Rutter v. Rutter, A12A0661.

• Decision Date: 13 July 2012
• Docket Number: No. A12A0661.,A12A0661.
• Citation: 730 S.E.2d 626,316 Ga.App. 894
• Parties: RUTTER v. RUTTER.
• Court: Georgia Court of Appeals

316 Ga.App. 894

730 S.E.2d 626

RUTTER

v.RUTTER.

No. A12A0661.

Court of Appeals of Georgia.

July 13, 2012.

Bray & Johnson, Roger M. Johnson, Canton, Jennifer Susan Gill, for Appellant.

Abbott & Abbott, Robert Kendall Abbott, Jr., Parri S. Abbott, Canton, Hill–MacDonald, Vic Brown Hill, Brad Elliott MacDonald, Marietta, for Appellee.

Samuel S. Olens, Atty. Gen., Jeffrey L. Milsteen, Deputy Atty. Gen., Nels S.D. Peterson, Wayne R. Allen, amici curiae.

BLACKWELL, Judge.

In this divorce case, Charles Rutter moved the court below to exclude any evidence that his wife, Stacy Rutter, might have derived from several video surveillance devices that she surreptitiously installed in their marital residence. Charles argued that her use of these devices amounts to a violation of OCGA § 16–11–62(2), which makes it generally unlawful for one to conduct video surveillance of another in a private place, out of public view, and without his consent.¹ But at a hearing on the motion, the court below pointed to OCGA § 16–11–62(2)(C), which sets out an exception to the general prohibition and expressly permits one to conduct video surveillance of persons "within the curtilage of [her own] residence" for certain purposes. Relying on the exception set out in subparagraph (2)(C), the court below denied the motion to exclude, and Charles appeals from its denial.² We affirm the judgment below.

1. Before we consider whether the court below properly understood the exception set out in OCGA § 16–11–62(2)(C), we must address a threshold question, namely whether subparagraph (2)(C) is still good law. Subparagraph (2)(C) came into being on April 20, 2000, when the Governor approved legislation known as House Bill 1576 ("HB 1576"), which amended OCGA § 16–11–62 and added, among other provisions, subparagraph (2)(C). Ga. L. 2000, p. 491, § 1. HB 1576 was effective on the day it was approved by the Governor. Id. at § 5. One week later, on April 27, 2000, the Governor approved legislation known as Senate Bill 316 ("SB 316"), which amended OCGA § 16–11–62 by "striking [that] Code [s]ection" and "inserting in its place a new Code section," one that contains no subparagraph (2)(C) and otherwise contains no provision substantially like subparagraph (2)(C). Ga. L. 2000, p. 875, § 2. The legislation known as SB 316 was effective as of July 1, 2000. Id. at § 3. We are presented, therefore, with a question about whether SB 316 effectively repealed subparagraph (2)(C), such that subparagraph (2)(C) ceased to be good law as of July 1, 2000. This question has been briefed not only by the parties, but also by the Attorney General and the Office of Legislative Counsel as amici curiae.³

A statute can be repealed expressly or by implication, see Boynton v. Lenox Square, Inc., 232 Ga. 456, 461(II), 207 S.E.2d 446 (1974), but we find no language in SB 316 that expressly and specifically repeals either HB 1576 or subparagraph (2)(C). Accordingly, we turn to consider whether SB 316 repealed subparagraph (2)(C) by implication.⁴ Repeals by implication are disfavored, and "it is only when a statute and a previous statute are clearly repugnant that a repeal by implication will result." Concerned Citizens of Willacoochee v. City of Willacoochee, 285 Ga. 625, 625, 680 S.E.2d 846 (2009). Moreover, statutes touching upon the same subject generally are construed together, and that rule applies with "peculiar force," our Supreme Court has said, when the statutes were enacted at the same session of the General Assembly. Inter–City Coach Lines v. Harrison, 172 Ga. 390, 395(3), 157 S.E. 673 (1931) ("The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the legislature; it is presumed that such acts are imbued with the same spirit and actuated by the same policy, and they are to be construed together as parts of the same act.") (citation and punctuation omitted). Consequently, to the extent that the words of the statutes permit, courts should construe statutes passed at the same legislative session "so as to make both valid and binding, and to give effect to all the terms of both, so as to make them capable of enforcement." Id.

There are two ways in which SB 316 potentially might work a repeal of subparagraph (2)(C) by implication. First, to the extent that the substantive provisions of SB 316—meaning the substantive provisions of the "new" OCGA § 16–11–62 enacted by SB 316—conflict with the substance of subparagraph (2)(C), such a conflict might amount to a repeal by implication. Second, to the extent that the enacting provision of SB 316—meaning the legislative directive "striking Code Section 16–11–62 ... and inserting in its place a new Code section"—conflicts with the very existence of subparagraph (2)(C), that conflict too might amount to a repeal by implication. Having reviewed carefully the language of SB 316, as well as the legislative history⁵ of both HB 1576 and SB 316, we conclude that SB 316 works no repeal by implication of subparagraph (2)(C).

