S23A0022, S23A0023. SESSION v. THE STATE.
S23A0022, S23A0023
In the Supreme Court of Georgia
May 2, 2023
PETERSON, Presiding Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In these companion appeals, Derrick Session challenges his convictions for failure to register as a sex offender in Georgia based on a conviction he received in Louisiana. He argues that the evidence was insufficient to support his Georgia convictions. He also argues that the Georgia registration statute as applied to him violates his federal rights to travel and equal protection, and he raises a facial challenge to the registration statute under the Georgia constitutional prohibition against legislation regarding the social status of citizens.
After thorough consideration, we reject those arguments. First, Session has not shown that the evidence was insufficient to support his convictions, because he has conceded that the only argument as to sufficiency that he made in his primary appellate brief — that the convictions violated ex post facto principles — is at odds with controlling case law. Next, his arguments that the registration statute violated his federal rights to travel and to equal protection fail because they are based on the unduly speculative assumption that if he had committed the underlying sexual offense in Georgia, he would have been convicted of only a misdemeanor and thus not subject to registration. And finally, although Session makes an interesting argument that Georgia‘s constitutional prohibition against legislation regarding citizens’ social status must mean something different than the repugnantly racist — and patently unconstitutional — meaning that this Court ascribed to it shortly after its first adoption in 1868, he has not shown that any different meaning that provision has today is inconsistent with the requirements of the Georgia sexual offender registry. We therefore affirm.
Viewed in the light most favorable to the verdicts, the evidence admitted at trial — much of which came from Louisiana court documents or stipulated facts — was as follows. In May 1994, Session was indicted in Louisiana for the aggravated rape of a four-year-old child. Session was 15 years old at the time of the alleged offense. On May 18, 1995, Session entered a plea of guilty to an amended charge of sexual battery. The Louisiana trial court accepted that plea and, at a hearing on August 15, 1995, sentenced Session to ten years to serve at hard labor. In 2004, after completing his sentence, Session received a first-offender pardon pursuant to
At some point, Session moved to Texas. Session later moved to Paulding County and registered on the Georgia sex offender registry (“the Registry“) with the Paulding County Sheriff‘s Office in April 2017. In March 2019, a detective conducted a residence check at a Dallas, Georgia, address that Session had provided to the Paulding County Sheriff‘s Office, and was told that Session was not living there. Session, who was living in Kennesaw at the time, was arrested for failure to register. He appeared at the Paulding County Sheriff‘s Office in March 2020 to update his registration; he apparently was arrested while completing his paperwork.
On October 28, 2020, a Paulding County grand jury returned two separate indictments against Session, each charging him with two counts of failure to register as a sex offender under
underlying offense would have constituted a misdemeanor not subject to registration if committed in Georgia. Second, he argued that the application of the Registry to him violated the Equal Protection Clause by distinguishing between in-state and out-of-state convictions. Third, he argued that his due process rights had been violated by lack of notice that he would have to register, given that he was a minor at the time of the offense, was convicted of something that would be a misdemeanor in Georgia, and was pardoned by Louisiana. Apart from his as-applied federal constitutional challenges, Session also raised facial and as-applied challenges to the Registry under Paragraph XXV of the Georgia Bill of Rights, which provides, “The social status of a citizen shall never be the subject of legislation.”
The case proceeded to a bench trial of both cases in July 2022; the trial court received both stipulated facts and evidence. In his closing argument, Session argued that
2. Session has not shown that the evidence is insufficient to support his convictions.
Because “[w]e do not unnecessarily decide the constitutionality of statutes,” In the Interest of C.C., 314 Ga. 446, 451 (2) (a) (877 SE2d 555) (2022), we consider first Session‘s argument that the evidence was insufficient to support his convictions. We conclude that Session has not shown that the evidence was insufficient to support his convictions.
When evaluating the sufficiency of evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted).
Similar to appeals from a jury trial resulting in a criminal conviction, on appeal from a bench trial, we view all evidence in the light most favorable to the trial court‘s verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence.
