CONSTITUTION OF THE UNITED STATES OF AMERICA

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ARTICLE VII. [Ratification and Establishment]

[Amendment XIV]

Section 1.

[Citizenship Rights Not to Be Abridged by States]

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

[Apportionment of Representatives in Congress]

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.

[Persons Disqualified from Holding Office]

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

[What Public Debts are Valid]

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

[Power to Enforce This Article]

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Cross references.

- Due process rights, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. I.

Privileges and immunities for all citizens, Ga. Const. 1983, Art. I, Sec. I, Para. VII, and §§ 1-2-9,1-2-10.

Penalty for hiring applicant with criminal record, § 31-7-353.

Editor's notes.

- Section II of this Amendment supersedes the first sentence of U.S. Const., art. I, sec. II, para. III. Section III of this Amendment modifies U.S. Const., art. I, secs. II and III, U.S. Const., art. II, sec. I, and U.S. Const., art. VI, by disqualifying from office those who fail to honor an oath of office. Section IV of this Amendment modifies U.S. Const., art. I, sec. VIII, para. I, by forbidding the assumption and payment of certain debts incurred by national or state governments.

Law reviews.

- For article discussing unanimity of jurors, see 2 Ga. B.J. 13 (1940). For article, "Religious Liberty and the Fourteenth Amendment," see 9 Ga. B.J. 141 (1946). For article criticizing operation of U.S. Const., Amend. 1, in relation to right of privacy, see 10 Ga. B.J. 53 (1947). For article discussing rights of Negroes under this amendment, see 10 Ga. B.J. 346 (1948). For article discussing fishing rights along maritime belt of the United States, in light of Toomer v. Witsell, 334 U.S. 385, 68 S. Ct. 1157, 92 L. Ed. 1460 (1948), see 11 Ga. B.J. 191 (1948). For article discussing jury service for women, see 11 Ga. B.J. 196 (1948). For article detailing historical use of injunctive law enforcement in equity including discussion of disadvantages of criminal injunctions, see 1 Mercer L. Rev. 1 (1949). For article, "Interstate Extradition and State Sovereignty," see 1 Mercer L. Rev. 147 (1950). For article discussing constitutionality of restrictive covenants, see 12 Ga. B.J. 277 (1950). For article suggesting county unit system discriminates against classes of voters in violation of equal protection clause, see 14 Ga. B.J. 28 (1951). For article discussing conflict between free speech guarantees and municipal ordinances protecting public tranquility, see 14 Ga. B.J. 191 (1951). For article "Free Speech and the Interest in Local Law and Order," see 1 J. of Pub. L. 41 (1952). For article, "Constitutionality of Economic Regulations," see 2 J. of Pub. L. 98 (1953). For article, "Segregation in the Public Schools," see 3 J. of Pub. L. 5 (1954). For article, "The School Segregation Decision: A Legal Analysis," see 3 J. of Pub. L. 83 (1954). For article, "Compulsory Legal Segregation in the Public Schools, with Special Reference to Georgia," see 5 Mercer L. Rev. 211 (1954). For article, "Segregation in the Public Schools of Georgia," see 16 Ga. B.J. 417 (1954). For article, "School Systems, Segregation and the Supreme Court," see 6 Mercer L. Rev. 189 (1955). For article, "The Discriminatory Effect of Multiple State Taxation of Interstate Carriers," see 5 J. of Pub. L. 327 (1956). For article, "Crime Comic Books: Government Control and Their Impact on Juvenile Conduct," see 7 Mercer L. Rev. 331 (1956). For article, "Patterns of Social Legislation: Reflections on the Welfare State," see 6 J. of Pub. L. 3 (1957). For article analyzing and criticizing aid to dependent children program and its constitutionality, see 6 J. of Pub. L. 25 (1957). For article, "Judicial Review in General Assistance," see 6 J. of Pub. L. 100 (1957). For article, "The Law of the Land," focusing on the role of the Supreme Court, see 6 J. of Pub. L. 444 (1957). For article discussing the impact of the Supreme Court's holding in Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 67 S. Ct. 461, 92 L. Ed. 649 (1948), as to the use of public schools for religion classes, see 6 J. of Pub. L. 455 (1957). For article surveying the law in Georgia on admissions, see 8 Mercer L. Rev. 252 (1957). For article criticizing United States v. Costello, 145 F. Supp. 892 (S.D.N.Y. 1956), holding the privilege against self-incrimination does not obtain in denaturalization proceedings due to the noncriminal nature of such proceedings, see 8 Mercer L. Rev. 368 (1957). For article opposing Supreme Court's interpreting U.S. Const., Amend. 5, and this amendment to forbid segregation of the races as judicial usurpation of the legislative power, see 19 Ga. B.J. 321 (1957). For article, "Jury Trials in Contempt Cases," see 20 Ga. B.J. 297 (1957). For article arguing against constitutional justification for the sending of federal troops to Little Rock, Arkansas and the federalization of Arkansas troops, see 20 Ga. B.J. 325 (1957). For article, "Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court," see 9 Mercer L. Rev. 253 (1958). For article, "Due Process of Law Yesterday, Today and Tomorrow," see 21 Ga. B.J. 193 (1958). For article, "The Right of Confrontation: Its History and Modern Dress," see 8 J. of Pub. L. 381 (1959). For article, "Interpreting the Georgia Constitution Today," see 10 Mercer L. Rev. 219 (1959). For article discussing convergence of standards governing limits of state's personal jurisdiction and applicability of state substantive law, see 9 J. of Pub. L. 282 (1960). For article, "The Length of the Long Arm," see 9 J. of Pub. L. 293 (1960). For article, "The School Segregation Cases," see 23 Ga. B.J. 9 (1960). For article suggesting basis for federally-imposed integration policies lies in the unconstitutional creation of this amendment, see 23 Ga. B.J. 228 (1960). For article, "Choice of Law and the Constitution," see 10 J. of Pub. L. 289 (1961). For article discussing concept of judicial neutrality in relation to the school desegregation cases, see 11 J. of Pub. L. 48 (1962). For article discussing federalism under the Constitution, see 24 Ga. B.J. 352 (1962). For article, "The Supreme Court and State Coerced Confessions," see 12 J. of Pub. L. 53 (1963). For article, "A Stream Polluted at Its Source: The Georgia County Unit System," see 12 J. of Pub. L. 86 (1963). For article discussing the Georgia county unit case of 1963, Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), see 25 Ga. B.J. 367 (1963). For article, "The Fourteenth Amendment and Confessions of Guilt: Role of the Supreme Court," see 15 Mercer L. Rev. 309 (1964). For article characterizing nonviolent demonstrations on the property of another as illegitimate exercises of the freedom of speech and espousing the "right not to listen," see 16 Mercer L. Rev. 389 (1965). For article discussing discrimination in public accommodations, see 17 Mercer L. Rev. 338 (1965). For article discussing this amendment's intent to guard against discriminatory actions by state officials and not private citizens, see 17 Mercer L. Rev. 352 (1965). For article, "Changing Constitutional Concepts in Criminal Law and Procedure," see 1 Ga. St. B.J. 421 (1965). For article, "The Indigent Defendant in Georgia Prior to Gideon v. Wainwright," see 2 Ga. St. B.J. 207 (1965). For article, "The Legal Status of the American Communist Party: 1965," see 15 J. of Pub. L. 94 (1966). For article discussing former Justice Harlan's use of history in approaching the problem of state legislative apportionment, see 15 J. of Pub. L. 181 (1966). For article supporting the adoption of comprehensive right to counsel legislation, see 3 Ga. St. B.J. 157 (1966). For article, "The Supreme Court, the Individual and the Criminal Process," see 1 Ga. L. Rev. 386 (1967). For article, "Federalism in Current Perspective," see 1 Ga. L. Rev. 586 (1967). For article, "Reapportionment and Local Government," see 1 Ga. L. Rev. 596 (1967). For article, "The Right to Hold Public Office and the Fourteenth and Fifteenth Amendments," see 18 Mercer L. Rev. 367 (1967). For article, "The Right to Denounce Public Officials in England and the United States," see 17 J. of Pub. L. 78 (1968). For article, "Police Interrogation and the Supreme Court: An Inquiry into the Limits of Judicial Policy-Making," see 17 J. of Pub. L. 241 (1968). For article, "Law and Social Change: The Dynamics of the 'State Action' Doctrine," see 17 J. of Pub. L. 258 (1968). For article, "The Continuing Challenge of the Fourteenth Amendment," see 3 Ga. L. Rev. 1 (1968). For article discussing application of the "one-man-one-vote" rule to municipal governments, see 3 Ga. L. Rev. 110 (1968). For article, "Judicial Renunciation of the Political Questions Doctrine for Reapportionment: The Case of Local Government," see 19 Mercer L. Rev. 312 (1968). For article discussing functional broadening of Congress' delegated powers and its effect on civil liberties, see 18 J. of Pub. L. 103 (1969). For article, "Constitutional Rights, Tribal Justice, and the American Indian," see 18 J. of Pub. L. 311 (1969). For article discussing the movement for the recognition and protection of human rights in the United States, see 3 Ga. L. Rev. 651 (1969). For article discussing Juvenile Court System and proposing due process reforms to protect juveniles, see 20 Mercer L. Rev. 400 (1969). For article, "Justice Black and the Intentions of the Framers of the Fourteenth Amendment's First Section: The Bill of Rights and the States," see 20 Mercer L. Rev. 432 (1969). For article discussing the constitutionality of imposing harsher sentences upon defendants found guilty in new trial after appeal, see 6 Ga. St. B.J. 183 (1969). For article, "Allegedly Disruptive Student Behavior and the Legal Authority of School Officials," see 19 J. of Pub. L. 209 (1970). For article analyzing relationship of religion and government in United States from a sociological and theological perspective, see 19 J. of Pub. L. 283 (1970). For article, "A Review of Georgia's Probation Laws," see 6 Ga. St. B.J. 255 (1970). For article, "Reapportionment Recapitulated: 1960-1970," see 7 Ga. St. B.J. 191 (1970). For article considering the power of the United States House of Representatives to expel a member and the power of the judiciary to review such an expulsion, see 5 Ga. L. Rev. 203 (1971). For article, "The Principle of Nondivisiveness and the Constitutionality of Public Aid to Parochial Schools," see 5 Ga. L. Rev. 429 (1971). For article discussing the evolution of municipal annexation law in Georgia in light of Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 178 S.E.2d 868 (1970), see 5 Ga. L. Rev. 499 (1971). For article, "Federalizing Through the Franchise: The Supreme Court and Local Government," see 6 Ga. L. Rev. 34 (1971). For article on the judicial development of this amendment's due process clause and the selective incorporation of the Bill of Rights, see 22 Mercer L. Rev. 533 (1971). For article discussing due process in juvenile court procedures in California and Georgia, in light of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), see 8 Ga. St. B.J. 9 (1971). For article discussing equal protection in public school financing through taxation, in light of Serrano v. Priest, 5 Cal. 3d 584, 96 Cal. Rptr. 601, 487 P.2d 1241 (1971), see 21 J. of Pub. L. 23 (1972). For article discussing equal protection and access to the judicial system, see 6 Ga. L. Rev. 247 (1972). For article, "State Action and Civil Rights," see 23 Mercer L. Rev. 519 (1972). For article, "Fourteenth Amendment Procedural Due Process: From the 'Fair Trial' Rule to Selective Incorporation," see 9 Ga. St. B.J. 157 (1972). For article, "Privacy in the Corporate State: A Constitutional Value of Dwindling Significance," see 22 J. of Pub. L. 3 (1973). For article, "Racial Gerrymandering and Southern State Legislative Redistricting: Attorney General Determinations Under the Voting Rights Act," see 22 J. of Pub. L. 37 (1973). For article discussing federal Fair Credit Reporting Act, and the effect credit reporting has upon the constitutional right to privacy, see 22 J. of Pub. L. 67 (1973). For article discussing due process restraints on ex parte injunctions, see 7 Ga. L. Rev. 246 (1973). For article, "Equal Protection for Juveniles: The Present Status of Sex-Based Discrimination in Juvenile Court Laws," see 7 Ga. L. Rev. 494 (1973). For article discussing the legal and philosophical bases of the "fair trial" construction of procedural due process, repudiated by the Warren Court in favor of selective incorporation of the Bill of Rights, see 24 Mercer L. Rev. 621 (1973). For article, "The Response of Georgia's Public School Systems to the School Prayer Decisions: 'Whipping a Dead Horse,"' see 9 Ga. St. B.J. 425 (1973). For article advocating personal privacy as determinative test for standing in suppression of illegally seized evidence, see 23 Emory L.J. 111 (1974). For article, "The Changing Parameters of Substantive Equal Protection: From the Warren to the Burger Era," see 23 Emory L.J. 657 (1974).

