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Sexual Offender Registration Review Board v. Berzett

Supreme Court of Georgia

June 19, 2017


          Hines, Chief Justice.

         This is an appeal by the Sexual Offender Registration Review Board from a final order of the Superior Court of Fulton County declaring that OCGA § 42-1-14, which sets forth a procedure for the classification of sexual offenders according to their recidivism risks and in subsection (e) requires any "sexually dangerous predator" to wear and pay for an electronic GPS monitor for the rest of his life, [1] violates several provisions of the United States and Georgia Constitutions. In that order, the superior court also issued a writ of prohibition against the Board. For the reasons that follow, we vacate the superior court's judgment and remand the case with direction that it be dismissed.

         On April 5, 2006, Kenneth Berzett pled guilty to child molestation, and in 2009, the Board classified him as a sexually dangerous predator. See OCGA § 42-1-14 (a). In 2014, the Board granted Berzett's request for an out-of-time reevaluation of his classification, but ultimately upheld its classification decision. See OCGA § 42-1-14 (b). Berzett then petitioned the superior court for judicial review of his classification, see OCGA § 42-1-14 (c), and, in a separate action, he simultaneously filed a petition for declaratory judgment, alleging that OCGA § 42-1-14 is unconstitutional and also seeking injunctive relief against enforcement or application of the electronic monitoring requirement. As to the petition for judicial review, the superior court affirmed the Board's classification of Berzett and denied his request for relief, and Berzett did not appeal the superior court's decision.

         Meanwhile, the Board filed a motion to dismiss the declaratory judgment action. After the final decision on the petition for judicial review, the Board asserted in a supplement to its motion to dismiss that Berzett's request for declaratory judgment had become moot because there was no longer an active controversy between Berzett and the Board, any ruling on the constitutionality of OCGA § 42-1-14 would have no practical effect on Berzett, and he no longer faces uncertainty as to any future undirected action. Although the superior court dismissed one of Berzett's constitutional claims, it denied the Board's motion to dismiss as to all other claims, deciding that, inter alia, those claims are not moot and a petition for declaratory judgment is a proper vehicle for raising them. On subsequent cross-motions for summary judgment, the superior court granted summary judgment to the Board on one constitutional claim but granted summary judgment to Berzett on all of his other constitutional claims. The superior court held that Berzett is not subject to the electronic monitoring obligations imposed on sexually dangerous predators and issued a writ of prohibition against the Board and its officers and agents that prohibited them from requiring Berzett to wear or pay for GPS monitoring pursuant to OCGA § 42-1-14 (e), from gathering, storing, or distributing any data regarding his movements obtained as a result of such monitoring, and from otherwise enforcing any provision of OCGA § 42-1-14 (e) as to Berzett.

         On appeal, the Board contends that the trial court lacked subject matter jurisdiction over this petition for declaratory relief because no actual controversy existed between the Board and Berzett. Indeed, this issue is jurisdictional. See Fulton County v. City of Atlanta, 299 Ga. 676, 676, n. 2 (791 S.E.2d 821) (2016). The Declaratory Judgment Act, OCGA § 9-4-1 et seq., "gives superior courts the power to declare rights and other legal relations of any interested party in 'cases of actual controversy' under OCGA § 9-4-2 (a) and 'in any civil case in which it appears to the court that the ends of justice require that the declaration should be made.' OCGA § 9-4-2 (b)."[2] Walker v. Owens, 298 Ga. 516, 518 (783 S.E.2d 114) (2016) (citation omitted). "However, the presence in the declaratory judgment action of a party with an interest in the controversy adverse to that of the petitioner is necessary under either subsection (a) or (b)." Pangle v. Gossett, 261 Ga. 307, 308 (1) (404 S.E.2d 561) (1991). Under those subsections, there can be no actual or justiciable controversy if, among other things, the questions in the case have become moot or there are no "'interested parties asserting adverse claims upon a state of facts which have accrued.'" Fulton County, 299 Ga. at 677 (citation omitted). See also Pilgrim v. First Nat. Bank of Rome, 235 Ga. 172, 174 (219 S.E.2d 135) (1975). A petition for declaratory judgment is moot when the relief, if granted, would have no practical effect on the underlying controversy. See Babies Right Start v. Ga. Dept. of Public Health, 293 Ga. 553, 555 (2) (a) (748 S.E.2d 404) (2013); Pimper v. State ex rel. Simpson, 274 Ga. 624, 626 (555 S.E.2d 459) (2001). Moreover, "'"[t]he proper scope of declaratory judgment is to adjudge those rights among parties upon which their future conduct depends."'" v. Atlanta Botanical Garden, 299 Ga. 26, 28 (1) (785 S.E.2d 874) (2016) (citation omitted).

         The interest of the respondent to the petition for declaratory judgment in this case is statutorily determined. Under OCGA § 42-1-14 (a) and (b), the Board is required to make the initial risk assessment and classification of sexual offenders, to decide on petitions for reevaluation of the classification, and to make a risk assessment upon request of a superior court that is considering a petition pursuant to OCGA § 42-1-19 for release from the registration requirements and residency and employment restrictions placed on certain sexual offenders. See generally Gregory v. Sexual Offender Registration Review Bd., 298 Ga. 675, 678-684 (1) (784 S.E.2d 392) (2016). The Board does not, however, receive payment for the cost of the electronic monitoring system that sexually dangerous predators are required to wear, place the monitors on them, or play any role in the post-classification administration of the monitoring system or any other requirements and restrictions placed on sexual offenders. Instead, the cost of the system is paid either to the Department of Community Supervision or to the sheriff; the electronic monitor is placed on the sexually dangerous predator either prior to his release from confinement or by the sheriff of the county of his residence, who explains its operation and cost; and a law enforcement official is designated to maintain and remove or replace the equipment. See OCGA §§ 42-1-12 (i) (12), 42-1-14 (e). Throughout OCGA § 42-1-12, monitoring of other sexual offender obligations is assigned to the sheriff or appropriate officials other than the Board. In this case, it is undisputed that the Washington County Sheriff's Department placed a GPS monitor onto Berzett's ankle, that since then it has received alerts from the device, and that it continues to monitor Berzett's sexual offender obligations, including the GPS device.