Jones v. State, 307 Ga. 505, 506 (1) (837 SE2d 288) (2019) (citation and punctuation omitted). “On appeal, it is the defendant‘s burden to show that the trial evidence was insufficient as a matter of constitutional due process to support his convictions.” Charles v. State, 315 Ga. 651, 653 (2) (884 SE2d 363) (2023); see also Davis v. State, 312 Ga. 870, 873 (1) n.2 (866 SE2d 390) (2021) (affirming a defendant‘s convictions where his “only” sufficiency argument lacked merit and he “ha[d] not otherwise shown that the evidence supporting the child cruelty convictions was insufficient as a matter of constitutional due process“).
[T]he provisions of
State v. Davis, 303 Ga. 684, 690 (2) (814 SE2d 701) (2018).
The State in this case charged Session with failing to register in violation of
Louisiana law requires (and required at the time that Session allegedly failed to register in Georgia, as well as at the time of Session‘s underlying offense) registration by any adult residing in the state who had been convicted of a “sex offense.”
On appeal, Session argues that he was not required to register pursuant to
Except to say that he could not alternatively be required to register in Georgia by virtue of a requirement that he register in Texas, this ex post facto argument about the Louisiana statutory change was the only argument that Session raised in his primary appellate brief as to why the State had not shown that he was required to register under
At oral argument before this Court, Session tried to pivot to an argument different from that which he made in his brief, arguing that the State had not presented sufficient evidence that he was still required
And even if the tack that Session took at oral argument and the brief that followed is theoretically within the bounds of the (rather broad) enumeration of error stated in his brief — “The Trial Court Erred in Convicting Session because the Registry Statute did not Apply to Him” — it is not reasonably so. The argument Session made at oral argument as to why the State had not proven that he was required to register under
Here, Session timely filed a brief containing enumerations of error supported by argument and citation of authorities. But his brief contained no argument or citation of authority in support of the argument that he makes now. To consider this completely different issue, raised at oral argument for the first time, would render our rules a dead letter, and we will not allow that. Cf. Cox v. U.S. Markets, Inc., 278 Ga. App. 287, 291 (4) (628 SE2d 701) (2006) (“One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.” (citation and punctuation omitted)).2 Having conceded the only basis on which he made a claim supported by argument and citation of authority in his primary appellate brief as to why he did not need to register pursuant to
3. Session has not shown that requiring him to register violates his federal rights to travel and equal protection.
Session raises two federal constitutional arguments, arguing that applying the registration requirement to him violates his right to travel and his equal protection rights. We conclude that Session has not shown a violation of these federal rights.
(a) Right to travel.
The Privileges and Immunities Clause of the Fourteenth Amendment protects the right to travel, which includes “the right of a citizen of one State to enter and leave another State . . . and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500-504 (119 SCt 1518, 143 LE2d 689) (1999).
Session argues that requiring him to register violates his right to travel because he is being treated differently than he would be had the underlying crime in question been committed in Georgia, as he would not have been required to register had he been convicted of sexual battery in Georgia. The Registry statute exempts “a conviction for a misdemeanor” from the definition of “a criminal offense against a victim who is a minor.”
None of the United States Supreme Court decisions on which Session relies for his right-to-travel claim involved an argument that a new state resident‘s right to travel is being burdened by a sex offender registration requirement on the basis that, if he had committed the crime in his new state, he would have been treated differently in the underlying criminal case, and thereby not be required to register. Rather, these cases involved public benefits schemes that allocated benefits differently depending on how long a person had been residing in the state. See Saenz, 526 U.S. at 500-507 (state statute limiting welfare benefits through recipient‘s first year of residency to the amount payable by the State of the recipient‘s prior residence violated Fourteenth Amendment right to travel); Hooper v. Bernalilo County Assessor, 472 U.S. 612, 618 n.6, 622-623 (105 SCt 2862, 86 LE2d 487) (1985) (applying equal-protection analysis to conclude that state statute that granted tax exemption limited to those Vietnam veterans who resided in the state before a certain date violated newer residents’ right to travel); see also Williams v. Vermont, 472 U.S. 14, 27 (105 SCt 2465, 86 LE2d 11) (1985) (finding it unnecessary to consider appellants’ arguments based on right to travel).
