Muni Newsletter - dec 2004 - Administrative Office of the Courts of GA by linzhengnd


									                         MUNICIPAL COURT

                        Judges Bulletin
      Summer 2006 • The Georgia Council of Municipal Court Judges Newsletter • Vol. 7, No. 2

TABLE OF CONTENTS                              President’s Corner
 Executive Committee. . . . . . . 2            Michael P. Cielinski                        represent over 300 Judges. Yet we
                                               Recorder’s Court of                         have little or no say in some of the
 Farewell . . . . . . . . . . . . . . . . 3
                                                Columbus-Muscogee County                   decisions which affect us. For exam-
 Minutes of Spring                                                                         ple, the proposed Rule dealing with the
   Meeting . . . . . . . . . . . . . . 4

                                                   have begun this letter three times      Maintenance         of    Non-Criminal
 Financial Report . . . . . . . . . . 8            since last week. The first time I had   Evidence and Criminal Evidence,
                                                   just been notified of Judge David       which was adopted by the Judicial
 ICJE Faculty Recognition . . . . 9
                                               Pierce's illness, the second was the day    Council in June, we had very little
 Proposed Uniform Rule. . . . 10               he died and the third was the day of his    input. These rules will impact your
 Daubert Paper . . . . . . . . . . . 12        funeral. Today is the fourth day since      court and how you do business.
                                               his funeral. Judge Pierce was not a              The Executive Committee is also
 Lithia Springs. . . . . . . . . . . . 14
                                               good Judge, he was a great Judge. Any       examining the possibility of hiring a
 A Celebration of Life . . . . . . 15          President of this Council, who asked        lobbyist. The Magistrate Court's
 A Police Officer’s                            him to do something, did not need to        (Chief Magistrates) now have a retire-
 Procedural Rights . . . . . . . . 16          ask again. It was done. All of us can       ment system. The Magistrate courts
                                               take a lesson from him. Let us commit       also have a seat at the Judicial Council.
 How to Beat a
                                               ourselves to doing those things we do       Many of these things happened; it is
  Search Warrant . . . . . . . . . 19
                                               best, being the best judges we can be.      my belief, because they had a lobbyist.
 Pictures . . . . . . . . . . . . . . . . 25        We stand at a crossroads today.        A lobbyist will cost money. We are
                                               Soon, hopefully we will have a seat at      examining various options to obtain a

Thank You Council of
                                               the Judicial Council of the State of        lobbyist and will keep you informed.

Municipal Court Judges
                                               Georgia. My hopes in this area are               Let us all move forward to be the
                                               very high. We have some very strong         best for the Court and community.
                                               backing, which we have never had            Always remember that for many of the
The family of David Miller Pierce              before. Look in the Georgia Courts          citizens of this State we are the only

is grateful to God for his life, for
                                               Directory, or get the current members       contact they ever have with a Judge.

your friendship and your kind-
                                               of the Council and ask them to support      Their impression of your court will

ness and prayers.
                                               us being seated at the table. Chris         stay with them forever - good, bad or
                                               Patterson of the AOC is going to help       indifferent. We all know we can not
     Thank you so much for the                 prepare talking points. It is imperative    make everyone happy. One person

beautiful Fiddleleaf Fig plant
                                               that all of us meet with the Judges on      thinks we did not punish enough. The

you sent in memory of David.
                                               the Judicial Council of the State of        other side thinks they were dealt with
                                               Georgia, and members of the Superior,       harshly. We are there to see justice
Your friendship, prayers and con-              State and Magistrate Court Judges           done and many citizens do not realize
cern are deeply appreciated dur-
                                               Council to actively seek their support.     this is our job. Let us commit this year

ing this difficult time.
                                               I urge you to do so. I will ask Chris to    to see that justice is done. It is the best
                                               put the talking points out on listserv      way to get the respect we deserve and
                                               upon completion. We all know that our       to honor the memory of Judge Pierce.
Sincerely, Susan Pierce                        class of courts is not at the table. We
                                    EXECUTIVE COMMITTEE
    Judge Michael P. Cielinski           Judge Henry E. Williams             District 7
    President                            Lumpkin                             Judge Robert L. Whatley
    PO Box 1882                          1101 Valley Road                    Austell
    Columbus, GA 31902-1882              PO Box 71747                        3959 Janet Street
    706-653-0354/F 322-1722              Albany, GA 31708-1747               Lithia Springs, GA 30122
                                         229-888-2600/F 888-3330             770-941-5833
    Judge Bill Clifton
    President-Elect                      District 3                          Judge Diane M. Busch
    577 Mulberry Street, Suite 710       Judge S.E. Moody, III               Marietta
    Macon, GA 31201                      Montezuma                           800 Kennesaw Ave., NW, Suite 400
    478-750-8600/F 750-8686              PO Box 220                          Marietta, GA 30060
                                         Perry, GA 31069                     770-424-4343/F 424-1892
    Judge John A. Roberts                478-988-3114/F 988-0063
    Vice President                                                           District 8
    462 E. Paces Ferry Road, NE          position vacant                     Judge Thomas C. Bobbitt, III
    Atlanta, GA 30305                                                        Jeffersonville
    404-841-0661/F 841-0775                                                  101 N. Jefferson Street, C55
                                                                             PO Box 1676
    Judge Kathryn Gerhardt                                                   Dublin, GA 31040-1676
    Secretary                            District 4                          478-272-5010/F 275-0035
    PO Box 4866                          Judge Angela T. Butts
    Macon, GA 31208-4866                 Recorder's Court of DeKalb County   Judge Charles W. Merritt, Jr.
    478-745-9661/F 745-9824              3630 Camp Circle                    Madison
                                         Decatur, GA 30032-1394              155 S. Main Street
    Judge Charles A. Gravitt, Sr.        404-294-2635/F 294-2148             Madison, GA 30650
    Treasurer                                                                706-342-9668/F 342-9843
    118 Main Street                      Judge Warren W. Hoffman
    Jonesboro, GA 30236                  Stone Mountain                      District 9
    770-478-1114/F 471-1091              922 Main Street                     Judge Kenneth E. Wickham
                                         Stone Mountain, GA 30083            Norcross
    Judge John Kinsley Edwards, Jr.      404-377-9277/F 377-3006             65 Lawrenceville Street
    Immediate Past President                                                 Norcross, GA 30071
    PO Box 1661                          District 5                          770-714-6894
    Valdosta, GA 31603-1661              Judge Elaine Lynn Carlisle
    229-671-2600/F 671-3441              Atlanta                             Judge William F. Brogdon
                                         150 Garnett Street, SW              Lawrenceville
    District 1                           Atlanta, GA 30303                   PO Box 390997
    Judge Tammy Stokes                   404-954-6794/F 658-6994             Snellville, GA 30039
    Recorder's Court of Chatham County                                       770-978-1181/F 978-1145
    Chatham County Courthouse            Judge Calvin S. Graves
    133 Montgomery Street, Rm. 104       Atlanta                             District 10
    Savannah, GA 31401                   150 Garnett Street, SW              Judge Chip Hardin
    912-652-7429/F 652-7412              Atlanta, GA 30303                   Tignall
                                         404-658-7049/F 658-6586             105 Andrew Drive
    Judge Willie Titus Yancey, II                                            Washington, GA 30673
    Thunderbolt                          District 6                          706-678-4404/F 678-4404
    2821 River Drive                     Judge John Clayton Davis
    Thunderbolt, GA 31404                Morrow                              Judge C. David Strickland
    912-629-4669/F 629-4668              2670 Emerald Drive                  Porterdale
                                         Jonesboro, GA 30236                 PO Box 70
    District 2                           770-715-5912/F 320-8930             Covington, GA 30015-0070
    Judge Willie C. Weaver, Sr.                                              770-786-5460/F 786-5499
    Albany                               Judge David J. Turner, Jr.
    911 Pine Avenue                      Manchester
    PO Box 646                           PO Drawer 450
    Albany, GA 31702-0646                Manchester, GA 31816-0450
    229-438-9455/F 438-0674              706-846-8427/F 846-5241

Municipal Court Judges Bulletin                            — 2—                                              Summer 2006
 Farewell from Judge Edwards

         fter almost ten years of serv-     outstanding judges like David Pierce    new President, Judge Michael
         ice as a municipal court           and William “Bill” Coolidge who         Cielinski, who I know from personal
         judge, it with sadness that I      served this Council and their courts    experience is truly committed to this
say farewell to this Council and            with distinction. These men worked      Council and seeks the very best for
move to my new position as judge of         daily for the betterment of municipal   its judges.
the State Court of Lowndes County.          court judges across our State and our        I am proud to have come from
It has been an honor to meet and            court system in general. I can only     this judicial background. I know that
learn from so many municipal court          hope to measure up to such fine         it has prepared me well for the chal-
judges over the past decade. I have         judges one day.                         lenges which lie ahead. I wish you
made many good friends who serve                I have thoroughly enjoyed my        all only the best.
in their courts with dignity and a          service to this Council on numerous
respect not only for the law but for        committees and as a district repre-     Sincerely,
the people who appear before them.          sentative, Vice-President, President-   John K. Edwards, Jr
I have also mourned the loss of truly       Elect and President. I leave you in     Municipal Court for the City of Valdosta

                                           In Memoriam
                                            the fine and capable hands of your

                                          Judge David M. Pierce

Summer 2006                                                —3—                           Municipal Court Judges Bulletin
 Minutes of the Winter Meeting

       he spring meeting of the         $10,562.19, including $1,050.25 for      Cognition Issues in the Courts, May
       Executive Committee of the       the 2006 Legislative breakfast. The      16-17 at the State Bar of Georgia.
       Georgia Council of Municipal     Council has had fewer funds deposit-     An announcement was posted to the
Court Judges was held on April 21,      ed since the last financial report was   listserv, including registration infor-
2006, at the Administrative Office of   given because very few judges pay        mation for those who wish to attend.
the Courts (AOC) in Macon,              dues this time of year. The Council      The conference is being offered at no
Georgia, following lunch sponsored      currently has a balance in private       cost and the Training Council has
by the Council. Judge Edwards           funds of $50,006.80. Judge Ward          approved five hours training credit
called the meeting to order at 1:00     also reported he had received a letter   towards judicial certification.
p.m. He welcomed all Executive          from the American Bar Association
Committee members and others in         requesting a donation for this year.     Report from AOC
attendance.                             He reminded members last year a               Judge Edwards introduced Ms.
                                        donation was made in memorial of         Debra Nesbit, Associate Director for
Approval of Minutes                     Judge William Coolidge, III. After a     Legislative and Governmental
    The first item of business was      brief discussion, members decided        Affairs, AOC, who provided a leg-
the consideration of the minutes        not to donate any funds at this time.    islative update for the 2006 session.
from the winter meeting held in             In final, Judge Ward announced       Ms. Nesbit began by thanking the
Atlanta on February 23, 2006. Upon      he would not seek re-election as         municipal judges for their support of
motion duly made by Judge Bobbitt       Treasurer. He nominated Judge            the AOC during this session. She
and seconded by Judge Ward, the         Charles Gravitt of Lake City as his      reported the agency received a mil-
minutes were approved as submitted.     successor for the post.                  lion dollar cut directly to their FY07
                                                                                 budget. Chief Justice Leah Sears
Financial Reports                       Presidents Report                        fought hard to keep the budget in
     Judge Edwards then called for          Judge Edwards announced the          tact, as did Glen Richardson,
the financial reports. Ms. Marla        meeting schedules associated with        Speaker of the House. Ms. Moore
Moore, reporting for Chris Patterson,   the Survey Update Seminar in June.                         continued on page 5
noted as of March 31, 2006,             The Executive Committee will have
$6,187.29 of the State appropriated     a luncheon meeting on Wednesday,
funds for fiscal year 2006 had been     June 28th at 12:00 p.m., the Business
spent, leaving a balance of             meeting will be held Thursday, June
                                        29th at 10:00 am, and the Training
$13,346.28. Ms. Moore noted all
FY06 year expenditures are to be        Council will meet for a lunch meet-       New Officers of the Council
expended by June 16, 2006. The          ing Friday, June 30th at 12:00 pm.         of Municipal Court Judges
PeopleSoft system is being upgraded     Next, he announced participants for               2006-2007
statewide and will be shutting down     the Georgia Judicial Leadership
                                                                                 Judge Michael P. Cielinski, President
the first 10 working days of July.      Academy scheduled for November              Recorder's Court of Columbus-
With this being said, she advised the   8-10, 2006 at The Windsor Hotel in                Muscogee County
Council should consider encumber-       Americus Georgia were still being
                                                                                   Judge Bill Clifton, President-Elect
ing remaining FY06 funds towards        sought. The Council has six seats
                                                                                      Municipal Court of Forsyth
printing i.e. the newsletter. After a   designated for the seminar. Judges
brief discussion, Judge Bobbitt         Cielinski and Still have tentatively      Judge John A. Roberts, Vice-President
moved to encumber remaining FY06        agreed to attend. Judge Calvin                Municipal Court of Lithonia
funds for printing. With a second       Graves volunteered to participate as      Judge Kathryn Gerhardt, Secretary
from, Judge Cielinski the motion        well. In final, Judge Edwards stated          Municipal Court of Macon
passed with all in favor.               the Georgia Commission on Access
                                                                                     Judge Charles A, Gravitt, Sr.,
     Judge Ward provided the private    and Fairness in the Courts and the                     Treasurer
funds report and noted expenditures     State ADA Coordinator's Office is             Municipal Court of Lake City
as of March 31, 2006 totaled            presenting a working conference on

