Lead Opinion
This сase presents a facial challenge to OCGA § 17-6-90, Georgia’s good behavior bond statute, which permits “[a] ny judicial officer authorized to hold a court of inquiry” to conduct a hearing and, where sufficient cause is shown, require a party to secure a good behavior bond “to ensure the safety of persons or property in the county or the preservation of the peace of the county.” OCGA § 17-6-90 (a). As addressed below, however, we do not reach the constitutional question posed in this case because the complaining party lacks standing to pursue such a challenge. Accordingly, we vacate the judgment of the trial court and remand this matter with direction that the court dismiss the complaint for relief.
The facts and procedural history of this case are not in question. Ken and Rochel Parker (“Appellants”) and Andrew and Penny Leeu-wenburg (“Appellees”) are neighbors with a contentious relationship. Appellees first sought to have Appellants secure a good behavior bond in 2011, but the parties reached an agreement without the issuance of the bond. Appellees again sought a good behavior bond in 2013; the parties agreed to a six-month bond, which was later extended for an additional six months, and that bond expired in December 2014.
Appellees sought a second bond in January 2015, alleging that Appellants had installed security cameras aimed at Appellees’ property, conversed with and “objected to the activities of a tree service hired by [Appellees],” and used flashlights in a manner that disrupted the sleep of Appellees. Following a hearing at which both parties were reрresented by counsel, a magistrate court issued a bond enjoining both parties from having direct or indirect contact with the other; entering the other’s property; and surveilling, following, contacting, recording, or positioning any security cameras capturing the other’s property Appellants sought review of
Though the trial court did not address the question of standing, it is a jurisdictional issue, see Blackmon v. Tenet Healthsystem Spalding, Inc.,
There are two provisions of the bond statute that are relevant here. Subsection (a) states as follows:
Any judicial officer authorized to hold a court of inquiry may, upon the application of others under oath or upon his or her own motion, issue a notice to appear for a show cause hearing to any person whose conduct in the county is sufficient to justify the belief that the safety of any one or more persons in the county or the peace or proрerty of the same is in danger of being injured or disturbed thereby. Such show cause hearing shall be held within seven days of such application or motion. Upon sufficient cause being shown, the court may require from the person a bond with sureties for such person’s good behavior with reasonable conditions to ensure the safety of persons or property in the county or the preservation of the peace of the county for a period of up to six months.
OCGA § 17-6-90 (a). Subsection (d), which references possible arrest, provides as follows:
At the time оf or at any time after the filing of an application as provided in subsection (a) of this Code section, the judicial officer may, in his or her sound discretion, issue an order of arrest for the person orpersons named in the application if the sworn allegations regarding the conduct of such person or persons is sufficient to justify the belief that there is imminent danger of injury to any person in the county, damage to any property in the county, or disturbance of the peace of the county Upon the arrest of such person, a hearing as provided in subsection (a) of this Code section shall be held within 24 hours; otherwise, such person shall be released on bond with sureties and reasonable conditions for his or her good behavior until a hearing can be held.
Id. at (d). It is undisputed that Appellants have neither been arrested nor have they been threatened with arrest in relation to the bond proceedings associated with this matter; accordingly, Appellants plainly lack standing to challenge subsection (d) of OCGA § 17-6-90. See, e.g., Manlove,
Whether Appellants have standing to challenge subsection (a) is a closer question. The plain language of that subsection controls two things: (1) the timing and circumstances under which a judicial officer may issue “a notice to appear for a show cause hearing,” and (2) what action that judicial officer may take following the show cause hearing, including what conditions may be plaсed on a peace bond. Subsection (a) does not proscribe or regulate conduct, but instead, it vests a judicial officer with the discretion to initiate a peace bond proceeding, either on its own or following an application, and with the discretion to compel a party to secure such a bond. See OCGA § 17-6-90 (a) (judicial officer may issue notice for a show cause hearing and may require a peace bond). Simply put, the only power that rests with Appellees is to apply for a peace bond with a judicial officer; any further action requires the exercise of judicial disсretion.
Though Appellants contend that they have standing arising from Appellees’ threat of future peace bond litigation, Appellants’ complaint for relief hinges on the idea that Appellees might seek a peace bond in the future and, also, that a judicial officer might exercise its discretion and conduct proceedings consistent with OCGA § 17-6-90 (a). Appellees cannot initiate or secure a peace bond in the absence of judicial intervention and, even if this Court were to accept that Appellees may initiаte future peace bond proceedings, Appellants’ complaint lacks any allegation that a judicial officer in Hall County would exercise its authority and initiate such proceedings. The mere fact that such proceedings have been initiated before is not, without more, sufficient to imbue Appellants with standing. Cf. Elend v. Basham,
Because Appellants lacked standing to bring their declaratory judgment action, the
Judgment vacated and case remanded with direction.
