State v. Jackson

• Decision Date: 20 March 1998
• Docket Number: No. S97A1791,S97A1791
• Citation: 496 S.E.2d 912,269 Ga. 308
• Parties: , 98 FCDR 901 STATE of Georgia et al. v. JACKSON.
• Court: Georgia Supreme Court

Page 912

496 S.E.2d 912

269 Ga. 308, 98 FCDR 901

STATE of Georgia et al. v. JACKSON.

No. S97A1791.

Supreme Court of Georgia.

March 20, 1998.

Shalen A. Sgrosso, Asst. Atty. Gen., William C. Joy, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State of Georgia et al.

Gilbert J. Murrah, Bainbridge, for Bart Jackson.

HINES, Justice.

This is an appeal from an order of the superior court in a declaratory judgment action finding that OCGA § 49-5-183.1 is unconstitutional.

OCGA § 49-5-183.1 is part of a general statutory scheme providing for the establishment and maintenance of a central registry of confirmed, and unconfirmed, reports of child abuse, known as the "Child Protective Services Information System" ("CPSIS"). See OCGA § 49-5-180 et seq. ("the Act"). Under the Act, when an abuse investigator ¹ completes an investigation of a child abuse report, the investigator makes a written report to a county office of the Department of Family and Children Services ("DFACS"), classifying the report as either unfounded (no credible evidence that child abuse occurred), confirmed (at least equal or greater credible evidence that abuse did occur), or unconfirmed (some credible evidence that abuse occurred, but not sufficient evidence to classify the report as confirmed). See OCGA § 49-5-180(6), (10), & (12); OCGA § 49-5-183(a). The report includes information identifying the abuse victim, the victim's parents or guardian, and the person who allegedly committed the abuse. OCGA § 49-5-183. Upon receiving a report of "confirmed" or "unconfirmed" child abuse, a county DFACS office is to notify the alleged abuser of the report classification. OCGA § 49-5-183.1 (b). The person so notified may request a hearing within ten days of receipt of the notice, which is presumed to have occurred five days after mailing. OCGA § 49-5-183.1(b) & (c). Any hearing is conducted before an administrative law judge ("ALJ") in accordance with the Georgia Administrative Procedure Act. See OCGA §§ 49-5-183.1(e); 50-13-1 et seq. The ALJ determines if the evidence meets the required standard for the classification. OCGA § 49-5-183.1(f). This constitutes the final administrative decision and may be appealed to the superior court; but the superior court's decision is not appealable. OCGA § 49-5-183.1(g).

Decatur County DFACS notified Jackson that he was to be reported as a confirmed child abuser. He requested a hearing before an ALJ, which was scheduled. Jackson was also indicted on five counts of child molestation, and the hearing before the ALJ was continued until the conclusion of the criminal proceeding. Jackson was tried and acquitted on all five counts of child molestation, yet DFACS expressed its intention to continue its efforts to have Jackson listed on the CPSIS as "confirmed." Prior to the hearing before the ALJ, Jackson filed this action challenging the constitutionality of OCGA §§ 49-5-180, 49-5-183, and 49-5-183.1, and asking for an injunction against the scheduled hearing or any other efforts by DFACS to include him on the registry.

The superior court granted a temporary injunction and ruled that OCGA § 49-5-183.1, the section containing the mechanism by which an alleged child abuser is placed on the CPSIS, is unconstitutional. The court also granted a permanent injunction.

1. The superior court determined that OCGA § 49-5-183.1 violated Jackson's due process rights to compel witnesses on his behalf and confront the witnesses against him, as guaranteed by the Sixth and Fourteenth Amendments. ² See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). OCGA § 49-5-183.1(i) provides in part that "[n]o child under the age of 14 shall be compelled to appear to testify at any hearing held pursuant to this Code section." Thus, on its face, the statute prohibits anyone who is alleged to have abused children under the age of 14 from calling his or her accuser to the stand at the hearing before the ALJ.

