I.B., In Interest of

• Decision Date: 01 December 1995
• Docket Number: No. A95A1729,A95A1729
• Citation: 219 Ga.App. 268,464 S.E.2d 865
• Parties: In the Interest of I.B., a child.
• Court: Georgia Court of Appeals

Page 865

464 S.E.2d 865

219 Ga.App. 268

In the Interest of I.B., a child.

No. A95A1729.

Court of Appeals of Georgia.

Dec. 1, 1995.

Whiteman & Whiteman, Mary W. Whiteman, Decatur, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Shalen A. Sgrosso Assistant Attorneys General, James W. Blount, Robert E. Hall, Special Assistant Attorney General, Atlanta, for appellee.

BEASLEY, Chief Judge.

On September 13, 1993, officials at I.B.'s school noticed that he had bruises on his neck and back and reported that fact to county officials. I.B. told the investigating officials that his father had slapped and kicked him. No criminal charges were brought, nor was a deprivation petition filed, but the father's name was placed on the child abuse registry maintained by the Division of Family & Children Services of the Georgia Department of Human Resources. See OCGA § 49-5-180 et seq.

The following May, the father petitioned the juvenile court to expunge his name from the child abuse registry, pursuant to OCGA § 49-5-184(c). He also challenged the constitutionality of the statute establishing the registry and by amendment to the petition explained his grounds on that issue. In an order dated November 1, 1994, the court granted the petition to expunge the name after finding that there was no reasonable basis for it to be maintained on the registry. In a later order, after receiving briefs on the constitutionality issue, the court declared the father's challenge to be moot and not subject to an exception recognized in Chastain v. Baker, 255 Ga. 432, 339 S.E.2d 241 (1986). It thus did not rule on the issue and ended the matter on that note.

Appeal was taken to the Supreme Court of Georgia on the ground that the Georgia Constitution, Art. VI, Sec. VI, Par. II(1), gave it exclusive jurisdiction for the reason that the appeal involved the constitutionality of a statute. The Supreme Court held that it did not have jurisdiction because the only issue raised was the legal validity of the trial court's ruling, and it transferred the appeal to this court, citing Alexander v. State, 239 Ga. 810, 239 S.E.2d 18 (1977). In that case, which did not result in transfer, the Supreme Court refused to rule on the constitutionality of two statutes because the challenge was raised for the first time on appeal; the trial court had not ruled on it, and thus there was no ruling to review. In other words, the prescribed process for attacking the constitutionality of a statute was not followed, so the issue was not decided.

That, of course, is not the same situation here. Appellant did raise the issue in the trial court, but a ruling was aborted. The court deemed the issue moot and not saved by the practical consideration that the court perceived sometimes justifies deciding a moot issue, i.e., that it is "capable of repetition yet evades review."

The question, then, is whether the trial court was deprived of jurisdiction by circumstances which occurred after the petition was filed, or whether the petitioner was entitled to a ruling on the constitutionality issue. To answer the question, we must consider the extent of the trial court's authority. Is judgment foreclosed when the issue is moot, or is there an exception which either compels the court to rule or which allows the court to exercise discretion to rule in spite of its mootness? We must decide this in order to know whether to apply the abuse of discretion standard or a legal error standard. Compare Central of Ga. R. Co. v. Lightsey, 198 Ga.App. 59, 60(1), 400 S.E.2d 652 (1990) (application of abuse of discretion standard, which " 'has been described as allowing a range of choice for the (lower) court, so long as that choice does not constitute a clear error of judgment. (Cit.)' "); Harper v. Landers, 180 Ga.App. 154, 157-158, 348 S.E.2d 698 (1986) (application of plain error standard, leading to conclusion that trial court erred "as a matter of law"). Mills v. State, 188 Ga. 616, 624-625, 4 S.E.2d 453 (1939), discusses the exercise of judicial discretion versus deciding questions of law, and Strickland v. State, 199 Ga. 792, 795-796, 801, 35 S.E.2d 463 (1945), measures a trial judge's exercise of discretion by the appellate standard of error of law and concludes that the trial court's decision exceeded the bounds of his judicial discretion and constituted a legal error. See also Court of Appeals Rule 27(a)(3) and (b)(2).

