutory rape conviction, and used the prior conviction as an element of a future offense, it was not an ex post facto law since it only punished a future offense, which punishment was enhanced by the prior conviction, and the sex offender could only have been punished under § 42-1-13 if the offender prospectively chose to violate it by continuing to live at the offender’s current home; the fact that the prior conviction subjected the sex offender to possible punishment under § 42-1-13 did not make the statute into an unconstitutional ex post facto law. Denson v. State of Ga., 267 Ga. App. 528 , 600 S.E.2d 645 , 2004 Ga. App. LEXIS 703 (2004).

Habitual violator statute is not ex post facto. —

A habitual violator statute allowing consideration of offenses which occurred before enactment of the statute is not ex post facto. The repetition of the criminal conduct aggravates the offender’s guilt and justifies heavier penalties when the offender is again convicted, and the penalty is imposed for a new crime only but is heavier if the offender is a habitual violator. Cofer v. Crowell, 146 Ga. App. 639 , 247 S.E.2d 152 , 1978 Ga. App. LEXIS 2490 (1978).

Statute allowing the use of victim impact evidence at the sentencing phase of a trial is not an unconstitutional ex post facto law since it does not affect the manner and degree of punishment nor alter any substantive rights of the defendant. Livingston v. State, 264 Ga. 402 , 444 S.E.2d 748 , 1994 Ga. LEXIS 476 (1994).

Sex offender registration. —

A defendant who entered an Alford plea in 2000 to sex offenses as a first offender was properly required to register as a sex offender pursuant to the 2005 amendment to O.C.G.A. § 42-1-12 ; that section applies to first offenders convicted before July 1, 2004, and it is not an ex post facto law because if a defendant fails to register, the defendant will be guilty of a felony distinct from those crimes of which the defendant has been previously convicted. Watson v. State, 283 Ga. App. 635 , 642 S.E.2d 328 , 2007 Ga. App. LEXIS 145 (2007), cert. dismissed, No. S07C0997, 2007 Ga. LEXIS 460 (Ga. June 4, 2007).

Amendment of forcible rape statute meant indictment within statute of limitations. —

With regard to a defendant’s conviction for forcible rape of the defendant’s child during the time the child was 13 through 15 years of age, the trial court correctly concluded that the state had 15 years from the victim’s 16th birthday on January 12, 1995, or until January 12, 2010, to prosecute the case noting the extension of the statute of limitation to 15 years as to forcible rape by the 1996 amendment to O.C.G.A. § 17-3-1 ; therefore, no ex post facto violation occurred since the indictment was filed on January 8, 2008. Duke v. State, 298 Ga. App. 719 , 681 S.E.2d 174 , 2009 Ga. App. LEXIS 695 (2009), cert. denied, No. S09C1866, 2010 Ga. LEXIS 31 (Ga. Jan. 12, 2010).

Amendment changing retroactive effect of prior amendment. —

An amendment which changed the retroactive effect of an earlier amendment to O.C.G.A. § 40-5-67.1 , the implied consent warning law, so that it applied only to stops made after the effective date of the earlier amendment, rather than to cases pending on such date, did not violate federal or state ex post facto constitutional provisions. State v. Martin, 266 Ga. 244 , 466 S.E.2d 216 , 1996 Ga. LEXIS 72 (1996).

Imposition of special conditions of parole that were not part of the state’s parole regimen at the time of defendant’s convictions did not violate the ex post facto clause of the state constitution. Hamm v. Ray, 272 Ga. 659 , 531 S.E.2d 91 , 2000 Ga. LEXIS 418 (2000).

Use of the amended version of O.C.G.A. § 42-8-34.1 when an appellant’s probation was revoked due, in part, to the appellant’s failure to abide by a special condition of the probation, did not implicate ex post facto concerns inasmuch as the imposition of a probated sentence is within the discretion of the sentencing court, and the appellant did not have a substantial right to receive probation, much less to receive probation that could not be revoked in its entirety upon violation of a special condition of probation. Walker v. Brown, 281 Ga. 468 , 639 S.E.2d 470 , 2007 Ga. LEXIS 1 (2007).

Amendment to firearms possession statute. —

Amendment adding the phrase “or within arm’s reach” after the phrase “on his person” to a criminal firearms possession statute was a substantive change and therefore subject to the prohibition against ex post facto laws. McIntosh v. State, 185 Ga. App. 612 , 365 S.E.2d 454 , 1988 Ga. App. LEXIS 187 (1988).

Amendment to drug trafficking statute. —

When, at the time of the offense, O.C.G.A. § 16-13-31(a) defined two methods of committing the crime of trafficking in cocaine, one dealing with pure cocaine and the other with mixtures containing cocaine, by amending the trafficking statute in 1985 to define the crime as “actual possession of 28 grams or more of cocaine,” the legislature demonstrated an intent to repeal that portion of the trafficking statute which defined the crime as “actual possession of 28 grams or more . . . of any mixture containing cocaine . . . ,” and a defendant convicted thereafter of trafficking in a mixture is being held under an illegal sentence and must be discharged in a habeas corpus proceeding. Bassett v. Lemacks, 258 Ga. 367 , 370 S.E.2d 146 , 1988 Ga. LEXIS 339 (1988).

Manufacturing methamphetamine charge in a complaint did not violate ex post facto protections under U.S. Const., art. I, sec. X and Ga. Const. 1983, Art. I, Sec. I, Para. X since the defendant was not charged under O.C.G.A. § 16-13-31(f)(1), which was not effective at the time of the defendant’s conduct; at the time of the offense, the defendant’s alleged conduct was prohibited by former O.C.G.A. § 16-13-31(e) . Gentry v. State, 281 Ga. App. 315 , 635 S.E.2d 782 , 2006 Ga. App. LEXIS 943 (2006), cert. denied, No. S07C0117, 2007 Ga. LEXIS 78 (Ga. Jan. 22, 2007).

Probation revocation ex-post facto inquiry. —

To determine if an ex post facto violation resulted from use of the applied law in a probation revocation matter, the law in effect at the time of the probation revocation must be measured against the law in effect at the time of the initial offense, not the law in effect at the time of the act that resulted in probation revocation. Walker v. Brown, 281 Ga. 468 , 639 S.E.2d 470 , 2007 Ga. LEXIS 1 (2007).

Retroactive Laws

Retroactive laws are prohibited. Anthony v. Penn, 212 Ga. 292 , 92 S.E.2d 14 , 1956 Ga. LEXIS 345 (1956).

Definition of retroactive laws. —

An Act of the General Assembly which creates a new obligation and imposes a new duty in respect to transactions or considerations already past is retroactive in character, and in violation of this paragraph. Ross v. Lettice, 134 Ga. 866 , 68 S.E. 734 , 1910 Ga. LEXIS 378 (1910); Wilkins v. Mayor of Savannah, 152 Ga. 638 , 111 S.E. 42 , 1922 Ga. LEXIS 243 (1922); Rider v. Taylor, 166 Ga. App. 474 , 304 S.E.2d 557 , 1983 Ga. App. LEXIS 2214 (1983).

Term “retroactive law” applies exclusively to constitutional challenges to civil statutes. Evans v. State, 252 Ga. 312 , 314 S.E.2d 421 , 1984 Ga. LEXIS 692, cert. denied, 469 U.S. 826, 105 S. Ct. 106 , 83 L. Ed. 2 d 50, 1984 U.S. LEXIS 3173 (1984).