Here, the Registry does distinguish between “residents” and “nonresidents.” See
But Session does not ground his right-to-travel claim in the Registry‘s different treatment of residents, new residents, and nonresidents generally. His as-applied right-to-travel challenge to the statute is very specific to him. He claims that “the Registry imposes disabilities on Session for a conviction that, if occurring simultaneously in Georgia, would not require registration[,]” with “[t]he only reason for the differential treatment” being that “Louisiana punished Session for a felony, even though the same crime in Georgia at the time was only a high and aggravated misdemeanor.” This, Session argues, quoting a separate writing in Hope v. Comm‘r of Ind. Dept. of Corr., 9 F4th 513 (7th Cir. 2021) (en banc), amounts to “assign[ing] different obligations to Georgians ‘based not on what they have done but where they have been. It is relying on another state‘s handling of a particular criminal history
to determine how that individual will be treated in Georgia.” Id. at 536 (Rovner, J., concurring in part and dissenting in part).But this argument depends on the highly speculative assumption that if Session had engaged in the underlying conduct in Georgia, he would be have been convicted of a mere misdemeanor and thus not required to register. The Louisiana sexual battery crime of which Session was convicted and the Georgia crime of sexual battery that existed in 1994 are not identical. The Louisiana sexual battery statute under which Session was convicted defined the offense as follows:
Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
But apart from any particular differences, it is pure speculation to say of what particular crime Session would have been convicted, let alone to say that it would have been a misdemeanor, had he engaged in the same conduct in Georgia. Session‘s argument assumes that, notwithstanding the differences in the elements and punishment accompanying the Louisiana and Georgia sexual battery offenses at the time, a Georgia prosecutor would have offered a plea deal in which Session would have pleaded guilty to a misdemeanor sexual battery offense, and the trial court would have accepted such a bargain. The limited factual record regarding the underlying crime makes engaging in such speculation particularly difficult. And such a speculative argument is not nearly as strong as the argument rejected by the Seventh Circuit sitting en banc in Hope; in that case, all of the plaintiffs committed their crimes before Indiana enacted its registration statute, such that registration for any in-state offense was prohibited under the Indiana Supreme Court‘s interpretation of the state‘s own ex post facto clause. See 9 F4th at 522, 525-526; see also Hope, 9 F4th at 538 (Rovner, J., concurring in part and dissenting in part). It is also no stronger than other right-to-travel challenges to other sex offender statutes that appellate courts have rejected. See Doe v. Peterson, 43 F4th 838, 841-842 (8th Cir. 2022) (rejecting federal right-to-travel challenge to Nebraska sex offender law that required registration by those obligated to register in another state, even if the offense was committed as a juvenile, but did not require registration for those who committed offenses in Nebraska as juveniles); State v. Yeoman, 236 P3d 1265, 1268-1269 (Idaho 2010) (rejecting federal right-to-travel challenge to Idaho sex offender statute that required registration for out-of-state convictions regardless of when they occurred, but only those in-state convictions that occurred after a certain date, given that registration based on out-of-state convictions also depended upon being required to register in the state of conviction at the time of relocation
(b) Equal protection.
Similarly, Session‘s equal-protection argument is based on the assumption that if he had committed the same underlying offense in Georgia, he would have been convicted of only a misdemeanor.
“[A]n equal protection challenge to a criminal statute is examined under the rational basis test unless the statute discriminates on racial grounds or against a suspect class.” State v. Holland, 308 Ga. 412, 415 (2) (841 SE2d 723) (2020). “An equal protection claimant must establish that he is similarly situated to members of the class who are treated differently from him” and that “there is no rational basis for such different treatment.” Id. at 415-416 (2) (citation and punctuation omitted). “In general, for equal protection purposes, criminal defendants are similarly situated if they are charged with the same crime.” Id. at 416 (2) (citation, punctuation, and emphasis omitted).