For article contrasting judicial review applying "one person, one vote" doctrine between Warren and Burger courts, see 23 Emory L.J. 701 (1974). For article discussing treatment of substantive equal protection by Burger court, see 23 Emory L.J. 765 (1974). For article discussing judicial review of "one person, one vote" under Burger court, see 23 Emory L.J. 777 (1974). For article, "The Supreme Court and Civil Liberties: 1973-1974," see 23 Emory L.J. 905 (1974). For article as to the power of Georgia local governments to regulate the trades and occupations of its citizens, see 9 Ga. L. Rev. 115 (1974). For article, "Prisoners' Perceptions of their Constitutional Rights: A Client's View of the World of Criminal Justice," see 24 Emory L.J. 67 (1975). For article, "The Supreme Court and Civil Liberties: 1974-1975," see 24 Emory L.J. 937 (1975). For article discussing prejudgment garnishment and procedural due process, see 9 Ga. L. Rev. 589 (1975) (note prior to 1976 revision of garnishment law). For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article discussing federal taxing law in connection with land use planning, see 10 Ga. L. Rev. 53 (1975). For article discussing equal protection problems in annexation procedure providing merely for unilateral approval, see 10 Ga. L. Rev. 169 (1975). For article discussing Georgia's prejudgment garnishment law, prior to the enactment of the 1976 Acts, in light of North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975), see 11 Ga. St. B.J. 242 (1975). For article, "Toward a Constitutional Definition of Racial Discrimination," see 25 Emory L.J. 509 (1976). For article discussing constitutional challenges to at-large elections on grounds of dilution of the vote, see 10 Ga. L. Rev. 353 (1976). For article proposing constitutional bases for a right to adequate health care, see 10 Ga. L. Rev. 391 (1976). For article suggesting possible constitutional vulnerability of Georgia statutes concerning succession by illegitimates, see 10 Ga. L. Rev. 447 (1976). For article, "A Realistic Reexamination of Rezoning Procedure: The Complementary Requirements of Due Process and Judicial Review," see 10 Ga. L. Rev. 753 (1976). For article discussing the extent and limitations of the equal protection clause as it applies to state attempts to restrict the investment of resident and nonresident aliens in domestic corporations, see 27 Mercer L. Rev. 615 (1976). For article discussing preliminary hearings in felony cases as necessary to satisfy due process requirements, see 12 Ga. St. B.J. 207 (1976). For article discussing Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976), holding Georgia's notice requirement for year's support unconstitutional prior to 1977 revision, see 13 Ga. St. B.J. 85 (1976). For article, "Sexual Privacy - Recent U.S. Supreme Court Decisions," see 13 Ga. St. B.J. 93 (1976). For article, "Veterans' Preferences in Public Employment: Unconstitutional Gender Discrimination?" see 26 Emory L.J. 13 (1977). For article analyzing commercial and government deprivation cases involving procedural due process, and advocating application of the same constitutional standard to both, see 11 Ga. L. Rev. 477 (1977). For article critically analyzing the various elements constitutionally required for prejudgment seizure of a debtor's property, focusing on § 9-503 of the U.C.C., see 28 Mercer L. Rev. 665 (1977). For article discussing due process problems with Georgia's post-judgment garnishment procedures, in light of City Fin. Co. v. Winston, 238 Ga. 10, 231 S.E.2d 45 (1976), see 13 Ga. St. B.J. 144 (1977). For article discussing constitutional rights of students to form religious clubs in the public school setting, and possible establishment problems, see 27 Emory L.J. 3 (1978). For article, "Toward a Perspective on the Death Penalty Cases," see 27 Emory L.J. 469 (1978). For article, "Federal Antibias Legislation and Academic Freedom: Some Problems with Enforcement Procedures," see 27 Emory L.J. 609 (1978). For article, "The Supreme Court on Privacy and the Press," see 12 Ga. L. Rev. 215 (1978). For article discussing the application of minimum contacts standard to state court assertion of quasi-in-rem jurisdiction, in light of Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), see 29 Mercer L. Rev. 655 (1978). For article discussing the impact on bond issues of challenges to voting procedures, see 15 Ga. St. B.J. 15 (1978). For article, "In their own image: The reframing of the due process clause by the United States Supreme Court," see 13 Ga. L. Rev. 479 (1979). For article, "Abortion, Poverty and the Equal Protection of the Laws," see 13 Ga. L. Rev. 505 (1979). For article discussing the courts' interpretation of "liberty," see 13 Ga. L. Rev. 1447 (1979). For article discussing federal civil litigation, with respect to U.S. Const., Art. III, U.S. Const., Amend. 1, this amendment and U.S. Const., Amend. 15 issues, see 30 Mercer L. Rev. 821 (1979). For article, "Status and Freedom in American Constitutional Law," see 29 Emory L.J. 3 (1980). For article discussing the concept of a mandatory public service obligation for lawyers, see 29 Emory L.J. 997 (1980). For article surveying 1979 Fifth Circuit decisions concerning various problems of this amendment, see 31 Mercer L. Rev. 885 (1980). For article criticizing the use of compensation as a remedy for invalid land-use regulations, see 15 Ga. L. Rev. 559 (1981). For article, "Constitutional Criminal Litigation," see 32 Mercer L. Rev. 993 (1981). For article, "The Bloodless Revolution: The Role of the Fifth Circuit in the Integration of the Deep South," see 32 Mercer L. Rev. 1149 (1981). For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981). For article, "Regulation of Advertising by Lawyers in Georgia," see 18 Ga. St. B.J. 6 (1981). For article discussing the insanity defense and propositions for its abolishment or modifications, see 31 Emory L.J. 9 (1982). For article discussing the role of the psychiatrist in the criminal process, see 31 Emory L.J. 61 (1982). For article, "Antimonopoly Tradition Under the Ninth and Fourteenth Amendments: Slaughter-House Cases Re-examined," see 31 Emory L.J. 785 (1982). For article discussing congressional legislation which seeks to overturn or frustrate constitutional decisions of the Supreme Court of the United States, see 33 Mercer L. Rev. 707 (1982). For article, "The 'Forum State Interest' Factor in Personal Jurisdiction Adjudication," see 33 Mercer L. Rev. 769 (1982). For article discussing Eleventh Circuit court cases in the year 1981 dealing with constitutional civil law, see 33 Mercer L. Rev. 1061 (1982). For article, "The Concept of the Doctrine of the Court in Constitutional Law," see 16 Ga. L. Rev. 357 (1982). For article, "Equal Protection and Personal Rights: The Regime of the 'Discrete and Insular Minority'," see 16 Ga. L. Rev. 407 (1982). For article, "The Fracture of Good Order: An Argument for Allowing Lawyers to Counsel the Civilly Disobedient," see 17 Ga. L. Rev. 109 (1982). For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982). For survey article on evidence, see 34 Mercer L. Rev. 163 (1982). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For article, "The United States Supreme Court as Home Rule Wrecker," see 34 Mercer L. Rev. 363 (1982). For article discussing the historical and rhetorical significance of the concept of equality, see 17 Ga. L. Rev. 245 (1983). For article discussing full faith and credit and federalism in choice of law questions, see 34 Mercer L. Rev. 709 (1983). For article proposing an issue-by-issue analysis for resolution of choice of law questions, see 34 Mercer L. Rev. 731 (1983). For article surveying 1982 Eleventh Circuit cases involving constitutional civil law, see 34 Mercer L. Rev. 1221 (1983). For annual survey of constitutional law, see 35 Mercer L. Rev. 73 (1983). For article, "Substantive Due Process and the Scope of Constitutional Torts," see 18 Ga. L. Rev. 201 (1984). For article, "Constraints on Equal Access to Fundamental Liberties: Another Look at Professor Michelman's Theory of Minimum Protection," see 19 Ga. L. Rev. 1041 (1985). For article, "The Georgia Bill of Rights: Dead or Alive?," see 34 Emory L.J. 341 (1985). For article, "The Bail Reform Act of 1984," see 34 Emory L.J. 685 (1985). For article, "Problems in Search of Principles: The First Amendment in the Supreme Court from 1791-1930," see 35 Emory L.J. 59 (1986). For article, "The Right to Refuse Psychiatric Treatment: Law and Medicine at the Interface," see 35 Emory L.J. 139 (1986). For article, "Justice and Juror," see 20 Ga. L. Rev. 257 (1986). For article, "Executing Those Who Kill Blacks: An Unusual Case Study," see 37 Mercer L. Rev. 911 (1986). For article, "Court Ordered Surgery to Retrieve Evidence in Georgia in Light of the Supreme Court Decision in Winston v. Lee," see 37 Mercer L. Rev. 1005 (1986). For article, "Prosecutorial Misconduct During Closing Argument: The Arts of Knowing When and How to Object and of Avoiding the 'Invited Response' Doctrine," see 37 Mercer L. Rev. 1033 (1986). For survey of 1985 Eleventh Circuit cases on civil constitutional law, see 37 Mercer L. Rev. 1253 (1986). For survey of 1985 Eleventh Circuit cases on constitutional criminal procedure, see 37 Mercer L. Rev. 1275 (1986). For survey of 1985 Eleventh Circuit cases on employment discrimination, see 37 Mercer L. Rev. 1315 (1986). For survey of 1985 Eleventh Circuit cases on evidence, see 37 Mercer L. Rev. 1367 (1986). For survey of 1985 Eleventh Circuit cases on trial practice and procedure, see 37 Mercer L. Rev. 1505 (1986). For article, "Lawyers Who Represent Local Governments", see 23 Ga. St. B.J. 58 (1987). For article, "Contempt of Court in Georgia", see 23 Ga. St. B.J. 66 (1987). For article, "Georgia's Domestic Relations Long-Arm Statute, Circa 1986", see 23 Ga. St. B.J. 74 (1987). For article, "Cable Theft: The Problem, The Need for Useful State Legislation and a Proposed Solution for Georgia," see 35 Emory L.J. 643 (1986). For article, "Constitutional Judgment on Non-public School Aid: Fresh Guidelines or New Roadblocks?," see 35 Emory L.J. 795 (1986). For article, "Burden-Shifting Criminal Jury Instructions in Georgia," see 38 Mercer L. Rev. 1 (1986). For article, "Amended Section 2 of the Voting Rights Act: What Is the Intent of the Results Test?," see 36 Emory L.J. 1 (1987). For lecture on law and the unreasonable person, see 36 Emory L.J. 181 (1987). For annual survey of law of business associations, see 38 Mercer L. Rev. 57 (1986). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). For survey of 1986 Eleventh Circuit cases on employment discrimination, see 38 Mercer L. Rev. 1213 (1987). For survey of 1986 Eleventh Circuit cases on trial practice and procedure, see 38 Mercer L. Rev. 1371 (1987). For article, "Truth and Uncertainty: Legal Control of the Destruction of Evidence," see 36 Emory L.J. 1085 (1987). For essay, "Standing and Rights," see 36 Emory L.J. 1195 (1987). For article, "The Postdeprivation Remedy Doctrine of Parratt v. Taylor and its Application to Cases of Land Use Regulation," see 21 Ga. L. Rev. 601 (1987). For article, "On Reintegrating Workers' Compensation and Employers' Liability," see 21 Ga. L. Rev. 843 (1987). For article, "An Equal Opportunity Scorecard," see 21 Ga. L. Rev. 1007 (1987). For article, "Affirmative Action: A Needed Remedy," see 21 Ga. L. Rev. 1043 (1987). For article, "Affirmative Action in EEOC Litigation," see 21 Ga. L. Rev. 1059 (1987).