Notes
To the extent that Appellants contend that the statute runs afoul of the First Amendment, they must show an injury in fact. See Manlove v. Unified Govt. of Athens-Clarke County,
“The State Declaratory Judgment Act gives superior courts the power to declare rights and other legal relations of any interested party in ‘cases of actual controversy’ under OCGA § 9-4-2 (a) and ‘in any civil case in which it appears to the court that the ends of justice require that the declaration should be made.’ OCGA § 9-4-2 (b).” Leitch v. Fleming,
Dissenting Opinion
dissenting.
A robust standing doctrine is necessary to ensure that courts remain the least dangerous branch of government. When we decide only cases brought by parties seeking redress for actual harm, we limit ourselves to exercising only that power granted us by the Georgia Constitution. See Ga. Const. Art. VI, Sec. VI, Paras. II, III, V (granting us jurisdiction over cеrtain “cases”); see also Lujan v. Defenders of Wildlife,
But just as we must not decide cases not properly before us, we must decide cases that are properly before us. And here, the Parkers’ case is properly before us. The statute they challenge as unconstitutional has been enforced against them three times already, and the Parkers have shown that they face a credible threat that it will be enforced against them in the future. Under well-established precedent, that meаns they have standing to bring at least some of their claims. I respectfully dissent.
Standing requires a showing that (1) the plaintiff has personally suffered some actual or threatened injury (an “injury in fact”); (2) the injury can fairly be traced to the challenged wrong; and (3) a favorable decision is likely to redress the injury. See Lujan,
1. Subsection (a) regulates conduct, and so may properly be the subject of a vagueness and overbreadth challenge.
I begin by analyzing the statute on a point the majority finds dispositive. The majority concludes that the statute is merely procedural and does not regulate conduct, and thus there is no regulation of conduct or speech that could be vague or overbroad. But the statute challenged here invokes the power of the State to order a person to pay money or sequester their assets based upon a judicial finding that the person engaged in certain conduct, and so is properly understood as regulating that conduct.
OCGA § 17-6-90 (a) provides:
Any judicial officer authorized to hold a court of inquiry may, upon the application of others under oath or upon his or her own motion, issue a notice to appear for a show cause hearing to any person whose conduct in the county is sufficient to justify the belief that the safety of any one or more persons in the cоunty or the peace or property of the same is in danger of being injured or disturbed thereby. Such show cause hearing shall be held within seven days of such application or motion. Upon sufficient cause being shown, the court may require from the person a bond with sureties for such person’s good behavior with reasonable conditions to ensure the safety of persons or property in the county or the preservation of the peace of the county for a period of up to six months.
Although subsection (a) does impose requiremеnts for a show cause hearing, it also confers substantive authority upon a judicial officer to impose a bond upon the finding of certain past behavior. The first sentence of subsection (a) authorizes a judicial officer to hold a show cause hearing when a person’s “conduct in the county is sufficient to justify the belief that the safety of any one or more persons in the county or the peace or property of the same is in danger of being injured or disturbed thereby” And the third sentence goes on to provide that, “[ujpon sufficient cause being shown” at the show cause hearing, the judicial officer may impose a bond. In the context of the statute, the “sufficient cause” must necessarily arise from the person’s “conduct in the county” that was sufficient to trigger the hearing. That conduct, then, is what authorizes the imposition of a bond.
And the imposition of a bond itself— not merely its surrender or other consequences upon the violation of its conditions — is a sanction of sorts. If the bond is a money bond, as the statute contemplates, it requires either payment to a bondsman or the sequestration of a person’s assets; if a non-monetary bond, as appears to have been imposed in this case,
The majority’s contrary conclusion also creates a serious problem with the statute. By reading subsection (a) as merely creating a process for a judge to impose a bond, the majority necessarily reads the statute as imposing no standard whatsoever that governs the judge’s discretion in requiring a bond from someone who has not been adjudicated to have committed any wrong. This will not do; the arbitrary and discriminatory enforcement such a statute would invite would indeed pose serious due process concerns.
2. The Parkers have standing to assert a vagueness challenge to OCGA § 17-6-90 (a).
Appellants assert that the statute does not inform them what conduct, including the use of security camеras, might subject them to another good behavior bond. Evidence of “future injury may suffice [to constitute an ‘injury in fact’] if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, _ U.S. _ (
The Parkers have shown an injury in fact regarding the purported lack of notice as to what conduct OCGA § 17-6-90 (a) regulates. The evidence is undisputed that the Parkers and the Leeuwen-burgs have been engaged in a long-standing conflict with each other as next door neighbors, and the Leeuwenburgs have on occasion sought to address their disputes by seeking a good behavior bond against the Parkers. Although the last behavior bond was dismissed without prejudiсe after the Parkers challenged it, the Leeuwenburgs expressly told the Parkers in an e-mail between counsel that the Leeuwenburgs “will be filing in Superior Court if the harassing conduct resumes. . . Among the conduct that the Leeuwenburgs found harassing was the Parkers’ use of security cameras that captured part of the Leeuwenburgs’ property. The Parkers wish to use those security cameras but reasonably fear that, if they do, the Leeuwenburgs would seek another bond and that a judge would impose such a bond.