Municipal Court Judges Bulletin                        —4—                                                Summer 2006
Minutes              continued

added a survey was sent out to the         sumed bottle; authorize                    ters; regulations
judges regarding ranking services of       This bill allows a restaurant patron to    This bill allows for the Board of
the AOC. She requested the Council         remove a partially consumed bottle         Corrections to enter into contracts
to please return them via U.S. mail or     of wine that had been purchased            with private probation companies.
complete the survey on the web at          along with a meal. The restaurant          This bill provides for county and city                      will reseal the bottle in a bag, and the   operated probation departments to be
    Next, Ms. Nesbit passed out a          patron must put the bottle in the          registered and regulated by the
legislative wrap-up and noted a final      glove compartment or trunk of the          County and Municipal Probation
report would be disseminated after         car when leaving. As long as these         Advisory Council under the same
May 9th, the last day for the              conditions are met, possession of this     terms the private probation compa-
Governor to sign or veto Bills. She        open bottle will not constitute an         nies are regulated. Effective date:
briefly reported on a few of the bills     open container violation.                  July1, 2006. Judge Ward noted, it is
included in the packet. They were as       Effective date: July 1, 2006.              estimated more than 110 courts will
follows:                                                                              come under the umbrella of the
                                           HB 718 - Pretrial intervention and         County and Municipal Probation
Fulton County has created five new         diversion programs; authorize cer-         Advisory Council.
cities, Johns Creek, Leesburg,             tain courts to administer                  SB 203 - Public Defenders; indi-
Milton, Chattahoochee Hill Country         This bill allows prosecuting attor-        gent defense services; attorney's
and South Fulton. At some point            neys for state courts, probate courts,     fees/cost recovered
judges are likely to be appointed in       magistrate courts, and municipal           This bill allows local court officers to
these cities.                              courts to create and administer            collect the fees for victim's assistance
                                           Pretrial Diversion Programs.               programs, which may be distributed
HB 1209 - Dept. of Public Safety;          Effective date: July 1, 2006.              directly to the programs (if qualified)
motorcycle enforcement program;                 Ms. Nesbit noted Judge Bobbitt        instead of the money going through
provisions for payment This bill           testified at the committee meeting on      the     Superior      Court      Clerks
requires that all fines paid for traffic   this bill and made some clarifica-         Cooperative Authority. This bill also
violations written by the newly-cre-       tions.                                     clarifies the fee collection for
ated motor cycle enforcement unit of                                                  Probate Courts, gives Superior Court
the Department of Public Safety be         HB 1044 - Firearms; carrying and           Clerks Cooperative Authority audit-
remitted to the Department for the         possession; municipal and city             ing authority over judges and courts,
purpose of maintaining the motor           court judges; amend provisions             allows for a county or municipality
cycle enforcement program. This            This bill allows permanent part-time       to recover payment of indigent
requirement does not apply to any          municipal court judges to carry            defense that was given to a defendant
fees or costs associated with the pay-     firearms.                                  who was not indigent, and allows for
ment of a fine and only apply to vio-      Effective date: July 1, 2006.              work release programs to be a condi-
lations that occurred on an “urban                                                    tion of probation. Effective date:
interstate system.” For the purposes       HB 1288 - Municipal court clerks;          July 1, 2006. Ms. Nesbit noted
of this bill, “urban interstate system”    required training; provide                 Section 4 gives the Clerks Authority
means any portion of I-285 and the         This bill requires municipal court         broad authority and the power to
portions of I-75, I-85, and I-20 that      clerks to complete at least 16 hours       audit.
are within the perimeter.                  of training in their first year of
Effective date: July 1, 2006.              employment and a minimum of 8                  In final Judge Bobbitt noted HB
Judge Bobbitt noted this Bill has a        hours per year after that. Effective       1501 - County ordinance viola-
sunset provision.                          date: July 1, 2006.                        tions; maximum fines; change pro-
                                                                                      visions which is mainly for metro
HB 1436 - Wine; restaurant                 SB 44 - Corrections; contracts with        areas. This bill increases the maxi-
patrons; resealed partially con-           private detention/diversion cen-                               continued on page 6

Summer 2006                                                —5—                            Municipal Court Judges Bulletin
Minutes             continued
mum fine for alcoholic beverage          will be re-introduced at the next leg-   on June 6, 2006 at the Desoto Hilton
license violations to $2500. It only     islative session.                        in Savannah, Georgia.
applies to counties or municipalities
that issue more than 300 such licens-    (3) Golf Tournament. Ms. Murphy          (2) Probation Advisory Council.
es (currently Fulton County only).       reported for Judge Adams on the sta-     Judge Ward skipped the normal pres-
Effective date: July 1, 2006.            tus of the tournament. Judge Adam        entation of statistics regarding proba-
                                         is working with Judge Lawrence           tion. At the February meeting, Ms.
Report from the Training Council         Dillon of Chatham County to solidi-      Ashley Garner gave a report on how
     Judge Bobbitt reported with the     fy the arrangements. The tourna-         productive the Council's meeting on
passing of HB 1288 the Training          ment will be held Thursday, June 29      regulatory compliance matters were.
Council would be responsible for         at 1:30 pm. The tournament course        The next meeting is scheduled for
implementing training for the clerks.    will be announced at a later date.       May 18, 2006 at the AOC Macon
He noted, the Georgia Municipal                                                   office. He further reported SB44
Association (GMA) and Chairman           (4) Legislative. Judge Edwards           passed and becomes effective July 1,
Ralston worked together to get this      noted in the absence of Judge            2006. This bill places municipal and
vehicle in place. The Training           Barrett, Ms. Nesbit's legislative        county probation under the authority
Council is appointing a five member      report will serve in the stead of a      of the Council. It is estimated the
Clerks Advisory Committee to assist      Legislative Committee report.            bill will enlarge the Council by more
with the process; they will be invited   (5) Newsletter. LaShawn Murphy           than 110 courts.
to attend the June meeting.              reported for Judge Washburn that the     (3) Georgia Municipal Association.
     Next, he reported ICJE and the      next edition of the newsletter has       Judge Bobbitt reported eminent
Training Council are concerned with      been drafted and awaiting approval       domain, annexations, indigent
the declining number of judges regis-    from the editor. Members should          defense, and decriminalization of
tering for courses. This has a direct    have copies by month's end.              traffic offenses continue to be issues
impact on the training budget. An                                                 of particular interest to GMA.
accurate accounting of the municipal     (6) Nominations. Judge Pierce
judges and courts currently in opera-    reported the notice of election and      (4) Supreme Court Commission
tion is needed. The Council is will-     nominations have been sent out to        on Interpreters. Judge Edwards
ing to support the AOC and GMA in        the Council. A copy of the memo          reporting for Judge Still expressed
this endeavor. In final, Judge Bobbitt   was included in the agenda [tab          the need for use of “Certified
reported the passage of HB 718           three]. Nominations are actively         Interpreters” in court proceedings.
necessitates the establishment of pre-   being sought. There will be a vacan-     This information needs to be dissem-
trial diversion training.                cy for the Vice President post.          inated through out the Council.
                                         Interested parties should contact        Old Business
Committee Reports                        Judge Pierce.
The following committee reports                                                   GCAC Technology Strategic Plan
were then given:                         (7) Uniform Rules. Judge Edwards             Under the heading of Old
                                         reported he is still working towards     Business, Judge Edwards called
(1) Benchbook.        Judge Bobbitt      finalizing the Uniform Rules.            upon Mr. George Nolan, Director for
reported the benchbook will be full                                               the Georgia Courts Automation
reprint next year instead of a supple-   After committee reports, Judge           Commission (GCAC) to review the
ment.                                    Edwards called for reports on            draft of the Information Technology
                                         liaisons with other agencies. The fol-   Strategic Plan for the Council of
(2) Bylaws. Judge Edwards report-        lowing reports were given:               Municipal Court Judges. Mr. Nolan
ed for Judge Still. Legislation to                                                passed out copies of the drafts of the
change the bylaws of the Training        (1) Judicial     Council.      Judge     Data Definition Summary Report
Council regarding appointments did       Edwards reported the next meeting        and the Information Technology Plan
not pass this year. This legislation     of the Judicial Council is scheduled                        continued on page 7

Municipal Court Judges Bulletin                         —6—                                                 Spring 2006
Minutes              continued
for review. He explained municipal         mation and service needs, (4)             Municipal Court Judges does not
court       representatives        meet    Establish a strategic map for the         have someone campaigning for their
September 27-30, 2005 for the first        Municipal IT organization, and (5)        cause they are likely to get left
of two sessions to (1) Determine the       Align and prioritize the services and     behind. Judge Bobbitt called for the
functions, stakeholders, interactions      programs with the strategic map.          establishment of a committee to
and dependencies of the Municipal          With the completion of this effort        proactively shape the Council's
Courts, (2) Determine the informa-         along with the data requirements and      future. He further advised the lobby-
tion requirements and associated data      definitions effort, a strategic vision    ist could be funded through the
definitions required to support these      and map for 2006 through 2008 was         Council's private funds.        Judge
functions performed by the                 developed that will enable the            Edwards moved to establish a long
Municipal Courts, (3) Align the            Municipal Court to begin to priori-       range planning committee to
information origination points and         tize and deliver the IT services that     research obtaining a lobbyist. With a
the security of the identified data def-   will best support the court across the    second by Judge Pierce, the motion
initions to the appropriate stakehold-     judicial system. This is a statewide      passed with all in favor. Judge
ers, and (4) Achieve consensus on          information technology initiative for     Edwards appointed the following
those points with respect to a general     the sharing of data. The goal is to       members to the committee: Judges
overview of the operations of the          have information in standards to be       Michael Cielinski, Thomas Bobbitt,
Municipal Courts.          He further      able to share with courts, agencies       and Calvin Graves. Judges Diane
explained the reports intent is to pro-    and anyone who needs it.                  Busch and Clayton Davis agreed to
vide all levels of courts an overview          In final, Mr. Nolan requested the     assist with the committee as well.
of the high-level functions and            members to review the document(s).            Judge Edwards then announced
process of the Municipal Courts of         These reports are available on            that the next meeting of the
Georgia and the related information        GCAC's website in 'read only' for-        Executive Committee will be held in
flows and data definitions required        mat. The reports are in draft form        Savannah, Georgia on June 28, 2006
for the courts to conduct its business     and will not be released until a final-   in conjunction with the Survey
within the courts as well as interac-      ized version is approved. It is his       Update Seminar. There being no fur-
tions outside the court. He explained      goal to have the Data Definition          ther business, the meeting was
there were five high-level functions       Summary in final by the end of May        adjourned.
identified for the municipal court.        and the Strategic Plan by the end of
They are as follows: Administration/       June. Mr. Nolan ended by stating, the     Respectfully submitted by,
Ongoing Efforts, Pre-Arraignment,          next step in the process is a strategic
Pre-Court, In Court, and Post Court.       business plan. Judge Edwards asked        LaShawn Murphy, AOC
These functions are explained in           the members to take the draft reports     For Kathryn Gerhardt, Secretary
detail in the report.                      and review them for any changes and
     The second session was the            or additions. Anyone with changes
strategic planning for information
technology. Mr. Nolan explained in
                                           should notify him.
this session input from a broad group      New Business
of municipal court's leadership met            As an item of new business,                   Recycle
to: (1) Confirm the contents of the        Judge Bobbitt led discussion on the
Data Definition Summary Report,            future of the municipal courts. He
(2) Finalize the municipal courts cus-     emphasized the need for strategic
tomer interactions, (3) Identify the       planning and also asked the member-
services and programs currently sup-       ship to consider acquiring a paid lob-
ported by the municipal courts to          byist to promote or secure passage of
support IT needs, (3) Gain under-          legislation affecting the municipal
standing of the municipal court's IT       courts. The sentiment was also
priorities of current and future infor-    expressed if the Council of

Spring 2006                                               —7—                           Municipal Court Judges Bulletin
 Financial Report
                                  JULY 1, 1999 THROUGH MARCH 31, 2006

  TOTAL MUNICIPAL BANK DEPOSIT                                           $60,778.99
  Dues, Golf, Coffee Mugs Sales and Judge Association Dues

  REFUNDED AMOUNT                                                          - $210.00
  Seven $30.00 checks for overpayment of dues.1001,1002,1004,1005,1006
  1007,1008. Check #1016 Voided.