For article, "Affirmative Action from a State Perspective: Old Myths and New Realities," see 21 Ga. L. Rev. 1095 (1987). For article, "The False Civil Rights Vision," see 21 Ga. L. Rev. 1119 (1987). For article, "Affirmative Action After Stotts," see 21 Ga. L. Rev. 1141 (1987). For article, "Georgia and the Development of Constitutional Principles: An Essay in Honor of the Bicentennial," see 24 Ga. St. B.J. 6 (1987). For article, "The Constitution in the Supreme Court: 1946-1953," see 37 Emory L.J. 249 (1988). For article, "Legislative and Judicial Regulation of Junkyards," see 39 Mercer L. Rev. 461 (1988). For article, "The Precedential Value of Unpublished Judicial Opinions," see 39 Mercer L. Rev. 477 (1988). For article, "Religious Symbols and the Establishment of a National 'Religion,' " see 39 Mercer L. Rev. 495 (1988). For article, "Chicago Exposition: The New American Jurisprudential Writing as a Cultural Literature," see 39 Mercer L. Rev. 767 (1988). For article, "Dworkin's Hermeneutics," see 39 Mercer L. Rev. 851 (1988). For survey of 1987 Eleventh Circuit cases on administrative law, see 39 Mercer L. Rev. 1057 (1988). For survey of 1987 Eleventh Circuit cases on appellate practice and procedure, see 39 Mercer L. Rev. 1129 (1988). For survey of 1987 Eleventh Circuit cases on constitutional law - civil, see 39 Mercer L. Rev. 1169 (1988). For survey of 1987 Eleventh Circuit cases on constitutional criminal procedure, see 39 Mercer L. Rev. 1187 (1988). For survey of 1987 Eleventh Circuit cases on employment discrimination, see 39 Mercer L. Rev. 1215 (1988). For survey of Eleventh Circuit cases on evidence, see 39 Mercer L. Rev. 1259 (1988). For article, "Is Disparity a Problem," see 22 Ga. L. Rev. 283 (1988). For article, "Rethinking the Citizen As Prosecutor Model of Environmental Enforcement Under the Clean Water Act: Some Overlooked Problems of Outcome-Independent Values," see 22 Ga. L. Rev. 337 (1988). For article, "Exclusion of Evidence in Federal Prosecutions on the Basis of State Law," see 22 Ga. L. Rev. 667 (1988). For article, "The Court at the Crossroads: Runyon, Section 1981 and the Meaning of Precedent," see 37 Emory L.J. 949 (1988). For article, "Juvenileness: A Single-Edged Constitutional Sword," see 22 Ga. L. Rev. 949 (1988). For article, "The Confused Constitutional Status and Meaning of Parental Rights," see 22 Ga. L. Rev. 975 (1988). For article, "A Study of the Unified Appeal Procedure in Georgia," see 23 Ga. L. Rev. 185 (1988). For annual survey of constitutional law, see 40 Mercer L. Rev. 117 (1988). For article surveying 1988 constitutional criminal procedure decisions by the Eleventh Circuit, see 40 Mercer L. Rev. 1225 (1989). For article, "Children, Poverty and State Constitutions," see 38 Emory L.J. 577 (1989). For article, "More Myths of Parity: State Court Forums and Constitutional Actions for the Right to Shelter," see 38 Emory L.J. 615 (1989). For article, "A Senate of Five: An Essay on Sexuality and Law," see 23 Ga. L. Rev. 859 (1989). For article, "Securities Regulation and the First Amendment," see 24 Ga. L. Rev. 223 (1990). For article, "Federal and State 'State Action': The Undercritical Embrace of a Hypercriticized Doctrine," see 24 Ga. L. Rev. 327 (1990). For article, "Local Subdivision Regulation: Formulaic Constraints in an Age of Discretion," see 24 Ga. L. Rev. 525 (1990). For article, "Feminism and the Limits of Equality," see 24 Ga. L. Rev. 803 (1990). For essay, "The Prospects for a Revival of Conservative Activism in Constitutional Jurisprudence," see 24 Ga. L. Rev. 629 (1990). For article, "Signing into Heaven: Zinermon v. Burch, Federal Rights, and State Remedies Thirty Years After Monroe v. Pape," see 40 Emory L.J. 1 (1991). For article, "Religious Exemptions As Affirmative Action," see 40 Emory L.J. 77 (1991). For article, "The Right to 'Plead Out' Issues and Block the Admission of Prejudicial Evidence: The Differential Treatment of Civil Litigants and the Criminal Accused As A Denial of Equal Protection," see 40 Emory L.J. 341 (1991). For article, "Spallone v. United States: When Constitutional Principles Collide," see 7 Ga. St. U.L. Rev. 527 (1991). For annual eleventh circuit survey of constitutional law - civil, see 42 Mercer L. Rev. 1313 (1991). For article, "Criminal Discovery: Disclosure of Police Internal Affairs Division Documents and Police Personnel Files," see 29 Ga. St. B.J. 34 (1992). For annual eleventh circuit survey of constitutional law - civil, see 43 Mercer L. Rev. 1075 (1992). For article, "Individual Rights and the Powers of Government," see 27 Ga. L. Rev. 343 (1993). For article, "The Peremptory Challenge: A Lost Cause?" see 44 Mercer L. Rev. 579 (1993). For article, "Constitutional Civil Law," see 44 Mercer L. Rev. 1107 (1993). For article, "Constitutional Criminal Law," see 44 Mercer L. Rev. 1143 (1993). For article, "Annual Eleventh Circuit Survey January 1, 1993 - December 31, 1993: Constitutional Civil Law," see 45 Mercer L. Rev. 1217 (1994). For article, "Annual Eleventh Circuit Survey January 1, 1993 - December 31, 1993: Constitutional Criminal Law," see 45 Mercer L. Rev. 1243 (1994). For article, "The Power of Government to Regulate Class Discrimination by Religious Entities: A Study in Conflicting Values," see 43 Emory L.J. 1189 (1994). For annual survey article on criminal law and procedure, see 46 Mercer L. Rev. 153 (1994). For article, "1994 Eleventh Circuit Survey: Constitutional Civil Law," see 46 Mercer L. Rev. 1275 (1995). For article, "Liberty and the Constitution," see 29 Ga. L. Rev. 585 (1995). For survey of 1995 Eleventh Circuit cases on constitutional civil law, see 47 Mercer L. Rev. 745 (1996). For survey of 1995 Eleventh Circuit cases on employment discrimination, see 47 Mercer L. Rev. 797 (1996). For survey of 1995 Eleventh Circuit cases on evidence, see 47 Mercer L. Rev. 837 (1996). For survey of 1995 Eleventh Circuit cases on federal sentencing guidelines, see 47 Mercer L. Rev. 851 (1996). For article, "The Harlan Dissent: The Road Not Taken -- An American Tragedy", see 12 Ga. St. U.L. Rev. 951 (1996). For article, "Only Partially Color-Blind: John Marshall Harlan's View of Race and the Constitution", see 12 Ga. St. U.L. Rev. 973 (1996). For article, "The Ghosts of Homer Plessy", see 12 Ga. St. U.L. Rev. 1037 (1996). For article, "Segregating the New South: The Origins and Legacy of Plessy v. Ferguson", see 12 Ga. St. U.L. Rev. 1017 (1996). For article, "Plessy's Legacy: Desegregating the Eurocentric Curriculum", see 12 Ga. St. U.L. Rev. 1151 (1996). For article, "The Gift of Hopwood: Diversity and the Fife and Drum March Back to the Nineteenth Century," see 34 Ga. L. Rev. 291 (1999). For article, "Employment Law Responsibilities of Public Employers in Georgia," see 5 Ga. St. B.J. 10 (1999). For article, "Why Georgia's Child Support Guidelines Are Unconstitutional," see 6 Ga. St. B.J. 8 (2000). For article, "Constitutionally Sound Objectives and Means," see 6 Ga. St. B.J. 16 (2000). For article, "Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, and Freedom of Speech," see 51 Mercer L. Rev. 583 (2000). For article, "Mt. Healthy and Causation-in-Fact: The Court Still Doesn't Get It!" see 51 Mercer L. Rev. 603 (2000). For article, "An Essay on Texas v. Lesage," see 51 Mercer L. Rev. 621 (2000). For article, "Mt. Healthy, Causation, and Affirmative Defenses," see 51 Mercer L. Rev. 637 (2000). For article surveying 1999 Eleventh Circuit cases involving constitutional criminal procedure, see 51 Mercer L. Rev. 1089 (2000). For article surveying 1999 Eleventh Circuit cases on federal sentencing guidelines, see 51 Mercer L. Rev. 1189 (2000). For article, "Campbell v. Georgia: Mandatory Minimum Sentencing Survives Separation of Power Attacks, Remaining a Viable Option for the Legislature in Its War on Crime," see 17 Ga. St. U.L. Rev. 637 (2001). For note, "Giving Taxpatriates the Boot-permanently?: The Reed Amendment Unconstitutionally Infringes on the Fundamental Right to Expatriate," see 36 Ga. L. Rev. 835 (2002). For article, "Statutory Civil Rights," see 53 Mercer L. Rev. 1499 (2002). For article, "Why Punitive Damages Are Unconstitutional," see 53 Emory L.J. 1 (2004). For article, "Arbitration and the Batson Principle," see 38 Ga. L. Rev. 1145 (2004). For article, "The Affirmative Action Debate Continues: Bakke and Its Progeny Revisited," see 9 Ga. St. B.J. 24 (2004). For article, "General Intangible or Commercial Tort: Moral Rights and State-Based Intellectual Property as Collateral under U.C.C. Revised Article 9," see 22 Bank. Dev. J. 95 (2005). For article, "Constitutional Interpretation, Coercive Interrogation, and Civil Rights Litigation after Chavez v. Martinez," see 39 Ga. L. Rev. 733 (2005). For article, "Data Matching, Data Mining, and Due Process," see 40 Ga. L. Rev. 85 (2005). For article, "Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence," see 34 Ga. J. Int'l & Comp. L. 557 (2006). For article, "Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law," see 57 Mercer L. Rev. 511 (2006). For article, "Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression," see 56 Emory L.J. 815 (2007). For article, "How New Genetic Technologies Will Transform Roe v. Wade," see 56 Emory L.J. 843 (2007). For article, "Abortion, Equality, and Administrative Regulation," see 56 Emory L.J. 865 (2007). For article, "The Unitary Fourteenth Amendment," see 56 Emory L.J. 907 (2007). For article, "The Next Step After Roe: Using Fundamental Rights, Equal Protection Analysis to Nullify Restrictive State-Level Abortion Legislation," see 56 Emory L.J. 1173 (2007). For article, "Lawrence v. Geduldig: Regulating Women's Sexuality," see 56 Emory L.J. 1235 (2007). For article, "A Comparative Analysis of Unconscious and Institutional Discrimination in the United States and Britain," see 36 Ga. J. Int'l & Comp. L. 89 (2007). For article, "Redefining the Right to Be Let Alone: Privacy Rights and the Constitutionality of Technical Surveillance Measures in Germany and the United States," see 35 Ga. J. Int'l & Comp. L. 433 (2007). For article, "Due Process Rights Before EU Agencies: The Rights of Defense," see 37 Ga. J. Int'l & Comp. L. 1 (2008). For article, "Parents Involved in Community Schools v. Seattle School District No. 1 and Equal Protection: An Examination of Context," see 13 Ga. St. B.J. 16 (2008). For article, "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment," see 58 Emory L.J. 585 (2009). For article, "Mining for Gold: The Constitutional Court of South Africa's Experience with Comparative Constitutional Law," see 37 Ga. J. Int'l & Comp. L. 219 (2009). For article, "The Public's Domain in Trademark Law: A First Amendment Theory of the Consumer," see 43 Ga. L. Rev. 451 (2009). For article, "The Original Meaning of the Privileges and Immunities Clause," see 43 Ga. L. Rev. 1117 (2009). For article, "State-Created Property and Due Process of Law: Filling the Void Left by Engquist v. Oregon Department of Agriculture," see 44 Ga. L. Rev. 161 (2009). For article, "Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract," see 60 Mercer L. Rev. 563 (2009). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009). For article, "Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution," see 26 Ga. St. U.L. Rev. 417 (2010). For article, "Pensions and Chapter 9: Can Municipalities Use Bankruptcy to Solve Their Pension Woes?," see 27 Emory Bankr. Dev. J. 365 (2011). For article, "Gelding the Lily: How the Bankruptcy Code's Promotion of Marriage Leaves it Impotent," see 28 Emory Bankr. Dev. J. 31 (2011). For article, "Education: (Re)Considering Race in the Desegregation of Higher Education," see 46 Ga. L. Rev. 521 (2012). For article, "Education: Education's Elusive Future, Storied Past, and the Fundamental Inequities Between," see 46 Ga. L. Rev. 557 (2012). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For article, "Having it Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools," see 63 Emory L. J. 303 (2013). For article, "Symposium on Evidence Reform: Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence," 47 Ga. L. Rev. 723 (2013). For article, "Courts: Juvenile Justice Reform," see 30 Ga. St. U. L. Rev. 63 (2013). For article, "(Mis)Conceptions of the Corporation," see 29 Ga. St. U.L. Rev. 731 (2013). For article, "Commerce, Death Panels, and Broccoli: or Why the Activity/Inactivity Distinction in the Health Care Case was Really About the Right to Bodily Integrity," see 29 Ga. St. U. L. Rev. 897 (2013). For article, "Sentencing Adjudication: Lessons from Child Pornography Policy Nullification," see 30 Ga. St. U.L. Rev. 375 (2014). For article, "Disability Constitutional Law," see 63 Emory L.J. 527 (2014). For article, "Jurisdictional Discrimination and Full Faith and Credit," see 63 Emory L.J. 1023 (2014). For article, "Original Misunderstandings: The Implications of Misreading History in Jones," see 31 Ga. St. U.L. Rev. 471 (2015). For article, "Polygamous Unions? Charting the Contours of Marriage Law's Frontier," see 64 Emory L.J. 1669 (2015). For article, "Why Two In One Flesh? The Western Case for Monogamy Over Polygamy," see 64 Emory L.J. 1675 (2015). For article, "Should Civil Marriage Be Opened Up to Multiple Parties," see 64 Emory L.J. 1747 (2015). For article, "Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage," see 64 Emory L.J. 1977 (2015). For article, "The Evolution of Plural Parentage Applying Vulnerability Theory to Polygamy and Same Sex Marriage," see 64 Emory L.J. 2047 (2015). For article, "Polygyny and Violence Against Women," see 64 Emory L.J. 1767 (2015). For article, "Diversity, Democracy & Pluralism: Confronting the Reality of Our Inequality," see 66 Mercer L. Rev. 577 (2015). For article, "Freedom of Conscience in War Time: World War I and the Limits of Civil Liberties," see 65 Emory L.J. 1051 (2016). For article, "Secret Jurisdiction," see 65 Emory L.J. 1313 (2016). For article, "What Is (And Isn't) Healthism," see 50 Ga. L. Rev. 833 (2016). For article, "The Odd Couple: How Justices Kennedy and Scalia, Together, Advanced Gay Rights in Romer v. Evans," see 67 Mercer L. Rev. 305 (2016). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited," see 68 Mercer L. Rev. 35 (2016). For article, "Injustice Under Law: Perpetuating and Criminalizing Poverty Through the Courts," see 33 Ga. St. U.L. Rev. 695 (2017). For article, "Compliance Requires Inspection: The Failure of Gender Equal Pay Efforts in the United States," see 68 Mercer L. Rev. 445 (2017). For article, "Originalism and Level of Generality," see 51 Ga. L. Rev. 485 (2017). For article, "Disparate Impact in Big Data Policing," see 52 Ga. L. Rev. 109 (2017).

