*1 Beverly appellant, Hall, Hall, J. LaFon & appellee. Stubbs, III, for Robert S. Stubbs Banks & OF GEORGIA. S09A0371. CISCO v. STATE et al. v. STATE OF GEORGIA. S09A0375. MOORE HUNSTEIN, Justice. Presiding constitutionality in of the cases involve the These (m), Georgia provision, RICO 16-14-7 (Racketeer Corrupt Organizations) Act, OCGA Influenced and (the Act”). County seq. District The Camden et “RICO 16-14-1 Attorney filed an on behalf of the State of in the name and complaint against Althea defendants Fairley along Tammy Cisco, with father, and their Moore, Walker businesses, the current or and twelve who are nine other individuals stops operators in south owners, or of three truck former officers attorney alleged complaint, Georgia.1 that “the the district intentionally by stops] [truck pumps altered were fuel at said [djefendants larger receiving a indicate that customers were actually dispensed”; gasoline quantity that or diesel fuel than was receiving they “represented were to customers defendants they receiving grade gasoline premium were a lower while fact “[djefendants [truck operated gasoline”; have said and that octane stops] activity including through pattern enterprise of criminal a continuous as Asserting “[t]he above- fraud and theft.” individually . . . constitute an ‘enter- listed defendants prise’ alleged attorney [the Act],” the district that term is used as participated the affairs defendants “conducted activity’ through ‘pattern racketeering Enterprise’ . . . ‘The among following predicate consisting which, acts,” the mat- of the attorney, acts of include the criminal itemized the district ters by deception theft of services violation of OCGA theft seq.2 cards in use of financial transaction et and the unauthorized violation of OCGA 16-9-33. defendants that not one of the
It is uncontroverted
committing any
was even indicted either for
had been convicted of or
“predicate
alleged
in the Camden
set forth as
acts”
crimes
committing
Attorney’s complaint
County
the offense
or for
District
against
stops.
complaint
three truck
in rem forfeiture
The
also included
16-8-3;
deception
the offense of theft of
of theft
is set forth OCGA
offense
is set forth OCGA 16-8-5.
services
*2
engaging
racketeering
§
activity
in violation of
16-14-4.
OCGA
parte hearing
day
complaint
After an ex
conducted the same
the
temporary restraining
filed,
was
the trial court entered a
order as to
appointed
complete
all of defendants’ assets and
a receiver to take
possession
and immediate
of and control over all of defendants’
property,
including
power
assets and
limitation,
without
the
to freeze
possess
accounts;
all bank and securities
and control all books and
any entity
records of
in which defendants had a
or
direct
indirect
reports
interest; and review defendants’ records and
of transactions.
Additionally,
cooperate
defendants were ordered to
with the receiver
provide
requested relating
him,
alia,
and
inter
with “all information
past
present
[defendants’]
operations,
to
and
activities and condi-
otherwise).”
(financial, legal,
tions
challenging
All of the defendants filed motions to dismiss
the
constitutionality
personam
provision,
of the in
RICO forfeiture
(m).
§
entering
superseded
OCGA 16-14-7
After
an order that
the
imposed
preliminary injunction
TRO but
its stead a
and main-
appointment
rejected
receiver,
tained the
the trial court
(m).
§
challenges
constitutional
to
In
its amended
setting
denial,
order
forth the reasons for its
the trial court relied on
(a) (“[forfeiture
§
procedure
shall be had
a civil
(b) (“[a]
proceeding”)
known as a RICO forfeiture
and id. at
RICO
9,
governed by Chapter
forfeiture
shall be
11 of Title
(i)
‘Georgia
”),
(same),
Civil Practice Act’
see also id. at
to conclude
[RICO]
safeguards
protect
that “the
Act contains sufficient
to
rights
personam
may
defendant’s
and
so that an in
action
pursued
running
Tammy
be
without
afoul of the Constitution.”
appeal
ruling
Walker,Althea Moore and several of the businesses
this
Fairley
appeals
S09A0375;
Case No.
Cisco
Case No. S09A0371.
granted appellants’
appeals.
