*1 In the Supreme Court of Georgia
Decided: November 24, 2014 S14A1033/S14X1036. SENTINEL OFFENDER SVCS., LLC v. GLOVER et
al.; and vice versa.
S14A1035/S14X1034. SENTINEL OFFENDER SVCS., LLC et al. v. GILYARD
et al.; and vice versa.
S14A1037/S14X1038. SENTINEL OFFENDER SVCS., LLC v. TENNILLE et
al.; and vice versa.
S14A1039/S14X1040. SENTINEL OFFENDER SVCS., LLC v. OSBORN et al.;
and vice versa.
S14A1041/S14X1042. SENTINEL OFFENDER SVCS., LLC v. MARTIN et al.;
and vice versa.
S14A1251/S14X1252. SENTINEL OFFENDER SVCS., LLC v. CASH et al.; and
vice versa.
S14A1253. ROUNDTREE, SHERIFF v. CASH et al.
S14A1254/S14X1255. SENTINEL OFFENDER SVCS., LLC v. ASHLEY et al.;
and vice versa.
S14A1256. ROUNDTREE, SHERIFF v. ASHLEY et al.
S14A1257/S14X1258. SENTINEL OFFENDER SVCS., LLC v. HAYES et al.;
and vice versa.
S14A1259. ROUNDTREE, SHERIFF v. HAYES et al.
S14A1260/S14X1261. SENTINEL OFFENDER SVCS., LLC v. STEPHENS et
al.; and vice versa.
S14A1262. ROUNDTREE, SHERIFF v. STEPHENS et al.
S14A1263/S14X1264. SENTINEL OFFENDER SVCS., LLC v. BARRETT et al.;
and vice versa.
S14A1265. ROUNDTREE, SHERIFF v. BARRETT et al.
S14A1266/S14X1267. SENTINEL OFFENDER SVCS., LLC et al. v. CARTER;
and vice versa.
S14A1268. ROUNDTREE, SHERIFF v. CARTER et al.
S14A1269/S14X1270. SENTINEL OFFENDER SVCS., LLC et al. v. HUCKS;
and vice versa.
S14A1271/S14X1272. SENTINEL OFFENDER SVCS., LLC et al. v. MANTOOTH; and vice versa.
THOMPSON, Chief Justice.
These cases present constitutional and statutory questions arising from the use of private probation companies by Georgia courts to provide misdemeanor probation supervision services. Thirteen plaintiffs filed individual civil actions against Sentinel Offender Services, LLC, a private for-profit probation servicing entity, and other defendants seeking declaratory and injunctive relief and damages based on claims that Sentinel unlawfully collected probation supervision fees from plaintiffs and violated their due process rights. Among other things, the plaintiffs: (1) challenged the constitutionality of OCGA § 42-8- 100 (g) (1), Georgia’s private probation statute; (2) alleged that OCGA § 42-8- 30.1 precludes tolling of misdemeanor probation sentences and restricts the conditions that may be imposed on probationers in misdemeanor cases including that electronic monitoring is not allowed; (3) challenged Sentinel’s authority to provide misdemeanor probation services to the Superior Court of Columbia *3 County; and (4) sought to recover from Sentinel probation supervision fees plaintiffs contend Sentinel unlawfully collected from them and other damages. All thirteen actions were assigned as companion cases to Superior Court Judge Daniel J. Craig of the Augusta Judicial Circuit, who conducted joint hearings on various motions filed by the individual plaintiffs and by Sentinel.
On appeal are two consolidated orders entered contemporaneously by the
trial court in the pending cases. The trial court issued one order in the five
Columbia County cases and another in the eight Richmond County cases. While
the two orders differ somewhat with respect to the trial court’s findings of fact
specific to the cases filed in each county, the trial court determined certain issues
of law and fact were common to all the cases before it and entered identical
rulings in both orders on these issues. See OCGA § 9-11-42 (a). “It is well
settled that a court may take judicial notice of its own records in the immediate
*4
case or proceedings before it.” Baker v. City of Atlanta,
All in all, 32 appeals and cross-appeals have been filed in this Court seeking review of these orders. [5] Appellants Sentinel Offender Services, LLC, *6 Christina Kapral, Gina A. Childs, Martin M. Murray, Cheryl Bryant and Kayla White (hereinafter collectively referred to as “Sentinel”) appeal from the trial court’s grant of summary judgment and injunctive relief in each of the thirteen cases as well as from the court’s conditional certification of class actions in both Columbia and Richmond counties. Appellant Richard Roundtree, Sheriff of Richmond County, Georgia (hereinafter “Roundtree”), named as a defendant in five of the Richmond County cases and permitted by the trial court to intervene in a sixth, filed separate appeals from the injunctive relief granted in those six cases. Finally, all thirteen plaintiffs, Jacob Martin Glover, Willie James Gilyard, Pamela Lynn Tennille, Brandon Tyler Osborn, Lawrence Ruben Martin, Jr., Virginia Cash, Kelvin Ashley, Clifford Hayes, Amanda Stephens, Thomas John Barrett, William Stephen Carter, Kathleen Myrtle Hucks and Nathan Ryan Mantooth, filed individual cross-appeals from the orders entered in their respective cases.