For note discussing taxation of shares of stock, see 1 Ga. L. Rev. No. 2, p. 41 (1927). For note "Racial Restrictive Covenants: Damages for Breach," see 2 J. of Pub. L. 466 (1953). For note discussing the use of eminent domain powers in slum clearance and owners' rights under U.S. Const., Amend. 5 and this amendment, see 3 J. of Pub. L. 261 (1954). For note, "Constitutionality of 'Segregation by Indirection' Through Sale or Lease of Public Recreational Facilities," see 8 Mercer L. Rev. 355 (1957). For note, "The Posture of Former Jeopardy on Retrial," see 9 Mercer L. Rev. 354 (1958). For note discussing whether the imposition of liability for support of patients in state mental institutions upon their estates or relatives violates this amendment, see 12 Mercer L. Rev. 355 (1961). For note on constitutionality of former Georgia practice forbidding questioning of accused by his own attorney during unsworn statement, see 13 Mercer L. Rev. 265 (1961). For note on statutory restrictions upon corporate ownership of real property, see 13 Mercer L. Rev. 410 (1962). For note discussing constitutionality of racially restrictive covenants in deeds, see 25 Ga. B.J. 232 (1962). For note discussing retroactive application of constitutional prohibition against unreasonable search and seizures, in light of Mapp v. Ohio, see 25 Ga. B.J. 238 (1962). For note on malapportionment and the implications of Sanders v. Gray, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), see 14 Mercer L. Rev. 401 (1963). For note criticizing court reliance on "wall of separation" doctrine in interpreting "no establishment" clause, see 25 Ga. B.J. 319 (1963). For note discussing whipping as cruel and unusual punishment, see 26 Ga. B.J. 216 (1963). For note discussing habeas corpus as a means of exerting control by the central government in protecting the constitutional rights of criminal defendants and the ramifications for federalism, see 16 Mercer L. Rev. 281 (1964). For note suggesting attorney's due process right to be compensated for representing an indigent, see 16 Mercer L. Rev. 367 (1964). For note, "Equal Protection as a Defense to Selective Law Enforcement by Police Officials," see 14 J. of Pub. L. 223 (1965). For note discussing the denial of social security benefits to dependent children pursuant to substitute father provisions as violative of due process, prior to the 1967 amendments to Art. 1, Ch. 4, T. 49 (Ga. L. 1965, p. 385), see 15 J. of Pub. L. 349 (1966). For note discussing meaning of "Public Use" and analyzing theories of excess condemnation, see 18 Mercer L. Rev. 274 (1966). For note, "Mental Health Commitment Procedures in Georgia," see 3 Ga. St. B.J. 230 (1966). For note discussing prejudicial publicity before and during trial in light of Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), see 16 J. of Pub. L. 215 (1967). For note discussing racial discrimination in jury selection, see 1 Ga. L. Rev. 674 (1967). For note discussing the constitutionality of therapeutic abortion, see 1 Ga. L. Rev. 693 (1967). For note advocating a separate obscenity standard for youth as a potential court escape route from the United States Supreme Court's "Supercensor" Role, see 1 Ga. L. Rev. 707 (1967). For note discussing constitutional issues raised by imprisonment for debt in sales of agricultural products under Ga. L. 1959, p. 143, see 18 Mercer L. Rev. 440 (1967). For note tracing judicial attempts as enumerating areas protected by the U.S. Const., Amend. 4, and advocating more uniformity, see 18 Mercer L. Rev. 447 (1967). For note suggesting the demise of the "Child Benefit" theory in regards to appropriation of public funds for transportation of pupils to private and public schools, see 18 Mercer L. Rev. 453 (1967). For note discussing constitutional problems with the bail system, see 4 Ga. St. B.J. 278 (1967). For note criticizing school policies governing student personal appearance, see 17 J. of Pub. L. 151 (1968). For note, "Substantive Due Process and Felony Treatment of Pot Smokers: The Current Conflict," see 2 Ga. L. Rev. 247 (1968). For note, "College Searches and Seizures: Privacy and Due Process Problems on Campus," see 3 Ga. L. Rev. 426 (1969). For note, "Welfare Due Process: The Maximum Grant Limitation on the Right to Survive," see 3 Ga. L. Rev. 459 (1969). For note, "Black, White, Brown and Green Color Consciousness in Public School Desegregation," see 3 Ga. L. Rev. 728 (1969). For note discussing free speech and the parameters of the concept of "state action" in light of Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968), see 20 Mercer L. Rev. 297 (1969). For note discussing operation of Implied Consent Law and constitutional issues raised by the concept, see 20 Mercer L. Rev. 489 (1969). For note discussing the constitutional origins of the substantive right to family autonomy, see 20 Mercer L. Rev. 719 (1969). For note discussing limitations on national police power, see 4 Ga. L. Rev. 359 (1970). For note, "Illegitimacy: Equal Protection and How to Enjoy It," see 4 Ga. L. Rev. 383 (1970). For note, "Selecting and Certifying National Political Convention Delegates - A Party or a State Right?" see 4 Ga. L. Rev. 875 (1970). For note on discriminatory charitable trusts in Georgia, with regard to application of the cy pres doctrine, in light of Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966), see 6 Ga. St. B.J. 428 (1970). For note, "Regulation and Ownership of the Marshlands: The Georgia Marshlands Act," see 5 Ga. L. Rev. 563 (1971). For note advocating revision of former Georgia abortion statutes, see 6 Ga. L. Rev. 168 (1971). For note discussing the constitutional implications of higher nonresident tuition fees charged by state universities, see 8 Ga. St. B.J. 86 (1971). For note advocating judicial discretion in permitting a pro se defense, see 23 Emory L.J. 523 (1974). For note discussing rights of pregnant worker under Civil Rights Act of 1964 and the equal protection clause, see 23 Emory L.J. 787 (1974). For note discussing self-incrimination in relation to mandatory reporting of illegally obtained income, see 23 Emory L.J. 1119 (1974). For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974). For note analyzing appropriate standard of proof to meet due process requirements in cases involving loss of liberty, in light of Blunt v. United States, 322 A.2d 579 (D.C. App. 1974), see 24 Emory L.J. 105 (1975). For note discussing relaxation of judicial restrictions on search incident to lawful arrest, see 24 Emory L.J. 151 (1975). For note, "Chief Justice Vinson and the Politics of Desegregation," see 24 Emory L.J. 243 (1975). For note, "Constitutionality of State Residency Requirements for Bar Admission," see 24 Emory L.J. 425 (1975). For note, "The Constitutionality of Residency Requirements for Municipal Employees," see 24 Emory L.J. 447 (1975). For note, "Application of the Fourth Amendment and the Exclusionary Rule to the Grand Jury," see 24 Emory L.J. 471 (1975). For note discussing airport noise as a "taking," see 10 Ga. L. Rev. 218 (1975). For note discussing constitutionality of zoning ordinances prohibiting clustering of adult movie theatres, in light of American Mini Theatres, Inc. v. Gribbs, 518 F.2d 1014 (6th Cir. 1975), see 10 Ga. L. Rev. 275 (1975). For note discussing exclusion of maternity benefits from disability insurance schemes in light of the equal protection clause and Title VII of the 1964 Civil Rights Act, see 25 Emory L.J. 125 (1976). For note discussing limits to prosecutor's duty to disclose exculpatory evidence to the defense, in light of United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), see 28 Mercer L. Rev. 383 (1976). For note applying first amendment free speech tests to commercial and noncommercial defamation of corporations and their products and services, see 27 Emory L.J. 755 (1978). For note discussing constitutional issues affecting executions, see 12 Ga. L. Rev. 814 (1978). For note discussing constitutional developments affecting garnishment procedures, see 12 Ga. L. Rev. 814 (1978). For note discussing constitutional issues affecting attachment procedures, see 12 Ga. L. Rev. 814 (1978). For note discussing the constitutional conflicts between civil rights and the free exercise of religion in private, racially segregated sectarian schools, see 29 Mercer L. Rev. 1099 (1978). For note discussing televised and photographic coverage of court proceedings in light of the individuals' right to a fair trial, see 29 Mercer L. Rev. 1099 (1978). For note discussing how an open end or dragnet clause within a deed to secure debt ensnares subsequent purchasers of real property in light of Commercial Bank v. Readd, 240 Ga. 519, 242 S.E.2d 25 (1978), see 30 Mercer L. Rev. 363 (1978). For note, "ERA: The Effect of Extending the Time for Ratification on Attempts to Rescind Prior Ratifications," see 28 Emory L.J. 71 (1979). For note, "Constitutionally Implied Causes of Action: A Policy of Protection, Expansion, or Restriction?," see 30 Mercer L. Rev. 1023 (1979). For note, "Due Process Rights of Minors and Parental Authority in Civil Commitment Cases," see 31 Mercer L. Rev. 617 (1980). For note, "Alien Teachers: Suspect Class or Subversive Influence?," see 31 Mercer L. Rev. 815 (1980). For note discussing abortion regulation in light of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), see 15 Ga. L. Rev. 681 (1981). For note discussing "Interstate Commerce" jurisdictional test in Sherman Act cases, in light of McLain v. Real Estate Bd., Inc., 444 U.S. 232, 100 S. Ct. 502, 62 L. Ed. 2d 441 (1980), see 15 Ga. L. Rev. 714 (1981). For note discussing an individual's fourteenth amendment shield against discriminatory state action, see 32 Mercer L. Rev. 1275 (1981). For note on United States v. Williams, 622 F.2d 830 (5th Cir. 1980), see 32 Mercer L. Rev. 1329 (1981). For note, "State standing in police misconduct cases: expanding the boundaries of parens patriae," see 16 Ga. L. Rev. 865 (1982). For note, "Constitutional Challenges to Grand Jury Fore-person-Selection Procedures," see 17 Ga. L. Rev. 153 (1982). For note, "Two Models of Prosecutorial Vindictiveness," see 17 Ga. L. Rev. 467 (1983). For note, "An Assessment of the Use of Cameras in State and Federal Courts," see 18 Ga. L. Rev. 389 (1984). For note, "United States v. Leon: The Long-Awaited Good-Faith Exception has Finally Arrived," see 36 Mercer L. Rev. 757 (1985). For note, "New York v. Quarles: A Public Safety Exception - Erosion of Miranda Under the Burger Court," see 36 Mercer L. Rev. 1059 (1985). For note, "Clark v. Community for Creative Nonviolence: The Demise of First Amendment Protection for Symbolic Expression?," see 36 Mercer L. Rev. 1371 (1985). For note, "Oliver v. United States: Will Exceptions of Privacy Shield Criminal Acts No More?," see 36 Mercer L. Rev. 1401 (1985). For note, "SEC v. Lowe: Protected Speech or Regulation of a Profession?", see 36 Mercer L. Rev. 1421 (1985). For note, "An Unconstitutional Fiction: The Felony-Murder Rule as Applied to the Supply of Drugs," see 20 Ga. L. Rev. 671 (1986). For note, "Biological Parents v. Third Parties: Whose Right to Child Custody is Constitutionally Protected?", see 20 Ga. L. Rev. 705 (1986). For note, "Grand Jury Subpoenas of a Target's Attorney: The Need for a Preliminary Showing," see 20 Ga. L. Rev. 747 (1986). For case note, "Coleman v. Kemp: The Problem of Pretrial Publicity and Its Effect on the Alday Murder Cases," see 38 Mercer L. Rev. 1477 (1987). For note, "McCleskey v. Kemp: An Equal Protection Challenge to Capital Punishment," see 39 Mercer L. Rev. 675 (1988). For note, "Tison v. Arizona: A New Standard of Culpability for Accomplice Felony-Murder," see 39 Mercer L. Rev. 717 (1988). For note, "In re Baby Girl Eason: Expanding the Constitutional Rights of Unwed Fathers," see 39 Mercer L. Rev. 997 (1988). For note, "When Exactions Become Extortion: The Supreme Court Draws the Line in Nollan v. California Coastal Commission," see 39 Mercer L. Rev. 1033 (1988). For note, "The Striker Amendment to the Food Stamp Act: Politics Chipping Away at the Union, Family, and Social Welfare," see 22 Ga. L. Rev. 741 (1988). For note, "Sexual Orientation Discrimination in the Wake of Bowers v. Hardwick," see 22 Ga. L. Rev. 773 (1988). For note, "The Effect of Salerno v. United States on the Use of State Preventive Detention Legislation: A New Definition of Due Process," see 22 Ga. L. Rev. 805 (1988). For note, "Determining Patient Competency in Treatment Refusal Cases," see 24 Ga. L. Rev. 733 (1990). For note, "Webster v. Reproductive Health Services: What Remains of the Right to Choose?," see 41 Mercer L. Rev. 769 (1990). For note, "Georgia's Not-so-long Arm Statute: Exposing the Myth," see 6 Ga. State U.L. Rev. 487 (1990). For note, "Burnham v. Superior Court of California: The Transient Jurisdiction Rule's Much Prophesied Death Sentence is Commuted to Life," see 42 Mercer L. Rev. 1577 (1991). For note, "Zinermon v. Burch: Putting Brackets Around the Parratt Doctrine," see 42 Mercer L. Rev. 1655 (1991). For note, "Who Drew Congressional District Lines: The Georgia General Assembly or the United States Department of Justice?," see 11 Ga. St. U.L. Rev. 381 (1995). For note, "Substantive Due Process Limits on Public Officials' Power to Terminate State-Created Property Interests," see 29 Ga. L. Rev. 769 (1995). For note, "United States v. Hays: A Winnowing of Standing to Sue in Racial Gerrymandering Claims", see 47 Mercer L. Rev. 955 (1996). For note, "Arizonia v. Evans: Carving Out Another Good-Faith Exception to the Exclusionary Rule," see 47 Mercer L. Rev. 1135 (1996). For note, "What Constitutes Minimum Contact in Cyberspace After CompuServe, Inc. v. Patterson: Are New Rules Necessary for a New Regime?", see 13 Ga. St. U.L. Rev. 521 (1996). For note, "When Parental Rights and Children's Best Interests Collide: An Examination of Troxel v. Granville as It Relates to Gay and Lesbian Families," see 19 Ga. St. U.L. Rev. 1 (2002). For note, "Which Stream to Follow: Why the Eleventh Circuit Should Adopt a Broader Stream of Commerce Theory in Light of Growing E-Commerce Markets," see 20 Ga. St. U.L. Rev. 539 (2003). For note, "Whoa, Slow Down! Applying the Constitutional Brakes to Accelerated Punitive Damages Awards," see 55 Mercer L. Rev. 835 (2004). For note, "Official, National, Common or Unifying: Do Words Giving Legal Status to Language Diminish Linguistic Human Rights?," see 36 Ga. J. Int'l & Comp. L. 221 (2007). For note, "'Rabbit' Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas," see 44 Ga. L. Rev. 245 (2009). For note, "Extra! Read All About It: Why Notice by Newspaper Publication Fails to Meet Mullane's Desire to Inform Standard and How Modern Technology Provides a Viable Alternative," see 45 Ga. L. Rev. 1095 (2011). For note, "A Most Precious Right: Equal Protection, Voter Photo Identification, and the Battle Brewing in Texas," see 51 Ga. L. Rev. 235 (2016). For note, "A Promise Unfulfilled: Challenges to Georgia's Death Penalty Statute Post Furman," see 33 Ga. St. U.L. Rev. 839 (2017). For note, "An Aggravating Adolescence: An Analysis of Juvenile Convictions as Statutory Aggravators in Capital Cases," see 51 Ga. L. Rev. 673 (2017). For note, "Methamphetamine, Money, and a Motion to Withdraw as Counsel: United States v. Jimenez-Antunez All Boils Down to the Appropriate Standard," see 68 Mercer L. Rev. 909 (2017).