That no retroactive law shall be passed is unconditional mandate of the people; it is too positive and too certain in meaning to be misunderstood by anyone, lawyer, judge, or layman. Grimes v. Lindsey, 219 Ga. 779 , 135 S.E.2d 860 , 1964 Ga. LEXIS 405 (1964).

General aspects of retrospective laws. —

Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943); Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 , 1959 Ga. LEXIS 550 (1959); Davis v. Hunt, 218 Ga. 630 , 129 S.E.2d 778 , 1963 Ga. LEXIS 281 (1963).

A statute is retroactive in its legal sense, which creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights. A statute does not operate retrospectively because it relates to antecedent facts, but if it is intended to affect transactions which occurred or rights which accrued before it became operative as such, and which ascribe to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943); Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 , 1959 Ga. LEXIS 550 (1959); Adams v. Adams, 219 Ga. 633 , 135 S.E.2d 428 , 1964 Ga. LEXIS 347 (1964); Woodruff v. Trust Co., 233 Ga. 135 , 210 S.E.2d 321 , 1974 Ga. LEXIS 700 (1974).

Retrospective statutes are forbidden by first principles of justice, and an Act of the General Assembly which affects detrimentally some substantial right of a party, or imposes a new duty in respect to transactions or considerations already past, or places an additional burden on a pending action, is retroactive and violates the Constitution. Bank of Norman Park v. Colquitt County, 169 Ga. 534 , 150 S.E. 841 , 1929 Ga. LEXIS 396 (1929); London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943).

General rule regarding operation of laws. —

This paragraph expressly prohibited the passage of retroactive laws, and the general rule laid down by former Code 1933, § 102-104 (see now O.C.G.A. § 1-3-5 ) was that laws prescribe only for the future; it was also a general rule applicable to amending statutes that they are to be construed as intended to have operation on future transactions only, and as having no retroactive purpose not plainly expressed. Layton v. Liberty Loans, 152 Ga. App. 504 , 263 S.E.2d 167 , 1979 Ga. App. LEXIS 2976 (1979), overruled, Financeamerica Corp. v. Drake, 154 Ga. App. 811 , 270 S.E.2d 449 , 1980 Ga. App. LEXIS 2402 (1980).

Because a retroactive application of O.C.G.A. § 9-11-68 would have impaired the offeror’s rights to recover attorney’s fees and costs, the trial court did not err in applying the statute in effect at the time the offeror’s offer was made. Kromer v. Bechtel, 289 Ga. App. 306 , 656 S.E.2d 910 , 2008 Ga. App. LEXIS 63 (2008).

Laws prescribe only for the future, and generally have no retroactive operation, and the settled rule for the construction of statutes is not to give them a retrospective operation, unless the language imperatively requires such construction. Bank of Norman Park v. Colquitt County, 169 Ga. 534 , 150 S.E. 841 , 1929 Ga. LEXIS 396 (1929); London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943).

Retroactive application of statute only when expressed or by necessary implication. —

Unless a statute, either expressly or by necessary implication, shows that the General Assembly intended it to operate retroactively, it will be given only prospective application. Anthony v. Penn, 212 Ga. 292 , 92 S.E.2d 14 , 1956 Ga. LEXIS 345 (1956); Robert & Co. Assocs. v. Pinkerton & Laws Co., 124 Ga. App. 309 , 183 S.E.2d 628 , 1971 Ga. App. LEXIS 905 (1971); Southern Ry. v. Insurance Co. of N. Am., 228 Ga. 23 , 183 S.E.2d 912 , 1971 Ga. LEXIS 453 (1971).

Not all retrospective statutes prohibited by Constitution. —

A statute which may be retrospective in its operation is not necessarily prohibited by the Constitution or by any principle of justice. Bullard v. Holman, 184 Ga. 788 , 193 S.E. 586 , 1937 Ga. LEXIS 640 (1937).

Retroactive laws which do not injuriously affect any right of citizen may be passed. State Hwy. Dep't v. Bass, 197 Ga. 356 , 29 S.E.2d 161 , 1944 Ga. LEXIS 260 (1944).

Passage of only those retroactive, or rather retrospective, laws which injuriously affect vested rights of citizens is forbidden. Bullard v. Holman, 184 Ga. 788 , 193 S.E. 586 , 1937 Ga. LEXIS 640 (1937); Darby v. Cook, 201 Ga. 309 , 39 S.E.2d 665 , 1946 Ga. LEXIS 462 (1946).

The general rule throughout the United States is that a state legislature may constitutionally repeal, alter, or modify state laws enacted under the police power for the protection of the public, without violating any express or implied constitutional prohibition against retroactive statutes. Fortson v. Weeks, 232 Ga. 472 , 208 S.E.2d 68 , 1974 Ga. LEXIS 987 (1974).

The constitutional prohibition against retroactive laws applies only to those laws which affect or impair vested rights. Bituminous Cas. Corp. v. United Servs. Auto. Ass'n, 158 Ga. App. 739 , 282 S.E.2d 198 , 1981 Ga. App. LEXIS 2397 (1981); Cole v. Roberts, 648 F. Supp. 415, 1986 U.S. Dist. LEXIS 17352 (M.D. Ga. 1986).

This paragraph strikes at such retrospective legislation as injuriously affects some substantial right of citizen. Bacon v. Mayor of Savannah, 105 Ga. 62 , 31 S.E. 127 , 1898 Ga. LEXIS 449 (1898); Mills v. Geer, 111 Ga. 275 , 36 S.E. 673 , 1900 Ga. LEXIS 530 (1900).

Some laws have valid retrospective application. —

While new laws passed by the legislature are normally only prospective in application, a statute determining who may be proper parties to actions, especially when the actions are of a remedial nature, will be applied to actions accrued or pending at the time of its passage. Motor Fin. Co. v. Harris, 150 Ga. App. 762 , 258 S.E.2d 628 , 1979 Ga. App. LEXIS 2369 (1979).

Retroactive remedial laws are valid. —

To apply the constitutional provision against “retroactive laws,” as meaning any retroactive law, rather than those which “injuriously affect the right of citizens,” would be contrary to the many decisions of this court holding that remedial laws, even though retroactive, are valid, as the reason for holding these laws to be constitutional is based on the fact that there is no vested right of the citizen involved. State Hwy. Dep't v. Bass, 197 Ga. 356 , 29 S.E.2d 161 , 1944 Ga. LEXIS 260 (1944).

Even though a statute may not be effective in a certain situation for retroactively affecting vested rights, the statute is not otherwise invalid per se. Mead Corp. v. Collins, 258 Ga. 239 , 367 S.E.2d 790 , 1988 Ga. LEXIS 178 (1988).

Ga. Const. 1983, Art. I, Sec. I, Para. X does not apply to remedial or procedural statutes. Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1991 U.S. App. LEXIS 1531 (11th Cir. 1991).

Retroactive application of statute of limitations held constitutional. —

The legislature may revive a workers’ compensation claim which would have been barred by a previous limitation period by enacting a new statute of limitation without violating Ga. Const. 1983, Art. I, Sec. I, Para. X. Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102 , 317 S.E.2d 189 , 1984 Ga. LEXIS 824, cert. denied, 469 U.S. 918, 105 S. Ct. 296 , 83 L. Ed. 2 d 231, 1984 U.S. LEXIS 4033 (1984).

