Parker v. Leeuwenburg

• Decision Date: 06 March 2017
• Docket Number: S16A1505
• Citation: 300 Ga. 789,797 S.E.2d 908
• Parties: PARKER et al v. LEEUWENBURG et al.
• Court: Georgia Supreme Court

300 Ga. 789

797 S.E.2d 908

PARKER et al

v.LEEUWENBURG et al.

S16A1505

Supreme Court of Georgia.

Decided: March 6, 2017

Jeffrey Robert Filipovits, Filipovits Law Firm, P.C., 2900 Chamblee-Tucker Road, Building 1, Atlanta, Georgia 30341, Drago Cepar, Jr., Law Office of Drago Cepar, Jr., 1900 The Exchange, Suite 490, Atlanta, Georgia 30339, for Appellant.

Vanessa Elizabeth Sykes, Hulsey, Oliver & Mahar, LLP, P.O. Box 1457, Gainesville, Georgia 30503, for Appellee.

HUNSTEIN, Justice.

This case presents a facial challenge to OCGA § 17-6-90, Georgia's good behavior bond statute, which permits "any judicial officer authorized to hold a court of inquiry" to conduct a hearing and, where sufficient cause is shown, require a party to secure a good behavior bond "to ensure the safety of persons or property in the county or the preservation of the peace of the county." OCGA § 17-6-90 (a). As addressed below, however, we do not reach the constitutional question posed in this case because the complaining party lacks standing to pursue such a challenge. Accordingly, we vacate the judgment of the trial court and remand this matter with direction that the court dismiss the complaint for relief.

The facts and procedural history of this case are not in question. Ken and Rochel Parker ("Appellants") and Andrew and Penny Leeuwenburg ("Appellees") are neighbors with a contentious relationship. Appellees first sought to have Appellants secure a good behavior bond in 2011, but the parties reached an agreement without the issuance of the bond. Appellees again sought a good behavior bond in 2013; the parties agreed to a six-month bond, which was later extended for an additional six months, and that bond expired in December 2014.

Appellees sought a second bond in January 2015, alleging that Appellants had: installed security cameras aimed at Appellees' property; conversed with and "objected to the activities of a tree service hired by [Appellees]"; and used flashlights in a manner that disrupted the sleep of Appellees. Following a hearing at which both parties were represented by counsel, a magistrate court issued a bond enjoining both parties from: having direct or indirect contact with the other; entering the other's property; and, surveilling, following, contacting, recording, or positioning any security cameras capturing the other's property. Appellants sought review of the bond by way of a petition for certiorari in the superior court. Later, however, Appellees agreed to dismiss the bond, and Appellants agreed to dismiss their appeal; a consent order memorializing the parties' agreement was filed in June 2016. In that same month, Appellants filed a complaint in the superior court seeking, among other things, a declaration that OCGA § 17-6-90 is unconstitutional. The trial court concluded that the statute is constitutional and granted summary judgment to Appellees. On appeal, Appellants continue to assert that OCGA § 17-6-90 is unconstitutional. In response, Appellees argue that Appellants lack standing to bring their challenge. We agree.

Though the trial court did not address the question of standing, it is a jurisdictional issue, see Blackmon v. Tenet Healthsystem Spalding, Inc. , 284 Ga. 369, 371, 667 S.E.2d 348 (2008), which this Court has a duty to address, see Williams v. State , 217 Ga. 312, 313, 122 S.E.2d 229 (1961). See also Perdue v. Lake , 282 Ga. 348, 348 (1), 647 S.E.2d 6 (2007) (question of standing a prerequisite to evaluating merits of challenge to trial court's order declaring statute unconstitutional). "As a general rule, a litigant has standing to challenge the constitutionality of a law only if the law has an adverse impact on that litigant's own rights." Feminist Women's Health Center v. Burgess , 282 Ga. 433, 434 (1), 651 S.E.2d 36 (2007). As a prerequisite to attacking the constitutionality of a statute, the complaining party must show that it is hurtful to the attacker.¹ Agan v. State , 272 Ga. 540, 542 (1), 533 S.E.2d 60 (2000). " ‘[S]tanding must be determined at the time at which the plaintiff's complaint is filed’ in order to place an actual case or controversy within the purview of the court."² (Citations omitted.) Perdue v. Lake , 282 Ga. at 348, 647 S.E.2d 6. The issues before this Court are purely legal and, thus, are reviewed de novo. See Fulton County Bd. of Educ. v. Thomas , 299 Ga. 59, 61, 786 S.E.2d 628 (2016).