For comment on Helvering v. Mitchell, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938), holding acquittal on criminal charge of tax evasion does not bar remedial civil action for fraudulent deduction arising out of same facts, see 1 Ga. B.J. 48 (1939). For comment on Hague v. Committee for Indus. Organization, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), holding unconstitutional ordinances denying permission to hold meetings and distribute pamphlets to labor organizers, see 2 Ga. B.J. 61 (1939). For comment on Herbert v. State, 60 Ga. App. 633, 4 S.E.2d 843 (1939), see 2 Ga. B.J. 55 (1940). For comment on Williamson v. Housing Auth., 186 Ga. 673, 199 S.E. 43 (1938); Barber v. Housing Auth., 189 Ga. 155, 5 S.E.2d 425 (1939); Hogg v. Housing Auth., 189 Ga. 164, 5 S.E.2d 431 (1939), see 2 Ga. B.J. 65 (1940). For comment on Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940), holding unconstitutional school regulation mandating flag salute, see 2 Ga. B.J. 66 (1940). For comment on Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1129 (1940), holding power of public official to determine what is a religious cause is unconstitutional infringement upon religious liberty, see 2 Ga. B.J. 68 (1940). For comment concerning indirect use of illegally seized evidence, in light of Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939), see 2 Ga. B.J. 70 (1940). For comment on Minersville School Dist. v. Gobitis, 108 F.2d 683 (3rd Cir. 1939), holding unconstitutional compulsory flag-salute regulation in school, see 2 Ga. B.J. 74 (1940). For comment on Schneider v. New Jersey, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939), holding unconstitutional municipal ordinances prohibiting distribution of handbills in public places, see 2 Ga. B.J. 76 (1940). For comment criticizing McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5 (1940), permitting admission of illegally seized evidence, see 3 Ga. B.J. 53 (1941). For comment on Bridges v. California, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941), holding free speech and press guarantees extend to publication concerning judicial proceedings pending in court, see 4 Ga. B.J. 63 (1942). For comment discussing right to counsel for indigent defendants, in light of Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), see 5 Ga. B.J. 51 (1942). For comment regarding denial of due process through statute involving administration of estate of absentee minor, in light of Payne v. Home Sav. Bank, 193 Ga. 406, 18 S.E.2d 770 (1942), see 5 Ga. B.J. 62 (1943). For comment as to constitutional permissibility of state and municipal ordinances requiring permit to distribute religious literature, in light of Jamison v. Texas, 318 U.S. 413, 63 S. Ct. 669, 87 L. Ed. 869 (1943), see 5 Ga. B.J. 70 (1943). For comment on West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), holding unconstitutional state law requiring flag salute by students, see 6 Ga. B.J. 249 (1944). For comment on Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), holding statute criminalizing indoctrination of creed, theory, or principles creating refusal to salute United States flag denies liberty guaranteed by this amendment, see 6 Ga. B.J. 250 (1944). For comment on United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944), holding privilege against self-incrimination cannot be claimed for refusal to produce union records specifically designated in subpoena, see 7 Ga. B.J. 247 (1944). For comment regarding due process right to counsel for indigent defendant charged with felony, in light of Williams v. Kaiser, 323 U.S. 471, 65 S. Ct. 363, 89 L. Ed. 398 (1945), see 7 Ga. B.J. 484 (1945). For comment discussing taxation of property beyond state jurisdiction by means of ad valorem tax on accounts receivable of foreign corporation from sales in Georgia, in light of Parke, Davis & Co. v. Atlanta, 200 Ga. 296, 36 S.E.2d 773 (1946), see 8 Ga. B.J. 425 (1946). For comment on Turman v. Duckworth, 68 F. Supp. 744 (N.D. Ga.), appeal dismissed, 329 U.S. 675, 67 S. Ct. 21, 91 L. Ed. 596, rehearing denied, 329 U.S. 829, 67 S. Ct. 296, 91 L. Ed. 704 (1946), see 9 Ga. B.J. 335 (1947). For comment on United Pub. Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1946), upholding constitutionality of Hatch Act curbing political activity of state and federal employees, see 9 Ga. B.J. 459 (1947). For comment on Everson v. Board of Educ., 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947), upholding constitutionality of public transportation to children attending parochial schools, see 9 Ga. B.J. 461 (1947). For comment on Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 399 (1947), upholding constitutionality of evidence seized during search incident to arrest, see 10 Ga. B.J. 120 (1947). For comment on Fay v. New York, 329 U.S. 697, 67 S. Ct. 92, 91 L. Ed. 609 (1947), upholding constitutionality of New York "blue ribbon" jury, see 10 Ga. B.J. 386 (1948). For comment on Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948), holding when the right of privacy must yield to right of search is a matter for judicial officer, not policeman, see 10 Ga. B.J. 498 (1948). For comment on McCollum v. Board of Educ., 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948), holding constitutionally impermissible religious education classes held during school hours, see 10 Ga. B.J. 499 (1948). For comment on Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), holding state court enforcement of restrictive covenants based on race is state action, see 11 Ga. B.J. 89 (1948). For comment on Local 309, United Furn. Workers v. Gates, 75 F. Supp. 620 (1948), holding presence of state police officers at union meeting denies workers' freedoms of speech and assembly, see 11 Ga. B.J. 233 (1948). For comment on McDonald v. United States, 166 F.2d 957 (D.C. Cir. 1948), holding act of looking through transom without search warrant and observing that which is not hidden is not a search, see 11 Ga. B.J. 241 (1948). For comment on Gholson v. Commonwealth, 308 Ky. App. 82, 212 S.W.2d 537 (1948), holding judge must determine whether indigent intelligently and voluntarily waives right to counsel, see 11 Ga. B.J. 251 (1948). For comment on Uveges v. Pennsylvania, 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127 (1948), holding due process requires court to offer provision of counsel before permitting accused to plead guilty, see 11 Ga. B.J. 364 (1948). For comment discussing permissible scope of statutes defining unlawful speech, in light of Terminiello v. City of Chicago, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1949), see 1 Mercer L. Rev. 114 (1949). For comment on Jones v. Kentucky, 97 F.2d 335 (6th Cir. 1938), holding due process requires state to afford corrective process where falsity of perjured testimony upon which conviction is obtained is discovered after the conviction, see 11 Ga. B.J. 44 (1949). For comment on Frazier v. United States, 335 U.S. 497, 69 S. Ct. 201, 93 L. Ed. 187 (1948), holding defendant's choice to eliminate nongovernment employees from jury panel cannot be repudiated as petitioner was given fair and lawfully selected panel, see 11 Ga. B.J. 366 (1949). For comment discussing right to distribute religious material in apartment house, in light of Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369 (1948), see 11 Ga. B.J. 369 (1949). For comment discussing right of parents to teach and instruct children, in light of Rice v. Commonwealth, 188 Va. 224, 49 S.E.2d 342 (1948), see 11 Ga. B.J. 376 (1949). For comment discussing discrimination against Negro voters manifested in voter registration requirements, in light of Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), aff'd without opinion, 336 U.S. 933, 69 S. Ct. 749, 93 L. Ed. 1093 (1949), see 12 Ga. B.J. 94 (1949). For comment on Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949), see 12 Ga. B.J. 212 (1949). For comment on Crumb v. State, 205 Ga. 547, 54 S.E.2d 639 (1949), see 12 Ga. B.J. 215 (1949). For comment on Lawson v. United States, 176 F.2d 49 (D.C. Cir. 1949), holding rights of privacy and free association permitted script writers to refuse answers to H.U.A.C. questions on Communist party affiliations, see 12 Ga. B.J. 222 (1949). For comment discussing appeal by state after acquittal, in light of State v. Evjue, 254 Wis. 581, 37 N.W.2d 50 (1949), see 1 Mercer L. Rev. 306 (1950). For comment as to state authority to regulate election ballots, in light of Morrison v. Lamarre, 75 R.I. 176, 65 A.2d 217 (1949), see 1 Mercer L. Rev. 311 (1950). For comment discussing racial segregation in graduate schools, in light of Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950), and McLaurin v. Oklahoma State Regents for Higher Educ., 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 (1950), see 2 Mercer L. Rev. 272 (1950). For comment criticizing South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 L. Ed. 834 (1950) denying federal jurisdiction in apportionment case under the county unit system (Ga. L. 1917, p. 183), see 2 Mercer L. Rev. 274 (1950). For comment on South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 L. Ed. 834 (1950) denying federal jurisdiction in case involving apportionment, see 2 Mercer L. Rev. 275 (1950). For comment discussing cruel and unusual punishment and scope of review of proceedings through writ of habeas corpus of convict escaped from chain gang, in light of Dye v. Johnson, 338 U.S. 864, 70 S. Ct. 146, 94 L. Ed. 530 (1949), see 12 Ga. B.J. 356 (1950). For comment discussing damages for breach of restrictive covenants when such covenants not specifically enforceable, in light of Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949), see 12 Ga. B.J. 498 (1950). For comment on McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 (1950), holding unconstitutional racial discrimination in state-supported graduate school, see 13 Ga. B.J. 88 (1950). For comment discussing constitutionality of local motion picture censorship laws, in light of RD-DR Corp. & Film Classics, Inc. v. Smith, 183 F.2d 562 (5th Cir. 1950), see 13 Ga. B.J. 248 (1950). For comment on Traveler's Health Ass'n v. Virginia, 339 U.S. 643, 70 S. Ct. 927, 94 L. Ed. 1154 (1950), holding due process is satisfied by Virginia provisions subjecting foreign mail-order insurance business to service of process, see 13 Ga. B.J. 255 (1950). For comment on Azar v. Thomas, 206 Ga. 588, 57 S.E.2d 821 (1950), holding foreign decree of divorce may be collaterally attacked on grounds of fraud in its procurement and lack of jurisdiction, see 13 Ga. B.J. 334 (1951). For comment discussing constitutionality of segregation in state-supported law school, in light of Epps v. Carmichael, 93 F. Supp. 327 (M.D.N.C. 1950), see 13 Ga. B.J. 357 (1951). For comment on Doremus v. Board of Educ., 5 N.J. 435, 75 A.2d 880 (1950), holding constitutional statutes requiring Bible reading without comment in public school classrooms, see 13 Ga. B.J. 360 (1951). For comment discussing clear and present danger test, in light of United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), see 13 Ga. B.J. 361 (1951). For comment on Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170 (1950), holding fifth amendment privilege against self-incrimination extends to refusal to answer grand jury questions regarding Communist party, see 13 Ga. B.J. 483 (1951). For comment discussing state regulation of interstate natural gas pipelines, in light of Cities Serv. Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S. Ct. 215, 95 L. Ed. 190 (1950), see 13 Ga. B.J. 488 (1951). For comment on Mairs v. Peters, 52 So. 2d 793 (Fla. 1951), holding party loyalty oath is reasonable regulation based on legislative power to set standards for candidates, see 14 Ga. B.J. 234 (1951). For comment concerning discriminatory selection of grand jury members, in light of Shepherd v. Florida, 341 U.S. 50, 71 S. Ct. 549, 95 L. Ed. 740 (1951), see 14 Ga. B.J. 256 (1951).