About the substantive provisions of SB 316, we cannot say that they clearly are repugnant to subparagraph (2)(C). Although the version of OCGA § 16–11–62 enacted by SB 316 contains no provision substantially like subparagraph (2)(C), it also contains no provision inconsistent with subparagraph (2)(C). Indeed, that version of OCGA § 16–11–62 can be combined with subparagraph (2)(C) without contradicting any substantive provision of the Code section adopted in SB 316, and the exception set out in subparagraph (2)(C) is applicable to circumstances other than those addressed by the exceptions to OCGA § 16–11–62(2) that are set out in SB 316.⁶ Accordingly, we conclude that the substantive provisions of SB 316 did not repeal subparagraph (2)(C) by implication.

The enacting provision of SB 316 presents a more difficult issue. After all, subparagraph (2)(C) had been made a part of OCGA § 16–11–62 by the time SB 316 became effective, Ga. L. 2000, p. 491, § 5, and SB 316 contains an express directive "striking Code Section 16–11–62 ... and inserting in its place a new Code section," one that contains no subparagraph (2)(C).⁷ Ga. L. 2000, p. 875, § 2. When we consider the meaning of a statute, "we always must presume that the General Assembly means what it says and says what it means." Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga.App. 573, 577(1), 707 S.E.2d 921 (2011). To this end, our search for the meaning of a statute "must begin with the words of the statute, and if those words are clear and unambiguous, the search also must end there." Id. at 577–578(1), 707 S.E.2d 921. But when the words of the statute are reasonably susceptible of more than one meaning, we properly may look beyond the statutory language itself to other indicia of meaning. See Speedway Motorsports v. Pinnacle Bank, 315 Ga.App. 320, 326(2), 727 S.E.2d 151 (2012).

Here, it is perfectly clear that SB 316 was intended to strike " Code Section 16–11–62," and at first glance, such a specific reference to a particular Code section seems clear and unambiguous. But when we consider the unusual circumstance of OCGA § 16–11–62 having been amended only a week before SB 316 was approved by the Governor, the identity of the statutory provisions intended to be struck by SB 316 seems less clear. After all, SB 316 was passed by the General Assembly on March 15, 2000, JOURNAL OF THE SENATE OF THE STATE OF GEORGIA, 2000, p. 1411, more than a month before the Governor approved HB 1576, adding subparagraph (2)(C) to OCGA § 16–11–62. So, between the time the General Assembly passed SB 316 and the time it became effective, OCGA § 16–11–62 changed.

To which version of OCGA § 16–11–62 does SB 316 refer when it mentions " Code Section 16–11–62"? The most reasonable answer, it seems to us, is the version of OCGA § 16–11–62 that was in effect as of the date the General Assembly passed SB 316. In the first place, to answer otherwise would be to permit subsequent developments to alter the meaning of the statute.⁸ Second, to answer otherwise would contradict the usual rule that statutes touching upon the same subject and passed in the same legislative session should be reconciled, if possible.⁹ And finally, to answer otherwise would be to ignore the legislative history of HB 1576 and SB 316. Indeed, the legislative record shows that the Senate passed the final version of SB 316 on March 15, 2000, JOURNAL OF THE SENATE OF THE STATE OF GEORGIA, 2000, p. 1411, and it also reveals that, the very next day, the Senate amended HB 1576 to add the provision that eventually became subparagraph (2)(C).¹⁰ JOURNAL OF THE HOUSE OF REPRESENTATIVES OF THE STATE OF GEORGIA, 2000, p. 2881. We cannot ascertain any reason for the Senate having so amended HB 1576 if it intended that subparagraph (2)(C) would be struck by another statute that the Senate had passed only one day earlier. For all these reasons, the most reasonable interpretation of the reference in SB 316 to " Code Section 16–11–62," we think, is that it refers to the version of OCGA § 16–11–62 that was effective as of March 15, 2000, the date that the General Assembly passed SB 316.¹¹ Consequently, subparagraph (2)(C) survived the enactment of SB 316 and remains good law.

2. We next consider whether the court below properly applied subparagraph (2)(C) when it denied the motion to exclude. As an exception to the general prohibition of certain video surveillance set out in OCGA § 16–11–62(2), subparagraph (2)(C) provides that it is lawful "[t]o use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device." OCGA § 16–11–62(2)(C). Charles contends that this exception does not apply in this case for several reasons. First, he says, it does not apply because surveillance of persons within a residence itself is not...