On September 13, 1993, officials at I. B.’s school noticed that he had bruises on his neck and back and reported that fact to county officials. I. B. told the investigating officials that his father had slapped and kicked him. No criminal charges were brought, nor was a deprivation petition filed, but the father’s name was placed on the child abuse registry maintained by the Division of Family & Children Services of the Georgia Department of Human Resources. See OCGA § 49-5-180 et seq.
The following May, the father petitioned the juvenile court to expunge his name from the child abuse registry, pursuant to OCGA § 49-5-184 (c). He also challenged the constitutionality of the statute establishing the registry and by amendment to the petition explained his grounds on that issue. In an order dated November 1, 1994, the court granted the petition to expunge the name after finding that there was no reasonable basis for it to be maintained on the registry. In a later order, after receiving briefs on the constitutionality issue, the court declared the father’s challenge to be moot and not subject to an exception recognized in
Chastain v. Baker,
Appeal was taken to the Supreme Court of Georgia on the ground that the Georgia Constitution, Art. VI, Sec. VI, Par. II (1), gave it exclusive jurisdiction for the reason that the appeal involved the constitutionality of a statute. The Supreme Court held that it did not have jurisdiction because the only issue raised was the legal validity of the trial court’s ruling, and it transferred the appeal to this Court, citing
Alexander v. State,
That, of course, is not the same situation here. Appellant did raise the issue in the trial court, but a ruling was aborted. The court deemed the issue moot and not saved by the practical consideration that the court perceived sometimes justifies deciding a moot issue, i.e., that it is “capable of repetition yet evades review.”
The question, then, is whether the trial court was deprived of jurisdiction by circumstances which occurred after the petition was filed, or whether the petitioner was entitled to a ruling on the constitutionality issue. To answer the question, we must consider the extent
*269
of the trial court’s authority. Is judgment foreclosed when the issue is moot, or is there an exception which either compels the court to rule or which allows the court to exercise discretion to rule in spite of its mootness? We must decide this in order to know whether to apply the abuse of discretion standard or a legal error standard. Compare
Central of Ga. R. Co. v. Lightsey,
First, there is no question that a trial court cannot issue advisory opinions. Throughout Article VI of the Georgia Constitution, jurisdictional authority is given over “cases.”
1
“Cases” are live disputes, actual controversies.
2
“Not even in a declaratory judgment action is the court permitted to render an advisory opinion. [Cit.]”
McDowell v. Judges Ex Officio,
The role of the judiciary is to address “justiciable cases.”
Thompson v. Talmadge,
Even more recently, the Supreme Court implied that moot matters pending before trial courts should not be decided, in
Hutchinson v. Composite State Bd. of Med. Examiners,
Likewise in
Bowers v. Bd. of Regents &c. of Ga.,
The same parameter of judicial power exists in the appellate courts, at least statutorily. The Appellate Practice Act compels both courts to dismiss appeals “[w]here the questions presented have become moot.” OCGA § 5-6-48 (b) (3).
Chastain,
supra,
It would be anomalous if the law allowed a pleader to hurdle the mootness bar in the trial court and obtain an advisory opinion which is not reviewable by the appellate court because the bar is placed in the way at that level. In this case we could have a decision of a juvenile court, a court of limited jurisdiction under the Constitution, declaring a state statute unconstitutional, but its decision would not be *271 reviewable by the state’s highest court, which has exclusive appellate jurisdiction of such issues. 1983 Ga. Const., Art. VI, Sec. III, Par. I, and Sec. VI, Par. II (1).
Having established that judicial jurisdiction does not encompass moot issues, we now address whether the case was moot when the trial court declined to address the constitutional issue. It certainly was, insofar as petitioner himself was concerned. His name was ordered expunged, and this was the only substantive personal relief he sought, other than attorney fees. “ ‘ “A moot case is one which seeks to determine an abstract question which does not arise upon
existing
facts or rights.” ’ [Cit.]”
Atlanta Gas Light Co. v. Ga. Public Svc. Comm.,
The same view is expressed in
Chastain,
The first appearance of the test in Georgia’s jurisprudence was not until 1974.
Hudgens v. Local 315 &c.,
In Southern Pacific Terminal Co., involving a bill in equity to enjoin an administrative order, the United States Supreme Court refused to dismiss the appeal because it determined that the circumstances were such that the controversy was not moot nor the question terminated by the intervening expiration of the challenged ICC cease and desist order. It reasoned: “The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar), and these considerations ought not to be, as they might be, defeated, by short-term orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress.” Id. at 515. Thus, the doctrine narrowing the definition of “moot” was first articulated.
Super Tire Engineering Co., supra, the other case depended on by the Georgia Court of Appeals, was decided the same year as Hudgens. It, like Hudgens, involved a petition for a declaratory judgment. The United States Supreme Court found the issue was not moot because, although the labor strike had been settled, the issue involved an extant and fixed and definite state government policy directive which affected the collective-bargaining relationship of petitioners and others in the management position. Thus, concluded the Court, its exercise of jurisdiction did not violate the “case or controversy” requirement of the United States Constitution’s Art. Ill, Sec. II or the Declaratory Judgment Act. Super Tire Engineering Co., supra at 121-124.
The year before, the Court had applied the
Southern Pacific Terminal Co.
doctrine in
Roe v. Wade,
Storer v. Brown,
A week later, in
DeFunis v. Odegaard,
The next year, in
Sosna v. Iowa,
In a class action case a month later,
Gerstein v. Pugh,
Jurisdiction was found to exist in
Gannett Co. v. DePasquale,
Thus, if we trace the doctrine forward from its origin in the United States Supreme Court through representative opinions, it is abundantly evident that the term “moot” is narrowly construed, sometimes to exclude from mootness a discrete universe besides the immediate parties, such as a certified or even an inherent class, in applying the test created to avoid mootness and thus loss of jurisdiction due to nonjusticiability.
Intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers is the thread which runs through the cases in which the Supreme Court has found that the issue is not moot. It justifies the judicial doctrine related to jurisdiction, without which a decision would otherwise be foreclosed as resulting in an unauthorized advisory opinion because it does not resolve a “case or controversy” or a “live controversy.”
On the other hand, the Georgia appellate courts have construed the term “moot” broadly, focusing generally on the named party who is seeking redress, and ostensibly have created an exception to mootness so as to retain jurisdiction anyway.
Chastain,
supra,
This Court followed suit in
Froelich v. State,
So viewing mootness runs counter to the historical prohibition against advisory opinions. Other cases taking this anomalous two-step approach are:
Caldwell v. Bateman,
On the other hand, in R. W. Page Corp., supra at 578 (1), the Court did not separate the initial question of mootness from the “ca *275 pable of repetition yet evades review” analysis.
Under the “exception” view, there is a problem with the transfer of this case by the Supreme Court to this Court in that if we decide the appellant’s challenge is moot, then we must stand in the shoes of the Supreme Court and decide if it would take jurisdiction of the issue of the statute’s constitutionality anyway as an exercise of discretion.
If this Court decides that the issue was not moot or warranted review because of its exceptional nature as otherwise being immune from review, then we would have to reverse the trial court order and remand the case for a decision on the constitutionality of the challenged statute. An appeal of that decision would lie in the Supreme Court of Georgia. If this Court decides the trial court was correct, then the Supreme Court could on certiorari disagree and still return the case to the trial court for an initial ruling on constitutionality.
If, on the other hand, we agree with the trial court and there either is no petition for certiorari or the Supreme Court declines review, that will be a final resolution of this case, and the question of constitutionality will remain unanswered. Even if we were to decide that the alleged error is capable of repetition and yet evades review, we could only bind the trial court by such a ruling; the Supreme Court could still decline to act if it is a discretionary matter. See
Atlanta Gas Light Co.,
supra,
The purported discretionary nature of this exception-based jurisdiction is illustrated also in
Hutchinson,
supra;
In the Interest of J. B.,
supra;
American Cyanamid Co. v. Carter,
But it cannot be a discretionary judgment call because, at the least, OCGA § 5-6-48 (b) requires dismissal of moot cases. It is a matter of jurisdiction or not, as the United States Supreme Court repeatedly recognizes. The proper approach is to consider the term “moot” practically and realistically, given the nature of the challenge and the posture of the challenger. Georgia courts, like federal courts, are prohibited from rendering advisory opinions. Creating exceptions based on nothing more than judicial prerogative thus exceeds the judicial power and allows the courts to avoid the hard analysis of whether the *276 issue is moot. But that is the only question. If it is moot, it is not justiciable. It is not a matter of discretion.
Since we have been designated to review the question of justiciability, we proceed to that end, applying the same test to the trial court’s jurisdiction as would govern on appeal.
Appellant argues that the question is not moot because there is a “reasonable expectation of recurrence” and thus meets the first prong of the test. That is, he expects that his name would again be placed on the Child Abuse Registry because of a report that he was physically disciplining his child. This presupposes that the son again allegedly altered a school report or failed to give reports to his father or misbehaved in some other way, that this led to spanking or some other form of discipline which left a mark on the child, that it was noticed by someone who reported it, and that the authorities determined there was credible evidence of alleged abuse such that registry of the father’s name was required. OCGA §§ 49-5-183; 49-5-183.1.
All of this is speculative and does not rescue the constitutional issue from having become moot by expungement of the appellant’s name from the registry, which relief he sought by petition. His own “live controversy” lost its steam when the trial court granted his petition. Even if the statute were ultimately held unconstitutional by the Supreme Court in his case, the ruling would have no effect on him because it would be abstract; expungement left no
existing
facts or rights at stake. See
Chastain,
supra,
As to the second part of the test, the constitutionality of the statute does not inherently or eternally evade review, because anyone whose petition is denied can present it to the Supreme Court if it is properly raised and ruled on in the trial court. The Supreme Court concluded similarly in
Hutchinson,
supra. We did the same in
Froelich,
supra at 649, and in
Atlanta Gas Light Co.,
supra,
Although the appellate courts in, e.g.,
Hutchinson, Froelich,
and
Atlanta Gas Light Co.,
Appellant’s name has been expunged as he requested, and the question of the statute’s constitutionality, although it may be raised repeatedly, does not evade review. The trial court had no discretion to rule on it, and so it did not err in declaring the constitutional challenge moot, as it was compelled to do.
Judgment affirmed. Ruffin, J., concurs.
Notes
“Suits against” is the term in the Venue section; this by its nature means a live controversy.
The jurisdiction delegated to the juvenile courts is over certain “matters” and “cases,” OCGA § 15-11-5; the jurisdiction of superior courts is over “all causes, both civil and criminal____” OCGA § 15-6-8 (1).
In a line of criminal cases where the sentence expired before full adjudication of appellant’s claim, the United States Supreme Court developed the doctrine which avoids mootness by recognizing that criminal conviction “entail[s] adverse collateral legal consequences.”
Sibron v. New
York,
On occasion the Georgia Supreme Court has looked beyond the named party to test mootness. See
Mulling,
supra (persons seeking review of issuance of peace bond);
R. W. Page Corp. v. Lumpkin,
Although a United States Supreme Court case is cited, it appears the court considered the issue moot but decided it anyway.
Compare, as to this part of the test,
Atlanta Gas Light Co.,
supra,