For comment on Breard v. City of Alexandria, 341 U.S. 622, 71 S. Ct. 920, 95 L. Ed. 1233 (1951), upholding constitutionality of "Green River" ordinances, see 14 Ga. B.J. 258 (1951). For comment discussing the constitutional issues involved in releasing students from public schools for periodic religious training, in light of Zorach v. Clauson, 303 N.Y. 161, 100 N.E.2d 463 (1951), aff'd, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952), see 1 J. of Pub. L. 212 (1952). For comment discussing the constitutional conflicts involved where outside events, especially press coverage, tend to influence a defendant's opportunity for a fair trial, in light of Shepherd v. Florida, 341 U.S. 50, 71 S. Ct. 549, 95 L. Ed. 40 (1951), see 1 J. of Pub. L. 217 (1952). For comment, "State Regulation of the Hatemonger," focusing on Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919 (1952), see 1 J. of Pub. L. 519 (1952). For comment on Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 343 (1952), holding state-imposed pay-for-voting system constitutional, see 4 Mercer L. Rev. 209 (1952). For comment on United States v. Carignan, 342 U.S. 36, 72 S. Ct. 97, 96 L. Ed. 48 (1951), see 14 Ga. B.J. 486 (1952). For comment on Phillups v. Naff, 332 Mich. 389, 52 N.W.2d 158 (1952), see 15 Ga. B.J. 71 (1952). For comment on Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), see 15 Ga. B.J. 86 (1952). For comment on Moore v. Draper, 57 So. 2d 648 (Fla. 1952), holding a Florida statute which required the isolation of persons having tuberculosis to be a proper exercise of police power and not violative of due process, see 15 Ga. B.J. 215 (1952). For comment, "Dual Nationals' Duties of Allegiance," discussing the legal effect of dual nationality, see 15 Ga. B.J. 239 (1952). For comment on Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953), holding damage award by state court for breach of restrictive covenant against sale of realty to nonwhites an equal protection violation, see 5 Mercer L. Rev. 206 (1953). For comment on discriminatory jury selection, in light of Avery v. State of Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953), see 5 Mercer L. Rev. 207 (1953). For comment on Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952), see 15 Ga. B.J. 363 (1953). For comment on Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919 (1952), see 15 Ga. B.J. 366 (1953). For comment on Fowler v. Rhode Island, 345 U.S. 67, 73 S. Ct. 526, 97 L. Ed. 828 (1953), see 16 Ga. B.J. 95 (1953). For comment on Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953), holding that damages for breach of racially restrictive covenant cannot be maintained as such action by the court is state action within the meaning of this amendment, see 16 Ga. B.J. 229 (1953). For comment on Kansas City v. Williams, 205 F.2d 47 (8th Cir. 1953), holding the exclusion of blacks from the use of a deluxe swimming pool located in a public park constitutes unequal protection and is violative of this amendment, see 16 Ga. B.J. 230 (1953). For comment on racially restrictive covenants, in light of Rice v. Sioux City Mem. Park Cem., 245 Iowa 147, 60 N.W.2d 110 (1953), see 3 J. of Pub. L. 272 (1954). For comment discussing motion picture censorship, in light of Commercial Pictures Corp. v. Regents of Univ. of State of N.Y., 346 U.S. 587, 74 S. Ct. 286, 98 L. Ed. 329 (1954), see 5 Mercer L. Rev. 325 (1954). For comment on Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953), denying damages for breach of racially restrictive covenant, see 16 Ga. B.J. 355 (1954). For comment on United States v. Nesmith, 121 F. Supp. 758 (D.D.C. 1954), regarding admissibility of chemical tests of body fluids where U.S. Const., Amends. 4 and 5 and this amendment objections are made, see 4 J. of Pub. L. 202 (1955). For comment on Grandville-Smith v. Grandville-Smith, 349 U.S. 1, 75 S. Ct. 553, 99 L. Ed. 773 (1955), analyzing due process aspects of divorce jurisdiction statutes and full faith and credit problems with divorce decrees, see 4 J. of Pub. L. 206 (1955). For comment on Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954), regarding extension of due process to include right to employ counsel in trial under habitual criminal statute, see 4 J. of Pub. L. 212 (1955). For comment on Dawson v. Mayor of Baltimore, 23 U.S.L. Week 2057 (4th Cir. March 14, 1955) abolishing "Separate but Equal" doctrine as applied to racial segregation in public beach and bath house facilities, see 6 Mercer L. Rev. 343 (1955). For comment on Williams v. Hirsch, 211 Ga. 534, 87 S.E.2d 70 (1955), holding unfair Cigarette Sales Act of 1949 (Ga. L. 1949, p. 695) unconstitutional, see 6 Mercer L. Rev. 352 (1955). For comment on Beard v. United States, 222 F.2d 84 (4th Cir. 1955), wherein the refusal of defendant to produce public records was held to raise an inference of criminality and such inference did not violate privilege against self-incrimination, see 7 Mercer L. Rev. 233 (1955). For comment on Massey v. Moore, 348 U.S. 105, 75 S. Ct. 145, 99 L. Ed. 135 (1954), holding that conviction of an insane man without benefit of counsel and unable to defend himself is violative of due process, see 17 Ga. B.J. 525 (1955). For comment on Watson v. Employer's Liab. Assurance Corp., 348 U.S. 66, 75 S. Ct. 166, 99 L. Ed. 74 (1954), holding that a statute allowing a direct action by the policy holder against the insurer contrary to the terms of the contract and requiring the consent of the insurer to such action as a prerequisite of doing business in the state was not violative of the Constitution, see 17 Ga. B.J. 529 (1955). For comment on Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954), reversing conviction as a habitual criminal of petitioner who was denied aid of counsel, see 17 Ga. B.J. 401 (1955). For comment, "Doing Business for Purposes of State Taxation of Foreign Corporations," focusing on Minnesota v. Northwestern States Portland Cement Co., CCH State Tax Reports 16-001 (Hennepin County Dist. Court, October, 1955), see 5 J. of Pub. L. 263 (1956). For comment criticizing Gainer v. School Bd., 135 F. Supp. 559 (M.D. Ala. 1955), refusing to enforce injunction against school board for discriminatory salary practices on U.S. Const., Amend. 11 grounds, see 7 Mercer L. Rev. 387 (1956). For comment on Fleming v. South Carolina Elec. & Gas Co., 224 F.2d 752 (4th Cir. 1955), holding that defendant corporation in requiring plaintiff to change bus seats under color of state law denied plaintiff her constitutional rights as the separate but equal doctrine of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) can no longer be regarded as a correct statement of law, see 18 Ga. B.J. 356 (1956). For comment on International Bhd. of Teamsters v. Vogt, Inc., 354 U.S. 284, 77 S. Ct. 1166, 1 L. Ed. 2d 1347 (1957) as to the constitutionality of enjoining picketing, see 6 J. of Pub. L. 534 (1957). For comment on Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957), upholding the enjoining under a New York statute of distribution of certain obscene books, see 6 J. of Pub. L. 548 (1957). For comment on First Unitarian Church v. County of Los Angeles, 48 C.2d 419, 311 P.2d 508 (1957), upholding requirement of loyalty oath as prerequisite to tax exemption, see 6 J. of Pub. L. 555 (1957). For comment on Fikes v. Alabama, 25 U.S.L. Week (1957), as to effect of psychological weakness of prisoner on voluntariness of confession, see 8 Mercer L. Rev. 367 (1957). For comment discussing reasonableness in search and seizure of narcotics from accused's body, in light of Blackford v. United States, 247 F.2d 745 (9th Cir. 1957), see 9 Mercer L. Rev. 220 (1957). For comment on Dyer v. Abe, 138 F. Supp. 220 (D. Hawaii 1956), holding that the failure of the state Legislature to reapportion in accordance with statutory or constitutional requirements is a denial of equal protection and due process, see 19 Ga. B.J. 368 (1957). For comment on Hill v. Balkcom, 213 Ga. 58, 96 S.E.2d 589 (1957), holding that where court appointed counsel in a criminal case is a member of the bar in good standing, which is prima facie evidence of his competency as an attorney, and serves his client in good faith and with loyalty, the requirements of due process are met, see 19 Ga. B.J. 519 (1957). For comment discussing the effect of the decision in Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, 38 A.L.R.2d 1180 (1954), on the separate but equal doctrine in areas other than public education, see 19 Ga. B.J. 540 (1957). For comment on Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957), holding that this amendment does not extend the protection of the U.S. Const., Amends. 4 and 5 to criminal prosecutions in state cases, see 20 Ga. B.J. 126 (1957). For comment on McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957) extending personal jurisdiction to nonresident life insurance company through expansion of "minimum contacts" doctrine, see 9 Mercer L. Rev. 362 (1958). For comment on Pennsylvania v. Board of Dirs., 353 U.S. 230, 77 S. Ct. 806, 1 L. Ed. 2d 792 (1957), holding that the Philadelphia Board of Directors of City Trusts was an agency of the state and their denial to nonwhite applicants of admission to a college pursuant to the trust creating the institution constitutes discrimination by the state and is violative of this amendment, see 20 Ga. B.J. 397 (1958). For comment on Ludley v. Board of Supervisors, 150 F. Supp. 900 (E.D. La. 1957), declaring that a statute requiring applicants to publicly financed institutions of higher learning obtain a certificate of eligibility and good moral character signed by their local superintendent of education and a statute forbidding teachers from performing acts to bring about integration in public schools or institutions of higher learning, together violated the equal protection clause of this amendment, and the obvious intent of the statute requiring the certificate of eligibility to discriminate against Negroes rendered it unconstitutional where standing alone as well, see 20 Ga. B.J. 400 (1958). For comment on Schware v. Board of Bar Exmrs., 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957), holding that the petitioner was denied due process by the state's refusal to allow him to qualify for the bar indicating that because of prior arrests and past membership in the Communist Party he had not shown "good moral character," see 20 Ga. B.J. 406 (1958). For comment on Fikes v. Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957), holding that a confession rendered under pressure while in solitary confinement at a state penitentiary prior to arraignment was involuntary and its admission into evidence constituted a violation of due process under this amendment, see 20 Ga. B.J. 408 (1958). For comment on Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957), reversing a contempt conviction where appellant refused to testify on grounds of U.S. Const., Amend. 1, see 20 Ga. B.J. 411 (1958). For comment on McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), holding that for a state to assert jurisdiction over a foreign insurance company it is sufficient for due process purposes if the contract on which the case is based has a substantial connection with that state, see 21 Ga. B.J. 113 (1958). For comment on Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958), overturning a conviction for murder gained on the basis of a coerced confession, see 21 Ga. B.J. 116 (1958). For comment on Complete Auto Transit Co. v. Floyd, 249 F.2d 396 (5th Cir. 1957), holding that a statute which, if applied, would subject the defendant to double recovery of medical and funeral expenses was unconstitutional as against that defendant because it deprives the defendant of its property without due process of law, see 21 Ga. B.J. 244 (1958).