Each of the cases on appeal involves a plaintiff who was convicted of at constitutional question raised and ruled on by the trial court below and properly before this Court on cross-appeal. See OCGA § 5-6-34 (d). All thirteen appellees filed response briefs asking this Court to affirm the trial court’s orders
with respect to these issues.
least one misdemeanor in either Columbia County Superior Court [7] or Richmond County State Court and received a probated sentence which resulted in his or her paying probation supervision fees to Sentinel. The plaintiffs, none of whom directly appealed their misdemeanor convictions or, where probation was revoked, sought discretionary review of their probation revocations, instead filed civil actions in the superior court seeking injunctive relief and damages against Sentinel.
All five of the Columbia County plaintiffs, Glover, Gilyard, Tennille, Osborn and Martin, alleged Sentinel’s contract to provide probation services to the Columbia County Superior Court was invalid due to Sentinel’s failure to secure approval from the Columbia County Commission as required by OCGA § 42-8-100 (g) (1) and Glover filed his complaint as a class action additionally challenging the constitutionality of OCGA § 42-8-100 (g) (1). [8] Two plaintiffs also alleged that Sentinel illegally modified the terms and conditions of their *8 sentences by adding conditions such as drug screens and treatment programs not included in their original court ordered sentences and swore out warrants for their arrest based, in part, on their failure to comply with these added conditions, while three claimed Sentinel illegally collected or sought to collect excessive supervision fees from them by seeking probation revocation warrants against them after their original probation terms had expired.
The eight Richmond County plaintiffs, Cash, Ashley, Hayes, Stephens,
Barrett, Carter, Hucks and Mantooth, made similar claims against Sentinel.
*9
Along with challenging the constitutionality of OCGA § 42-8-100 (g) (1),
several plaintiffs claimed Sentinel illegally collected excessive supervision fees
from them through the unlawful tolling of their misdemeanor sentences and for
electronic monitoring and drug and alcohol testing not authorized by the private
probation statutory framework. Three of the plaintiffs alleged that the contract
between Sentinel and the State Court of Richmond County, Georgia, was illegal
and void under OCGA § 13-8-2 (a) (1) as one tending to corrupt the judiciary
and two plaintiffs additionally sought to challenge the provisions of OCGA §
15-21A-6 (c) as violating Georgia’s constitutional guarantee of the right to
counsel. See Alford v. State,
Although the facts in the individual cases have not been fully developed given the procedural posture of the appeals before us, we find the legal issues on appeal and cross-appeal were properly raised in some, if not all, of the cases below. [13] We further note that all of the trial court’s substantive rulings have been challenged on appeal by either the appellants or cross-appellants. Specific facts relied on by this Court will be identified as necessary. [14] For the reasons properly denied Sentinel’s motion.
[12] Mantooth, who filed his suit against Sentinel for false arrest and imprisonment in Richmond County Superior Court claiming Sentinel employees wrongfully swore out a warrant for his arrest in order to collect probation supervision fees from him to which Sentinel was not entitled because he had fully paid his fine and completed the terms of his probation, sought certification of a class for declaratory and injunctive relief pursuant to OCGA § 9-11-23 (b) (1) and (b) (2) seeking to enjoin Sentinel’s practice of causing arrest warrants to be issued against misdemeanor probationers in order to collect supervision fees. As required by OCGA § 9-4-7 (c), Mantooth served a copy of his complaint on the Attorney General. We have considered the entirety of evidence contained in the records in all thirteen
companion cases in deciding these issues. See Coleman v. State,
of the evidence to determine whether there is a genuine issue of material fact and whether the
undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as
a matter of law.” Shekhawat v. Jones,
1. As a preliminary matter, we note that little focus has been placed on the justiciability of the various claims raised by the individual plaintiffs in these cases. After careful review of the records and briefs, we have determined that at least one plaintiff presents in a properly justiciable form each of the substantive legal issues that the trial court decided in its consolidated orders and that we decide below. On remand, however, the trial court is directed to consider the justiciability of each claim as raised by each plaintiff or as applicable to other persons affected by any injunctive or class relief.
We find no merit to the blanket contention by Sentinel that all the plaintiffs are precluded from bringing civil actions against it for money had and received, false arrest, and injunctive relief due to their failure to appeal their underlying criminal convictions and sentences. With respect to the Columbia County plaintiffs, the record clearly establishes that prior to the filing of these cases in 2012, no misdemeanor sentence imposed by the Superior Court of Columbia County designated Sentinel as the supervising probation service. Instead, all of the misdemeanor sentences imposed on the plaintiffs by the courts *13 of that county referred only to the “State Probation Office.” Thus, at the time of conviction or revocation for these Columbia County plaintiffs there existed no basis for them to appeal their validly imposed sentences on the grounds that probation supervision by private companies is facially unconstitutional or that the county did not have a valid contract with Sentinel. See Owens v. Hill, 295 Ga. 302, 305 (2) (758 SE2d 794) (2014) (where criminal defendant faces allegedly illegal conduct related to the implementation of his or her sentence which cannot be challenged through a direct appeal of the conviction and sentence or through a habeas corpus action, declaratory or injunctive relief may be sought in a collateral civil action).