There are two provisions of the bond statute that are relevant here. Subsection (a) states as follows:

Any judicial officer authorized to hold a court of inquiry may, upon the application of others under oath or upon his or her own motion, issue a notice to appear for a show cause hearing to any person whose conduct in the county is sufficient to justify the belief that the safety of any one or more persons in the county or the peace or property of the same is in danger of being injured or disturbed thereby. Such show cause hearing shall be held within seven days of such application or motion. Upon sufficient cause being shown, the court may require from the person a bond with sureties for such person's good behavior with reasonable conditions to ensure the safety of persons or property in the county or the preservation of the peace of the county for a period of up to six months.

OCGA § 17-6-90 (a). Subsection (d), which references possible arrest, provides as follows:

At the time of or at any time after the filing of an application as provided in subsection (a) of this Code section, the judicial officer may, in his or her sound discretion, issue an order of arrest for the person or persons named in the application if the sworn allegations regarding the conduct of such person or persons is sufficient to justify the belief that there is imminent danger of injury to any person in the county, damage to any property in the county, or disturbance of the peace of the county. Upon the arrest of such person, a hearing as provided in subsection (a) of this Code section shall be held within 24 hours; otherwise, such person shall be released on bond with sureties and reasonable conditions for his or her good behavior until a hearing can be held.

Id. at (d). It is undisputed that Appellants have neither been arrested nor have they been threatened with arrest in relation to the bond proceedings associated with this matter; accordingly, Appellants plainly lack standing to challenge subsection (d) of OCGA § 17-6-90. See, e.g., Manlove v. Un if ied Government of Athens-Clarke County , 285 Ga. 637, 680 S.E.2d 405 (2009) (no standing to challenge constitutionality of noise ordinance absent a showing of "imminent threat of prosecution"); Frances Wood Wilson Foundation, Inc. v. Bell , 223 Ga. 588, 157 S.E.2d 287 (1967) (no standing to challenge constitutionality of local law where there had been no prosecution or threat of prosecution).

Whether Appellants have standing to challenge subsection (a) is a closer question. The plain language of that section controls two things: (1) the timing and circumstances under which a judicial officer may issue "a notice to appear for a show cause hearing," and (2) what action that judicial officer make take following the show cause hearing, including what conditions may be placed on a peace bond. Subsection (a) does not proscribe or regulate conduct, but instead, it vests a judicial officer with the discretion to initiate a peace bond proceeding, either on its own or following an application, and with the discretion to compel a party to secure such a bond. See OCGA § 17-6-90 (a) (judicial officer may issue notice for a show cause hearing and may require a peace bond). Simply put, the only power that rests with Appellees is to apply for a peace bond with a judicial officer, any further action requires the exercise of judicial discretion.

Though Appellants contend that they have standing arising from Appellees' threat of future peace bond litigation, Appellants' complaint for relief hinges on the idea that Appellees might seek a peace bond in the future and, also, that a judicial office might exercise its discretion and conduct proceedings consistent with OCGA § 17-6-90 (a). Appellees cannot initiate or secure a peace bond in the absence of judicial intervention and, even if this Court were to accept that Appellees' may initiate future peace bond proceeding, Appellants' complaint lacks any allegation that a judicial officer in Hall County would exercise its authority and initiate such proceedings. The mere fact that such proceedings have been initiated before is not, without more, sufficient to imbue Appellants with standing. Cf. Elend v. Basham , 471 F.3d 1199, 1206-1208 (11th Cir. 2006) (although arrested for protesting in the past, plaintiffs' assertions that they would engage in protests in the future was insufficient to establish an imminent and concrete threat of injury for standing purposes). In effect, Appellants currently stand in the same position as other Hall County citizens who might, at some time in the future, be subject to the judicial procedure envisioned in OCGA § 17-6-90 (a). However, a " ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens ... alone does not warrant exercise of jurisdiction." Warth v. Seldin , 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). See also Frances Wood Wilson Foundation , 223 Ga. at 589, 157 S.E.2d 287 ("If he is not within the class of those persons whose rights are adversely affected by the statute, or if he has suffered no harm or stands to suffer no harm by the mere presence of the statute upon the books, he has no standing to attack its validity."). Because OCGA § 17-6-90 (a) does not regulate Appellants' conduct and, in the absence of current peace bonding proceedings—or even an allegation that a judicial officer in Hall County would exercise such discretion—Appellants' cannot show anything more than a hypothetical concern regarding OCGA § 17-6-90 (a), and they lack standing to...