Administrator’s fraudulent conveyance claims against group one were time-barred under O.C.G.A. §§ 18-2-74(a)(1) and 18-2-79 (1), even though the claim was not time-barred under the limitations period in effect when the claim accrued, as application of O.C.G.A. § 18-2-79 , a procedural law in effect at the time the suit was filed, did not violate the constitutional prohibition against retroactive laws under Ga. Const. 1983, Art. I, Sec. I, Para. X; the administrator also failed to avail the administrator of the one-year statute of limitation effective upon discovery of the alleged fraud. Huggins v. Powell, 315 Ga. App. 599 , 726 S.E.2d 730 , 2012 Ga. App. LEXIS 348 (2012).

There is no violation of the state’s constitutional prohibition against the retroactive application of a procedural statute because one has no vested rights in any course of procedure, and the presumption against a retrospective statutory construction does not apply to statutory enactments which affect only court procedure and practice, even when the alteration from the statutory change results in a disadvantage to a party. Murphy v. Murphy, 295 Ga. 376 , 761 S.E.2d 53 , 2014 Ga. LEXIS 533 (2014).

Former statute reviving the daughter’s civil claims for childhood sexual abuse did not violate Georgia’s constitutional ban on retroactive laws under the state constitution as, ordinarily, there was no constitutional impediment to giving retroactive effect to statutes that governed only procedure of the courts. Harvey v. Merchan, 311 Ga. 811 , 860 S.E.2d 561 , 2021 Ga. LEXIS 469 (2021).

Legislature cannot revive a right of action which is barred by the statute of limitations in existence prior to the passage of the reviving Act. Such an Act is unconstitutional and void for the reason that it violates this paragraph which provides that no retroactive law shall be passed. Bussey v. Bishop, 169 Ga. 251 , 150 S.E. 78 , 1929 Ga. LEXIS 328 (1929), overruled, Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102 , 317 S.E.2d 189 , 1984 Ga. LEXIS 824 (1984).

State has sovereign right to legislate for general welfare despite effect on existing contracts. —

Constitutional restraints upon the impairment of the obligation of contracts do not prevent the state from exercising such powers as are necessary in the exercise of its sovereign right to protect the lives, health, morals, comfort, and general welfare of the public, though contracts previously entered into between individuals may thereby be affected. Moore v. Georgia Pub. Serv. Comm'n, 242 Ga. 182 , 249 S.E.2d 549 , 1978 Ga. LEXIS 1133 (1978).

Arbitration Code. —

The application of the Georgia Arbitration Code, O.C.G.A. § 9-9-1 et seq., to a dispute arising after its effective date regarding contracts entered into at an earlier date was contemplated in its enactment; the law does not provide a new remedy or repair any obligation under the contract and its application to such a dispute does not violate the constitutional prohibition against retroactive laws. Weyant v. MacIntyre, 211 Ga. App. 281 , 438 S.E.2d 640 , 1993 Ga. App. LEXIS 1457 (1993), cert. denied, No. S94C0456, 1994 Ga. LEXIS 368 (Ga. Feb. 3, 1994).

Legislative enactments modifying state laws under police power not prohibited. —

A state legislature may constitutionally repeal, alter, or modify state laws enacted under the police power for the protection of the public, without violating any express or implied constitutional provision against retroactive statutes. Keenan v. Hardison, 245 Ga. 599 , 266 S.E.2d 205 , 1980 Ga. LEXIS 870 (1980).

Legislature was not precluded from subsequently modifying express and implied powers given to city authorities to prohibit livestock from running loose by the prohibition against retroactive laws. Pierce v. Powell, 188 Ga. 481 , 4 S.E.2d 192 , 1939 Ga. LEXIS 772 (1939).

Right of state may be impaired by retrospective laws. —

There is authority to the effect that the right of the state, as distinguished from the right of a citizen, may be impaired by retrospective laws. State Hwy. Dep't v. Bass, 197 Ga. 356 , 29 S.E.2d 161 , 1944 Ga. LEXIS 260 (1944).

Repealing act will not be given retroactive operation, so as to divest previously acquired rights, or to impair the obligation of a contract lawfully made by virtue of and pending the existence of the law repealed. Bank of Norman Park v. Colquitt County, 169 Ga. 534 , 150 S.E. 841 , 1929 Ga. LEXIS 396 (1929).

Subsequent adoption of pending zoning ordinance was not ex post facto or retroactive law. —

When the plaintiff, while proceeding to zone property was pending, filed application to authorize building of a filling station, and an ordinance was later adopted zoning plaintiff’s property for residential purposes, such ordinance was not in violation of the federal and state Constitutions as an ex post facto or retroactive law. Gay v. Mayor of Lyons, 212 Ga. 438 , 93 S.E.2d 352 , 1956 Ga. LEXIS 402 (1956).

Retroactive ordinance enforcement not permitted. —

Trial court’s order dismissing the homeowner’s criminal citation for violating the county’s amended zoning ordinance by renting out the lake house for a week was affirmed because the zoning ordinance in effect at the time the homeowner began renting the lake house for short periods was unconstitutionally vague as applied, meaning that use of the house for such rentals was grandfathered and not subject to an amended ordinance’s explicit prohibition of short-term rentals for fewer than 30 days. Morgan County v. May, 305 Ga. 305 , 824 S.E.2d 365 , 2019 Ga. LEXIS 105 (2019).

Statute on covenants restricting land use not intended to operate retrospectively. —

Former Code 1933, § 29-301 (see now O.C.G.A. § 44-5-60 ), declaring that “covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws”, properly construed, was not intended to operate retrospectively, and would not have the effect of terminating a covenant that was already in existence as a valid and binding contract between the parties. Dooley v. Savannah Bank & Trust Co., 199 Ga. 353 , 34 S.E.2d 522 , 1945 Ga. LEXIS 425 (1945).

Asbestos claim statute. —

Superior and state courts did not err in entering nearly identical orders which held that because O.C.G.A. § 51-14-1 et seq. required asbestos plaintiffs to provide proof that exposure to asbestos was a substantial contributing factor in their medical condition, it unconstitutionally affected an employee’s substantive rights by establishing a new element which did not exist when the original cause of action accrued, and hence, could not be applied retrospectively; moreover, because these requirements and limitations were the heart of the statute, their severance would result in a statute that failed to correspond to the main legislative purpose, or give effect to that purpose. DaimlerChrysler v. Ferrante, 281 Ga. 273 , 637 S.E.2d 659 , 2006 Ga. LEXIS 960 (2006).

Board zoning action changing use classification of property not prohibited. —

In the passage of a comprehensive zoning plan and amending it, the board of county commissioners did so under the police power, and the action of the board in changing the use classification of the defendants’ property from an agricultural use to that of apartment use does not deny the plaintiffs the equal protection of law, nor operate retroactively in violation of the federal and state constitutional provisions prohibiting the passage of ex post facto laws. Morgan v. Thomas, 207 Ga. 660 , 63 S.E.2d 659 , 1951 Ga. LEXIS 490 (1951).