Likewise, to the extent that the Columbia County and Richmond County plaintiffs’ claims are based not on their criminal judgments or on what those judgments directed Sentinel to do, res judicata would not bar these claims. See id. This would include claims based on Sentinel’s allegedly tortious conduct in falsely swearing out probation revocation warrants against plaintiffs after the payment of all fines, costs, and restitution or the expiration of their sentences, or swearing out warrants based on a plaintiff’s failure to comply with probation conditions not imposed by the sentencing court but rather unilaterally added by *14 Sentinel; however, we note that, to the extent that the plaintiffs challenge Sentinel’s allegedly tortious conduct that was not authorized by the sentencing court, the trial court did not decide those claims and we do not decide them either.
On the other hand, where a plaintiff’s claim could have been raised in a direct appeal, res judicata normally would preclude the same claim from being raised against the State or its privies, including persons or entities executing the judgment, in a subsequent civil action, although claims based on an allegedly illegal sentence might be raised in the sentencing or habeas court, if they have not become moot. See Div. 4 (c), infra. The trial court should address these res judicata issues with respect to each plaintiff’s specific claims on remand. The proper application of these principles should mean that the civil court’s order, and particularly any equitable relief granted, does not directly conflict *15 with the prior judgment of the criminal court, although there may be incidental effects. See Owens v. Hill, supra; OCGA § 9-5-2.
In addition, on remand the trial court must address justiciability questions regarding the court’s jurisdiction to address each claim raised by each plaintiff, including standing, [16] ripeness [17] and mootness. [18]
*16 2. Turning to the substantive challenges raised, we first address plaintiffs’ constitutional challenge to OCGA § 42-8-100 (g) (1), Georgia’s private probation statute, which provides, in pertinent part:
The chief judge of any court within the county . . . is authorized to enter into written contracts with corporations . . . to provide probation supervision, counseling, collection services for all moneys to be paid by a defendant according to the terms of a sentence imposed on the defendant as well as any moneys which by operation of law are to be paid by the defendant in consequence of the conviction, and other probation services for persons convicted in that court and placed on probation in the county.
Plaintiffs contend this statute is facially invalid because it allows courts to contract with private, for-profit entities to provide probation supervision services to misdemeanor probationers without setting forth any guidelines for contractual requirements regarding how these companies are to be paid and without placing any limitations or restrictions on the cost or amount of fees which can be passed on to the public. Plaintiffs assert that, as a result, the statute improperly allows courts to delegate the provision of probation services decision on remand, requires careful consideration.
With regard to our own jurisdiction to decide these cases, we are cognizant of the fact that several plaintiffs in both Columbia and Richmond Counties sought, and were granted, temporary restraining orders against Sentinel preventing it from swearing out new warrants against them during the course of these actions, so that their sentences arguably would have continued if our rulings effectively reversed those orders. Moreover, to the extent that the claims for money had and received seeking damages for fees paid in the past are not precluded, those claims may not be moot even after the term of the sentence has expired.
to private companies whose employees act as officers of the court, but who owe a duty of loyalty to the for-profit companies which employ them. Plaintiffs argue that by permitting courts to outsource probation supervision services to private, for-profit entities, this statute deprives misdemeanor probationers of their constitutional rights to due process of law and equal protection under the Georgia Constitution of 1983, Art. I, Sec. I, Par. I and II, while condoning imprisonment for debt in violation of the Georgia Constitution of 1983, Art. I, Sec. I, Par. XXIII.
Plaintiffs claim that the statute is unconstitutional on its face because the privatization of probation supervision services systemically denies misdemeanor probationers of their liberty or property without due process of law. We disagree.
(a) In addressing plaintiffs’ facial challenge to the constitutionality of the private probation statute, we are cognizant of the fact that
all presumptions are in favor of the constitutionality of an [A]ct of the legislature and that before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this [C]ourt must be clearly satisfied of its unconstitutionality.
(Citations and punctuation omitted.) JIG Real Estate, LLC v. Countrywide
*18
Home Loans, Inc.,
While the supervision of probation is a function historically performed by state probation officers, the mere act of privatizing these services does not violate due process. Nothing on the face of the statute allows Sentinel or any other private probation company to deprive an individual of his or her property or liberty without due process of law nor is there anything which authorizes the creation of a private probation system that is so fundamentally unfair that it fails *20 to comport with our notions of due process. The due process clause does not prohibit the State from entering into a contract with a private entity for the provision of probation supervision services but requires that when it chooses to do so the State continue to provide due process to individuals under its supervision. As found by the trial court, most of the injuries alleged by the plaintiffs in these cases occurred not because of Sentinel’s compliance with the restrictions placed upon it by the private probation statutory framework, but because of Sentinel’s failure or the failure of its employees to abide by the limited statutory authority granted.