         In view of the statutory division of duties to classify and monitor sexual offenders, as implemented with respect to Berzett, once the Board's classification duties were complete and its classification decision became final, the Board no longer had an interest in the controversy adverse to that of Berzett. To the extent that he raises in this declaratory judgment action any constitutional challenges to the statutory provisions regarding classification, such as due process, those challenges could and should have been raised in his petition for judicial review of the Board's classification decision. Another controversy between Berzett and the Board could possibly arise in the future if the Board performs another risk assessment, but that will not occur unless so requested by a superior court judge in response to a petition for release under OCGA § 42-1-19, and, moreover, it is unlikely to occur in the case of Berzett (or most other sexual offenders) unless at least ten years have passed since his completion of "all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 . . . ." OCGA § 42-1-19 (c) (2) (A). Furthermore, nothing in OCGA § 42-1-12 et seq. indicates that the sheriff of the sexual offender's county of residence functions as an officer or agent of the Board, and the Washington County Sheriff was not named as a respondent to Berzett's petition for declaratory judgment and served as required by statute. See OCGA § 9-4-5. In short, although there may be some actual or justiciable controversy between Berzett and the Washington County Sheriff, there is no present controversy whatsoever between Berzett and the Board. The relief requested by Berzett, if granted, would have no practical effect on the controversy between him and the Board that has already been resolved by the superior court's decision on Berzett's separate petition for judicial review. Moreover, the future conduct of the parties towards each other does not depend on an adjudication of their rights. Again, the statutory scheme, the final decision on Berzett's risk classification, and the record in this case already make clear that the Board has completed its classification duties, that it cannot perform any further risk assessment unless requested by the superior court at some future time, and that it is not required or authorized to monitor Berzett's GPS device or his other obligations as a sexual offender who has been classified as a sexually dangerous predator. Conversely, Berzett's future compliance with the electronic monitoring and other obligations does not depend on an adjudication of any right of the Board, as its rights extend only to classification. Accordingly, because there is no actual or justiciable controversy between Berzett and the Board, the superior court erred when it denied the Board's motion to dismiss Berzett's declaratory judgment action.

          In his petition for declaratory judgment, Berzett also requested injunctive relief, but he primarily requested that the superior court declare that OCGA § 42-1-14 is unconstitutional on multiple grounds and that he is not subject to its obligations. In his response to the Board's motion to dismiss, Berzett argued the viability of his constitutional claims, again asked the superior court to declare the statute unconstitutional, and subsequently requested "injunctive relief consistent with [the court's] findings." During the entire course of the parties' litigation and this appeal regarding the motion to dismiss and the cross-motions for summary judgment, Berzett has never made any separate argument concerning, and has barely even mentioned, his request for injunctive relief.

[Such] relief sought is made dependent upon the prayer for declaratory judgment which, under the ruling [above], fails. . . . [W]ithout the declaratory judgment as its foundation, the [request for injunctive relief] fails. In this connection we are not unmindful of [OCGA § 9-4-3 (a)], to the effect that further plenary relief, including [injunction], may be sought in a petition seeking declaratory judgment, and that "the failure of [the] petition to state a cause of action for declaratory relief shall not affect the right of [the petitioning] party to any other relief, legal or equitable, to which he may be entitled." But that section relates to the right to relief which is independent of declaratory judgment, not that specifically bottomed on the declaratory judgment sought, as here.

Gay v. Hunt, 221 Ga. 841, 846 (2) (b) (148 S.E.2d 310) (1966). Because Berzett's cause of action for declaratory judgment should have been dismissed, his request for injunctive relief also should have been dismissed.[3] See Richardson v. Phillips, 302 Ga.App. 305, 310 (2), n. 4 (690 S.E.2d 918) (2010).

         Moreover, regardless of whether declaratory relief is sought, "[i]t is a settled principle of Georgia law that the jurisdiction of the courts is confined to justiciable controversies, " and "[w]e will not decide the constitutionality of a law where no justiciable case or controversy is presented." Fulton County, 299 Ga. at 677 (citation and punctuation omitted). Thus, a claim for injunctive relief "is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights, " as when the act that is the subject of the claim has been completed. City of Comer v. Seymour, 283 Ga. 536, 537 (661 S.E.2d 539) (2008). As a result, Berzett's claim for injunctive relief should have been dismissed for the same reasons as his request for declaratory relief, even if the former were independent of the latter. As previously discussed, there simply remains no justiciable controversy of any sort between Berzett and the Board, and neither form of relief requested by Berzett could have any effect either on the Board's already final and completed act of the risk classification of Berzett or on any other right or responsibility of the Board towards him.[4] Accordingly, the judgment of the superior court must be vacated, and the case remanded with direction that the court dismiss Berzett's petition in its entirety.

         Judgment vacated and case remanded with direction. All the Justices concur, except Grant, J., who is disqualified.


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