                                                                         $ 60,568.99

  Bank Charges
  checks and deposit slips                                                 -$104.50

  Coffee Mugs                                                              -$557.69

  Legislative Breakfast            (ck.#1003 dated 02-09-01)              -$1014.88
  Legislative Breakfast            (ck.#1009 dated 01-10-02)               -$710.54
  Legal Fees                       (ck.#1010 dated 05-13-02                - $ 65.92
  Benchmark Trophy Center          (ck.#1011 dated 07-10-02)               -$774.44
  Legislative Breakfast            (ck.#1012 dated 01-31-03)               -$821.25
  President’s Plaque               (ck.#1013 dated 10-03-03)                -$ 43.00
  Judge Cielinski                  (ck.#1014 dated 10-03-03)                -$ 58.32
  Legislative Reception Deposit    (ck.#1015 dated 10-28-03)               -$625.00
  Legislative Reception Final      (ck.#1017 dated 03-05-04)              -$1922.00
  Judicial Council Reception       (ck.#1018 dated 08-19-04)               -$564.57
  American Heart Association       (ck.#1019 dated 11-03 -04)              -$100.00
  Legislative Breakfast            (ck.#1020 dated 01-26-05)               -$637.50
  Legislative Breakfast            (ck.#1021 dated 02-03-05)               -$468.35
  State Bar Donation               (ck# 1022 dated 05-16-05)              -$1000.00
  Legislative Breakfast            (ck# 2001 dated 02-18-06)               -$892.50
  Legislative Breakfast            (ck# 2000 dated 02-23-06)               -$157.73

  PETTY CASH                                                                -$50.00

  Long Distance Calls                                                        $15.50
  Office Supplies                                                            $34.50

  TOTAL EXPENSES                                                         -$10,562.19
  BANK BALANCE AS OF MARCH 31,2006                                        $50,006.80
  BANK BALANCE AT LAST REPORT DECEMBER 31, 2005                           $50,871.03

Municipal Court Judges Bulletin                      —8—                               Summer 2006
         2006 - 2007                                    ICJE Faculty Recognition
       Meeting Schedule                                 The Institute of Continuing Judicial Education Faculty
                                                         Recognition Medallions are given to Instructors that
            Strategic Planning Session                  have taught three courses and have received a score of
            August 11, 2006 @ 9:00am                               4.5 or above on their evaluations.
  Administrative Office of the Courts Macon Office
         110 Holiday North Drive, Suite B
               Macon, Georgia 31210

               October Meeting *
Executive Committee Meeting - October 13, 2006 @
 Administrative Office of the Courts Macon Office
         110 Holiday North Drive, Suite B
              Macon, Georgia 31210

*The Municipal Judges Training Council meets prior
           to this meeting @ 9:00am

                 February Meeting
           (Executive & Winter Business)
                                                             Judge Thomas Bobbitt, III (left) and Judge
   Legislative Breakfast/Winter Business Meeting
                                                              Maurice Hilliard (right) are presented by
                  February 1, 2007
                                                               Judge Michael Cielinski (middle) with
          One Martin Luther King, Jr. Dr.
                                                            Faculty Recognition Medallions on behalf of
                Sloppy Floyd Towers
                                                            The Institute of Continuing Judicial Education.
                 Atlanta, GA 30334

      7:30 am - 9:30 am Legislative Breakfast
    (All Municipal Court Judges and the General
            Assembly invited to attend)

 9:30 am - 12:00 Council Winter Business Meeting

1:00 pm - 3:00 pm Municipal Judges Training Council

                  April Meeting
   Executive Committee Meeting - April 20, 2007
  Administrative Office of the Courts Macon Office
         110 Holiday North Drive, Suite B
               Macon, Georgia 31210

                   June Meeting                              Judge Ben Studdard (left) is presented by
      in conjunction with the Traffic Seminar                 Judge Thomas Bobbitt with the Faculty
   (Executive Committee and Summer Business)                   Recognition Medallion on behalf of The
                June 27- 29, 2007                             Institute of Continuing Judicial Education
             Hyatt Regency Savannah
                Savannah, Georgia

Summer 2006                                           —9—                         Municipal Court Judges Bulletin
 Proposed Uniform Rule — Evidence
                                        tively require local governing            • Proposed Uniform Rule of the

       he following proposal was
       presented at the June 6th        authorities to provide space specifi-     Superior, State, Juvenile, Probate,
       Judicial Council meeting for     cally for the management of evi-          Magistrate, and Municipal Courts;
recommendation and transmittal to       dence in civil and criminal cases.        Non-criminal and Criminal
the Supreme Court. At the meeting       The recommendation was approved           • A model order for the handling of
Judge Barrett W. Whittemore, Chair      for adoption by the Judicial Council.     evidence
of the Judicial Council Records                                                   • A model evidence log
Retention Committee provided back-      These materials were provided to the
ground information and insight into     Municipal       Council     Executive     Please feel free to contact Executive
the rule development process. He        Committee for review and discussion       Committee members regarding feed-
then fielded questions from the         at the latest quarterly meeting.          back on the proposed Uniform Rule
Judicial Council. His report conclud-                                             on Evidence Maintenance.
ed with a recommendation to legisla-

                         As Approved by the Judicial Council of Georgia June 6, 2006

                       Proposed Uniform Rule of the Superior, State, Juvenile,
                            Probate, Magistrate, and Municipal Courts

XX.xx _____ Maintenance of Non-         case number and the exhibit number        items of evidence necessary to com-
criminal Evidence                       and recorded in the log or inventory.     plete the transcript of the case.
                                        Within 30 days after disposition of       Evidence in the possession of the
The Clerk of Court or the Court         the case, the Court Reporter shall        Clerk of Court or Court Reporter
Reporter in possession of docu-         transfer the items of evidence along      shall be maintained in accordance
ments, electronic documents, audio      with the evidence log or inventory to     with the law. The designated custo-
and video recordings of whatever        the Clerk of Court of the originating     dian shall be responsible for record-
form, exhibits, and other material      court. The Clerk of Court shall           ing on the evidence log the party, the
objects or any other items admitted     update the log or inventory to show       date, and the type action taken for the
as evidence in a civil case shall       the current custodian and the loca-       release of any such items of evidence
maintain a log or inventory of all      tion of the evidence. Dangerous or        and the party to whom it was
such items with the case number,        contraband items shall be transferred     released and the destruction of any
party names, description of the item,   to the sheriff or other appropriate law   such items of evidence. Any party,
the name and official position of the   enforcement officer along with a          Clerk of Court, Court Reporter,
custodian, and the location of the      copy of the log or inventory. The         Prosecutor, or Sheriff who is the cus-
storage of the items. Dangerous or      law enforcement officer shall             todian of such items of evidence in a
contraband items shall be placed in     acknowledge the transfer with a           case shall petition the court prior to
the custody of the clerk of court and   signed receipt and the receipt shall      making a substitute photograph, pho-
maintained in the courthouse or other   be retained with the log or inventory     tocopy, audio recording, digital
such location as allowed by law and     created and maintained the Clerk of       recording, video recording, electron-
be available during court proceeding    Court. The Clerk of Court and the         ic image, or other equivalent in lieu
and accessible to the court reporter.   appropriate law enforcement officer       of the original evidence. Upon
All such items presented by the par-    shall each maintain a log or invento-     granting of an order for substitution,
ties as evidence and admitted shall     ry of such items of evidence. In all      the order shall be entered into the log
be identified or tagged by the Clerk    cases, the Court Reporter shall be        or inventory.
of Court or Court Reporter with the     granted the right of access to such

Municipal Court Judges Bulletin                        — 10 —                                              Summer 2006
Proposed Uniform Rule                                cont.
XX.xx _____ Maintenance of             appropriate law enforcement officer       maintained in accordance with the
Criminal Evidence                      along with a copy of the log or           law particularly as found in O. C. G.
                                       inventory. The law enforcement            A. §17-5-55. The designated custo-
The Clerk of Court or the Court        officer shall acknowledge the trans-      dian shall be responsible for record-
Reporter, during the court proceed-    fer with a signed receipt and the         ing on the evidence log or inventory
ings, in possession of documents,      receipt shall be retained with the log    the party, the date, and the type
electronic documents, audio and        or inventory created and maintained       action taken for the release of any
video recordings of whatever form,     the Clerk of Court. The Clerk of          such items of evidence and the party
exhibits, and other material objects   Court and the appropriate law             to whom it was released and the
or any other items classified as evi-  enforcement officer shall each main-      destruction of any such items of evi-
dence in a criminal case shall main-   tain a log or inventory of such items     dence. Any party, Clerk of Court,
tain a log or inventory of all such    of evidence. In all such transfers, the   Court Reporter, Prosecutor, or
items with the case number, party      items transferred shall be pho-           Sheriff who is the custodian of such
names, description of the item, the    tographed or recorded by a visual         items of evidence in a case shall peti-
name and official position of the cus- image and placed into the court file.     tion the court prior to making a sub-
todian, and the location of the stor-  In all cases, the Court Reporter shall    stitute photograph, photocopy, audio
age of the items. All such items clas- be granted the right of access to such    recording, digital recording, video
sified by the parties as evidence shallitems of evidence necessary to com-       recording, electronic image, or other
be identified or tagged by the Clerk   plete the transcript of the case.         equivalent in lieu of the original evi-
of Court or Court Reporter with the                                              dence. Upon granting of an order for
case number and the exhibit number      Evidence in the possession of the        substitution, the order shall be
and recorded in the log or inventory    Clerk of Court or Court Reporter,        entered into the case file and the log
and shall be in the custody of the      during court proceeding, shall be        or inventory.
clerk of court and shall
not be removed from the
                                Sample Log
courthouse or other such
location as allowed by
law and be available dur-
ing court proceeding and
accessible to the court
reporter. Within 30 days
after disposition of the
case, the Court Reporter
shall transfer the items of
evidence along with the
evidence log or inventory
to the Clerk of Court of
the originating court. The
Clerk of Court shall
update the log or invento-
ry to show the current
custodian and the location
of      the      evidence.
Dangerous or contraband
items shall be transferred
to the sheriff or other

Summer 2006                                          — 11 —                         Municipal Court Judges Bulletin
 Daubert and Georgia’s New Expert Witness Rule
Gregory T. Presmanes, BOVIS, KYLE & BURCH, LLC