Importantly, under this framework it is the sentencing court which decides whether or not to probate a defendant’s sentence and determines the conditions under which such probation shall occur. See OCGA § 17-10-1 (a) (1). Further, it is the sentencing court which bears the responsibility for determining whether a probationer has the ability to make court-ordered payments, including the payment of fees, and to consider alternative measures of punishment other than imprisonment where a probationer is unable to do so. See Bearden, supra, 461 U.S. at 672 (if probationer is unable to pay despite bona fide efforts, the sentencing court must consider alternative measures of punishment other than *21 imprisonment); Johnson v. State, supra, 307 Ga. App. at 573; McMahon v. State, 284 Ga. App. 192, 194 (643 SE2d 236) (2007) (should defendant be unable to pay, the protection of his constitutional rights will be governed by the principles in Bearden). Nothing on the face of the statute allows for the imposition of unreasonable or illegal fees on probationers by the sentencing court, nor permits the court to improperly delegate its duties under Bearden to probation officers. Accordingly, while we are concerned by the allegations made and evidence presented in these cases, we agree with the trial court that most of the alleged injuries suffered by the plaintiffs are not a consequence of the privatization of probation services per se, but rather result from wrongful acts allegedly committed by Sentinel employees.
(b) To the extent plaintiffs argue that the statute is unconstitutional as
applied, we find the trial court did not distinctly rule on this issue in its orders.
Despite expressing concern over Sentinel’s treatment of alleged probation
violators and the manner in which Sentinel sought probation revocations, the
trial court concluded that any injuries or takings by Sentinel under the auspices
of its role as probation supervisor had not been authorized by the statute. This
Court will not rule on a constitutional question “unless it clearly appears in the
*22
record that the point was directly and properly made in the court below and
distinctly passed on by the trial judge.” Pitts v. G.M.A.C.,
(c) We agree with the trial court that the statute does not on its face
unconstitutionally condone imprisonment for debt. As noted by the trial court,
all the plaintiffs in these actions were convicted of misdemeanors and placed on
probation as an alternative to incarceration. See Tuttle v. State, 215 Ga. App.
396, 397 (450 SE2d 863) (1994). This Court has recognized a distinction
between imprisonment for debt and imprisonment for criminal behavior. See
Connally v. State,
3. In ruling on plaintiffs’ challenge to OCGA § 42-8-100 (g) (1), the trial court determined as a matter of law that the private probation statutory framework prohibits the tolling of sentences imposed on defendants supervised *23 by private probation servicing entities and also prohibits the imposition on these defendants of any conditions of probation statutorily reserved to the State Department of Corrections (hereinafter the “DOC”). We now review these rulings.
(a) Article 2. The administration of probation in this State is governed by Chapter 8 of Title 42 of the Official Code of Georgia Annotated, the provisions of which are divided into Articles 1 through 9. Article 2, also known as the “State-wide Probation Act,” sets forth a state-wide probation system created for felony offenders “to be administered by the Department of Corrections.” OCGA § 42-8-22. OCGA § 42-8-30.1 which is located in Article 2, provides:
In any county where the chief judge of the superior court, state court, municipal court, probate court, or magistrate court has provided for probation services for such court through agreement with a private corporation, enterprise, or agency or has established a county or municipal probation system for such court pursuant to Code Section 42-8-100, the provisions of this article relating to probation supervision services shall not apply to defendants sentenced in any such court.
(Emphasis supplied.) Based on this statutory language, the trial court determined that none of the provisions of Article 2, including OCGA § 42-8-36, *24 which allows probationers’ sentences to be tolled under certain circumstances, [21] and OCGA § 42-8-35 (a) (14), which permits a court to impose electronic monitoring as a condition of probation, were applicable to misdemeanor probationers supervised by private probation officers. [22]
Sentinel and Roundtree assert that the statutory language of OCGA § 42- 8-30.1 should be interpreted to render only certain provisions of Article 2 inapplicable to misdemeanor defendants. [23] They argue that the trial court’s interpretation is improper in that it relegates the descriptive phrase “relating to probation supervision services” to mere surplusage. We disagree.
[T]he fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to look diligently for the intention of the General Assembly.
*25
Atlanta Independent School System v. Atlanta Neighborhood Charter School,
Inc.,
We construe statutes in connection and in harmony with the existing law, and as part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and decisions of the courts.
(Citations and punctuation omitted.) Chase v. State,
In determining the proper meaning of “relating to probation supervision services,” as used in the statute, we note that the phrase “probation supervision services” is not defined in either the Code or case law. Based on our review of Article 2, we find it difficult to determine which provisions contained therein would fall within the limited exclusion proposed by appellants. Indeed, a close examination of Article 2 reveals that there are no whole sections of that article, and not even whole subsections, that appear clearly limited to supervision “services.” Given the difficulties that arise in trying to read “probation supervision services” as relating only to certain provisions of Article 2, it is doubtful that the General Assembly intended for such an interpretation. When read along with the rest of Article 2 and the Code as a whole, OCGA § 42-8- *26 30.1 is most naturally interpreted so that the phrase “relating to probation supervision services” describes “this article” rather than particular “provisions of this article.” It was not meaningless surplusage to include a general description of “this article,” particularly as § 42-8-30.1 was not enacted or amended along with the rest of Article 2, and the General Assembly has used similar formulations elsewhere in the Code. See, e.g., OCGA §§ 10-2-22, 40-1- 55. Accordingly, we agree with the trial court that none of the provisions of the State-wide Probation Act are applicable to defendants sentenced in courts utilizing probation systems authorized by OCGA § 42-8-100 (g) (1).