Attempt by legislature to make amendment retroactive fails. —

A party in an alimony action in which a final judgment was entered prior to the 1977 amendment to Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-19 ) had a vested right in the judgment not being subject to modification because of a change in the income of the wife, since the law in effect at the time of the judgment did not permit a modification on such change. Accordingly, the attempt by the legislature in Ga. L. 1978, p. 2204, § 1 and Ga. L. 1957, p. 94, § 1 (see now O.C.G.A. §§ 19-6-23 and 19-6-24 ), to make the 1977 amendment to Ga. L. 1964, p. 713, § 1 retroactive is unconstitutional under this paragraph. McClain v. McClain, 241 Ga. 422 , 246 S.E.2d 187 , 1978 Ga. LEXIS 1006 (1978).

Retroactive application of provisions regarding insanity verdict not unconstitutional. —

The provisions of former Code 1933, § 27-1503 (see now O.C.G.A. § 17-7-131 ), that, in the event of an acquittal of a person accused of crime by reason of insanity, the jury shall so state in their verdict, and the accused shall thereafter be confined in the state hospital for the insane, would not be unconstitutional, as being retroactive or ex post facto, when applied to the trial of a person charged with a crime committed prior to the date of the passage of the act. Bailey v. State, 210 Ga. 52 , 77 S.E.2d 511 , 1953 Ga. LEXIS 465 (1953).

Applying guilty but mentally ill provision retrospectively. —

When crimes were committed before July 1, 1982, and a verdict of guilt is authorized by the evidence, the application of the “guilty but mentally ill” provision, O.C.G.A. § 17-7-131 , is procedural, not substantive; it leaves untouched the substantive right to the insanity plea as an absolute defense, and the accused is given an additional advantage when the “guilty but mentally ill” statute is applied. Such a verdict is not an unconstitutional application of an ex post facto law. Kirkland v. State, 166 Ga. App. 478 , 304 S.E.2d 561 , 1983 Ga. App. LEXIS 2216 (1983).

Statute inapplicable to commercial paper executed prior to its enactment. —

Ga. L. 1935, p. 381, § 1 (see now O.C.G.A. § 44-14-161 ) relating to confirmation of sales under foreclosure proceedings on real estate, to limit and abate deficiency judgments in suit and foreclosure proceedings on debts secured by mortgages, security deeds, and other lien contracts on real estate, is not applicable to a note and security deed executed prior to its enactment. Guardian Life Ins. Co. of Am. v. Laird, 181 Ga. 416 , 182 S.E. 617 , 1935 Ga. LEXIS 105 (1935).

Adverse possession of mineral rights constitutional. —

The protection against retroactive (or retrospective) laws prohibits the impairment of vested rights. Although owners of mineral interests may be said to have “vested rights,” that property is held subject to the proper exercise of the police power by legislative bodies. O.C.G.A. § 44-5-168 (adverse possession of mineral rights) does not divest the mineral owner of the owner’s rights; it conditions the retention of those rights upon the requirements of either using them or paying taxes upon them for the public benefit. Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 , 1983 Ga. LEXIS 924 (1983).

No retroactive application of change in “guest passenger” rule. —

A trial court does not err in refusing to apply O.C.G.A. § 51-1-36 , changing the “guest passenger” rule as to the duty owed by an automobile operator to passengers to ordinary care, to a case involving a 1981 accident, since, although a statute is “remedial” and affects only the procedure and practice of the courts and thus may be retroactive in application, the “guest passenger” rule established the duty owed by an automobile owner or operator to a nonpaying guest passenger, and there is nothing in the enactment of O.C.G.A. § 51-1-36 which discloses a legislative intent to apply the terms thereof retroactively. Rider v. Taylor, 166 Ga. App. 474 , 304 S.E.2d 557 , 1983 Ga. App. LEXIS 2214 (1983).

No retroactive application of former bank share tax statute. —

Although the former bank share tax statute, Ga. L. 1975, pp. 147-153, was passed in March 1975 and stated that it did “apply to all taxable years beginning on or after January 1, 1975,” this could not retroactively impose a tax on property held by a bank before the statute was enacted, in violation of Ga. Const. 1983, Art. I, Sec. I, Para. X. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 , 1983 Ga. LEXIS 757 (1983).

Wrongful death act amendment not applied retroactively. —

The 1985 amendment to O.C.G.A. § 51-4-2 , conferring exclusive standing upon the surviving spouse to bring a wrongful death action, could not be applied retroactively to bar a son’s suit on a claim which arose prior to the effective date of the amendment. Cole v. Roberts, 648 F. Supp. 415, 1986 U.S. Dist. LEXIS 17352 (M.D. Ga. 1986).

Notice and service provisions of the Tort Claims Act, O.C.G.A. § 50-21-20 et seq., were procedural laws that could be applied retroactively to authorize dismissal of a claim against the Department of Transportation when the plaintiff did not serve the Director of the Risk Management Division of the Department of Administrative Services or mail a copy of the complaint to the Attorney General. Henderson v. DOT, 267 Ga. 90 , 475 S.E.2d 614 , 1996 Ga. LEXIS 522 (1996).

Retirement benefits. —

Ga. Const. 1983, Art. I, Sec. I, Para. X precludes the application of an amendatory statute or ordinance in the calculation of the employee’s retirement benefits if the effect of the amendment is to reduce rather than increase the benefits payable. City of Athens v. McGahee, 178 Ga. App. 76 , 341 S.E.2d 855 , 1986 Ga. App. LEXIS 2486 (1986).

Application to interest from child support statute. —

The amended version of O.C.G.A. § 7-4-12.1 applies to all civil actions that were filed when the former version of the statute was effective but were still pending on or after January 1, 2007; the amended version of § 7-4-12.1 makes changes related to interest on child support arrearage that are remedial rather than substantive, and therefore retroactive application does not impair vested substantive rights. Gowins v. Gary, 284 Ga. App. 370 , 643 S.E.2d 836 , 2007 Ga. App. LEXIS 317 (2007), rev'd, 283 Ga. 433 , 658 S.E.2d 575 , 2008 Ga. LEXIS 243 (2008).

Application to attorney fee statute. —

O.C.G.A. § 9-11-68(b)(1) does not merely prescribe the methods of enforcing rights and obligations, but rather affects the rights of parties by imposing an additional duty and obligation to pay an opposing party’s attorney fees when a final judgment does not meet a certain amount or is one of no liability; by creating this new obligation, the statute operates as a substantive law, which is unconstitutional under Ga. Const. 1983, Art. I, Sec. I, Para. X, given its retroactive effect to pending cases. Fowler Props. v. Dowland, 282 Ga. 76 , 646 S.E.2d 197 , 2007 Ga. LEXIS 402 (2007).

Authorization for direct action against insurer of common carrier. —

Prohibition in Ga. Const. 1983, Art. I, Sec. I, Para. X against retroactive laws applied only to those laws which affected substantive rights under prior law that had vested at the time the subsequent law took effect; the amendments to former O.C.G.A. § 46-7-12(c), effective July 1, 2000, providing for a direct action against the insurer of a common carrier, did not affect substantive rights and were given retroactive effect. Devore v. Liberty Mut. Ins. Co., 257 Ga. App. 7 , 570 S.E.2d 87 , 2002 Ga. App. LEXIS 1438 (2002).