Paper continued from Spring issue of          dict. However, federal trial judges have      of expert testimony and directs the tim-
The Bulletin.                                 used the Daubert rule to evaluate not         ing of such disclosures. To the contrary,
                                              only the methodology, but the conclu-         however, Georgia has no similar provi-
Before the 2005 tort reform legislation,      sions and opinions of the experts, as         sion. Instead, discovery of experts is
Georgia had declined to adopt the             well, notwithstanding Justice Blackmun’s      governed by OCGA § 9-11-26(b)(4) of
Daubert rule on several occasions on the      opinion that the Daubert rule was to be       the Civil Practice Act. Essentially, that
ground that it was based on the Federal       applied only to the methodology and not       statute states that, in response to an inter-
Rules of Evidence, which had not been         to the conclusions and opinions of            rogatory, a party must disclose experts.
adopted by the Georgia Legislature.35         experts.41                                    There are no specific details or require-
The Georgia Supreme Court granted cer-             The new law passed by the Georgia        ments, and typically, neither side will
tiorari twice to consider whether to adopt    Legislature in 2005 is OCGA § 24-9-           give much information on their experts
the Daubert rule, but ruled that certiorari   67.1, which governs the admissibility of      outside of depositions.
was improvidently granted.36                  expert opinions in civil actions. It               In determining whether the pro-
      Before the 2005 legislation, Georgia    attempts to adopt Rules 702 and 703 of        posed expert testimony is relevant, the
law provided much broader rules for           the Federal Rules of Evidence, with Rule      Georgia definition of relevancy is some-
expert testimony and did not require the      702, as amended in 2000, being the cod-       what different than the Federal Rules of
trial court to be a gatekeeper. The basis     ification of the Daubert rule. Subsection     Evidence. The Georgia rule provides,
for Georgia’s historic rule on expert tes-    (a) of the new Georgia statute is exactly     Evidence must relate to the questions
timony was contained in OCGA § 24-9-          the same as Rule 703. Subsection (b) of       being tried by the jury and bear upon
67, which provided in pertinent part,         the statute is almost the same as Rule        them either directly or indirectly.42 On
The opinions of experts on any question       702. Subsection (a) addresses the basis       the other hand, Rule 401 of the Federal
of science, skill, trade or like questions    of opinion testimony by experts. It is        Rules of Evidence provides, Relevant
shall always be admissible. Further-          contrary to Georgia’s historic rule,          evidence means evidence having any
more, questions going to whether there        which prevented an expert from relying        tendency to make the existence of any
was a sufficient basis upon which to base     on hearsay evidence and which required        fact that is of consequence to the deter-
an expert opinion went to the weight and      the basis of expert opinion to be admit-      mination of the action more probable or
credibility of the testimony, not its         ted in evidence independently. Federal        less probable than it would be without
admissibility.37 However, the Georgia         Rule 703, however, allows the expert to       the evidence. It remains to be seen as to
Supreme Court adopted an exception to         base his opinion on hearsay, if the facts     whether or not these two differing defi-
the general rule in a criminal case,          or data upon which the opinion is based,      nitions of relevancy will be interpreted
Harper v. State.38 In Harper, the Court       are of a type reasonably relied upon by       differently.
evaluated the standard for determining        experts in the particular field in forming         The new statute provides for pre-
whether the results of an interview, con-     opinions or inferences upon the subject,      trial hearings to determine the admissi-
ducted while the defendant was under          and the facts or data need not be admis-      bility of proposed expert testimony.
the influence of truth serum, were            sible in evidence for the opinion or infer-   Subsection (d) of OCGA § 24-9-67.1
admissible. The Court rejected the Frye       ence to be admitted.                          provides that, upon motion of a party, the
rule of counting heads, and instead held           There is an internal inconsistency in    Court may hold a pre-trial hearing to
that it was proper for the trial judge to     the new statute between subsection (a)        determine whether a witness qualifies as
decide whether the procedure or tech-         and subsection (b)(1) of O.C.G.A. '24-9-      an expert and whether the expert testi-
nique in question had reached a scientif-     67.1. Subsection (a) allows an expert to      mony satisfies the requirements of the
ic state of verifiable certainty. This ver-   rely on facts or data [that] need not be      rule. There is no comparable provision
ifiable certainty test, however, did not      admissible in evidence if of a type rea-      in Rule 702 of the Federal Rules of
address the admissibility of the opinions     sonably relied upon by experts in the         Evidence. However, if a hearing is held
of expert witnesses generally; instead, it    field in forming opinions, but subsection     in federal court, it is typically held pur-
addressed only the admissibility of the       (b), contrary to Federal Rule 702, and        suant to Rule 104 of the Federal Rules of
results of novel procedures and tech-         contrary to subsection (a), requires          Evidence, a provision in the federal rules
niques.39                                     expert opinions to be based on facts and      that has no parallel in Georgia. To the
      The Georgia Court of Appeals ruled      data which are or will be admitted into       contrary, in Kumho Tire Company, the
that the Harper rule was not the same as      evidence at the hearing or trial. This        United States Supreme Court held that it
the Daubert rule in the case of Orkin         contradictory language is likely to cause     was not necessary to have a hearing on a
Exterminating Co. v. McIntosh.40 In that      confusion.                                    Daubert motion, but that the trial court
case, the Court of Appeals held that the           Georgia has not adopted all of the       has the discretion to decide how to con-
credibility of the conclusions drawn by       Federal Rules of Civil Procedure or the       sider the motion.43 However, the trial
the experts was for the jury to determine,    Federal Rules of Evidence. Federal Rule       court cannot simply disavow its ability
and hence, they denied Orkin’s motions        26(a)(2) of the Federal Rules of Civil        to handle the Daubert issues. In the case
for summary judgment and directed ver-        Procedure contains the requirement for
                                              what must be included in the disclosure                            continued on page 11

Municipal Court Judges Bulletin                                — 12 —                                                    Summer 2006
Daubert cont.
of McClain v. Metabolife International,                                   Even though much of the Daubert                         before the trial, because there is no final
Inc., the Court stated that, Although the                           rule and OCGA § 24-9-67.1 are geared                          pre-trial conference53 in workers’ com-
trial court conducted a Daubert hearing,                            toward jury trials, they still apply in                       pensation claims.
and both witnesses were subject to a                                workers= compensation cases. Insofar                               The State Board of Workers’
thorough and extensive examination, the                             as workers’ compensation cases are con-                       Compensation will use the same four
Court ultimately disavowed its ability to                           cerned, the provisions of OCGA § 24-9-                        factors recommended by the United
handle the Daubert issues. This abdica-                             67.1 specifically apply to all civil                          States Supreme Court in determining the
tion was in itself an abuse of discretion.44                        actions, which includes workers’ com-                         reliability of proposed scientific opinion
Thus, merely holding a hearing is not                               pensation cases.45 Expert witnesses are                       testimony as follows: (1) whether the
sufficient, and the court must apply the                            allowed to give their opinions based                          theory can and has been tested; (2)
factors recommended by the United                                   upon facts as proved by other witness-                        whether it has been subjected to peer
States Supreme Court in the Daubert                                 es.46 The expert witness may be allowed                       review; (3) the known or expected rate
case.                                                               to base his or her opinion on facts or data                   of error; and (4) whether the theory and
      There is a unique provision of the                            made known either at the hearing or                           methodology employed is generally
new statute contained at OCGA § 24-9-                               before the hearing.47 An expert witness                       accepted in the relevant scientific com-
67.1(f). That provision is as follows:                              may be allowed to base his or her opin-                       munity.54 The factors will be applied by
                                                                    ion on facts or data that are not admissi-                    the Board in accordance with the guide-
It is the intent of the legislature that, in                        ble in evidence if they are of a type rea-                    lines given by Daubert, and thus will be
all civil cases, the courts of the State of                         sonably relied upon by experts in the                         flexible and used to insure the overall
Georgia not be viewed as open to expert                             particular field in forming opinions or                       reliability of a proffered expert=s
evidence that would not be admissible in                            inferences upon the subject.48                                methodology and conclusions, with the
other states.                                                             An expert witness can be allowed to                     primary focus being on the principles
                                                                    testify if expert testimony will assist the                   and methods used, not on the conclu-
     It is unclear how this will be inter-                          trier of fact to understand the evidence or                   sions generated.55
preted. Perhaps it will be necessary for                            determine a fact in issue.49 An expert wit-
Georgia courts to stay current with deci-                           ness may be qualified as an expert by                         CONCLUSION
sions in other states in order to determine                         virtue of knowledge, skill, experience,                            It will take years and many deci-
whether an expert can testify in Georgia.                           training, or education.50 An expert wit-                      sions from Georgia courts before we
Moreover, what interpretation will arise                            ness may be allowed to give opinion tes-                      know the full impact of the Daubert
if decisions of other states reach incon-                           timony if the testimony is based on suf-                      decision, its progeny, and OCGA § 24-9-
sistent results? Also, if expert testimony                          ficient facts or data which are or will be                    67.1. Constitutional challenges to the
is handled differently in another state,                            admitted into evidence; the testimony is                      statute are a distinct possibility. In work-
with different statutes, should that be rel-                        the product of reliable principles and                        ers’ compensation cases, however, the
evant in Georgia? This is a very unusu-                             methods; and the witness has applied the                      main reasons for requiring the trial judge
al provision, which to this writer’s                                principles and methods reliably to the                        to be the gatekeeper of expert testimony
knowledge, does not exist in any other                              facts of the case.51                                          do not really apply, because there is no
jurisdiction. The remainder of subsec-                                    Any party may request a pre-trial                       jury. Nonetheless, the State Board of
tion (f) gives Georgia courts the right to                          hearing to determine whether the witness                      Workers’ Compensation is required to
draw upon opinions of the United States                             qualifies as an expert and whether the                        make the analysis and findings in accor-
Supreme Court in the cases of Daubert,                              expert’s testimony satisfies the require-                     dance with the Daubert decision and
Kumho Tire, and General Electric v.                                 ments of OCGA § 24-9-67.1(a) and (b).52                       OCGA § 24-9-67.1, either at the trial or
Joiner, in considering expert witness tes-                          Upon the filing of a motion by any party                      beforehand, if a party makes such a
timony. However, the new statute in                                 for a pre-trial hearing on such issues, the                   motion.
Georgia is not entirely consistent with                             hearing and ruling must be completed no
either the Daubert or Kumho Tire cases.                             later than the final pre-trial conference.53
Therefore, problems may arise from                                                                                                NOTE: This writer would like to acknowledge and
                                                                    However, this provision seems more
                                                                                                                                  thank Robert E. Shields and Leslie J. Bryan for
drawing upon those decisions to inter-                              geared toward jury trials. Therefore, in a                    their excellent article in the October 2005 issue of
pret the Georgia statute insofar as it is                           workers’ compensation case, the Board                         the Georgia Bar Journal entitled Georgia’s New
not entirely consistent with those cases.                           would probably rule on the motion                             Expert Witness Rule: Daubert and More.

   See, e.g., Orkin Exterminating Co. v. McIntosh, 215         41
                                                                  General Electric Co. v. Joiner, 522 U.S.136, 146 (1997).   52
                                                                                                                                OCGA § 24-9-67.1(d).
Ga.App. 587, 592-93, 452 S.E.2d 159, 165 (1994).               42
                                                                  OCGA § 24-2-1 (2005).                                      53
                                                                                                                                OCGA § 24-9-67.1(d).
   Orkin Exterminating Co. v. Carder, 258 Ga.App. 796, 575     43
                                                                  Kumho Tire Co., 526 U.S. 137 (1999).                       54
                                                                                                                                McLain v. Metabolife International, Inc., 401 F.3rd 1233
S.E.2d 664 (2002), cert. granted on whether to adopt the       44
                                                                  McClain v. Metabolife International, Inc., 401 F. 3rd,     (1251), 11th Circuit 2005, citing Daubert, 509 U.S. at 593.
Daubert rule (April 29, 2003), cert. vacated (September 8,     1233, 1238 (11th Circuit 2005).                               55
                                                                                                                                Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
2003).                                                         45
                                                                  OCGA § 24-9-67.1(a).                                       579, 594 (1993); see also, Liriano v. Hobart Corp., 949
   Chandler Exterminators, Inc. v. Morris, 262 Ga. 257, 259,   46
                                                                  OCGA § 24-9-67.1(a).                                       F.Supp. 171, 177 (S.D.N.Y. 1996). (In considering rele-
416 S.E.2d 277, 278 (1992).                                    47
                                                                  OCGA § 24-9-67.1(a).                                       vance and reliability factors under Daubert, the focus must
   Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982).        48
                                                                  OCGA § 24-9-67.1(a).                                       be solely on principles and methodology, not on conclusions
   Harper v. State, 249 Ga. 519, at 525-26 (1982).             49
                                                                  OCGA § 24-9-67.1(b).                                       they generate.)
   Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587,       50
                                                                  OCGA § 24-9-67.1(b).
593, 452 S.E.2d 159, 165 (1994).                               51
                                                                  OCGA § 24-9-67.1(b) (1-3).