Our inquiry does not end here, however, as we must determine whether any authority exists outside the provisions of Article 2 for the application of tolling or electronic monitoring to misdemeanor probationers.
(b) Tolling. We agree with the trial court that under current Georgia
statutes, the tolling of a misdemeanor probationer’s sentence is not permitted.
“Statutes providing for the suspension of a sentence or the probation of a
defendant must be strictly followed.” Cross v. Huff,
(c) Electronic monitoring. Electronic monitoring is a condition of
probation which does not necessarily require explicit statutory authority in order
to be imposed. See Ballenger v. State,
4. Having affirmed the trial court’s rulings with respect to the constitutionality of OCGA § 42-8-100 (g) (1) and having addressed the proper statutory interpretation of OCGA § 42-8-30.1, we now consider whether the trial court erred in finding that the plaintiffs have a right of recovery against Sentinel under the doctrine of money had and received for any probation supervision fees Sentinel collected from the plaintiffs that were not lawfully imposed.
(a) The trial court granted Glover’s motion for partial summary judgment and denied Sentinel’s motion for judgment on the pleadings with respect to the plaintiffs’ right to bring a claim against Sentinel for money had and received. *30 Specifically, the trial court found plaintiffs had a right of recovery as to any fees they paid to Sentinel for probation supervision services rendered after their original sentences had expired or for electronic monitoring.
Sentinel argues the plaintiffs have no private right of action to challenge the validity of its contracts to provide private probation services to the Columbia County and Richmond County courts or to seek the return of probation supervision fees plaintiffs were ordered to pay by the sentencing court. Plaintiffs, on the other hand, assert Sentinel was unjustly enriched at their expense when it collected probation supervision fees from them in excess of those authorized by the sentencing court or which were authorized by the court unlawfully and contend that they are entitled to recover these fees from Sentinel. [26]
An action for money had and received is founded upon the
equitable principle that no one ought to unjustly enrich himself at
the expense of another, and is maintainable in all cases where one
has received money under such circumstances that in equity and
good conscience he ought not to retain it. [Cits.]
Haugabook v. Crisler,
(b) With respect to the Columbia County plaintiffs’ ability to recover *32 probation supervision fees paid to Sentinel under the terms of an invalid contract, we find the trial court erred in holding that the doctrine of mutual mistake and the principles of equity prevent Sentinel from having to disgorge any probation supervision fees Sentinel collected from them which the sentencing court had the ability to lawfully impose. Under Georgia law, a private probation company can act as a probation provider and its employees may serve as probation officers only if the company complies with the terms and provisions of OCGA § 42-8-100 (g) (1). This statute states in pertinent part:
The final contract negotiated by the chief judge with the private probation entity shall be attached to the approval by the governing authority of the county to privatize probation services as an exhibit thereto.
That the statute contemplates county approval of the actual contract for such services rather than approval for the privatization of probation services in general is evidenced by the statutory language immediately following which provides:
The termination of a contract for probation services as provided for in this subsection . . . shall be initiated by the chief judge of the court which entered into the contract, and subject to approval by the governing authority of the county which entered into the contract. . .
Because the record supports the trial court’s finding that there never was an *33 approved contract for probation services between Sentinel and the Columbia County governing authority within the contemplation and provisions of the statute, we agree that Sentinel’s contract with Columbia County is invalid.
Purported contracts with public entities that are entered without
observance of the legal requirements are ultra vires and void. See City of
Baldwin v. Woodard & Curran, Inc.,
Despite properly finding that Sentinel’s contract with Columbia County was invalid, the trial court determined there was a mutual mistake on the part of both Sentinel and the Columbia County courts regarding the omission to secure approval for the contract from the governing authority, thus the principles of *34 equity would apply to allow Sentinel to retain unauthorized fees it had collected. This holding is in error. See City of Baldwin, supra at 28 (recovery under an equitable doctrine not allowed where contract is ultra vires and void even though party seeking recovery has performed its part of the bargain and relied upon the contract to its detriment). Just as equity would not be available to aid Sentinel in recovering payment for the performance of probation supervision services under the void contract, equity will not protect Sentinel from having to disgorge that which it unlawfully received. Nor can Sentinel rely on the fact that the plaintiffs were ordered by the court to pay probation supervision fees as justification for its retention of fees it illegally collected. Absent a valid contract, it similarly was not within the lawful power of the Columbia County courts to require probationers to submit to probation supervision provided by Sentinel or any other unauthorized person or entity, thus it was unlawful for Sentinel to extract payment from the plaintiffs for the performance of these services.