Session argues that requiring him to register based on his Louisiana conviction violates his right to equal protection because such a requirement distinguishes between persons with a foreign sexual battery conviction and similarly-situated persons convicted of sexual battery in Georgia, a distinction that he contends is not rationally related to achieving the Registry‘s (admittedly) legitimate purposes. But, as discussed above, Georgia‘s definition of the crime of sexual battery was similar to, but not the same as, Louisiana‘s definition at the time of the underlying offense. And to the extent that the underlying substantive Georgia criminal law treats certain conduct differently than another state does, this is not the sort of explicit distinction between in-state and out-of-state offenders by a sex offender registry scheme that other courts have found runs afoul of the Equal Protection Clause. Compare Doe v. Pa. Bd. of Probation & Parole, 513 F3d 95, 98, 112 (3d Cir. 2008) (equal protection violation where state law automatically subjected out-of-state sex offenders to community notification, while an individual convicted of same offense in Pennsylvania would be subject to notification only if particular designation were made after a civil hearing); ACLU of N.M. v. City of Albuquerque, 137 P3d 1215, 1226-1227 (N.M. Ct. App. 2006) (equal protection violation where city‘s sex offender law required registration for those with out-of-state convictions who were in city only three consecutive days, but not for those with in-state convictions who were in the city much more often); and Hendricks v. Jones ex rel. State, 349 P3d 531, 536 (Okla. 2013) (equal protection violation where state‘s registration requirement applied to out-of-state offenders convicted prior to statue‘s enactment, but limiting registration for in-state offenders to those whose conviction occurred after statute‘s effective date); with Morales-Frometa v. Attorney General United States, 812 Fed. Appx. 95, 99 (3d Cir. 2020) (“courts have repeatedly recognized the equal protection does not require uniformity” among jurisdictions); United States v. Titley, 770 F3d 1357, 1362 (10th Cir. 2014) (rejecting equal protection challenge to Armed Career Criminal Act designation based on two state drug convictions that the appellant argued “would not qualify had the predicate offenses been committed in 19 other states or the District of Columbia“); United States v. Fink, 499 F3d 81, 87 (1st Cir. 2007) (rejecting claim that statutory enhancement dependent upon states’ variable treatment of drug possession violated right to equal protection). Session has not shown that requiring him to register in Georgia violated his federal equal protection rights.
Finally, Session argues that the Georgia Registry is unconstitutional on its face because it violates the Georgia Constitution‘s Social Status Provision. We reject this claim.
As noted above, Paragraph XXV of the Georgia Bill of Rights provides that “[t]he social status of a citizen shall never be the subject of legislation.”
Session‘s burden on this claim is a difficult one.
We presume that statutes are constitutional, and before an act of the General Assembly can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality. Because all presumptions are in favor of the constitutionality of a statute, the burden is on the party claiming that is the law is unconstitutional to prove it. And [Session]‘s task is made all the more difficult because, to make this argument, [he] is asserting a novel and quite expansive construction of a provision of the Georgia Constitution that has received little attention since it was enacted.
Ammons v. State, 315 Ga. 149, 163 (3) (880 SE3d 544) (2022) (citations and punctuation omitted).
It is well established that “we interpret the Georgia Constitution according to its original public meaning.” Elliott v. State, 305 Ga. 179, 181 (II) (824 SE2d 265) (2019). “And, of course, the Georgia Constitution that we interpret today is the Constitution of 1983; the original public meaning of that Constitution is the public meaning that it had at the time of its ratification in 1982.” Id. And when a provision has been “retained from a previous constitution without material change,” we generally presume that the provision “has retained the original public meaning that provision had at the time it first entered a Georgia Constitution, absent some indication to the contrary.” Id. at 183 (II) (A). In addition, “[a] constitutional clause that is readopted into a new constitution and that has received a consistent and definitive construction is presumed to carry the same meaning as that consistent construction.” Id. at 184 (II) (B).