The State contends that Jackson cannot assert a right to due process guarantees because listing him on the CPSIS does not deprive him of liberty so as to implicate due process. It is true that stigmatization of reputation alone does not implicate a liberty interest sufficient to invoke federal due process protection. Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976). ³ But more than Jackson's reputation is involved. The State is attempting to take further official action against him, based on the same alleged acts that underlie his criminal prosecution. This implicates his status as an exonerated criminal defendant and is therefore more than merely a stigmatization of reputation. See Paul v. Davis, supra at 708, 96 S.Ct. at 1164 (holding that the plaintiff in the prior case of Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), had a protectable interest based upon her stake in her reputation, coupled with an alteration in her status). A party has standing to challenge the constitutionality of a statute if the statute has an adverse impact on that party's own rights. Ambles v. State, 259 Ga. 406(1), 383 S.E.2d 555 (1989).

We find that Jackson's liberty interest is such that due process requires it be afforded the same protections in regard to the rights to compel and confront witnesses as are afforded to constitutionally protected interests in criminal prosecutions. See Blackburn v. Blackburn, 249 Ga. 689, 693(2), 292 S.E.2d 821 (1982); In the Interest of M. S., 178 Ga.App. 380, 381, 343 S.E.2d 152 (1986). The right to compel witnesses and the right to confront and cross-examine witnesses are fundamental rights, found in the Bill of Rights. They are essential to the ability to offer a defense, and are basic to our system of jurisprudence. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense ... This right is a fundamental element of due process of law." Washington v. Texas, supra at 19, 87 S.Ct. at 1923. The right to confrontation "(1) insures that the witness will give his statements under oath--thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; [and] (2) forces the witness to submit to cross-examination 'the greatest legal engine ever invented for the discovery of truth' " California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). Confrontation aids the fact finder by allowing it to observe the demeanor of the witness and assess the witness' credibility. Id. These rights are at the very core of the concept of a fair hearing.

Substantive due process requires that state infringement on fundamental rights be narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993). See also McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994). The state has a compelling interest in the welfare of children. In re J. C., 242 Ga. 737, 738(1), 251 S.E.2d 299 (1978). However, in no sense is this statute narrowly tailored to serve that interest. Rather, the statute prohibits, in all cases, the alleged child abuser from compelling the testimony of a child under the age of fourteen. Thus, the statute is not properly focused, but is impermissibly broad.

The State argues that the statute comports with the Child Hearsay Statute, OCGA § 24-3-16, which has been held to be constitutional. Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987). ⁴ However, the two statutes differ greatly. OCGA § 24-3-16 makes no attempt to prevent a party to a proceeding from compelling the testimony of a witness. To the contrary, OCGA § 24-3-16 recognizes the importance of the rights to compel testimony and confront witnesses; it allows an out-of-court statement of a child victim to be admitted only if "the child is available to testify in the proceedings." See Reynolds v State, 257 Ga. 725(4), 363 S.E.2d 249 (1988). But OCGA § 49-5-183.1 would prohibit the accused child abuser from compelling the witness' presence, and therefore prohibits him from assuring the witness' availability. Fundamental rights of one so accused cannot be ignored, and the presence of OCGA § 24-3-16 does not save OCGA § 49-5-183.1.

We must also determine whether we are faced with a facial challenge to the constitutionality of OCGA § 49-5-183.1, or a challenge to it "as applied." In United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), the United States Supreme Court stated that, generally, to mount a facial challenge to a statute a litigant must show that no set of circumstances exist under which the statute can operate constitutionally. However, subsequently, the United States Supreme Court has allowed a facial challenge to a statute when it would unconstitutionally impact a fundamental right in "a large fraction" of the cases to which the statute applies. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 2829-2830, 120 L.Ed.2d 674 (1992). Although the Court did not state in Casey that it was departing from Salerno, the question of Casey's effect has been a matter of some debate. After examination we believe the soundest course is to "follow what the Supreme Court actually did--rather than what it failed to say." Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1458 (8th Cir.1995). Consequently, we conclude that a facial attack on a statute will be upheld if the statute operates unconstitutionally in a large fraction of the cases in which it applies. See also Women's Med. Prof. Corp. v. Voinovich, 130 F.3d 187, 195-196 (6th Cir.1997) (accepting the "large fraction" standard); Florida League of Professional...