Summer 2006                                                                          — 13 —                                           Municipal Court Judges Bulletin
 Will Your Little City and Judgeship Go the Way of Lithia Springs?
Judge Robert L. Whatley, City of Austell & formerly City of Lithia Springs

                                           pro-city and the anti-city factions        effectuated; others were attempted.

        he little enclave of Lithia
        Springs in Douglas County          approached State Representative            Two citizens not satisfied with the
        has seen glory and turmoil         Alpha Fowler, Jr in l959 to resolve        substance and legality of the services
after its legal birth in 18821 the city    the matter and he drafted a charter        filed a suit for Declaratory Judgment
quickly became famous for hosting          with a referendum provision. The           alleging that the substance of the
what was then the equivalent of the        referendum failed and the matter was       services were not sufficient and the
Worlds Fair. Known formally as the         dropped. But in the early nineties, a      contracts for service were not fully
Piedmont Chautauqua and financed           movement began to question the             authorized by law.11 The court after
by Henry Grady and others, the town        legality of the city anew and a group      fully examining carefully every pur-
was touted worldwide and attracted         of citizens petitioned the6 court and      ported service and contract ruled
many dignitaries and even a few            after determining the results of the       most services inadequate and granted
presidents and would-be-presidents.        1933 referendum were unavailable,          summary judgment to the plaintiffs.
Being blessed with mineral water           the court ordered on April 2, 1993         An appeal ensued alleging compli-
later identified as Lithium, many          yet another referendum to determine        ance and adequacy. When the Court
came to drink and provided glowing         the wishes of the citizens. A referen-     of Appeals reversed the trial court
testimonies of their return to health.     dum was held January 25, 1994 and          (November 30, 1999)12 ruling that
The coming of a sumptuous hotel            carried by a vote of 329-239. Based        some of the services seemed ade-
was vastly different in splendor for       on the results, an interim council was     quate and remanded the trial court
its day and the fair and its attractions   appointed and the first council was        for jury determination.
brought people from all parts of the       elected and sworn in on December                Tiring of the struggle and the
nation and world. A spur line from         31, 1994. The city began operating         looming expenses, the council voted
the Austell Southern Railroad made         and became fully functional as an          on August 17, 2000 to consent disso-
access easily attainable. But the          ongoing body politic. Concurrent in        lution based on a referendum. The
burning of the hotel in 1912, the out-     time the Legislature became con-           referendum failed by a margin of 349
break of World War I, the Depression       cerned about the many cites that was       on March 20, 2001. The vote was
and the financial setbacks suffered        dormant, non-functioning and pro-          authorized by concurrence by the
by the entrepreneurs caused the city       viding no services and passed a            parties and appeared to be a straw
to collapse. The legal history like-       purge law7 giving the Department of        vote authorized by the council. Straw
wise has a troubled past leading up to     Community Affairs power pursuant           votes are not favored in Georgia and
the present. The history remains as        to the enabling legislation. The           only true referendums authorize in
the sound of an uncertain trumpet.         Legislation provided that a city must      such cases as annexation,13 abolish-
Incorporated and chartered in 1882         provide at east three services out of a    ing offices,14 consolidations,15 repeal
as Salt Springs, the city later changed    litany8, including holding elections       of ordinances,16 voting methods,17
her name to Lithia Springs2 and then       periodically and conducting meet-          water fluoridation18 and picture
increased its boundaries.3 When the        ings at certain intervals. If the cities   shows on Sunday.19 Liquor, tax refer-
financial collapse came, the city held     failed to do this, they would be dis-      endum, and bond authorizations are
a referendum in response to a peti-        solved by operation of law on July 1,      too numerous to mention. The refer-
tion of the voters and a court order.4     1995; or upon application of a citizen     endum appeared an after-the-fact rat-
The town's meager assets were sold         if there were a question as to whether     ification of the agreement of the par-
to finance the vote. The results of the    there was compliance.9                     ties; not a court ordered one.
court referendum were not recorded.             Meanwhile, the first official         Predicated on the referendum, the
Therefore some contend that the city       charter was granted by the                 judge dissolved the city on June 21,
was never dissolved. Indeed in a           Legislature.10 With sparse resources,      2001 with the city turning over its
recent list of active municipalities       the city performed Public Works and        assets to the county according to law
published the town was included as         Code Enforcement and contracted            (June 20, 2001).20
active. Over the next few years the        out many of the other required serv-            It is settled that dissolution must
questions kept arising as to whether       ices. Contracts with county police,        have the blessing of the Legislature.21
the city was really dissolved. The         fire, and building departments were                          continued on page 14

Municipal Court Judges Bulletin                            — 14—                                                 Spring 2006
                               Celebration of Life
                  David Miller Pierce May 29, 1945 - July 13, 2006
                                                                 gave birth to their daughter                                       also Chairman of the Board of

               e will all miss Judge
               David Miller Pierce,                              Meredith. He was in private practice                               Trustees and a member of the
               Chief Judge of the                                for 27 years, first with Nunn, Geiger                              Christadelphian Sunday School
    Magistrate Court of Houston County                           & Pierce, and later Geiger & Pierce.                               class. Also active in Rotary, with 30
    and Judge of the Cities of Perry,                            Judge Pierce was highly regarded by                                years of perfect attendance, his lead-
    Byron, and Roberta. Judge Pierce                             his legal colleagues and the commu-                                ership roles included serving as
    departed this life on July 13, 2006.                         nity at large, he was appointed to the                             President, District Director, Assistant
    He was 61. Born in Hawkinsville,                             City of Perry in 1980 and the                                      Governor, Paul Harris Fellow, and
    Georgia, in 1945 to Mr. and Mrs.                             Houston County Magistrate Court in                                 Will Watt Fellow. Within his commu-
    John Dupree Pierce, he attended                              1997. Judge Pierce was an active                                   nity, he has served as a Chairman of
    Hawkinsville High School, where he                           participant in a variety of profession-                            the Perry Area Chamber of
    was a scholar and all-state quarter-                         al and community organizations. He                                 Commerce, the Houston County
    back. From there he went on to                               served on the Executive Committees                                 Development        Authority,      The
    Florida State University where he                            of the Council of Magistrate Court                                 Westfield Schools Board of Trustees,
    graduated in 1966 with a Bachelor of                         Judges and the Council of Municipal                                and the Middle Georgia Military
    Arts in mathematics and later attend-                        Court Judges. You could bet on                                     Affairs Committee, as well as serv-
    ed Emory University School of Law,                           Judge Pierce being present for                                     ing on the Board of Governors for
    receiving his Juris Doctor degree in                         Council meetings, he was a loyal                                   The Grand Opera House; Museum of
    1969. While attending law school,                            member. It won't be the same attend-                               Aviation Foundation, Robins Air
    his mother reintroduced him to his                           ing the Council meetings and not                                   Force Base; Board of Directors for
    childhood neighbor, Susan Dean, and                          have him there to greet you with a                                 the Robins Air Force Base Museum
    the two were soon married on August                          smile that would light the room. He                                and The Air Force Association.
    3, 1968. Following law school, he                            also served on the Georgia                                         Professionally, Judge Pierce was a
    joined the United States Air Force                           Commission on Dispute Resolution                                   member the State Bar of Georgia,
    and served as a member of the Judge                          and the Commissions Committee of                                   American Bar Association, and
    Advocate General Department,                                 Rules. As a member of the Perry                                    Houston County Bar Association. In
    attaining the rank of Captain before                         United Methodist Church, he served                                 final, one can truly say he was a ser-
    receiving an honorable discharge in                          as a member of the Administrative                                  vant of the people…
    1974. Judge Pierce and his wife then                         Board, Finance Committee, and
    moved back to Perry, where they                              Staff-Parrish Committee. He was

Lithia Springs cont.
However the law a1so states that it                             House of Representatives. Thus it                                       In summary, after numerous law-
may be dissolved using other “meth-                             appears that the “other method”                                     suits, four referendums, appellate
ods as may be provided by general                               approved is a court dissolution with-                               intervention, numerous charters, and
law”. House of Representatives Bill                             out the intervention of the                                         Legislative denial, the question
571 (for repeal of charter) sought to                           Legislature as long as the court order                              which surfaced in 1933, appears as
dissolve the city but did not pass the                          is recorded.22                                                      uncertain now as then.

  Ga. Laws 1882, p. 277                                        ply and distribution, waste-water treatment, storm-water col-   13
                                                                                                                                  O.G.C.A. 36-36-58
  Ga. Laws 1918, p. 1885                                       lection and distribution, electric or gas services, planning    14
                                                                                                                                  O.G.C.A. 1-3-11
  Ga. Laws 1886, p. 230; Ga. Laws 1887, p. 497                 and zoning, recreational facilities; building, housing plumb-   15
                                                                                                                                  O.G.C.A. 30-60-16
  Ga. Laws 1933, p. 1050; Referendum order issued July 29,     ing, electrical code and other code enforcement                 16
                                                                                                                                  O.G.C.A. 36-35-3 (a)(2)(A)
1933                                                           9
                                                                 O.C.G.A 36-30-7.1 (J)                                         17
                                                                                                                                  O.C.G.A. 21-2-321
  Ga. Laws 1959, p. 2871; noted failed in Local Legislation    10
                                                                  Ga. Laws 1996, p 4319 (April 8, 1996), Second Charters       18
                                                                                                                                  O.C.G.A. 12-5-175
Index                                                          Ga. Laws 1999, p, 4842; Home Rule, Ga. Laws 2000 p.             19
                                                                                                                                  O.G.C.A. 101-1-552
  Douglas County Superior Court case 92-8068(1992) and         4704                                                            20
                                                                                                                                  O.G.C.A. 36-30-7.1(g)
case 93-9315                                                   11
                                                                  Douglas County Superior Court case CV00372 (filed            21
                                                                                                                                  O.G.C.A. 36-35-2(e)
  O.C.G.A paragraph 36-30-7.1. Ga. Law 1992, p. 2592           February 26, 1997)                                              22
                                                                                                                                  Laws 2002, Vol. 11, p 5985
  These services were law enforcement, fire protection, road   12
                                                                  Lithia Springs v. Turley, 241 Ga. App. 472, S. E. 2d
and street construction, solid waste management water sup-     364(1999)

Spring 2006                                                                           — 15 —                                           Municipal Court Judges Bulletin
A Police Officer’s Procedural Rights in Disciplinary Matters:
The Right to Privacy, Use Immunity, and the Scope of the Internal Affairs Investigation

By: Richard T. Alexander, Alexander & Cleveland, LLC

INTRODUCTION                              mandated. The Court in Guntharp v.        officer of the allegations and the
     This article was originally writ-    Cobb County insisted the inquiry          name of the complaining person. In
ten for the Watchful Eye, the official    must be made as narrowly as possi-        addition, the Court found that the
publication of the Georgia State          ble, may not enter areas unrelated to     Cobb Police Code of Conduct set the
Lodge, Fraternal Order of Police and      job performance, and must be specif-      internal affairs unit's procedures
published in 1999. This paper is a        ically, directly, and narrowly related    which mandated that all procedures
condensed version on a police offi-       to the performance of official duties.4   carried out under its General Order
cer's right to privacy within the realm   As well, the investigation should be      shall be specifically directed and nar-
of the internal affairs investigation,    limited to those areas identified as      rowly related to a particular investi-
the restrictions on management relat-     being within the investigation.5          gation being conducted by the
ed to the right to privacy, the scope          In Guntharp v. Cobb County, a        Department.6
of internal affairs investigations, and   Cobb County police officer was noti-           As to polygraph examinations,
the use immunity doctrine granted to      fied of an internal affairs investiga-    most likely, if the department has a
officers in internal affairs investiga-   tion focusing on whether or not the       written policy, the employee will be
tions.                                    officer was involved, or had knowl-       required to submit to the polygraph
                                          edge of, the shooting of his neigh-       or face disciplinary action.
RIGHT TO PRIVACY, USE                     bor's dog. Guntharp was ordered to        Polygraph results alone may not sup-
IMMUNITY, AND SCOPE OF                    appear for a polygraph examination.       port disciplinary action under certain
THE INTERNAL AFFAIRS                      Upon arrival he was informed there        circumstances.7 The employee may
INVESTIGATION                             would be additional questions direct-     file a declaratory judgment action to
     Georgia has long recognized a        ed towards shooting into a house and      challenge the mandatory nature of
right to privacy.1 There are two the-     the shooting of horses.                   the department's polygraph examina-
ories which hold prominence: 1) an             Guntharp, upon being informed        tion policy even before he or she
individual's interest in avoiding dis-    of the additional areas of inquiry,       exhausts an administrative remedy.8
closure of personal facts, and 2) the     asked to call his attorney and                 In Hester v. City of Milledgeville,9
individual's interest in being left       declined to proceed further with the      city officials were concerned that
alone.2 As we all know, law enforce-      polygraph until such time as he con-      city fire fighters were involved in
ment agencies seldom, if ever, recog-     sulted with legal counsel. After con-     illegal drug activity. As a result, the
nize such rights and frequently           sultation with legal counsel, he          city council passed a resolution
exceed clear and well established         informed his superiors that he would      requiring fire department employees
constitutional boundaries. Seldom         submit to the test. This was approx-      to undergo polygraph testing. The
do police officers challenge an inves-    imately two hours after stopping the      city council resolution provided for
tigation exceeding constitutional         initial inquiry.                          testing specifically directed and nar-
boundaries.                                    Guntharp's superiors considered      rowly related to a particular internal
     The test to determine when an        he had refused the test and commit-       investigation.10
officer's right to privacy may be         ted an act of insubordination which            As a result of the city council
invaded simply balances the officer's     resulted in his dismissal. The Cobb       resolution, all fire fighters were
interest in privacy versus the            Civil Service Board upheld his ter-       required to elect and sign one of four
employer's interest in disclosure.3 If    mination and the Cobb Superior            forms which provided: 1) an agree-
information is pertinent to the offi-     Court refused his appeal on writ of       ment that the results could be used in
cer's on the job performance, then        certiorari. The Court of Appeals          a judicial or administrative proceed-
the officer may be required to dis-       granted his discretionary appeal.         ing, 2) a waiver of all state and fed-
close the information, including               The Appeals Court in reversing       eral constitutional rights in connec-
financial information. However, if        the lower court decided that the          tion with the polygraph examination,
there is no link between job perform-     Cobb Police Department violated           3) a right to preserve all constitution-
ance and the information requested,       General Order 74-6 which required         al rights which permitted the
disclosure most likely will not be        the internal affairs unit to advise the                      continued on page 17