We
motion to consolidate their
any appellate
This is the first time since 2001 that
court has
(m).3
presented
opportunity
been
to address OCGA 16-14-7
(555
459)
Pimper
(2001),
Ga.,
v. State
action” such as the one raised in that
but deemed it
appeal
reaching
to dismiss the
without
Id.
merits.
at 627. No
procedural bar, however,
such
exists in
For
this case.
the reasons that
(m)
provides
follow,we conclude that OCGA 16-14-7
for criminal
prior
conviction;
forfeiture
to indictment or
that an
Ga.,
only
Pimper
case since
v. State
utilizes, are not rights; that, therefore, constitutional defendant’s deprives in because it is unconstitutional 16-14-7 guar- safeguards procedure of criminal defendants of the Constitutions. the United States anteed (m) provides Appellants contend that OCGA *3 agree. consists We Subsection forfeiture. criminal entirely following sentence: pro- [regarding provisions in rem forfeiture In lieu of the ceedings], bring may the action for the state subject any property to forfeiture under sub- forfeiture of (a) of this Code section. section (a) recognize 16-14-7 states that a subsection of OCGA
We
proceeding
statute, i.e., in rem and
under that
by
RICO forfeiture
procedure,”
and that
forfeitures, “shall be had
a civil
governed by
proceeding
Act,
Civil Practice
is
(“CPA”),
exceptions.
seq.
delineated
et
with certain
(i).
(b),
Contrary
appellee’s
however,
assertion,
statutory language
does not mandate the conclusion
this
personam
proceedings.
The law is well-
forfeitures are civil
statutory proceeding
legislature’s description of a
established that a
determining that
foreclose the courts from
as civil does not
may
legitimately
punitive
proceeding
not
be
in fact that
it
is so
despite
legislature’s intent. See Hudson
nature,
viewed as civil
(118
450) (1997);
488,
LE2d
States,
93,
S.
99
SC
139
v. United
522 U.
(116
Ursery,
2135, 135 LE2d
267,
518 U. S.
278
SC
United States v.
549) (1996).
Dept.
Ranch,
Kurth
Revenue Montana v.
See also
(114
767) (1994) (“legislature’s
1937, 128
767,
SC
LE2d
511 U. S.
possibility
description
as civil does not foreclose the
of a statute
character”).
“[e]ven
punitive
Thus,
where the
those cases
it has a
legislature
penalty,
an intention to establish a civil
we
‘has indicated
punitive
statutory
inquired
so
whether the
scheme was
have
further
‘transfor(m)
clearly
effect,’ [cit.],
as to
what was
either
[Cit.]”
remedy
penalty.’
Hudson,
into a criminal
intended as a civil
supra.
the in
RICO forfeiture
order to determine whether
(a)
proceeding
states,
civil,
or criminal
as OCGA
forth in Hudson v. United
nature, we utilize the factors set
supra,
The United States Court has that civil asset development forfeiture, with its biblical roots and common law England, medieval has for centuries been an in rem against property, operating legal under the fiction that the seized property, property’s guilty party. owner, and not the is the See United Bajakajian, 321, States v. 524 U. S. and n. 2028, SC 314) (1998); Leasing LE2d Calero-Toledo v. Pearson Yacht Co., 416 452) (1974). U. S. physical object Hence, 680-682 SC 40 LE2d “ regard offender,’ itself is ‘treated as the without *4 However, owner’s conduct.” Id. at 684. where the forfeiture was personam, literally “against person,” Dictionary, Black’s Law (5th p. ed.), proceeding required 711 was criminal because it proof guilt Supreme of the of the owner. As the United States Court 1) recognized Palmyra, (1827), 531, The 25 S. 1 LE 12 U. Wheat. “personal penalty,”
a forfeiture is a id. at such that “proceeding independent wholly of, in rem stands unaffected by, any personam.” criminal Thus, Id. at 15. unlike in guilty property, rem forfeiture of which descends from one historical tradition, in forfeitures are criminal forfeitures “from a historically different historical tradition: . . . Such forfeitures have punitive, being part punishment imposed been treated as of the for Ages [Cits.]” felonies and treason in the Middle and at common law. Bajakajian, supra United States v. at 332. See also United v. States (7th 280S, One 1976 Mercedes Benz 618 F2d 454 Cir.