For comment on the right to belong to a labor union, in light of Oliphant v. Brotherhood of Locomotive Firemen & Enginemen, 262 F.2d 359 (6th Cir. 1958), cert. denied, 359 U.S. 935, 79 S. Ct. 648, 3 L. Ed. 2d 636 (1959), see 8 J. of Pub. L. 580 (1959). For comment discussing right to counsel of indigent indicted for noncapital felony, in light of Cash v. Culver, 358 U.S. 633, 79 S. Ct. 432, 3 L. Ed. 2d 557 (1959), see 22 Ga. B.J. 111 (1959). For comment on Steinberg v. United States, 163 F. Supp. 590 (Ct. Cl. 1958), holding suspension of retirement pay for pleading U.S. Const., Amend. 5 to be violation of due process, see 22 Ga. B.J. 114 (1959). For comment on Martinez v. State, 167 Tex. 97, 318 S.W.2d 66 (1958), holding suspension of attorney from state bar rendered him unqualified to afford representation envisioned by guarantees of U.S. Const., Amend. 6, see 22 Ga. B.J. 239 (1959). For comment on Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), holding Criminal Registration Act violates due process, see 22 Ga. B.J. 272 (1959). For comment regarding right of witness in congressional contempt proceeding to refuse to testify under the U.S. Const., Amends. 1 and 5, in light of Barrenblatt v. United States, 360 U.S. 109, 79 S. Ct. 1081, 3 L. Ed. 2d 1115 (1959), see 22 Ga. B.J. 404 (1960). For comment on Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), holding knowing use of false testimony by state official to obtain conviction is denial of due process, see 22 Ga. B.J. 406 (1960). For comment on Frank v. Maryland, 359 U.S. 360, 79 S. Ct. 804, 3 L. Ed. 2d 877 (1959), holding housing inspection without warrant to be reasonable search, see 22 Ga. B.J. 410 (1960). For comment on Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959), holding exposure of jurors to newspaper articles regarding prior convictions when court refused to permit prosecutor to present such evidence was denial of due process, see 22 Ga. B.J. 413 (1960). For comment discussing reasonableness of warrantless search of automobile, in light of Patenotte v. United States, 266 F.2d 647 (5th Cir. 1959), see 22 Ga. B.J. 549 (1960). For comment discussing constitutionality of prior restraint of distribution of anonymous handbills, in light of California v. Talley, 172 Cal. App. 2d 797, 332 P.2d 447 (1958), see 23 Ga. B.J. 123 (1960). For comment on Hudson v. North Carolina, 363 U.S. 697, 80 S. Ct. 1314, 4 L. Ed. 2d 1500 (1960), holding unconstitutional denial of counsel to petitioner where guilty plea of codefendant placed him in prejudicial position, see 23 Ga. B.J. 265 (1960). For comment on Nelson v. County of Los Angeles, 362 U.S. 1, 80 S. Ct. 527, 4 L. Ed. 2d 494 (1959), holding due process not denied employees summarily dismissed for invocation of U.S. Const., Amends. 1 and 5, before congressional subcommittee, see 23 Ga. B.J. 267 (1960). For comment on Mapp v. Ohio, 365 U.S. 514, 81 S. Ct. 1684, 5 L. Ed. 2d 714 (1961), and the incorporation of the prohibition of unreasonable searches and seizures of U.S. Const., Amend. 4 into this amendment, see 13 Mercer L. Rev. 275 (1961). For comment on Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), holding evidence illegally obtained by state officers is inadmissible in federal as well as state courts, see 23 Ga B.J. 383 (1961). For comment discussing admissibility of evidence obtained by search and seizure under administrative warrant, in light of Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960), see 23 Ga. B.J. 400 (1961). For comment on Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74, 114 S.E.2d 421 (1960), see 23 Ga. B.J. 406 (1961). For comment discussing Supreme Court treatment of political questions, in light of Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960), see 23 Ga. B.J. 545 (1961). For comment on Times Film Corp. v. Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961), holding censorship standards set by state to prevent public display of obscenity do not constitute prior restraint, see 23 Ga. B.J. 554 (1961). For comment discussing constitutionality of state loyalty oaths, in light of Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960), see 23 Ga. B.J. 556 (1961). For comment discussing exclusionary rule in state courts, in light of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), see 24 Ga. B.J. 129 (1961). For comment discussing standing to object to unlawful search and seizure, in light of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), see 24 Ga. B.J. 131 (1961). For comment on Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961), holding police use of "spike mike" violated prohibition against unlawful search and seizure, see 24 Ga. B.J. 135 (1961). For comment on Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962) and the unconstitutionality of state composed prayer in a public school, see 14 Mercer L. Rev. 284 (1962). For comment discussing constitutionality of legislation requiring employees to pay dues to railway union in order to maintain employment, in light of International Ass'n of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 784, 6 L. Ed. 2d 1141 (1961), see 24 Ga. B.J. 432 (1962). For comment discussing application of exclusionary rule to state, in light of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), see 24 Ga. B.J. 445 (1962). For comment on Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961), holding black muslimism is religion within meaning of U.S. Const., Amend. 1, see 24 Ga. B.J. 519 (1962). For comment on Cohen v. Hurley, 366 U.S. 117, 81 S. Ct. 954, 6 L. Ed. 2d 156 (1961), upholding constitutionality of disbarment by state court of attorney who refused to answer questions in judicial investigation pertaining to professional misconduct, see 24 Ga. B.J. 522 (1962). For comment on National Linen Serv. Corp. v. Thompson, 103 Ga. App. 786, 120 S.E.2d 779 (1961), see 24 Ga. B.J. 541 (1962). For comment on Wright v. State, 217 Ga. 453, 122 S.E.2d 738 (1961), see 25 Ga. B.J. 99 (1962). For comment on Heard v. Bolton, 107 Ga. 863, 131 S.E.2d 835 (1963), as to reasonable exercise of municipality's police power, see 15 Mercer L. Rev. 297 (1963). For comment on Hempton v. Jacksonville, 304 F.2d 320 (5th Cir. 1962), holding conveyance of public facilities to private individuals with inclusion of reversionary clause restricting use of facilities to white patrons makes purchasers thereof agents of state, and is state action, see 25 Ga. B.J. 333 (1963). For comment on Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 81 L. Ed. 2d 325 (1962), holding coerced confession denies accused of due process, see 25 Ga. B.J. 415 (1963). For comment on Anderson v. Martin, 206 F. Supp. 700 (D. La. 1962), holding designation of race of candidates on ballot does not violate constitutional rights, see 25 Ga. B.J. 416 (1963). For comment discussing judicial establishment of standards for reapportioning state senate districts, in light of Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350 (1962), see 25 Ga. B.J. 431 (1963). For comment on Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963), holding accused has right to counsel in all felony cases regardless of indigency, see 26 Ga. B.J. 96 (1963). For comment on Wright v. State, 373 U.S. 284, 83 S. Ct. 1240, 10 L. Ed. 2d 349 (1963), see 26 Ga. B.J. 99 (1963). For comment on Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963), holding right to counsel is extended to noncapital felonies in the state courts, see 26 Ga. B.J. 186 (1963). For comment on Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 81 (1964), congressional districting, see 15 Mercer L. Rev. 504 (1964). For comment criticizing Lovett v. State, 108 Ga. App. 478, 133 S.E.2d 595 (1963), as to right of accused to assistance of counsel in making an unsworn statement, see 15 Mercer L. Rev. 512 (1964). For comment on right of refugees to homestead exemption, in light of Juarrero v. McNayr, 157 So. 2d 79 (Fla. 1963), see 15 Mercer L. Rev. 525 (1964). For comment discussing admissibility of voluntary statements made after indictment and release on bail in absence of retained counsel, in light of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), see 16 Mercer L. Rev. 343 (1964). For comment on Balkcom v. Shores, 219 Ga. 429, 134 S.E.2d 3 (1963), see 16 Mercer L. Rev. 359 (1964). For comment on Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), holding county unit system per se unconstitutional under "one man, one vote" doctrine, see 26 Ga. B.J. 339 (1964). For comment on Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963), upholding indigent's right to transcript, see 26 Ga. B.J. 346 (1964). For comment discussing motion picture as protected as speech, in light of Atlanta v. Twentieth Century-Fox Film Corp., 219 Ga. 271, 133 S.E.2d 12 (1963), see 26 Ga. B.J. 442 (1964). For comment on Harris v. United States, 321 F.2d 739 (6th Cir. 1963), holding invalid search incident to arrest where primary purpose is to search for evidence and not make a valid arrest, see 26 Ga. B.J. 446 (1964). For comment on Atlanta v. Twentieth Century-Fox Film Corp., 219 Ga. 271, 133 S.E.2d 12 (1963), see 26 Ga. B.J. 475 (1964). For comment discussing "one man, one vote" doctrine in light of Wilkins v. Davis, 205 Va. 803, 139 S.E.2d 849 (1965), see 16 Mercer L. Rev. 446 (1965). For comment discussing Dukes v. State, 109 Ga. App. 825, 137 S.E.2d 532 (1964), as to an accused's constitutional right to be questioned by his counsel in making an unsworn statement to the court pursuant to § 24-9-20, prior to the elimination of the unsworn statement provision, see 1 Ga. St. B.J. 350 (1965). For comment on Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 653 (1964), see 1 Ga. St. B.J. 358 (1965). For comment on Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964), see 1 Ga. St. B.J. 371 (1965). For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), see 1 Ga. St. B.J. 550 (1965). For comment on Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964), see 2 Ga. St. B.J. 123 (1965). For comment on Bond v. Floyd, 251 F. Supp. 333 (N.D. Ga. 1966), appearing below, see 17 Mercer L. Rev. 467 (1966). For comment on Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966), appearing below, see 17 Mercer L. Rev. 474 (1966). For comment on procedural due process rights in quasi-judicial administrative proceedings into which extra-record information is introduced, in light of Dayco Corp. v. F.T.C., 362 F.2d 180 (6th Cir. 1966), see 18 Mercer L. Rev. 284 (1966). For comment on McLennan v. Undercofler, 222 Ga. 306, 149 S.E.2d 705 (1966), see 18 Mercer L. Rev. 290 (1966). For comment on Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966), see 2 Ga. St. B.J. 487 (1966). For comment on Juelich v. United States, 342 F.2d 29 (5th Cir. 1965), see 2 Ga. St. B.J. 504 (1966). For comment, "Due Process and the Dismissal of Students at State-Supported Colleges and Universities," see 3 Ga. St. B.J. 101 (1966). For comment discussing equal voting rights and the equal protection clause in light of Fortson v. Morris, 385 U.S. 231, 87 S. Ct. 446, 17 L. Ed. 2d 330 (1966), see 16 J. of Pub. L. 417 (1967). For comment on Reed v. Gardner, 261 F. Supp. 87 (C.D. Cal. 1966) as to constitutionality of inquiry into Medicare applicant's political affiliation, see 18 Mercer L. Rev. 495 (1967). For comment criticizing Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967) in its application of the U.S. Const., Amend. 6, speedy trial guarantee to the states as an encroachment upon states rights, see 18 Mercer L. Rev. 497 (1967).