Municipal Court Judges Bulletin                          — 16 —                                               Summer 2006
Police Officer’s Rights                      cont.
employee to object to incriminating        allegations. In conjunction with               Thereafter, the police chief
questions, or 4) a refusal to submit to    recanting the allegations, the officer    ordered the officer to provide a truth-
the polygraph examination. The             was assured the employee involved         ful and detailed statement to the
Court found the process lacking in         in the assault would resign.              department representative investigat-
constitutional protections because         Thereafter, members of the depart-        ing the incident. The officer was
employees may have felt compelled          ment published degrading drawings         given repeated assurances that his
to sign the form most favorable to the     of the officer victim and subjected       statement would be for administra-
employer in order to remain                her to insults. The officer victim        tive purposes only and that none of
employed. In other words, the              resigned and filed a civil rights         his statements would be used in a
options provided were inherently           action under a theory of the right to     subsequent criminal proceeding,
coercive11 to laypersons.                  privacy.                                  however, he refused to answer ques-
     The Hester Court, compelled to             The Tenth Circuit found the          tions. The officer was ultimately ter-
follow the ruling in Garrity, clearly      investigation to have strayed from its    minated for refusing to answer.
stated that any information obtained       inquiry and that it exceeded constitu-         The officer brought suit against
in the administrative investigation        tional boundaries. The Court indicat-     the chief and claimed he was protect-
would not be available in a criminal       ed the investigation had entered the      ed by the Fifth Amendment privilege
case whether or not the employer           personal life of the officer victim and   against self-incrimination.        The
made an explicit grant of immunity.12      was a standardless inquiry.17             United States District Court upheld
The Court determined the privilege              Three other cases dealing with       the officer's dismissal and the
against self-incrimination automati-       administrative investigations deserve     Eleventh Circuit Court of Appeals
cally attaches to compelled out-of-        our attention as they relate to use       affirmed that ruling.
court incriminating statements as a        immunity granted in the internal               The Appeals Court found that
matter of law.13 As well, should an        affairs investigation.       We must      since the officer was not coerced into
police officer assert the privilege        understand the holdings in Erwin v.       waiving his Fifth Amendment privi-
against self-incrimination, the            Price, Benjamin v. City of                lege and refused to answer questions
employer may not consider the              Montgomery, and United States v.          specifically, directly, and narrowly
refusal to waive the privilege as a        Camacho.18                                relating to performance of his official
black mark upon an employee's                   The Erwin case involved off duty     duties, the privilege would not bar
record14 and may not [threaten] to         conduct by an Athens, Georgia police      his dismissal.19 The court further
discipline or discharge the employee       officer. The officer pulled into a        held that under the ruling in Hester
if he or she refuses to waive it.15        store parking lot, at that moment a       any further grant of use immunity
     As to the scope of internal affairs   pedestrian jerked open his car, called    would be duplicative. Therefore, the
investigations, one case stands out as     him an insulting name, and accused        prosecution was bound by the consti-
guidance to law enforcement offi-          the off duty officer of almost hitting    tutional rulings beginning with
cers, Eastwood v. Department of            him with the officer's automobile.        Garrity and the clear statement from
Corrections.16 In the Eastwood case,       The officer pulled a handgun from         the department representative was
a female DOC officer was drugged,          his glove compartment and it was          sufficient to be binding on the prose-
rendered unconscious, and sexually         seen by the pedestrian. The officer       cuting attorney.
molested by a fellow employee. The         told the person that if he had a com-          In Benjamin, two City of
incident was reported and an internal      plaint he should call the police          Montgomery police officers, both
affairs investigation commenced.           department and that he would wait         sergeants, filed a civil rights action
The internal affairs investigator          for their arrival.                        contesting their dismissal from the
informed the officer that she would             After this exchange, the pedestri-   force. The case again dealt with the
not be retaliated against for revealing    an retreated across the street where      officers' right to invoke their Fifth
all details about the assault.             he continued to yell insulting            Amendment right against self-
     She was forced to reveal details      remarks at the officer. The officer       incrimination.
about her own personal sexual histo-       then pointed his finger at the pedes-          The case began with subpoenas
ry during the investigation and later      trian and pretended to shoot at him.      issued to both officers by a defendant
threatened with termination unless         The pedestrian immediately depart-        in a criminal case. The criminal trial
she signed a statement recanting her       ed.
                                                                                                      continued on page 18

Summer 2006                                              — 17 —                          Municipal Court Judges Bulletin
Police Officer’s Rights                       cont.
was the result of an assault on two        late court overturned that ruling find-    monitored by homicide personnel.
Montgomery police officers in which        ing that the district court's ruling was        The officers' attorney explained
one was shot. The officers were sub-       contrary to established Supreme            that they would be giving a statement
poenaed by defendants with the             Court precedent which prohibited the       under penalty of discipline or termi-
intention of showing police miscon-        government from coercing a police          nation and that the statements could
duct.                                      officer's waiver of the constitutional     not be used against them in a crimi-
     Upon being placed on the wit-         right against self-incrimination.          nal prosecution.
ness stand, both officers refused to            The last case for this discussion          Upon questioning of the first
answer questions about their investi-      is Camacho which was a federal             witness, the State's Attorney attempt-
gation of the incident, citing their       criminal prosecution of several offi-      ed to manipulate the questioning by
right against self-incrimination.          cers assigned to the street narcotics      soliciting an agreement from the offi-
Following this refusal, the Mayor of       unit of the Miami police. The prose-       cer that he was not under subpoena
Montgomery ordered the officers to         cution was initiated under the federal     and would be giving the statement
report to the district attorney to         civil rights statute. The facts are        voluntarily. The first officer repeat-
divulge all information relevant to        rather lengthy and have been con-          edly stated that his statement was a
the case. The District Attorney            densed for our purposes.                   compelled statement and that he was
refused to interview the officers rely-         This case began with the arrival      giving his statement under those con-
ing on the fact that the officers would    of the six officers at an intersection     ditions. The following three were
obtain immunity against use of the         about 6:00 p.m. in Miami which ulti-       told substantially the same with the
statements apparently because they         mately lead to the death of a man          exception that the State Attorney did
were being compelled by the Mayor          named        Leonardo          Mercado.    not continue to inform the officers
to give the statements.                    Immediately subsequent to the offi-        their statement was voluntary.
     Sometime later the officers were      cer's notification that Mercado had             Subsequently, all six officers
called a second time to the stand.         been seriously injured, two sergeants      were indicted by the federal govern-
Again, the officers refused to answer      arrived at the scene. After the ser-       ment and prosecuted under the feder-
any questions except those from the        geants' arrival, they briefly ques-        al civil rights laws. All were repre-
District Attorney. The trial judge         tioned the officers to determine           sented by legal counsel and each
called the Mayor to the witness            which ones were witnesses and              filed a motion to suppress all state-
stand, and while on the stand, the         which ones had hands on contact            ments made at the scene of the inci-
Mayor indicated that he would              with Mercado. After determining            dent as well as those statements com-
immediately fire both officers if they     which two had contact, pursuant to         pelled at the Homicide Division. The
did not tell everything they know          standard operating procedure, all          Court determined the statements
about this case.                           officers were ordered to return to         given at the Homicide Division, as
     Two days later the officers were      police headquarters.                       well as some statements made by two
called for the third time. On the third         Soon thereafter the department        officers at their home later, were
occasion, the officers indicated their     was notified that Mercado had died         indeed compelled and suppressed
willingness to testify, but only           of injuries received while in police       their use at trial. As to the statements
because the Mayor had ordered them         custody. Departmental policy man-          at the scene, the Court found them to
to testify. The trial court refused this   dated that the Homicide Division           be admissible due to the absence of
offer, called the Mayor back to the        conduct an investigation of all in-        compulsion when given. In other
stand, and suggested that he fire the      custody deaths. A shooting team was        words, there was no hint of the threat
officers. According to the case,           assembled consisting of homicide           of discipline or termination when
apparently the trial judge was under       personnel, a representative of the         making the “at the scene” statements.
the impression the officers would          State Attorney's Office, and a repre-
then testify. They again refused.          sentative from the Internal Security       CONCLUSION
The federal district court ruled           Division.                                      The foregoing was not intended
against the officers and held that the          All six officers were directed to     to be an exhaustive summary of all
state's right to obtain testimony from     the homicide office for questioning,       cases concerning the right to privacy
the officers outweighed the officers'      directed to remain apart, and told not
Fifth amendment rights. The appel-         to speak with each other. All were                           continued on page 19

Municipal Court Judges Bulletin                           — 18 —                                               Summer 2006
    How to Beat the Search Warrant
by: Jeffrey R. Sliz
Sliz/McKinney/Drake Law Firm, LLC

        here is currently no issue                              you hear POLICE...OPEN THE                                       OPTION D
        greater in the field of criminal                        DOOR WE HAVE A SEARCH WAR-                                       Do you cooly and calmly wait for the
        law than search and seizure. In                         RANT!! LET US IN OR WE'LL                                        door to crash in; screaming police run-
recent years, “Knock & Talk”; police                            KICK THE DOOR DOWN. WHAT                                         ning in and yelling on the floor Mother
“Protective Sweeps” of homes and                                SHOULD YOU DO?                                                   @!#* and AMIDST the chaos you
businesses, and Waivers of Fourth                                                                                                say... “Excuse me officer; may I ask
Amendment Rights as a condition of                              HERE ARE YOUR OPTIONS:                                           you a few questions before I am
probation for persons pleading guilty                                                                                            cursed, threatened and beat down”.
to drug related charges, have weak-                             OPTION A
ened and eroded a Defendants rights to                          Quick turn on the T.V. real loud - Jump                          IN DRUG CASES - MOST TIMES
be protected from unlawful searches or                          into your favorite chair and pretend to                          THE MOTION TO SUPPRESS
seizures. On April 6, 2006, I delivered                         be asleep as the door comes crashing                             HEARING IS “YOUR TRIAL”
a speech at the ICLE in Atlanta on                              in; or                                                           WHERE YOUR GUILT OR INNO-
“Launching a Successful attack on a                                                                                              CENCE IS DETERMINED
Search Warrant”. My talk basically                              OPTION B
consisted of a list of approximately 30                         Have your naked girlfriend answer the                            QUESTIONS TO BE ASKED:
questions to be asked and answered by                           door, hoping to create a diversion
the defense attorney in assessing the                           while you hide under the bed, or bolt                            QUESTION 1)
validity of the affidavit and search                            out the back door; or                                            PROPER EXECUTION
warrant issued in a drug case.                                                                                                        Was the search warrant which you
                                                                OPTION C                                                         are serving upon me properly execut-
LAUNCHING A SUCCESSFUL                                          Take all the pills and powder you got,                           ed by a neutral and detached magis-
ATTACK ON A SEARCH WAR-                                         inhale and swallow all of it. Start                              trate as required by law?
RANT                                                            yelling “I'm Dying” “I'm Dying” and                                   In the middle of a hearing, I real-
    It's early in the morning...dark out-                       hope you have a close hospital and a                             ized that the issuing Magistrate was
side, you're dead asleep, trying to work                        fast ambulance; or                                               also hearing the Motion to determine
off a good drunk and a hell of a                                                                                                 the validity of the search warrant. No
buzz...snuggling up to your naked                                                                                                Can Do!
“significant other” ALL of a sudden                                                                                                                       continued on page 20

Police Officer’s Rights                                              cont.
and the scope of internal affairs                               standing of the cited cases gives the                            ammunition against abusive internal
investigations; however, an under-                              legal counsel and the police officer                             affairs investigations.