The Provision first entered the Georgia Constitution in 1868, part of the new constitution ratified by Georgians to satisfy the conditions set by Congress for readmission to the Union. See
The 1868 Constitutional Convention‘s charge was in part to advance racial equality. See Ammons, 315 Ga. at 165 (3) (citing
[T]he very reverse is true. That section of the Constitution forever prohibits legislation of any character regulating or interfering with the social status. It leaves social rights and status where it finds them. It prohibits the Legislature from repealing any laws in existence, which protects persons in the free regulation among themselves of matters properly termed social, and it also prohibits the enactment of any new laws on that subject in the future.
Scott v. Georgia, 39 Ga. 321, 324 (2) (1869). Noting the various forms of segregation in effect at the time of the adoption of the new Constitution, the Court continued: “In all of this they were protected by the common law of this State. The new Constitution forever guarantees this protection, by denying to the Legislature the power to pass any law withdrawing it or regulating the social status in such assemblages.” Id.
The Georgia Court of Appeals later said that the Provision did not constrain the judicial branch‘s ability to “take judicial notice of an intrinsic difference between the two races[,]” when it employed the Provision to allow a white railroad passenger to seek damages from a railroad company whose conductor mistakenly referred to the passenger as black:
Our Constitution . . . declares that the social status of the citizen shall never be the subject-matter of legislation. It has been said that this language was used for the express purpose of leaving the social status open to judicial determination. We, however, shall not take any such fanciful position; for it can not properly be said that that which can not be the subject-matter of legislation can be judicially administered. This, however, does not affect the subject of judicial notice of matters of history, common knowledge, etc. The sounder view is, that neither Legislatures nor courts shall grade the citizen according to this social status, and yet that the courts can and must notice the meaning of words of opprobrium, as well as the connection in which these words are used.
See Wolfe v. Ga. Ry. & Electric Co., 2 Ga. App. 499, 504-506 (3) (58 SE 899) (1907). This Court later held that evidence about the race of a bottling company‘s inspectors was not admissible to show the inspectors’ relative efficiency. See Atlanta Coca-Cola Bottling Co. v. Shipp, 170 Ga. 817, 820 (2) (154 SE 243) (1930). But the Chief Justice felt compelled in his concurrence to distinguish the case from the Court of Appeals’ prior ruling in Wolfe, which he characterized as remaining good law. See id. at 824 (Russell, C.J., concurring).
So what to make of such a provision now? Cases like this serve as a reminder that we focus on history not because it is always good, but because the rule of law requires it. To discern the meaning of legal text, we must determine its original public meaning — what the language meant at the time and place in history when it was enacted. Original public meaning is an interpretive methodology that promotes the rule of law by, among other things, constraining judges. By its application, we limit ourselves to only those interpretations of legal text that can be supported by text, history, and context. The meaning produced by those interpretations can only be as good as our history.
And there is much in our history that is shameful. The racist history of this Court‘s interpretation of the Provision reminds us of this truth once again. But a proper application of our interpretive methodology requires honest grappling with that history; we cannot wish it away.7
Session thus argues that the Provision must mean something else today, and that such an alternative meaning renders the Registry unconstitutional. Whether or not the Provision has an alternative meaning is a question we need not decide today,8 because Session does not show that he would prevail under any such meaning.
As alluded to above, Session contends that the Provision now “can be interpreted as barring the legislature from creating preferred or reviled classes of citizens.” Session says that “society” aims “visceral animus” toward sex offenders and that “[e]ven other prisoners loathe” them. But Session fails to show how the registration requirement and related provisions, rather than the fact of being convicted of a sex offense, “created” a particular class of citizens — people convicted of sex offenses — or caused “society” to treat that class of persons differently. And Session has offered no proposed plausible construction of the Provision that would prohibit criminalizing certain types of conduct on the theory that it would create a disfavored class comprising those convicted of such crimes. Accordingly, Session‘s argument fails.
Judgment affirmed. All the Justices concur.