First, there is no question that a trial court cannot issue advisory opinions. Throughout Article VI of the Georgia Constitution, jurisdictional authority is given over "cases." ¹ "Cases" are live disputes, actual controversies. ² "Not even in a declaratory judgment action is the court permitted to render an advisory opinion. [Cit.]" McDowell v. Judges Ex Officio, 235 Ga. 364, 365, 219 S.E.2d 713 (1975). The Declaratory Judgment Act itself makes that plain, by allowing only "[i]n cases of actual controversy" what otherwise might be considered advisory opinions. See Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312(3), 66 S.E.2d 726 (1951); Brown v. Lawrence, 204 Ga. 788, 790, 51 S.E.2d 651 (1949). As noted in Felton v. Chandler, 75 Ga.App. 354, 361, 43 S.E.2d 742 (1947), "if an action for a declaration raises issues which are ... moot, the Georgia statute is not applicable, and the action must be dismissed as decisively as would be any other action presenting the same non-justiciable issues."

The role of the judiciary is to address "justiciable cases." Thompson v. Talmadge, 201 Ga. 867, 874(1), 41 S.E.2d 883 (1947). "A controversy is justiciable when it is appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests, rather than being hypothetical, abstract, academic or moot." Allstate Ins. Co. v. Shuman, 163 Ga.App. 313, 315(3), 293 S.E.2d 868 (1982). "A controversy is 'justiciable' when there are interested parties asserting adverse claims upon an accrued state of facts. [Cit.]" Mayor, etc., of Savannah v. Bay Realty Co., 90 Ga.App. 261, 262(1), 82 S.E.2d 710 (1954). Bankers Life & Cas. Co. v. Cravey, 90 Ga.App. 113, 119, 82 S.E.2d 150 (1954), clearly states: "The courts do not concern themselves with the solution of academic problems or the determination of dead issues."

Even more recently, the Supreme Court implied that moot matters pending before trial courts should not be decided, in Hutchinson v. Composite State Bd. of Med. Examiners, 263 Ga. 186(1), 429 S.E.2d 661 (1993). The trial court refused to consider a moot issue, and the Supreme Court agreed with the trial court that it was moot. It did not say the trial court should have considered ruling anyway on the basis of the repetitive yet evading review test. Instead, it applied the test to its own jurisdiction, intimating that it was a test of appellate review.

Likewise in Bowers v. Bd. of Regents of the Univ. System of Ga., 259 Ga. 221, 378 S.E.2d 460 (1989), where the Court noted that a moot issue "most assuredly would result in a second dismissal by the trial court, this time on the ground of mootness." See also Mulling v. Wilson, 245 Ga. 773, 774, 267 S.E.2d 212 (1980), which addresses the trial court's ruling that an issue before it was not moot.

The same parameter of judicial power exists in the appellate courts, at least statutorily. The Appellate Practice Act compels both courts to dismiss appeals "[w]here the questions presented have become moot." OCGA § 5-6-48(b)(3). Chastain, supra, 255 Ga. at 433, 339 S.E.2d 241. As recently repeated by the Supreme Court in Cheeks v. Miller, 262 Ga. 687, 688, 425 S.E.2d 278 (1993): " 'The existence of an actual controversy is fundamental to a decision on the merits by this court.' Bowers[, supra]. A controversy is justiciable when it is definite and concrete, rather than being hypothetical, abstract, academic, or moot. Board of Trustees v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720) (1984). Similarly, federal courts employ the doctrine of 'ripeness' under the Article III requirement of a 'case or controversy.' See Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction No. 2d, § 3532." Although "case and controversy" language is not included in the Georgia Constitution, an actual controversy must exist, or the issue is moot for appellate review. Bowers, supra.

It would be anomalous if the law allowed a pleader to hurdle the mootness bar in the trial court and obtain an advisory opinion which is not reviewable by the appellate court because the bar is placed in the way at that level. In this case we could have a decision of a juvenile court, a court of limited jurisdiction under the Constitution, declaring a state statute unconstitutional, but its decision would not be reviewable by the state's highest court, which has exclusive appellate jurisdiction of such issues. 1983 Ga. Const., Art. VI, Sec. III, Par. I, and Sec. VI, Par. II(1).

Having established that judicial jurisdiction does not encompass moot issues, we now address whether the case was moot when the trial court declined to address the constitutional issue. It certainly was, insofar as petitioner himself was concerned. His name was ordered expunged, and this was the only substantive personal relief he sought, other than attorney fees. " ' "A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights." ' [Cit.]" Atlanta Gas Light Co. v. Ga. Public Svc. Comm., 206 Ga.App. 315, 316, 425 S.E.2d 340 (1992). But, argued petitioner, the issue is not moot because "the facts are capable of repetition and yet evade review," citing Chastain, supra, 255 Ga. 432, 339 S.E.2d 241. The trial court refused to decide the issue and made a subtle but important distinction in its analysis. It found that petitioner's challenge was moot "and does not fall within the narrow...