No retroactive application of amendment to voluntary dismissal law. —

When plaintiff’s first complaint was filed before July 1, 2003, the effective date of the amendment to O.C.G.A. § 9-11-41(a)(3), and the second and third complaints were filed after July 1, 2003, the 2003 amendment did not apply retroactively to make the voluntary dismissal of the second complaint act an adjudication on the merits. Davis v. Lugenbeel, 283 Ga. App. 642 , 642 S.E.2d 337 , 2007 Ga. App. LEXIS 146 (2007), cert. denied, No. S07C0936, 2007 Ga. LEXIS 518 (Ga. June 25, 2007).

Provision permitting contracts in partial restraint of trade. —

Retroactive application of O.C.G.A. § 13-8-2.1 , permitting contracts in partial restraint of trade, did not violate Ga. Const. 1983, Art. I, Sec. I, Para. X. Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1991 U.S. App. LEXIS 1531 (11th Cir. 1991).

Retroactive extinguishment of right to trial by jury unconstitutional. —

Retroactive application of the 1977 amendment to O.C.G.A. § 19-7-40 , which extinguished the right to a jury trial in a paternity suit, was unconstitutional. Hargis v. Department of Human Resources, 272 Ga. 617 , 533 S.E.2d 712 , 2000 Ga. LEXIS 584 (2000).

No retroactive application of tolling statute by injured passenger. —

As a vehicle passenger’s claim was only two months old when the tolling provisions of O.C.G.A. § 9-3-99 became effective, and the passenger had not yet filed suit, § 9-3-99 was applicable to the action and there was no merit to a claim that it was retroactively applied in violation of Ga. Const. 1983, Art. I, Sec. I, Para. X. Beneke v. Parker, 293 Ga. App. 186 , 667 S.E.2d 97 , 2008 Ga. App. LEXIS 867 (2008), aff'd in part and rev'd in part, 285 Ga. 733 , 684 S.E.2d 243 , 2009 Ga. LEXIS 491 (2009), vacated in part, 300 Ga. App. 576 , 685 S.E.2d 479 , 2009 Ga. App. LEXIS 1226 (2009).

Laws Impairing Obligation of Contracts

This paragraph forbids passage of laws which impair vested rights. —

The test is whether there was a vested right. If so, no subsequent legislative act could impair it; but if not, there is no bar to a change or abolition of it at any time before it becomes fixed by a judgment. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443 , 206 S.E.2d 693 , 1974 Ga. App. LEXIS 1437 (1974); Aetna Ins. Co. v. Windsor, 133 Ga. App. 159 , 210 S.E.2d 373 , 1974 Ga. App. LEXIS 999 (1974); Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605 , 234 S.E.2d 165 , 1977 Ga. App. LEXIS 2014 (1977), overruled in part, Deal v. Coleman, 294 Ga. 170 , 751 S.E.2d 337 , 2013 Ga. LEXIS 965 (2013).

Decision to award a limited liability company fee simple title in real property did not violate the contract impairment clauses in U.S. Const., art. I, sec. X and Ga. Const. 1983, Art. I, Sec. I, Para. X as a corporation’s rights to the property pursuant to a 1984 tax deed had not vested prior to the effective date of a 1989 amendment of O.C.G.A. § 48-4-48 , which operated retrospectively. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 , 2009 Ga. LEXIS 42 (2009).

Statutes which impair contracts are void. —

The remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is, therefore, void. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 , 1935 Ga. LEXIS 70 (1935).

Even remedial statute may impair obligation of contract, and in such event the act is unconstitutional. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 , 1935 Ga. LEXIS 70 (1935).

Specific remedies constitute part of contract. —

A specific remedy, provided by the contract itself, cannot be changed by legislation, because it constitutes a part of the contract. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 , 1935 Ga. LEXIS 70 (1935).

Permissible to modify remedies existing by law but not remedies expressly part of contract. —

The remedies existing by law at the time of the execution of a contract may be modified by the legislature without impairing the obligation, provided an efficient remedy is left for its enforcement; however, the rule is different as to a remedy which the parties have expressly made a part of the contract, because in such case the remedy is integrated as a part of the obligation, and a subsequent statute which affects the remedy impairs the obligation and is unconstitutional. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 , 1935 Ga. LEXIS 70 (1935).

This paragraph does not prohibit passage of laws curing defects in remedy, or confirming rights already existing, or adding to the means of securing and enforcing those rights. Pritchard v. Savannah St. & Rural Resort R.R., 87 Ga. 294 , 13 S.E. 493 , 1891 Ga. LEXIS 155 (1891); Mills v. Geer, 111 Ga. 275 , 36 S.E. 673 , 1900 Ga. LEXIS 530 (1900).

Legislation lessening efficacy of contract enforcement impairs obligation. —

The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced, by which the parties can be obliged to perform it, and whatever legislation lessens the efficacy of these means impairs the obligation. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 , 1935 Ga. LEXIS 70 (1935).

Laws are construed in future so as not to impair obligation of contracts. Jones v. Oemler, 110 Ga. 202 , 35 S.E. 375 , 1900 Ga. LEXIS 346 (1900); Dennington v. Mayor of Roberta, 130 Ga. 494 , 61 S.E. 20 , 1908 Ga. LEXIS 324 (1908); Chason v. O'Neal, 158 Ga. 725 , 124 S.E. 519 , 1924 Ga. LEXIS 332 (1924).

Obligation of contract is not impaired by later taxing statute, which taxes the proceeds of the contract, if it does not prevent receipt of the proceeds under the contract. Airways Parking Co. v. City of Atlanta, 229 Ga. 70 , 189 S.E.2d 405 , 1972 Ga. LEXIS 501 (1972).

Constitution precludes application of amendatory statute or ordinance in calculation of employee’s retirement benefits if the effect of the amendment is to reduce rather than increase the benefits payable. Withers v. Register, 246 Ga. 158 , 269 S.E.2d 431 , 1980 Ga. LEXIS 1027 (1980).

This paragraph does not forbid the equitable modification of contract. Selby v. Gilmer, 240 Ga. 241 , 240 S.E.2d 80 , 1977 Ga. LEXIS 1461 (1977).

Impairment clause does not preclude reformation of contracts. Withers v. Register, 246 Ga. 158 , 269 S.E.2d 431 , 1980 Ga. LEXIS 1027 (1980).

Reformation of written agreement by court not impairment of contract. —

Parties to a contract cannot claim unconstitutional impairment of their contractual rights simply because a court of equity has reformed their written agreement to speak the true intentions of the parties. Withers v. Register, 246 Ga. 158 , 269 S.E.2d 431 , 1980 Ga. LEXIS 1027 (1980).

Constitutional Act of legislature is equivalent to contract, and when performed, is a contract executed; and whatever rights are thereby created, a subsequent legislature cannot impair. Davis v. Hunt, 218 Ga. 630 , 129 S.E.2d 778 , 1963 Ga. LEXIS 281 (1963); Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443 , 206 S.E.2d 693 , 1974 Ga. App. LEXIS 1437 (1974).

This constitutional inhibition on any state law impairing obligation of contracts is not limitation on power of eminent domain. —

The obligation of a contract is not impaired when it is appropriated to a public use and compensation made therefor. Such an exertion of power is a taking, and not an impairment of its obligation. City of Atlanta v. Airways Parking Co., 225 Ga. 173 , 167 S.E.2d 145 , 1969 Ga. LEXIS 418 (1969).

The condemnation of a portion of the rights of a condemnee under its contract with a city does not violate the provisions of this paragraph prohibiting the passage of a law impairing the obligation of contracts. City of Atlanta v. Airways Parking Co., 225 Ga. 173 , 167 S.E.2d 145 , 1969 Ga. LEXIS 418 (1969).