(historically, permits forfeiture is civil in rem that con- property regard culpability by demnation of without to the owner’s treating object being guilty a vehicle or other inanimate “as itself of (1) disability Those factors are whether the sanction involves an affirmative (2) (3) restraint; historically regarded punishment; whether it has been as a operation whether it comes (4) scienter; play only finding promote into on a of whether its will the traditional - (5) punishment deterrence; applies aims of is retribution and whether the behavior to which it (6) already crime; purpose may rationally whether an alternative to which it be connected it; assignable appears purpose and whether it excessivein relation to the alternative assigned. Id., 522 U. atS. 99-100. conduct”);
wrongdoing, regardless Stahl, of its owner’s Criminal Drugs, 83 J. Forfeiture, of Proof and the War on Asset Burdens Law: (II) (F) (1992) (historically, Criminology L. & Crim. against criminal treated as
forfeiture actions owners personal guilt or innocence of owner nature because issue is individual). punishment of that becomes forfeiture distinguishing of a criminal forfeiture The characteristics provision [are] that, the in rem character of civil unlike ([cit.]), guilt personal at of the defendant is say, given [Cits.] the in rem character issue. That is to relating culpability “questions to the civil simply goods not an issue. It was the owner of the goods were [Cit.] against, proceeded not the owner.” which were wholly theory course, is, of The of criminal forfeiture personam.’ they ... As such inasmuch “as ‘are different penalty against provisions operate as an additional these [Cit.] ...” the defendant. (E.D. (Footnote omitted.) FSupp. 237, 242 Veon, States v. United 1982).
Cal.
jurisprudence
overwhelming weight
country’s
estab
of this
The
proof
of assets are
that in
forfeitures
lishes
the clearest
proceedings grounded upon
culpability
the owner of
punishing
the owner
and instituted for the
generally
Hudson v. United
for an offense. See
country
only appellate opinion in
that has been
this
U. S. at 100.
*5
personam
brought
in
in
forfeiture was
to our attention
which an
proceeding
Gravano,
distinguishable based on the marked differences between our statu tory schemes.7 pro
The criminal nature of the in RICO forfeiture ceeding appellee brought against appellants by has is also established statutory requirements bringing such a specific (a), only facts of this case. Under OCGA 16-14-7 property subject to forfeiture is that “used or intended for use in the through pattern racketeering of, from, course activity.” derived or realized proceeding against Unlike rem RICO forfeiture property racketeering activity, may pursued involved in which be regard guilt property without to the owner, innocence of the see (1) (636 (in App. Walker v. State of Ga., Ga. property nothing suggests forfeiture, rem is the “offender” and owner),
personal liability the entire target property RICO forfeiture is to owner to whom apply, i.e., the innocent-owner defense does not an owner who has engaged pattern activity in “an interrelated of criminal motivated (b). pecuniary gain.” “[t]he . . . Because interest of party property subject forfeiture,” an innocent shall not be (j), RICO forfeiture defendant party” cannot meet the definition of an “innocent he unless or she knowledge “did not have actual or constructive that the was subject (Emphasis supplied.) punish Thus, to forfeiture.” Id. imposed by
ment the forfeiture of an play only finding defendant’s “‘comes into on a of sci- supra, thereby enter,”’ States, Hudson v. United 522 U. S. at establishing under the third factor that OCGA 16-14-7 criminal in nature. Turning to the fifth factor Hudson v. United (“‘whether [the punishment]
U. S. at 99 the behavior to which *6 crime’”), applies already only it is uncontroverted that the (m) (“the (n) (1) may bring personam action”); § See OCGA 16-14-7 state an in id. at (title (1)(net any State); property put proceeds any to forfeited to be in the name of id. at the of disposition among governmental sale or of forfeited to be divided as directed certain entities). (d) (requiring proceedings brought by See also id. at in rem RICO forfeiture to be attorney). district that, case, Moreover, proceeding we note in that the civil RICO was instituted four charges. the months forfeiture defendants were arrested on criminal after
behavior to which an RICO forfeiture applies necessarily given crime, must constitute a the definition of (9) (A) § racketeering activity (“racketeering in OCGA 16-14-3 activity” attempt commit, commit, solicit, means “to to to or to person any coerce, or intimidate another to commit” of dozens of crimes) requirement enumerated and the that “at least two acts of racketeering activity” engaged “pattern be in so as to establish a of (A). (8) racketeering activity.” Accordingly, statutory Id. at the language likewise establishes the criminal nature of the forfeiture punishment imposed by OCGA 16-14-7
§
under the fifth factor
in Hudson v. United