Payments made under a void contract are recoverable in an action for
money had and received. See Howard v. Brantley County,
(c) In the Richmond County cases, the validity and proper execution of
Sentinel’s contract to provide private probation services to the Richmond
County State Court was not at issue. Because Sentinel was an authorized private
probation service provider in Richmond County pursuant to a valid contract, the
trial court determined that the Richmond County plaintiffs had no right of
recovery against Sentinel for any probation supervision fees they paid during the
original terms of their probated sentences, but did have a right of recovery
against Sentinel for any probation fees they paid after the expiration of the term
of their original sentences or for electronic monitoring. While we agree with the
trial court that a potential cause of action under a theory of money had and
received exists for these plaintiffs to recover such fees paid after the expiration
of their original sentences, see Div. 3 (b) supra, we note that the justiciability of
each plaintiff’s claim in the
trial
court would be dependent on the particular
facts of his or her case, including whether or not these additional fees were paid
following a revocation hearing and pursuant to a court order which could have
been appealed or were paid without benefit of a hearing or entry of an
*36
appealable order. To the extent a plaintiff was required to pay additional
unauthorized fees pursuant to an appealable criminal court order, that order
cannot be collaterally challenged. However, such plaintiffs might return to the
sentencing court to challenge their sentence as illegal or possibly seek relief
through the filing of a habeas corpus petition, with the potential to recover
monies paid pursuant to an illegal sentence. See Nazario v. State,
244) (2010); Harper v. State,
(d) Finally, we reverse the trial court’s ruling with respect to any electronic monitoring fees imposed by the sentencing court and collected by Sentinel for monitoring services rendered during a probationer’s original term of sentence. See Div. 3 (c) supra. Only where electronic monitoring was *37 unlawfully imposed by the court on a misdemeanor probationer after the expiration of his or her original sentence would such fees potentially be recoverable.
5. Sentinel challenges the trial court’s certification of class actions against it in both Columbia and Richmond counties. In Columbia County, Glover moved pursuant to OCGA § 9-11-23 (b) (3) for certification of a class of plaintiffs seeking the recovery of probation supervision fees paid to Sentinel asserting both that Sentinel lacked a valid contract with the Columbia County Superior Court to provide probation supervision services and that Georgia’s private probation statute, OCGA § 42-8-100 (g) (1), was unconstitutional. In Richmond County, Mantooth filed suit against Sentinel for false arrest and imprisonment in Richmond County Superior Court claiming Sentinel employees wrongfully swore out a warrant for his arrest in order to collect probation supervision fees from him to which Sentinel was not entitled because he had fully paid his fine and completed the terms of his probation. In his action, Mantooth sought certification of a class for declaratory and injunctive relief pursuant to OCGA § 9-11-23 (b) (1) and (b) (2) to enjoin Sentinel from unlawfully causing arrest warrants to be issued against misdemeanor *38 probationers. The trial court noted that all the plaintiffs could be considered members of the classes described by Glover and Mantooth and conditionally granted Glover’s motion for class certification pursuant to OCGA § 9-11-23 (b) (3) as well as the class-wide declaratory and injunctive relief sought by Mantooth.
Granting Glover’s motion for class certification, the trial court included all the plaintiffs in the companion cases as putative class members by conditionally certifying classes in both Columbia and Richmond counties. Consistent with its decisions on the constitutional, statutory and legal issues presented, the trial court conditionally certified a class in Columbia County consisting of “persons who have paid any fees to Sentinel after expiration of the original term of their sentences” but deferred ruling on whether Glover was a proper class representative and whether proceedings on behalf of the class should be proved in Columbia County Superior Court or Richmond County Superior Court. In Richmond County, the trial court conditionally certified a class consisting of “persons who have paid any fees to Sentinel after expiration of the original term of their sentences or who have paid Sentinel for electronic monitoring at any time during their probation,” and designated Mantooth as the *39 class representative.
Sentinel complains that the trial court’s class certifications were in error
while the plaintiffs assert this issue is not ripe for review by this Court given
that class certification was only conditionally granted and the trial court deferred
ruling on several important issues. “Whether to certify a class is a matter
committed to the discretion of the trial court.” Georgia-Pacific Consumer
Products, LP v. Ratner,
6. Finally, Sentinel and Sheriff Roundtree contend the trial court erred by
granting permanent injunctive relief enjoining them from requiring probationers
to submit to any condition of probation reserved in Article 2 to the DOC and
from taking any action to supervise or enforce the conditions of any probated
sentence after the expiration of its original term. The decision whether to grant
a request for injunctive relief rests in the sound discretion of the trial judge
according to the circumstances of each case, and a reviewing court will not
reverse the trial court’s decision absent an error in the law contributing to that
decision, a manifest abuse of discretion, or a finding of no evidence on which
to base the trial court’s ruling. See OCGA § 9-5-8; Chambers v. Peach County,
Judgments in Case Nos. S14A1033, S14X1034, S14A1035, S14X1036, S14A1037, S14X1038, S14A1039, S14X1040, S14A1041, S14X1042 affirmed in part and reversed in part, and cases remanded with direction. All the Justices concur.
Judgments in Case Nos. S14A1251, S14X1252, S14A1253, S14A1254, S14X1255, S14A1256, S14A1257, S14X1258, S14A1259, S14A1260, S14X1261, S14A1262, S14A1263, S14X1264, S14A1265, S14A1266, S14X1267, S14A1268, S14A1269, S14X1270, S14A1271, S14X1272 affirmed in part and reversed in part, and cases remanded with direction. All the Justices concur.
Notes
[1] Five of the cases were filed against Sentinel and various Sentinel employees in Columbia County Superior Court, with the remaining eight filed against Sentinel and others in Richmond County Superior Court. Of the eight Richmond County cases, five were filed as petitions for habeas corpus and additionally named Richmond County State Court Solicitor, Kellie McIntyre, and Richard Roundtree, Sheriff of Richmond County, Georgia as defendants. Moreover, two of the complaints, one in each county, were filed as class actions.