No impairment of obligation when changes in salary expressly linked to appropriations. —

If a contractual salary obligation itself is expressly conditioned upon changes in state appropriations, then such changes requiring readjustments of salaries do not impair the obligations of contracts. Austin v. Benefield, 140 Ga. App. 96 , 230 S.E.2d 16 , 1976 Ga. App. LEXIS 1360 (1976).

Amendment to statute given no retroactive effect. —

While the Act of the General Assembly, Ga. L. 1949, p. 455, amending former Code 1933, § 3-108 (see now O.C.G.A. § 9-2-20 ), was apparently enacted to permit a beneficiary under a contract between other parties to recover, it could be given no retroactive effect, as to do so would violate U.S. Const., art. I, sec. X, cl. 1 and this paragraph, as to impairing the obligations of contracts, by creating a right for one to recover under an existing contract when one previously had no such right and subjecting a party to an existing contract to liability to a third person who previously had no right under the contract. Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 , 1949 Ga. LEXIS 419 (1949).

Statute subsequent to execution of contract inapplicable thereto. —

A contract made and indebtedness incurred by the County Superintendent of Schools in 1918, on behalf of the county board of education, for school supplies and furnishings was prior to the enactment of former Code 1933, § 32-928 (see now O.C.G.A. § 20-2-504 ), and therefore is not void under such provisions, the statute not being construed as being applicable to contracts made before its passage. Board of Educ. v. Southern Mich. Nat'l Bank, 184 Ga. 641 , 192 S.E. 382 , 1937 Ga. LEXIS 600 (1937).

No prohibition against ordinance limiting power to make certain contracts. —

Ordinance prohibiting the owning, maintaining, and operating of pinball machines and the like was not violative of the provisions of the federal and state Constitutions inhibiting the passage of laws impairing the obligation of contracts, in that it impaired the contractual powers of petitioner, and imposed a limitation upon the petitioner’s power to make contracts. Woodward v. City of Lithonia, 191 Ga. 234 , 11 S.E.2d 476 , 1940 Ga. LEXIS 607 (1940).

Impairment of contracts with authority’s bond owners proscribed by statute and Constitution. —

Ga. L. 1975, p. 107, § 30 (see now O.C.G.A. § 46-3-146 ), limiting the power of the state to adversely affect the interests of the owners of the municipal electric authority’s bonds and notes, does not constitute an unconstitutional delegation of legislative powers in violation of Ga. Const. 1976, Art. III, Sec. I, Para. I (see now Ga. Const. 1983, Art. III, Sec. I, Para. I), because it does not limit the right of the General Assembly to legislate except to prevent legislation which will impair the contracts with the bond owners, and this is consistent with the Constitution. Thompson v. Municipal Elec. Auth., 238 Ga. 19 , 231 S.E.2d 720 , 1976 Ga. LEXIS 1077 (1976).

Statutory provisions impairing existing contractual obligations are unconstitutional. —

Georgia Laws 1979, pp. 1625, 1627 (formerly Code 1933, § 84-6610(a-c)) were declared unconstitutional, null, and void because each and all of those sections improperly and unlawfully impaired existing contractual obligations between manufacturers and dealers in violation of this paragraph. Georgia Franchise Practices Comm'n v. Massey-Ferguson, Inc., 244 Ga. 800 , 262 S.E.2d 106 , 1979 Ga. LEXIS 1424 (1979).

Imposition of conditions not in existence at time of contract execution impaired obligation. —

Ga. L. 1953, Nov.-Dec. Sess., p. 313, § 1 (see now O.C.G.A. § 44-14-80 ), providing that title to real property conveyed to secure debt should revert to the grantor when the debt became 20 years past due, unless the debt was extended or renewed and such renewal recorded, or an affidavit setting out the facts of the renewal was recorded with the conveyance, imposed conditions upon grantee not in existence at the time of the execution of the contract, divested the grantee of a vested right to the property, and impaired the obligation of the grantee’s contract and as applied to such deed, which was executed prior to the passage and effective date of the Act, is unconstitutional, because it is in violation of U.S. Const., art. I, sec. X, cl. 1 and of this paragraph, which prohibit this state from passing any retroactive law or any law impairing the obligations of contracts. Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 , 1959 Ga. LEXIS 550 (1959).

No impairment to require performance by one county of obligations of merged county. —

The legislature can impose upon the county into which another county is merged the burden of performing the contracts and paying the debts of the merged county; an Act so providing for the performance of the contracts and payment of the debts of the merged county does not in any way impair the obligation of the contracts of the merged county in the sense in which that term is used in the Constitution of this state and the Constitution of the United States. Hines v. Etheridge, 173 Ga. 870 , 162 S.E. 113 , 1931 Ga. LEXIS 429 (1931).

This paragraph was not violated by merger of City of Atlanta and Town of Kirkwood. Davidson v. Town of Kirkwood, 152 Ga. 357 , 110 S.E. 154 , 1921 Ga. LEXIS 91 (1921).

Municipal ordinance requiring deposits by consumers of light and water, was not invalid under this paragraph as impairing the obligation of contract. Young v. City of Moultrie, 163 Ga. 829 , 137 S.E. 257 , 1927 Ga. LEXIS 73 (1927).

Statute invalid when it undertook to affect existing contractual obligations. —

Former Code 1933, § 30-209 (see now O.C.G.A. § 19-6-5 ), insofar as it undertook to affect the obligations of a valid contract in existence at the time of its passage so as to provide for the duration of alimony was null and void as violative of this paragraph and U.S. Const., Art. I, Sec. X, Cl. 1. Candler v. Wilkerson, 223 Ga. 520 , 156 S.E.2d 358 , 1967 Ga. LEXIS 593 (1967).

Provisions for revisions in alimony and support judgments not unconstitutional. —

Ga. L. 1955, p. 630, §§ 1-4 (see now O.C.G.A. §§ 19-6-18 and 19-6-19 ), which conferred jurisdiction and power on the courts of this state to revise judgments fixing permanent alimony or support for minor children, do not offend those constitutional provisions of this state and of the United States which provide that no law impairing the obligation of contracts shall be enacted, and this is true even though the amount of alimony or support so awarded by the judgment, as well as the time during which it was to be paid, was agreed to in writing by the parties. Nelson v. Roberts, 216 Ga. 741 , 119 S.E.2d 545 , 1961 Ga. LEXIS 326 (1961).

Modification of a judgment incorporating a contract between husband and wife governing property and alimony rights between them pursuant to Ga. L. 1955, p. 630, §§ 1-4 (see now O.C.G.A. §§ 19-6-18 and 19-6-19 ) is not an unconstitutional impairment of the obligation of contracts in violation of this paragraph. This is so because, technically, what is being modified is a judgment of the court and not a contract. Kitfield v. Kitfield, 237 Ga. 184 , 227 S.E.2d 9 , 1976 Ga. LEXIS 1193 (1976).

Adverse possession of mineral rights constitutional. —

Application of O.C.G.A. § 44-5-168 (adverse possession of mineral rights) does not violate the state constitutional prohibition against impairment of the obligation of contracts. The preservation of the mineral owner’s claim under § 44-5-168 depends only upon the owner’s use of the minerals or upon returning them for taxes, which is a minimal burden that does not impair contractual obligations. Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 , 1983 Ga. LEXIS 924 (1983).