The facts in this case also reveal nature of the the criminal proceedings appellee brought against appellants. Although these proceedings predicated upon alleged manipulation gasoline are an of pumps stops, directly at the South a matter three truck Department Agriculture, governmental authority the of concerns the charged oversight gasoline pumps accuracy, with of see and their seq.; Regs. Comp. et see also Ga. R. & Rules only proceedings 40-20-1-.11, 40-20-1-.13, the involvement these Department Agriculture capacity of officials with the was the Department Agriculture Moreover, witnesses. while a official bring would be the natural choice of State official to an proceeding8 against appellants alleged gaso RICO forfeiture for the pump tampering goal, if line complaint a civil were the State’s attorney, charged
was instead initiated the district with (4), prosecuting offenses, ah indictable see OCGA 15-18-6 such as predicate required acts set forth pattern activity racketeering establish a forfeiture to authorize a RICO (a). proceeding. See OCGA 16-14-7 language County However, it utilized the Camden Attorney complaint conclusively District criminal nature of the in that establishes RICO forfeiture brought against appellants. complaint alleges appellants directly through have numerous association with others committed including
felonies, theft, credit card fraud and racketeer- ing activity. emphasis complaint appellants’ The entire is on culpability alleged depends criminal not for the crimes. “Civil forfeiture upon culpability upon but, instead, owner’s (Footnote property’s being connected to some criminal omit- act.” ted.) p. AmJur2d, Penalties, Forfeitures and (c) operates through (g),” “[i]n Because OCGA 16-14-7 lieu . . of. subsections proceedings clearly subject are not to the limitation in subsection (d) requires attorney bring complaints. the district such
663 concluding We have little trouble that the in RICO (m) provision forfeiture sarily in OCGA is, nature, its neces- punitive. criminal and that, We therefore hold the clearest (m) proof, imposes appellants OCGA 16-14-7 a sanction on that is punitive so in form and effect as to render that criminal despite Legislature’s language contrary. to the See Hudson v. supra, Ursery, supra, 104;
United 522 U. S. at United States v.
see Division its enforcement must conform to the constitu- safeguards accompany proceedings. pro- tional underlying structurally cesses fundamentally civil and criminal are and rights
different, as are the
to be vindicated in each
type
proceeding.
generally Helvering
See
Mitchell,
391,
v.
303 U. S.
(3) (58
917) (1938) (“[c]ivil procedure
630,
SC
LE
is
incompatible
accepted
guaranties
with the
rules and constitutional
governing
prosecutions”).
Pimper,
the trial of criminal
See also
(detailing
procedural
adequate substitute for the substantive constitu- rights appellants tional to which are entitled. they only favored;
3. “Forfeitures are not should be enforced spirit [Cit.]” when within both letter and of the law. United States v. (59 One 1936 Model Ford V-8De Coach, 219, Luxe 307 U. S. SC 1249) (1939). McReynolds 861, 83 LE In the decades since Justice particularly wrote words, those and since the enactment of the drug federal RICO and 1970s, acts the breadth of new ingenuity legislatures crafting forfeiture statutes as well as the provisions novel members of the United States have elicited statements of concern from Supreme Court. See Florida White, v. (119 748) (1999) (Souter, 559, 526 U. S. 1555, SC J., 143 LE2d concurring) (noting “legislatures evincing increasing inge- are nuity resorting sanctions); in” to “novel” forfeiture United States v. Property,
James Daniel 43, Good Real 510 U. S. 81-82 and n. 1 490) (1993) (Thomas, concurring part SC 126 LE2d J., dissenting part) (expressing concern about the breadth of new statutes). Georgia’s personam forfeiture not RICO forfeiture statute is merely supra; singular. “novel,” White, Florida v. it procedural safeguards lacks all of the seen in counterparts expressly rejects our federal and sister state even safeguards provided the minimum elsewhere in OCGA 16-14-7for proceedings. recognized in rem RICO forfeiture While we have general “significantly our statute broader than counterpart,” Chancey its federal State, v. *8 717) (1986) constitutionality challenge (post-conviction to
SE2d (m) statute), not “is so broad that it differs OCGA 16-14-7 RICO only degree, kind, historical antecedents.” United but in from its (Thomas, Property, supra J., at 82 James Daniel Good Real States v. dissenting part). concurring part Because OCGA and (m) legal upon the civil fiction which is so “far removed from this is the based,” id., we conclude that forfeiture doctrine is by “appropriate it is Justice Thomas which case” foreseen approach generally necessary our deferential “to reevaluate (Footnote judgments legislative omitted.) in this area of civil forfeiture.” judgment court’s is reversed. Id. The trial except Carley Judgment concur, and All the Justices reversed. JJ., Melton, who dissent. dissenting.