[2] These motions included motions to dismiss filed by Sentinel in those Richmond County cases in which the plaintiffs sought habeas relief in addition to their claims against Sentinel, as well as a motion for judgment on the pleadings filed by Sentinel in the Columbia County class action brought by Jacob Martin Glover. Also before the trial court was a motion for partial summary judgment filed by Glover on behalf of himself and the proposed plaintiff class asking the trial court to find: (1) that Sentinel lacked a valid contract to provide probation supervision services to the Superior Court of Columbia County; (2) that OCGA § 42-8-100 (g) (1) is unconstitutional under the Georgia Constitution; (3) that the procedures followed by Sentinel for the collection of its probation supervision fees conflict with rights guaranteed by the Georgia Constitution; and (4) that plaintiffs are entitled to be reimbursed by Sentinel for all fees it collected from them for probation supervision services.
[3] The record reveals that from January 2013 through September 2013, the trial court conducted joint hearings in all 13 cases. Further, at the July 12, 2013 hearing at which counsel for all parties was present, the judge announced he would “take up all of the issues that pertain to both the Columbia County and Richmond County cases today. . . addressing what I think we have before us and that is a motion for partial summary judgment by the Plaintiffs in the case, motion to dismiss by the Defendants in the case, and then motion for class certification.”
[4] In this motion filed only in Glover’s Columbia County case, Sentinel argued that its technical violations of the private probation statute did not create a private right of action in favor of Glover and against Sentinel for the return of Glover’s probation supervision fees, that Glover’s claims challenging the validity of his court-ordered supervision fees were barred by res judicata due to his failure to challenge or appeal the sentencing court’s order in his underlying criminal case, and that Glover’s claims should be dismissed for failing to join the Columbia County Superior Court as an indispensable party.
[5] As the permanent injunctive relief granted by the trial court in this case was not a “matter
of routine once the underlying issues of law were resolved,” Beauchamp v. Knight,
[7] There is no State Court in Columbia County.
[8] Glover, who filed his class action complaint in Columbia County Superior Court seeking the recovery of probation supervision fees he paid to Sentinel asserting both that Sentinel lacked a valid contract with the Columbia County Superior Court to provide probation supervision services and that OCGA § 42-8-100 (g) (1) was unconstitutional, moved for class certification pursuant to OCGA § 9-11-23 (b) (3).
[9] Factual findings made by the trial court specific to the Columbia County cases include that the contract executed by Detention Management Services (“DMS”), Sentinel’s predecessor entity, and the former Chief Judge of the Augusta Judicial Circuit under which DMS and Sentinel had provided misdemeanor probation services to the Superior Court of Columbia County since the year 2000 had never been approved by the Columbia County governing authority as required by OCGA § 42-9-100 (g) (1); that prior to 2012 no misdemeanor sentence imposed in Columbia County designated Sentinel as the supervising probation service, but instead referred to the “State Probation Office” due to a scrivener’s error; that prior to the institution of these lawsuits, no superior court judges presiding over misdemeanor matters in Columbia County from 2000 to 2012 ever questioned the existence of a valid contract between the Court and Sentinel; that misdemeanor probation supervision fees ranged from $30 to $39 per month; that Sentinel was not entitled to collect supervision fees from a probationer after all fines and restitution had been paid unless a condition of probation required further supervision; that there was no evidence that Columbia County superior courts ordered the use of electronic monitoring for any misdemeanor probationers; and that Sentinel maintained sufficient records to determine the source and amount of all types of revenue/income to the corporation. With respect to specific plaintiffs, the trial court found that Sentinel had assumed misdemeanor probation supervision for Gilyard and Osborn and had never sought orders tolling their respective probation terms, but nonetheless sought probation revocation arrest warrants against each man for alleged probation violations after their original probation terms had expired. The court also found that Glover, who was sentenced to serve a 12-month probated sentence and to pay a fine and probation supervision fees, had never been the subject of an arrest warrant by Sentinel and claimed only that Sentinel lacked the authority to collect probation fees from him and others similarly situated due to its failure to comply with the statutory requirements of OCGA § 42-8-100.
[10] Facts found by the trial court to be undisputed in the Richmond County cases included that Sentinel was not entitled to continue to collect supervision fees after all fines, restitution, and costs were paid except where a condition of probation required further supervision; that many defendants were ordered by the State Court of Richmond County to submit to electronic monitoring and pay the associated costs to Sentinel; and that affidavits were submitted by Sentinel to State Court judges for issuance of a probation revocation warrant or “show cause order” which were routinely entered into the Georgia Crime Information Center data base with no purposeful search thereafter made to locate the probationer. With respect to individual plaintiffs, the trial court found that Stephens and Cash had been arrested on probation revocation warrants years after their original probation terms had expired and were required to submit to electronic monitoring as a condition of their release from incarceration; that Ashley, who was sentenced in August 2012 for two misdemeanors and required to submit to electronic monitoring and pay fines and fees, had his probation revoked for failure to pay fees in September 2012 and again in November 2012 when he was additionally ordered to enroll in an in-patient alcohol treatment program despite claiming that he could not afford to pay the electronic monitoring; and that Mantooth, who received a 12-month probated sentence on January 23, 2013 for improper lane change, paid his fine in full at the time of sentencing, completed his driver improvement course one week later and twice attempted to deliver his certificate of completion to Sentinel in February 2013 only to be told his case had not yet been entered into the computer, was stopped on March 18, 2013 for failure to wear a seatbelt and was taken into custody on a probation revocation warrant sworn out by Sentinel employee on February 26, 2013 charging him with failing to pay court-ordered supervision fees.