Municipal employee cannot be barred from recovering pay for services performed. —

To bar a municipal employee from recovering pay for services the employee performed by allowing the municipality to claim statutory immunity would violate the prohibition against the impairment of a contract which is found in both the state and federal Constitutions. Smith v. City of Atlanta, 167 Ga. App. 458 , 306 S.E.2d 720 , 1983 Ga. App. LEXIS 2522 (1983).

Retirement benefits as part of employment contract. —

When a statute or ordinance establishes a retirement plan for government employees, and the employee contributes toward the benefits the employee is to receive and performs services while the ordinance or statute is in effect, the ordinance or statute becomes part of the contract of employment and is a part of the compensation for the services rendered so that an attempt to amend the statute or ordinance to reduce or eliminate the retirement benefits the employee is to receive violates the impairment clause of the state constitution. Swann v. Board of Trustees, 257 Ga. 450 , 360 S.E.2d 395 , 1987 Ga. LEXIS 873 (1987).

Reduction in non-vested future retirement benefits not impairment of obligation of contract. —

Since there is no vested right to benefits one was never entitled to receive, the reduction in future benefits to retiree did not violate the retiree’s constitutional right to protection against impairment of contract. Tate v. Teachers' Retirement Sys., 257 Ga. 365 , 359 S.E.2d 649 , 1987 Ga. LEXIS 849 (1987).

County’s rescission of county’s pension plan and termination of a member’s right to benefits under the plan violated the constitutional guarantee against impairment of contracts and was void. Malcom v. Newton County, 244 Ga. App. 464 , 535 S.E.2d 824 , 2000 Ga. App. LEXIS 744 (2000).

City ordinance increasing pension plan contribution rate. —

Trial court properly granted the city defendants summary judgment on the city employees’ claims of breach of contract and unconstitutional impairment of contract regarding an ordinance increasing their pension plan contribution rate because the Georgia General Assembly expressly contemplated that a municipal corporation’s provision for employee retirement or pension benefits would be subject to being supplemented by local law. Borders v. City of Atlanta, 298 Ga. 188 , 779 S.E.2d 279 , 2015 Ga. LEXIS 786 (2015).

Impairment of teachers’ right to notice before reducing pension funding. —

In a suit by teachers against the county school district and board alleging breach of contract, summary judgment for the defendants was error because by adopting a promise to give two years’ notice before reducing funding of a retirement plan as board policy, the notice provision became part of the teachers’ contracts, protected by the prohibition on impairment of contracts, Ga. Const. 1983, Art. I, Sec. I, Para. X. Gold v. DeKalb County Sch. Dist., 346 Ga. App. 108 , 815 S.E.2d 259 , 2018 Ga. App. LEXIS 319 (2018), aff'd, 307 Ga. 330 , 834 S.E.2d 808 , 2019 Ga. LEXIS 706 (2019).

Law regulating insurance. —

Provision of O.C.G.A. § 33-34-3 that motor vehicle insurance policies issued by insurers authorized to transact business in the state are deemed to provide the minimum coverage required by Georgia law when the insured is involved in an accident in Georgia does not retroactively impair obligations under the contract in violation of the Georgia Constitution. Bankers Ins. Co. v. Taylor, 267 Ga. 134 , 475 S.E.2d 619 , 1996 Ga. LEXIS 718 (1996).

Vested Rights

Constitutional prohibition against retroactive laws applies only to those laws which affect or impair vested rights. Armistead v. Cherokee County Sch. Dist., 144 Ga. App. 178 , 241 S.E.2d 19 , 1977 Ga. App. LEXIS 2625 (1977).

Substantive right, which has vested, cannot be changed or impaired by subsequent statute. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443 , 206 S.E.2d 693 , 1974 Ga. App. LEXIS 1437 (1974).

Vested ground of defense is protected from being destroyed by Act of legislature. Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 , 1949 Ga. LEXIS 419 (1949).

Prohibition against interference with vested rights and vested defenses. —

The same rule which forbids interference with vested rights prevents the disturbance of vested defenses; there is no distinction between a vested right of action and a vested right of defense. Bullard v. Holman, 184 Ga. 788 , 193 S.E. 586 , 1937 Ga. LEXIS 640 (1937).

Requiring the Unified Government of Athens-Clarke County retirees to elect the health maintenance organization option if they wished to receive cost-free coverage did not violate Ga. Const. 1983, Art. I, Sec. I, Para. X, since they never had a vested right to maintain in retirement the precise health-care delivery system by which they received their coverage while employed; the precise source of the retirees’ cost-free medical coverage was not guaranteed, instead, they were only entitled to cost-free coverage to the same extent that their medical expenses were covered at the time of their retirement, and cost-free coverage was provided by the Unified Government only under the health maintenance organization option. Unified Gov't of Athens-Clarke County v. McCrary, 280 Ga. 901 , 635 S.E.2d 150 , 2006 Ga. LEXIS 581 (2006).

Rights of the decedent’s surviving spouse were already vested when the Revised Georgia Trust Code of 2010 (Revised Code), O.C.G.A. § 53-12-1 et seq., was enacted because under the terms of the amended trust agreement, the surviving spouse’s rights to the trust assets took effect upon the decedent’s death before the Revised Code took effect. Accordingly, any new obligation imposed by the Revised Code that would have impaired the surviving spouse’s right to possession could not be applied retroactively. Rose v. Waldrip, 316 Ga. App. 812 , 730 S.E.2d 529 , 2012 Ga. App. LEXIS 659 (2012), cert. denied, No. S12C1888, 2012 Ga. LEXIS 981 (Ga. Nov. 19, 2012).

No protection for technical defenses involving no substantial equities. —

A vested ground of defense is as fully protected from being cut off or destroyed by an Act of the legislature as is a vested cause of action; the legislature may, however, deprive a party of technical defenses involving no substantial equities. Bullard v. Holman, 184 Ga. 788 , 193 S.E. 586 , 1937 Ga. LEXIS 640 (1937).

Party has no vested right in defense based upon mere informality not affecting the party’s substantial equities. Bullard v. Holman, 184 Ga. 788 , 193 S.E. 586 , 1937 Ga. LEXIS 640 (1937); Walker v. State, 132 Ga. App. 274 , 208 S.E.2d 5 , 1974 Ga. App. LEXIS 1673 (1974).

No one has a vested right to a defense based on mere informalities especially when such informalities consist of matters which originally could have been dispensed with by the legislature; but the legislature has no power, by a subsequent curative statute, to remedy a jurisdictional defect, or one which obviously goes to the substance of a vested right. Bullard v. Holman, 184 Ga. 788 , 193 S.E. 586 , 1937 Ga. LEXIS 640 (1937).

There is no such thing as a vested right to do wrong. Bullard v. Holman, 184 Ga. 788 , 193 S.E. 586 , 1937 Ga. LEXIS 640 (1937); Walker v. State, 132 Ga. App. 274 , 208 S.E.2d 5 , 1974 Ga. App. LEXIS 1673 (1974).

Accused has no vested right in procedural matters. Walker v. State, 132 Ga. App. 274 , 208 S.E.2d 5 , 1974 Ga. App. LEXIS 1673 (1974).

