Garren v. State, 35711

• Decision Date: 26 February 1980
• Docket Number: No. 35711,35711
• Parties: GARREN v. The STATE.
• Court: Georgia Supreme Court

Page 876

264 S.E.2d 876

245 Ga. 323

GARREN v. The STATE.

No. 35711.

Supreme Court of Georgia.

Submitted Dec. 7, 1979.

Decided Feb. 26, 1980.

Andrews & Seery, Stephen H. Andrews, Thomasville, for appellant.

H. Lamar Cole, Dist. Atty., Richard W. Shelton, Asst. Dist. Atty., for appellee.

NICHOLS, Chief Justice.

Parents (fathers or mothers) who remain in Georgia after abandoning their minor children (legitimate or illegitimate) subject themselves to misdemeanor punishment. On the other hand, parents who leave Georgia after abandoning their minor children subject themselves to felony punishment reducible to misdemeanor. Code Ann. § 74-9902.

Terry Wayne Garren, a father charged with abandoning his legitimate minor children then leaving Georgia, contends that Georgia's child abandonment statute, Code Ann. § 74-9902, unconstitutionally deprives him of equal protection of the laws and unconstitutionally burdens his right of interstate travel.

The state contends that a person charged with a crime, whether misdemeanor or felony, has no right to travel, either intrastate or interstate, except strictly in accordance with a properly entered bail order, and contends that at least one constitutionally permissible purpose of the statutory enhancement of penalty for parents charged with child abandonment who leave Georgia is to increase the probability that a sister state will agree to extradite the parent to Georgia to face the charges. The state says that Governors of sister states are more willing to extradite for felonies than for misdemeanors.

Although nowhere explicitly mentioned in our Federal Constitution, the right of interstate travel has been recognized and deemed a "fundamental" concept of our federal union of states. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Whether this right is grounded in the Commerce Clause, the Privileges and Immunities Clause, the Fifth and Fourteenth Amendments, or elsewhere, has been discussed at great length but, "All have agreed that the right exists." 383 U.S. at 759, 86 S.Ct. at 1179.

Garren contends that the constitutionality of the enhancement of punishment provision of Code Ann. § 74-9902 must be determined by application of the "compelling state interest test" because increasing to felony reducible to misdemeanor the punishment for child abandonment that otherwise would be treated as a misdemeanor " 'operates to Penalize those persons . . . who have exercised their constitutional right of interstate migration.' " Memorial Hospital v. Maricopa County, 415 U.S. 250, 258, 94 S.Ct. 1076, 1082, 39 L.Ed.2d 306 (1974). The assumption of this line of argument is that the Equal Protection Clause is the source of the right of free travel asserted in the present case. The proper test or rule of stringency of review to be applied may depend upon whether the source of the asserted right is the Equal Protection Clause or, instead, the Commerce Clause. Edwards v. California, 314 U.S. 160, 174, 62 S.Ct. 164, 86 L.Ed. 119 (1941).

The traditional judicial approach of first deciding which rule of stringency of review should be utilized may not be appropriate in the present case. There is an entirely obvious difference, on the one hand, between an attempt by a "receiving state" to preclude or discourage inward migration from "sending states" of persons deemed by the "receiving state" to be "undesirables," "non-contributors" or "economically burdensome persons," and efforts, as in the present case, by a "sending state" to bring...