  Pavesich v. New England Life Ins. Co., 122 Ga. 190 (1905).   925 (1993).                                                  13
                                                                                                                               Id. Hester 777 F.2d at 1496.
  Whalen v. Roe, 429 U.S. 589 (1977) and Paul v. Davis, 424    6
                                                                 Id. Guntharp 307 S.E.2d at 926.                            14
                                                                                                                               Id. Hester 777 F.2d at 1495.
U.S. 693 (1976); Plante v. Gonzalez, 575 F.2d 1132 (5th Cir.   7
                                                                 Hester v. Milledgeville, 777 F.2d 1492, 1496 (11th Cir.    15
                                                                                                                               Id. Hester 777 F.2d at 1495.
1978), cert denied, 439 U.S. 1129, 99 S.Ct. 1047, 59           1985).                                                       16
                                                                                                                               Eastwood v. Department of Corrections, 846 F.2d 627
L.Ed.2d 90 (1979).                                             8
                                                                 Moss v. Central State Hospital, et al, 179 Ga. App. 359,   (10th Cir. 1988).
  Fraternal Order of Police v. Philadelphia, 812 F.2d 105      346 S.E.2d 580 (1986).                                       17
                                                                                                                               Id. Eastwood 846 F.2d at 631.
(3rd Cir. 1987).                                               9
                                                                 Hester v. Milledgeville, 777 F.2d 1492 (11th Cir. 1985).   18
                                                                                                                               Erwin v. Price, 778 F.2d 668 (11th Cir. 1985); Benjamin v.
  Garrity v. State of New Jersey, 385 U.S. 493, 17 L.Ed.2d     10
                                                                  Id. Hester 777 F2d at 1494.                               City of Montgomery, 785 F.2d 959 (11th Cir. 1986); and
562, 87 S.Ct. 616 (1967); Hester v. Milledgeville, 777 F.2d    11
                                                                  Id. Hester 777 F.2d at 1495.                              United States v. Camacho, 739 F.Supp. 1504 (S.D. Fla.
1492 (11th Cir. 1985); City of Atlanta v. Lambright, 205 Ga.   12
                                                                  Hester v. Milledgeville, 777 F.2d 1492, 1496 (11th Cir.   1990).
App. 558, 423 S.E.2d 265 (1992).                               1985) citing Murphy v. Waterfront Commission, 378 U.S.       19
                                                                                                                               Erwin at 778 F.2d 670.
  Guntharp v. Cobb County, 168 Ga. App. 33, 307 S.E.2d         52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed 2d 678 (1964).

Summer 2006                                                                           — 19 —                                         Municipal Court Judges Bulletin
How to Beat the Search Warrant                                   cont.

    As a result of the confusion, and       QUESTION 4)                                 standing in the community.
problems with the search warrant, an        LACK OF CREDIBILITY OF THE                       It relates to question of whether or
offer of 10 years to serve went to 10       INFORMANT                                   not oral testimony was also provided
years probation, due to this foul up in a        Does the affidavit for the search      to the issuing Judge in support of the
case in Madison County.                     warrant contain personal information        issuance of the search warrant. In
    For Further Information (See            about the affiants lack of credibility      State vs. Michael Wages, the Judge
Daniels § 4-5, 4-6)                         known to the police, his criminal his-      said she could not remember being
                                            tory, or terms of the deal made with the    told the name of the confidential
QUESTION 2)                                 police or prosecutors to give this infor-   informant, but could not positively dis-
DESCRIPTION OR PLACE TO BE                  mation? The issuing Judge should be         pute the affiants statement that the
SEARCHED                                    properly advised of the negative fac-       name was provided to her. The Officer
     Does the affidavit for the search      tors regarding the credibility of the       testified he gave the information to the
warrant contain a specific and accu-        informant in order to effectively weigh     issuing Magistrate and the Court
rate description of the residence or the    the reasonableness of the information       upheld the warrant.
structure to be searched?                   provided and to review possible
     Often times business parks, drive-     motive for the confidential informant       QUESTION 7)
ways, or trailer park streets, in the       providing the information to the police     STALENESS OF THE INFORMA-
“exclusive areas” our clients reside or     which might affect its truth and verac-     TION
work in have several dwellings or           ity.                                            Was the information contained in
structures on them. The structure to be                                                 the affidavit for the search warrant
searched should be adequately and           QUESTION 5)                                 timely? Always determine if all of the
specifically described so that the offi-    INAPPLICABLE               GENERAL          information presented in the affidavit
cer executing the warrant can readily       INFORMATION CONTAINED IN                    is “dated”- to be able to determine if
identify the actual structure to be         THE AFFIDAVIT                               the information is “stale”- when was
searched.                                        Did the affidavit for the search       he told the information; when did he
     NOTE: The lack of a proper             warrant contain “general information”       see the methamphetamine in the
description also helps attack the credi-    about drug dealers, drug dealings,          house- Timeliness of the information is
bility and reliability of the officer or    paraphernalia, scales, money records        a KEY ISSUE in validity of search
confidential informant providing the        which are recited in the affidavit, but     warrants.
information for the affidavit.              do not apply to or is not evidence in
     For Further Information (See           this particular case regarding the per-     QUESTION 8)
Daniels §4-12) Descriptions of places       son or residence sought to be               ORAL TESTIMONY
to be searched.                             searched? If so, the false or inapplica-         Always question the issuing mag-
                                            ble information should be stricken, and     istrate as soon as possible, as to
QUESTION 3)                                 the affidavit reconsidered without the      whether or not there was any “oral tes-
VERACITY & CREDIBILITY OF                   false or misleading evidence.               timony” presented in addition to that
THE INFORMANT                                                                           contained in the written application for
Does the affidavit for the search war-      QUESTION 6)                                 the search warrant. Send a letter to the
rant contain sufficient information         DISCLOSURE OF THE IDENTI-                   Judge confirming the existence or lack
regarding the confidential informant to     TY OF THE INFORMANT                         of oral evidence presented at time of
establish his veracity and credibility in        Was the name of the confidential       issuance. See Attachment “B”, the
order to enable the issuing Judge to        informant disclosed in the affidavit for    form letter.
determine that the information provid-      the search warrant or given orally to
ed should be considered accurate and        the issuing Judge? The law is entirely      QUESTION 9)
truthful? See Attachment “E”, a short       different if the confidential informant     CRIME - EVIDENCE TO BE
summary of relevant case law.               is identified to the issuing Judge or not   SEARCHED FOR
     For Further Information (See           identified. If the name is given, the           Does the information or evidence
Daniels § 14-81)                            magistrate may use her personal             sought in the search warrant
                                            knowledge of his credibility: prior use     “match up” to or relate to the type of
                                            as a confidential informant, etc., evi-
                                                                                                           continued on page 21
                                            dence of his truthfulness in the past;

Municipal Court Judges Bulletin                             — 20 —                                                Summer 2006
How to Beat the Search Warrant                                  cont.

crime alleged? Does it relate to the       QUESTION 12)                               often leads to “in plain view” discov-
information given by the applicant or      INVENTORY                                  ery of other items. For example, not
confidential informant in the affidavit         Was a “return” or “inventory”         only can a person be charged with pos-
for the search warrant? Often times        made on the search warrant? The law        session of methamphetamine, now
articles are sought to be searched for     requires that a verified return be made    there are lesser offenses for possession
which are not related to the crime         after the search warrant is executed. A    of items used in making meth where
charged (i.e.: records, packaging mate-    person is entitled to a copy of the        the finished product is not present at
rials, phone records, etc.) for a charge   search inventory made. Unfortunately       the time of the search, but it appears
of possession of marijuana. Also           the law is very loose on the require-      that meth is being manufactured.
objects sought must be directly related    ment of the “return” - Not a very good          Try to exclude as many items as
to affidavit information given to the      basis for attack.... Examine it very       possible which are not arguably within
issuing Judge.                             carefully - what was found, where, and     the description of the items to be
                                           what was actually tested by the crime      seized. The exclusion of evidence
QUESTION 10)                               lab. A District Attorney will not be       often times makes for testimony that
ITEMS IN AFFIDAVIT ITEMS IN                able to establish who had what or what     appears incomplete from the witness
SEARCH WARRANT                             was tested, if each item submitted to      on the stand and difficult for the jury to
Does the actual Search Warrant itself      the Crime Lab is not specifically          follow, which may lead to an acquittal.
allow investigators to search              described, and information put down
for evidence other than that sought in     as to where, or on whom, it was found.     QUESTION 15)
the affidavit used in the                                                             SCOPE OF SEARCH AREA TO BE
vs. application for the search warrant?    QUESTION 13)                               SEARCHED vs. AREAS IN
     EXAMPLE: The affiant is seeking       AREA SEARCHED                              WHICH ITEMS ARE FOUND
to search for marijuana, baggies,               Was the area actually searched            Did the search itself exceed the
scales, records of drug transactions,      with the description of the area to be     scope of the area authorized to be
phone records, packaging devices,          searched? Was the description specif-      searched by the terms of the search
books on manufacturing marijuana,          ic enough for a reasonable person to be    warrant? Check the inventory sheets
photos of growing marijuana for a sim-     able to locate the specific area           to determine exactly what items were
ple Possession of Marijuana case.          described in the search warrant. In a      found where vs. what areas were
How do most of these items apply to a      Gwinnett County case (State vs. Jason      authorized to be searched. Items found
possession case? A charge of posses-       Sidney Green), the description was         in areas which were not authorized to
sion is clearly not the same as manu-      “the exclusive area of Jason Sidney        be searched, should be excluded, and
facturing or sales of drugs and if not     Green”, that means absolutely nothing.     any other evidence derived therefrom.
challenged, a mere “possession” case       This search was set aside because an
may become a sale case or a posses-        ordinary person would not be able to       QUESTION 16)
sion with intent to distribute case with   determine what area was to be              PROTECTIVE SWEEP
a greater sentence possible.               searched pursuant to the description in         Was the area of the search expand-
                                           the search warrant.                        ed under the guise or pretense of con-
QUESTION 11)                                                                          ducting a “protective sweep for offi-
EXECUTION OF THE SEARCH                    QUESTION 14)                               cers safety”? In a recent case I han-
WARRANT                                    ITEMS SEIZED                               dled, the Court ruled that searching the
    Was the search warrant executed             Were items seized which were not      house for “officer's safety” was not
within 10 days of the issuance of the      within the items described in the          valid, 3 hours after police arrived, ini-
search warrant, or as provided in the      search warrant and authorized to be        tially searched the residence, saw no
search warrant? If not the search is       seized? Obviously the fewer items          one and heard nothing during the peri-
invalid.                                   presented in Court as physical evi-        od before the protective sweep. (State
    For further information (See           dence of a crime the better- Four pages    vs. Jason Sidney Greene).
Daniels §4-16 - §4-23).                    of items seized which are necessary to
                                           constitute a meth lab will not help your
                                           client convince the jury that he was
                                           simply making dinner...
                                                                                                         continued on page 22
                                                Exceeding the Area to be searched

Summer 2006                                               — 21 —                          Municipal Court Judges Bulletin
How to Beat the Search Warrant                                 cont.