No one has vested right in statutory privileges and exemptions, and until final judgment on a pending action, the repeal of the statute, which gives the right of action, or upon which the suit is predicated, destroys it. Winston v. State, 186 Ga. 573 , 198 S.E. 667 , 1938 Ga. LEXIS 640 (1938) (commented on in 1 Ga. B.J. 46 (1939)).

Vested rights under contract come under protection of this paragraph. Bender v. Anglin, 207 Ga. 108 , 60 S.E.2d 756 , 1950 Ga. LEXIS 440 (1950).

Statute which changes or affects remedy only and does not destroy or impair vested rights is not unconstitutional as impairing the obligation of a contract, although it may be retroactive and in changing or modifying the remedy, the rights of the parties may be incidentally affected. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 , 1935 Ga. LEXIS 531 (1935).

No impairment of obligation when contract provides for modification. —

County board of education was not precluded from terminating the employer matching portion of a retirement savings plan since the plan itself provided that its terms could be modified or changed in the future and participating employees never acquired a property right in unchanged benefits. Murray County Sch. Dist. v. Adams, 218 Ga. App. 220 , 461 S.E.2d 228 , 1995 Ga. App. LEXIS 703 (1995), cert. denied, No. S95C1872, 1995 Ga. LEXIS 1186 (Ga. Nov. 17, 1995).

Vesting of rights in companies. —

Void county sign ordinance could not be used as the basis for the denial of sign companies’ applications for permits to construct billboards, and the invalidity of the ordinance resulted in there being no valid restriction on the construction of billboards in the county. Accordingly, the sign companies obtained vested rights in the issuance of the permits which the companies sought and the subsequent creation of new cities within unincorporated county land and the annexation of property into one city did not divest the sign companies of the companies’ vested rights. Fulton County v. Action Outdoor Adver., JV, LLC, 289 Ga. 347 , 711 S.E.2d 682 , 2011 Ga. LEXIS 473 (2011).

Lien once acquired under existing law is regarded as vested property right which may not be impaired by subsequent legislation. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 , 1935 Ga. LEXIS 531 (1935).

Any subrogation rights are vested and therefore cannot be abrogated by later statute. Blaylock v. Georgia Mut. Ins. Co., 239 Ga. 462 , 238 S.E.2d 105 , 1977 Ga. LEXIS 1210 (1977).

A city cannot legally divest or restrict vested right by enactment of regulations, even if the enactment is valid and the regulations reasonable and constitutional. Craig v. City of Lilburn, 226 Ga. 679 , 177 S.E.2d 75 , 1970 Ga. LEXIS 635 (1970).

Office of incumbent official not vested. —

An incumbent in a public office has no vested right as will entitle the incumbent to complain of legislation affecting the office upon the ground that it is retrospective when no other right under the Constitution is violated. Copland v. Wohlwender, 197 Ga. 782 , 30 S.E.2d 462 , 1944 Ga. LEXIS 317 (1944).

An Act of the General Assembly revoking a city charter, thus abolishing municipal offices, is not a law in impairment of contract since the right of an incumbent to an office is not vested, but may be revoked if the law the incumbent holds office under is capable of being repealed. City of Mt. View v. Clayton County, 242 Ga. 163 , 249 S.E.2d 541 , 1978 Ga. LEXIS 1129 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Georgia Detainer Act, Ga. L. 1968, p. 1110, § 1 (see now O.C.G.A. Art. 1, Ch. 6, T. 42), is not an ex post facto or retroactive law. 1969 Op. Att'y Gen. No. 69-95.

Validated bonds created status analogous to contractual relation which cannot be destroyed or impaired by subsequent statute. 1977 Op. Atty Gen. No. U77-10.

Prohibiting involuntary separation benefits to state employees. — An amendment to the Georgia Constitution prohibiting the grant of involuntary separation retirement benefits to state employees who are by law currently entitled to coverage under the involuntary separation benefits section of the Employees’ Retirement System Act would, in all probability, be unconstitutional under the federal Impairment Clause contained in U.S. Const., art. I, sec. X. 1983 Op. Atty Gen. No. U83-72.

Forfeiture of public retirement system benefits. — General Assembly has the authority to enact a statute which proposes the forfeiture of earned retirement benefits of future public employees due to the conviction of a crime; however, an amendment to the Georgia Constitution proposing such a forfeiture by employees who are currently by law vested with rights under the public retirement system would, in all probability, be unconstitutional under the federal Impairment Clause contained in U.S. Const., art. I, sec. X. 1985 Op. Atty Gen. No. U85-3.

RESEARCH REFERENCES

Am. Jur. 2d. —

16B Am. Jur. 2d, Constitutional Law, § 716 et seq.

C.J.S. —

16A C.J.S., Constitutional Law, §§ 645 et seq., 696 et seq.

ALR. —

Grant of perpetual franchise to public service corporation, 2 A.L.R. 1105 .

Constitutionality of discrimination as regards degree of penalty or punishment for violation of Sunday law, 8 A.L.R. 566 .

Constitutionality of statute which extinguishes or impairs lien of special assessments on sale of property for taxes, 53 A.L.R. 1140 .

Effect of statutory change of penalty or punishment after conviction, 55 A.L.R. 443 .

Constitutionality of retroactive statute curing defect in private instrument purporting to convey title or create interest in property or as to filing or recording thereof, 57 A.L.R. 1197 .

Constitutionality of legislation which varies punishment for same offense according to the county or district within state in which the offense is committed, 59 A.L.R. 433 .

Construction of statutes of limitation as regards their retrospective application to causes of action already barred, 67 A.L.R. 297 .

Validity of stipulation in contract of employment against connection with labor union or employers’ association, and power of legislature to prohibit such contract, 68 A.L.R. 1267 .

Duration of street franchise without fixed term, beyond the life of the grantee, 71 A.L.R. 121 .

Constitutionality, construction, and applicability of statute making refusal to pay for commodities a criminal offense, 76 A.L.R. 1338 .

Retroactive effect of statutes regarding provisions with reference to avoidance of fire insurance policies, 78 A.L.R. 617 .

Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 82 A.L.R. 345 ; 116 A.L.R. 209 ; 132 A.L.R. 91 ; 139 A.L.R. 673 .

Constitutional provision against impairing obligation of contract as applicable to statutes affecting rights or remedies of holders or owners of improvement bonds or liens, 85 A.L.R. 244 ; 97 A.L.R. 911 .

Blue Sky Laws, 87 A.L.R. 42 .

Raising maximum limit of permissible municipal indebtedness as impairing obligation of existing municipal contracts, 90 A.L.R. 859 .

Debtor’s exemption statutes as impairing obligations of existing contracts, 93 A.L.R. 177 .

Retrospective operation of statutes relating to alimony or suit money in divorce, 97 A.L.R. 1188 .

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284 .

Constitutional provision against impairing obligation of contracts as applied to rights or remedies of owners of property subject to assessment for local improvements, 100 A.L.R. 164 .

Constitutionality, construction, and application of statute permitting release of part of property subject to tax liens or special assessments, 100 A.L.R. 418 .

Statute affecting mortgagee’s rights and remedies in respect of deficiency as unconstitutional impairment of obligation of contract, 108 A.L.R. 891 ; 115 A.L.R. 435 ; 130 A.L.R. 1482 ; 133 A.L.R. 1473 .

Tax exemption as unconstitutionally impairing public obligations antedating the exemption, 109 A.L.R. 817 .