MELTON, Justice, Legislature clearly intended for the Because the provide provision civil, for a OCGA 16-14-7 forfeiture majority’s erroneous criminal, sanction, I must dissent from the not § 16-14-7 is unconstitutional. conclusion that OCGA Leg- plain language indicates that the of OCGA 16-14-7 The to be “had for in forfeiture islature intended proceeding.” by procedure known as a RICO a civil (m). (a), Legislature (Emphasis supplied.) The has requiring that in underscored this intent further proceedings ‘Georgia governed by Chapter 9, 11 of Title Civil “be special procedure except rules of are Act,’ to the extent that Practice (b). Helvering chapter.” See also v. in this stated (1938) (“That (58 391, 630, 82 LE Mitchell, 303 U. S. SC procedure Congress provided distinctly for the collection of the civil clearly [fee] civil, it intended a not a additional indicates incompatible accepted procedure with the criminal, sanction. Civil guaranties governing the trial of criminal rules and constitutional procedure prescribed prosecutions, for the enforce- and where civil guaranties sanctions, rules and do not ment of remedial those language “strong presumption apply.”). Despite and the this clear constitutionality (Bryan [statute]” of this v. Ga. Public favor of the 784) (1977)), majority Comm., 572, Svc. plain language largely ignores of the statute order to strike provision contained therein. down the majority overwhelming weight “[t]he of this reasons jurisprudence proof country’s establishes the clearest Maj. Op. proceedings.” at of assets are criminal forfeitures analysis in should However, the relevant focus of the this case jurisprudence jurisdictions, on of other but whether not be on punitive specific statutory scheme in this State is “so either clearly or effect as to transform what was intended as a civil (Citations remedy ted.) penalty.” punctuation into a criminal omit- Hudson v. United 522 U. S. 99-100 SC 450) (1997) (the determining LE2d imposes factors for whether statute penalty “must be considered in relation to the *9 face”) (citations omitted). punctuation statute on its and (id.) guideposts” making relevant factors that serve as “useful in this determination are:
(1) disability whether the sanction involves an affirmative (2) historically regarded restraint; or whether it has been as (3) punishment; play only a finding whether it comes into on a (4) operation promote scienter; of whether its will — punishment the traditional aims of retribution and (5) applies deterrence; already whether the behavior to which it is (6) purpose crime; a whether an alternative to may rationally assignable which it it; be connected is and appears whether it in excessive relation to the alterna- purpose assigned. tive
(Citation omitted.) punctuation and However, Id. at 99-100. “no one controlling they may point factor should be considered as often (Citation omitted.) differing punctuation directions.” and Id. at 101. statutory language A focus on the here shows that the civil authorized OCGA 16-14-7 punitive purpose
are not so
or effect as to “transform what was
(Citation
clearly
remedy
penalty.”
intended as a civil
into a criminal
omitted.)
punctuation
supra,
Specifi-
Hudson,
and
Looking factor, to the first Hudson imposed by Georgia’s statutory “do[es] sanction scheme not involve disability [as it] certainly nothing an affirmative or restraint ... (Citation approaching punishment imprisonment.” the infamous omitted.) punctuation though Furthermore, Id. at 104. even historically regarded punishment, forfeiture has been as automatically this factor alone does not turn a civil in imposes into one that criminal punishment, inquiry because the focus of our is on the sanction (see imposed supra), Hudson, and not the nomenclature of the proceeding. regard, purpose In this “forfeiture . . . serves a deterrent [by] rendering illegal any punitive purpose . behavior . . distinct from omitted.) (Citation punctuation unprofitable.” Bennis v. Michi- 68) (1996).