QUESTION 17)                               described in the warrant if not men-       own sentence. He hid them in the
AREAS SEARCHED vs. ITEMS                   tioned in the search warrant.              bathroom - told police the transaction
SEARCHED FOR                                   For further information (See           took place in the bathroom - police
    Were areas searched, which could       Daniels §4-21)                             search bathroom, drugs found -
not contain the items authorized to be                                                VOILA! One cooked goose medium
searched for in the warrant? What are      QUESTION 20)                               rare!
they searching for? Where were they        CONTROLLED BUY
looking for it? (Re: an elephant is not         Was the search warrant based on a     QUESTION 22)
to be found in the refrigerator).          purported “controlled buy”? If so;         “NO KNOCK” PROVISION
    For further information (See           1) On what basis was the controlled             Was there a NO KNOCK PROVI-
Daniels §4-52, Page 267)                   buy set up?                                SION in the search warrant based
                                           2) When was the controlled buy?            on persons being armed and danger-
QUESTION 18)                               3) Who observed the controlled buy?        ous? Door kicked in - but no guns or
CURTILEGE AND RESIDENCE                    4) Was the confidential informant          weapons found. This can be used to
     Were curtilege, out buildings or      adequately searched before and after       revert back to your attack on the credi-
vehicles authorized to be searched         the controlled buy?                        bility and reliability of the confidential
according to the “black and white”         5) Who allegedly made the sale to the      informant and other information which
terms of the search warrant?               confidential informant?                    was provided to the issuing Judge to
     Read closely - Does it say house or   6) Was there marked money use in           bolster the validity of the information
what else is included? What is defined     the controlled buy?                        in the affidavit, and now used to attack
as the “residence” in the description      7) Exactly what was seen by the offi-      it.
contained in                               cers during the controlled buy?
the affidavit? Was the area to be          8) How long was the confidential           QUESTION 23)
searched expanded in the search war-       informant in the residence to make the     GOOD FAITH EXCEPTION
rant? Example: the affidavit refers        buy?                                            Are the police contending that a
exclusively to inside of the house - not   9) Was the amount allegedly spent to       portion of the evidence seized,
adjacent barn, separate garage or vehi-    purchase the quantity of illicit drugs     although not described in, or author-
cles and anything found in other areas     approximately equal to street value of     ized by the affidavit for the search war-
should be suppressed.                      the contraband?                            rant or warrant should be allowed as a
                                           10) Find out as much as possible about     product of the GOOD FAITH effort of
QUESTION 19)                               time of buy. Can you find witnesses to     the officer? Georgia does not follow
SEARCH OF INDIVIDUALS                      testify to the contrary that the           the Federal Rule, set forth in United
     Were any persons or vehicles          Defendant was not there or witnesses       States vs Leon 468 US 897 (1994).
searched, that appeared or came onto       that state no sale was made?               There is no Good Faith exception in
the property during the course of the                                                 Georgia, see (Gary vs. State 262 GA
execution of the search warrant, and       QUESTION 21)                               573 (1992). But ALTHOUGH the
were not described in the warrant?         CONFIDENTIAL INFORMANT                     “GOOD FAITH” EXCLUSION does
     The issue is were the Persons pres-   PLANTING EVIDENCE                          not apply, searches of vehicles are not
ent during the search, named in the             Has the confidential informant and    excluded if the wrong transmission (re:
Search Warrant or were they Persons        the alleged seller ever “done              existence of bench warrants, suspend-
that arrived during the search. Police     business” before? How often has the        ed license, etc. established the neces-
must have independent probable cause       confidential informant been                sary probable cause to search the vehi-
to search persons who arrive during the    in the house or residence of the alleged   cle.
course of the execution of a search        seller?                                         For further information (See
warrant; not so for persons who are             In a case involving the search of a   Daniels §2-26).
located at the residence when a search     meth lab in Lawrenceville, Georgia,
warrant is executed. But persons can       the Defendant acted as a confidential
be patted down for officers safety or to   informant and actually took drugs in
prevent attack, or to prevent conceal-     with him and planted the drugs to cre-
ment or disposal of contraband             ate a bust on a competitor to reduce his                      continued on page 23

Municipal Court Judges Bulletin                           — 22 —                                                Summer 2006
How to Beat the Search Warrant                                  cont.

QUESTION 24)                                (Daniels §14-82).                          evidence room. Later the Detective
SEARCH WARRANT INFORMA-                                                                reads the report, goes to the briefcase
TION vs. TESTIMONY AT TRIAL                 QUESTION 26)                               and opens it, finds drugs and a gun -
     Does the confidential informants       STANDING                                   held to be improper search without
trial testimony match the informants             Does the accused have standing to     search warrant.
statements given to the police and          contest the search of his person or            For further information (See
incorporated into affidavit for search      property? Be careful what you ask for.     Daniels §4-57)
warrant?                                    Whose purse is it? Do you want it to
     In State vs. Michael Wages, Co-        be yours?                                  QUESTION 29)
Defendant, Phillip Boss' testimony at            Condemnation, Its your car, you       PROBABLE CAUSE
the time of trial, significantly differed   want it back vs. Criminal Charges, pre-         Does the affidavit in support of he
from the events and information he          sumption of possession and control as      search warrant contain sufficient
related to the police as a confidential     owner of the car regarding drugs found     information to establish probable
informant at the time of his arrest and     in the car.                                cause for the issuance of the warrant?
which was used in the affidavit for the          See State vs. Jason Sidney Green,          The cases of Spinelli vs. U.S. 393
search warrant.                             where the Defendant said he wasn't         U.S. 410 (1969) and Aguilar vs. Texas
     Argument - The informant was           living there, and the State argued that    378 U.S. 108 (1964) are still part of the
sworn at the time of trial, not sworn       he had no standing but, that he had        decision making process regarding
when giving information to the police       control over the “exclusive area”          reliability of the informer. But now the
to support the issuance of the search       where the drugs were found.                “TOTALITY OF THE CIRCUM-
warrant. Presumption is that he told                                                   STANCES” is the test under Illinois
the truth under oath and gave false         QUESTION 27)                               vs. Gates 462 U.S. 213 (1983).
information in the affidavit. You           EXPECTATION OF PRIVACY
should move to have the Court recon-             Does the person seeking to sup-       QUESTION 31)
sider the finding of probable cause for     press the search have an expectation of    SENTENCING
the issuance of the search warrant,         privacy in the area to be searched?             When all else fails and the drugs
based on the inconsistent testimony         What about abandoned property? In a        are not suppressed, what do I say at the
and possible perjury.                       pending case I have a Defendant that       time of sentencing.
                                            was riding a motorcycle and he
QUESTION 25)                                allegedly threw dope into a ditch. The     FACTORS TO BE RAISED IN SEN-
FALSE INFORMATION IN THE                    Court held that he had no standing to      TENCING:
AFFIDAVIT                                   contest the stop and search of his per-    1) Character Witnesses on behalf of
     Does the affidavit for the search      son and motorcycle. What about Trash       the Defendant
warrant contain false information upon      Pulls? Check the dates on documents        2) Lack of a Prior Record
which the Judge relied in authorizing       in the trash can to determine “stale-      3) Personal history; Work history;
the search warrant? If                      ness”. What evidence is shown as to        Contributions to the community
false information is contained in the       ownership? The law is simple, you          4) Make a reasonable and plausible
affidavit for search warrant, the reme-     heave it-your rights leave with it!        request, not something stupid!
dy is for the information to be exclud-     QUESTION 28)
ed and the validity of the remaining        SECOND SEARCHES                            IN CONCLUSION - REMEMBER
information examined to determine if             Do police have a right to make a      As to the Search Warrant:
probable cause still exists. For exam-      second search of a vehicle or              1) Take it apart piece by piece;
ple, the confidential informant says he     premises, based on the initial search      2) Assume Nothing;
witnessed the Defendant have dope,          warrant, after the original search has     3) Object to Everything;
make sales over the last 3 months.          been concluded? NOT GENERALLY.             4) Defendants will send new clients
Evidence is that the Defendant was in            EXAMPLE: In State vs Liggett, a       if you Fight like Hell- whether or not
jail during the last 3 months and there-    “hit and run” case, the driver fled from   you win or lose; remember that the
fore the information is obviously false.    the car; items recovered from the car      bigger the case the more pressure on
     For further information See            and stored at the Police Department
                                                                                                          continued on page 24

Summer 2006                                                — 23 —                          Municipal Court Judges Bulletin
Caselaw Update                                                                            How to Beat the
                                                                                          Search Warrant
The past couple of months have been          BE IT ENACTED BY THE GENER-
slow for appellate decisions involving       AL ASSEMBLY OF GEORGIA:                      cont.
traffic; 3 important decisions are:
                                             SECTION 1.                                   the Judge to uphold the search
ARTICULABLE                                  Code Section 15-6-3 of the Official          5) Think outside of the box;
SUSPICION/ARREST                             Code of Georgia Annotated, relating to       6) In bad cases remind them they will
St. v. Dixson A06A0592 7/5/06 Officer        terms of court for the superior courts, is   win, but can they stand the “PAIN OF
cannot stop a car solely because a check     amended by striking paragraph (20) and       WINNING” several days at trial, end-
of the driver's tag revealed an              inserting in its place a new paragraph       less objections and the appeal which
“unknown status” of insurance.               (20) to read as follows:
                                                                                          will follow.
                                             "(20) GWINNETT CIRCUIT:
CHEMICAL TESTING                             Gwinnett County - First Monday in
                                                                                          7) You can't plead a case, if you can't
Stewart v. St. A06A0782 7/10/06              January, March, May, July, June, and         try a case;
Stewart argued that, among other             November December and second                 8) Always file a Motion To Suppress
things, the Intox 5000 results in his case   Monday in September."                        in a drug case, sometimes “S**T HAP-
should have been suppressed because:                                                      PENS” for an example: drugs are lost;
1. It is not admissible as scientific evi-   SECTION 2.                                   witnesses unavailable; police officers
dence under Harper, because the              This Act shall become effective August       move and/or leave the department -
machine can be manipulated by the            1, 2006                                      when no motions are filed “S**T
officer, and the DFS does not follow                                                      DON'T HAPPEN.
their own rules for inspection of the        One more case where my good friend,
machine. The court summarily dis-            Howard Cook was reversed while sit-          THANK YOU
missed all arguments and affirmed            ting in Cherokee County: Lyttle v. St.
Stewart's conviction.                        A06A1015 5/12/06 Lyttle was driving
                                             out of a dead end road at 1:30 am, a
                                                                                               Use this information to your best
                                             road known for all sorts of illegal activ-   knowledge in assessing the validity of
IMPLIED CONSENT                              ity, when an officer stopped her, asked      a search warrant. For all of the attach-
Hannah v. St. A06A0759 6/30/06               permission to search, and as a result        ments, warrants, affidavits used in the
Hannah was involved in an accident           found some marijuana; Judge Cook             actual presentation and for the other
involving serious injuries; he asked trial   ruled the stop valid; The Court of           materials on warrantless searches; car
court to suppress blood test, arguing        Appeals ruled the officer did not have       searches; recent case law changes, con-
that the portion of 40-5-55 involving        articulable suspicion to stop.               tact ICLE to get a copy of the program
requests for chemical tests in cases                                                      materials - Criminal Law - Hot Topics
involving serious injuries has been          Editorial Comment: When did the gov-         in Search and Seizure, given on April 6,
ruled unconstitutional. The Court of         ernment assume responsibility to obtain      2006 066302. If you need help or
Appeals, agrees, HOWEVER, under              “justice” for “victims” of crime?? The
                                                                                          someone to exchange me.
Hough, if the officer has probable cause     law used to be that the District
to believe the driver was DUI, then a        Atty/Solicitor represented the people of
                                                                                               Special Thanks to my Paralegal,
request for a chemical test is valid.        the State for crimes against the State; if   Janie Deal for helping me complete this
                                             an individual was a victim of a crime,       information package.
ATTENTION GWINNETT                           that person could exercise his remedies           Sincerely yours and good hunting,
LAWYERS!!: Effective August 1,               against the villainous criminal by seek-
2006, terms of Gwinnett Judicial             ing a “civil” action for damages; Alas,      Jeffrey R. Sliz
Circuit have changed; terms now begin        now the prosecutor not only represents       Sliz/McKinney/Drake Law Firm, LLC
the first Monday in March, June,             the people, but also the individual vic-     280 Constitution Blvd.
December, and the 2nd Monday in              tim; based on this years political cam-      Lawrenceville, Georgia 30045
September; see HB 1423 below:                paigns, one would think that the solici-     770-963-8607
                                             tor is paid by the taxpayer to collect
                                             damages for individuals. Wow, what a


Municipal Court Judges Bulletin                              — 24 —                                                Summer 2006
Summer Conference and Traffic Seminar
              June 2006 • Savannah, GA

Summer 2006             — 25 —      Municipal Court Judges Bulletin
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