The threat of future injury in this case is substantial and strikingly different from the аlleged injury in Manlove, which the Leeuwenburgs argue is controlling. In Manlove, the plaintiffs were college students who
The primary authority we relied upon in Manlove (and upon which the majority relies here) also does not apply. In Elend v. Basham,
In arriving at its conclusion, the Eleventh Circuit acknowledged that a past injury may establish “a sufficient imminence of future harm” when the “future injury would likely occur in substantially the same manner as the previous injury.” Id. at 1208 (II) (A) (citing cases). That a “credible threat of future injury” supports the finding of an “injury in fact” is not novel. In the declaratory judgment context, we have stated that a court is without power to grant such relief “[ajbsent an actual controversy involving palpable insecurity.” Fourth Street Baptist Church of Columbus v. Bd. of Registrars,
Although not explicitly disputed by the Leeuwenburgs or the majority, the Parkers have also satisfied the other standing elements to challenge subsection (a) on vagueness grounds. They have shown that the injury of being subjected to a bond is fairly traceable to the alleged unconstitutional features of OCGA § 17-6-90 (a). See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,
3. The Parkers have standing to challenge OCGA § 17-6-90 (a) on overbreadth grounds.
“The overbreadth doctrine permits the assertion of third-party rights in free speech
In CAMP Legal Defense Fund, Inc. v. City of Atlanta,
As explained above, the Parkers have suffered an injury in fact with respect to OCGA § 17-6-90 (a). Therefore, they have standing to assert an overbreadth claim as to this subsection.
For all these reasons, I respectfully dissent.
I am authorized to state that Presiding Justice Melton joins in this dissent.
The purported bonds previously imposed were framed more like bilateral injunctions than money bonds with conditions of behavior. It is far from clear that the statute authorizes such orders; read in context, it appears that the bonds contemplated by the statute are financial. See OCGA §§ 17-6-90 (b) (“All bonds posted under this Code section shall be returnable in the court which required the bоnd ....”); 17-6-91 (“The sureties on the bond shall have the privilege of surrendering their principal as in other cases of bail.”). This is consistent with Blackstone’s description of peace and good behavior bonds at common law. See 4 William Blackstone, Commentaries on the Laws of England: Cf Public Wrongs 252-253 (6th ed., 1825) (the security to ensure a party’s future conduct “consists in being bound, with one or more sureties, in a recognizance or obligation to the king, entered on record, and taken in some court or by some judicial officer; whereby the parties acknowledge themsеlves to be indebted to the crown in the s u m requ ired, ” to be discharged “if the party shall appear in court on such a day, and in the mean time shall keep the peace; either generally, towards the king and all his liege people; or particularly also, with regard to the person, who craves the security. Or, if it be for the good behavior, then on condition that he shall demean and behave himself well, (or be of good behavior), either generally or specifically, for the time therein limited[.]”) (emphasis added). But the Parkers do not bring an as-applied challenge to the statute, nor do they argue that the nature of the bonds previously imposed against them violated the terms of the statute.
If the Parkers had violated the terms of the most recent bond related to their surveillance cameras, they may well have been guilty of aggravated stalking, a felony that carries a potential prison sentence of 10 years. See OCGA § 16-5-91 (a) (defining aggravated stalking to include surveillance for the purpose of harassment in violation of a good behavior bond).
The majority argues at length that no harm can come to the Parkers under the statute without a judge exercising his or her discretion and that the Parkers alleged merely that the Leeuwenburgs would seek a bond, not that a judge would impose one if sought. But in an affidavit attached to their motion for summary judgment, Rochel Parker stated:
We now have no idea whether we can use our security cameras, and certainly cannot do so without fear that the Leeuwenburgs will file yet another good behavior bond against us. Since the bond has been granted on the basis of the location of our cameras in the past, I have no idea how to avoid the risk of arrest or posting a bond while also keeping my home safe.
At summary judgment, this evidence — combined with the history of such bonds being issued — is sufficient to create a genuine issue of material fact on this point, which precludes dismissal for lack of standing at this stage of the case. Cf. Lujan,
I agree with the majority that the Parkers lack standing to challenge OCGA § 17-6-90(d). They have never been arrested nor threatened with arrest under that provision.