gan, 994, 134 LE2d This 442, 452 SC 516 U. S. criminal, civil, rather than is consistent with a deterrent factor, seventh the civil Moreover, in relation to the sanction. Id. personam provisions reduce the likelihood of in the statute penalty being imposed, limited to the State is because excessive forfeiting owner of the criminal assets of the actual racketeering activity. being pattern used (m). (a), any than is not reach further It does specific necessary any illegal individual render behavior unprofitable. forfei- Indeed, sense, this involved scope provisions limited in are even more of OCGA 16-14-7 ture than the in rem provisions In an in in the same statute. contained *10 regardless personam proceeding, proceeding, of rem unlike alleged property, may actually who own merely apparently been used because it has itself can be seized necessarily just owner, in with a connection someone, not (c). (a), Finally, enterprise. this Court has 16-14-7 criminal previously that accom- in rem forfeiture held that a civil legitimately types goals plishes “is as OCGA 16-14-7 the same Murphy punishment.” State, v. not constitute civil sanction and does 907) (1996) (forfeiture 120, 121 SE2d (d)). The same result under OCGA 16-13-49 controlled substances personam provisions especially here, where the should obtain prop- provide forfeiture of the for a more focused provisions single erty in rem the same individual than the application. potentially that have broader statute impose light Legislative a civil sanction of the clear intent to procedures through of OCGA 16-14-7 the in showing, (m), simply very light little and in of the fact that “there [im- proof’ [the] say nothing . sanctions of the ‘clearest . . (Hudson, process] posed by are criminal” the in 121), Murphy, supra, I 105; 267 Ga. at must 522 U. S. at majority’s respectfully conclusion that OCGA dissent from the “depriving] for forfei- is unconstitutional guaranteed procedure safeguards of criminal defendants of the ture Maj. Georgia Op. at 658. the United States and Constitutions.” joins Carley I that Justice this dissent. am authorized to state — June Decided denied June Reconsideration Zipperer, Degnan, Gregory Mauldin, Bird, M. B. Alston & Peter Zipperer, Beauvais, Lorberbaum & Alex L. for Cisco. Bumgartner Terry
Brown, Readdick, Carter, Readdick, & L. Blackerby,
Steven G. al. Moore et
Stephen Kelley, Attorney, Jacquelyn Johnson, D. District L. Attorney, Bondurant, Elmore,
Assistant District Mixson & John E. Floyd, Savage, Ossick, Jr., Turner, Karsman, John J. Pinson & McHugh Turner, Johnson, Durham, Duncan, Robert B. William B. & Durham, Ekonomou, Lambros, James B. Atkinson & Michael G. Gray, Timothy Greenberg
Lambros, Oliver, Roberts, Maner & D. Traurig, Terry Dillard, Serafini, Williams, Richard A. A. Clark & Williams, Nathan T. for State of al. et Attorney McLaughlin, Baker, General,
Thurbert E. David S. Attorney Key, General, Riddick, Assistant J. Scott Koehler & Chris- Hogue, Koehler, tine A. Laura D. amici curiae.
S08G1833. CONDRA et al. v. ATLANTA ORTHOPAEDIC GROUP
P.C.et al. Presiding Justice. HUNSTEIN, granted Appeals We certiorari to the Court of in this medical malpractice plaintiffs properly action to consider whether were *11 prohibited inquiring personal practices from at trial into the expert respect defendants’ witnesses with to the medical treatment “hindsight” jury case; at issue in whether the so-called given appropriately pre instruction was under the circumstances Appeals questions sented. The Court answered both in the Orthopaedic Group, App. affirmative. Condra v. P.C., Atlanta 281) (2008). We now reverse on both issues. May Daphyne sought back, neck, Condra treatment for pain orthopedist Chappuis, pre-
and arm from M.D., James who 30-day regimen drug Tegretol, scribed a of the anti-convulsive 30-day regimen followed another when her condition had not improved. Shortly began prescription, after Condra her second she began experiencing leg cramping leading breath, and shortness of ultimately hospitalization, diagnosed to her where she was with aplastic anemia, a rare and serious bone marrow disease. Condra and Chappuis orthopedic group her husband sued Dr. and his for medical malpractice, asserting Tegretol inappropriate drug had been an Chappuis failing negligent choice for Condra and that Dr. had been monitoring during Tegretol therapy to conduct blood count to detect Condra’s any potential adverse reactions. experts treating hematologists opined trial,
At Condra’s Tegretol aplastic develop- had caused Condra’s anemia and that