[11] Sentinel moved to dismiss these habeas petitioners’ remaining claims against it as moot
following the trial court’s grant of the habeas relief requested. However, OCGA § 9-11-18 allows
a party asserting a claim for relief as an original claim to join either as an independent or alternative
claim, as many claims as he has against the opposing parties. As nothing in the habeas corpus statute
prohibits the joinder of other claims, we see no reason why a petitioner in a habeas case cannot
include claims against other parties necessary for the adjudication of a controversy. See Southern
LNG, Inc. v. MacGinnitie,
[15] A criminal defendant who litigated, or had the full and fair opportunity to litigate, a claim
at trial or on direct appeal is normally precluded from raising that same claim in a subsequent civil
action against someone acting at the direction of the criminal court. See OCGA § 9-12-40 (“A
judgment of a court of competent jurisdiction shall be conclusive between the same parties and their
privies as to all matters put in issue or which under the rules of law might have been put in issue in
the cause wherein the judgment was rendered until the judgment is reversed or set aside.”). “Claim”
or “cause of action” in this context does not mean the specific theory of recovery or defense asserted;
instead, “when a subsequent action arises from the same wrong as a prior action and is based on
essentially the same facts, the subsequent action should be barred by res judicata.” Franklin v.
Gwinnett County Public Schools,
[16] We have held that a litigant has standing to challenge a criminal law, even on First
Amendment grounds and even when seeking only a declaratory judgment, “‘only if the law has an
adverse impact on that litigant’s own rights,’” which means that the litigant must establish a “threat
of injury in fact” that is “‘actual and imminent, not conjectural or hypothetical.’” Manlove v. United
Government of Athens-Clarke County,
[17] Even within a criminal case, we have indicated that a challenge to the legality of a
sentencing statute may not be ripe for judicial review until the defendant has been convicted. See,
e.g., Brinkley v. State,
[18] Normally, once a sentence has expired, a claim for prospective relief regarding the legality
of the sentence is moot. See Baker v. State,
[19] Plaintiffs claim, and there is evidence showing, that certain Sentinel employees received bonuses based on Sentinel’s profitability.
[20] Article 2 encompasses the statutory provisions set forth in OCGA §§ 42-8-20 through 42- 8-44.
[21] OCGA § 42-8-36 allows for the “tolling” of a probationer’s sentence based on the probationer’s failure to report to his or her probation supervisor or to the court as required.
[22] Other provisions found excluded by the trial court were those authorizing a court to require probationers to submit to drug and alcohol screening (OCGA § 42-8-35.7) or to require probationers to undergo mental health screening and counseling (OCGA § 42-8-35.6).
[23] Sentinel and Roundtree suggest that those provisions of Article 2 detailing the educational requirements and duties of probation supervisors and those setting the fees which can be charged probationers for supervision services all relate to probation supervision services, but claim that those provisions which provide for the imposition of electronic monitoring and drug screening, including the manner in which fees for these services are to be assessed and collected, do not - despite the fact that the provision of these services are part of Sentinel’s contract with the court.
[24] Statutes specific to misdemeanor probation systems are codified in Article 6 of Title 42, Chapter 8, which encompasses code sections 42-8-100 through 42-8-108. While subsection (c) of OCGA § 42-8-100 specifically allows a court to suspend or probate a defendant’s sentence and subsection (e) of that statute empowers a judge to revoke, modify or change a probated sentence “at any time during the period of time originally prescribed for the probated sentence to run,” neither subsection contemplates the tolling of a probationer’s sentence based on his or her alleged status as a fugitive as specifically allowed by the tolling provisions found in Article 2.
[25] About tolling, we decide only that no provision of the Code upon which Sentinel and
Roundtree rely in this case, including OCGA § 42-8-36, authorized the tolling of misdemeanor
probation sentences. We have no occasion here to consider whether such tolling might be
permissible as a matter of common law, see Anderson v. Corall,
[26] The issue of whether the plaintiffs had a right of action against Sentinel for money had and received was before the trial court both on Sentinel’s motion for judgment on the pleadings and Glover’s motion for partial summary judgment filed on his own behalf and that of the proposed plaintiff class.
[27] Sentinel has failed to come forward with any evidence showing that the statutory
requirements were, in fact, met, thus summary judgment on this issue is appropriate. See OCGA §
9-11-56 (e); Cowart v. Widener,
[28] We note that five of the Richmond County plaintiffs filed habeas petitions following the revocation of their probation on allegedly improper Sentinel warrants challenging both their underlying convictions as well as the validity of the sentencing court’s order revoking their probation.