For comment on State Hwy. Dep't v. Branch, 222 Ga. 770, 152 S.E.2d 372 (1966), discussing regulation of outdoor advertising and billboards as a constitutional "Taking," see 18 Mercer L. Rev. 499 (1967). For comment on extension of exclusionary rule to civil cases in light of Williams v. Williams, 8 Ohio Misc. 156, 221 N.E.2d 622 (1966), see 18 Mercer L. Rev. 501 (1967). For comment criticizing Jones v. Alfred H. Mayer Co., 379 F.2d 33 (8th Cir. 1967), as to discrimination by a subdivision development who has not received government monetary aid, see 17 J. of Pub. L. 175 (1968). For comment discussing standard of malice in cases involving reckless disregard to truth, in light of St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968), see 17 J. of Pub. L. 426 (1968). For comment criticizing use of detainer by state to effectively thwart the right to speedy trial of federal defendants in state court, in light of State v. Evans, 432 P.2d 175 (Ore. 1967), cert. denied, 390 U.S. 971, 88 S. Ct. 1093, 19 L. Ed. 2d 1182 (1968), see 17 J. of Pub. L. 431 (1968). For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), overturning the mere privilege doctrine by applying due process requirement to liquor licensing, see 19 Mercer L. Rev. 250 (1968). For comment on Davis v. Firment, 269 F. Supp. 524 (E.D. La. 1967) as to constitutionality of public schools regulation of student appearance, see 19 Mercer L. Rev. 252 (1968). For comment on Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), rev'd, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), banning anti-miscegenation statutes, see 19 Mercer L. Rev. 255 (1968). For comment on National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 87 S. Ct. 1389, 18 L. Ed. 2d 505 (1967), as to constitutionality of imposing state use taxes on out of state mail order form, see 19 Mercer L. Rev. 257 (1968). For comment on Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), applying U.S. Const., Amend. 4 guarantees to unreasonable searches by administrative agencies, see 19 Mercer L. Rev. 259 (1968). For comment on Francois v. State, 197 So. 2d 492 (Fla. App. 1967), discussing the admissibility of juveniles' confessions in criminal court, see 19 Mercer L. Rev. 261 (1968). For comment on Nelson v. State, 151 N.W.2d 694 (Wis. 1967), as to constitutionality of appointment of general practitioner as an expert witness on issue of defendant's sanity, see 19 Mercer L. Rev. 263 (1968). For comment on White v. Blackwell, 277 F. Supp. 211 (N.D. Ga. 1967), analyzing constitutional implications of prison rules forbidding prisoners from assisting one another in legal matters, see 19 Mercer L. Rev. 438 (1968). For comment on State v. Borst, 278 Minn. 388, 154 N.W.2d 888 (1967), as to an indigent misdemeanant's right to counsel, see 19 Mercer L. Rev. 440 (1968). For comment on Hughes v. Reynolds, 223 Ga. 727, 157 S.E.2d 746 (1967), holding the Sunday Business Activities Act of 1967 (chapter 96-8) unconstitutional, see 19 Mercer L. Rev. 479 (1968). For comment on Talbert v. State, 224 Ga. 291, 161 S.E.2d 279 (1968), see 5 Ga. St. B.J. 256 (1968). For comment on Baker v. City of St. Petersberg, 400 F.2d 294 (5th Cir. 1968), as to unconstitutionality of police department practice of assigning black officers solely on the basis of race, see 18 J. of Pub. L. 189 (1969). For comment on Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968), as to illegitimate child's right to recover for wrongful death of mother, see 18 J. of Pub. L. 198 (1969). For comment discussing probable cause for search warrant in obscenity case, in light of Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S. Ct. 2103, 20 L. Ed. 2d 1313 (1968) (per curiam), see 18 J. of Pub. L. 205 (1969). For comment on Jenness v. Little, Civil No. 12762 (N.D. Ga. 1969), holding bar against placement of candidate's name on ballot due to inability to pay qualifying fee is denial of equal protection, see 18 J. of Pub. L. 483 (1969). For comment on State v. Rand, 20 Ohio Misc. 98, 247 N.E.2d 342 (Com. Pleas 1969), holding criminal defendant competent to stand trial under properly administered tranquilizing drugs, see 18 J. of Pub. L. 503 (1969). For comment on Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S. Ct. 908, 21 L. Ed. 2d 799 (1969), mandating in camera examination of evidence withheld by prosecution, see 18 J. of Pub. L. 510 (1969). For comment discussing Williams v. Dandridge, 297 F. Supp. 450 (D. Md. 1969), as to the validity under this amendment of a state "maximum grant" welfare provision, see 4 Ga. L. Rev. 203 (1969). For comment discussing Esteban v. Central Mo. State College, 415 F.2d 1077 (8th Cir. 1969), as to the applicability of due process "specificity" requirements to college regulations governing mass gatherings and demonstrations, see 4 Ga. L. Rev. 221 (1969). For comment on Avery v. Midland County, 390 U.S. 474, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968), as to application of the one man, one vote principal to local government elections, see 20 Mercer L. Rev. 454 (1969). For comment on Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731(1969), discussing limits on regulation of students' symbolic speech, see 20 Mercer L. Rev. 505 (1969). For comment on O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969), as to when a soldier should be tried in military or civilian court, see 21 Mercer L. Rev. 311 (1969). For comment discussing limits on the military's jurisdiction and the constitutional rights of servicemen in light of O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969), see 21 Mercer L. Rev. 311 (1969). For comment on Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969), as to the constitutionality of the State Bar Act (ch. 9-7), see 21 Mercer L. Rev. 355 (1969). For comment on Jenness v. Little, 306 F. Supp. 925 (N.D. Ga. 1969), on motion for stay on appeal and injunctive relief sub nom. Matthews v. Little, 396 U.S. 1223, 90 S. Ct. 17, 24 L. Ed. 2d 45 (1969), as to the constitutionality of requiring a filing fee as prerequisite to candidacy in municipal elections, see 21 Mercer L. Rev. 369 (1969). For comment concerning free speech aspects of F.C.C. fairness doctrine, in light of Red Lion Broadcasting Co. v. F.C.C., 381 F.2d 908 (D.C. Cir. 1967), see 19 J. of Pub. L. 129 (1970). For comment on Kirk v. Board of Regents of Univ. of Cal., 273 Cal. App. 2d 430, 78 Cal. Rptr. 260 (1969), upholding durational residency classification for state university tuition rates, see 19 J. of Pub. L. 139 (1970). For comment on Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969), appearing below, see 4 Ga. L. Rev. 417 (1970). For comment on Palmer v. Thompson, 419 F.2d 1222 (5th Cir. 1969) (en banc), as to the constitutionality of closing state recreational facilities, see 21 Mercer L. Rev. 507 (1970). For comment on Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969) and the rejection of charge that defendant must prove alibi to the satisfaction of the jury, see 21 Mercer L. Rev. 511 (1970). For comment on Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 225 Ga. 259, 167 S.E.2d 658 (1969), cert. denied, 396 U.S. 1041, 90 S. Ct. 680, 24 L. Ed. 2d 685 (1970), see 6 Ga. St. B.J. 438 (1970). For comment on United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D. N.Y. 1970), as to implied power of the executive to sue, see 20 J. of Pub. L. 337 (1971). For comment on United States v. Barash, 428 F.2d 328 (2d Cir. 1970), as to the constitutionality under the principle of double jeopardy, of increasing severity of punishment on retrial following successful appeal, see 5 Ga. L. Rev. 194 (1971). For comment on the right to vote as affected by state residency requirements, in light of Blumstein v. Ellington, 337 F. Supp. 323 (M.D. Tenn. 1970), see 5 Ga. L. Rev. 389 (1971). For comment on United States v. West Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 1971), see 5 Ga. L. Rev. 603 (1971). For comment on Mary Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), as to unconstitutionality of statutory limitation on reasons for abortion, see 22 Mercer L. Rev. 461 (1971). For comment on Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) regarding constitutionality under U.S. Const., Amend. 6, confrontation clause of expulsion of defendant from the courtroom for misconduct, see 22 Mercer L. Rev. 467 (1971). For comment on Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595, cert. denied, 397 U.S. 149, 90 S. Ct. 999, 25 L. Ed. 2d 183 (1970), as to the constitutionality under U.S. Const., Amend. 1, and this amendment of prohibiting succession by an incumbent Governor until after the expiration of a four-year period, see 22 Mercer L. Rev. 473 (1971). For comment on Freeman v. Wilcox, 119 Ga. App. 325, 167 S.E.2d 163 (1969) and a juvenile's right to counsel at preadjudicatory stages of juvenile proceedings, see 22 Mercer L. Rev. 597 (1971). For comment on State Hwy. Dep't v. Owens, 120 Ga. App. 647, 171 S.E.2d 770 (1969), and the right to inquire as to property owner's knowledge of condemnation prior to making improvements, see 22 Mercer L. Rev. 616 (1971). For comment on Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) and Georgia's coconspirator exception to the hearsay rule, see 22 Mercer L. Rev. 791 (1971). For comment on Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), discussing the revocation of a motorist's license pursuant to the state's financial responsibility laws, without hearing to determine fault prior to the enactment of the present Georgia Motor Vehicle Safety Responsibility Act, see 8 Ga. St. B.J. 252 (1971). For comment on In re Kras, 331 F. Supp. 1207 (E.D.N.Y. 1971), holding the required prepayment of a filing fee by an indigent in a bankruptcy proceeding violative of equal protection and due process, see 21 J. of Pub. L. 239 (1972). For comment on Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d (1971), as to unconstitutionality of imprisonment of indigent for nonpayment of traffic fines, see 23 Mercer L. Rev. 361 (1972). For comment on Reeves v. Motor Contract Co., 324 F. Supp. 1011 (N.D. Ga. 1971), see 23 Mercer L. Rev. 369 (1972). For comment suggesting replacement of former Motor Vehicle Safety Responsibility Act with a Compulsory Liability Insurance System, in light of Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), see 23 Mercer L. Rev. 383 (1972). For comment criticizing Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 776 (1971), as to constitutionality of § 51-2-3 prior to 1976 Amendment, see 23 Mercer L. Rev. 681 (1972). For comment discussing Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), rehearing and rehearing en banc denied February 1, 1972, see 23 Mercer L. Rev. 977 (1972). For comment on Palmer v. Thompson, 403 U.S. 217, 91 S. Ct. 1940, 29 L. Ed. 2d 438 (1971), upholding city's refusal to operate an integrated pool in the face of equal protection attack, see 8 Ga. St. B.J. 382 (1972). For comment on Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971), holding parental liability statute which formerly provided for unlimited liability of parents for willful torts of minor children on the basis of parent-child relationship violative of due process, see 9 Ga. St. B.J. 129 (1972). For comment on Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), holding the seizure of property in replevin without notice and hearing or waiver as violative of due process, see 22 J. of Pub. L. 169 (1973). For comment on Stoner v. Fortson, Civil No. 16271 (N.D. Ga. May 11, 1972), holding fee requirement for placement on primary ballot unconstitutional, see 22 J. of Pub. L. 243 (1973). For comment on Moose Lodge v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972), holding the granting of a liquor license to a discriminatory private club insufficient to constitute state action prohibited by this amendment, see 22 J. of Pub. L. 281 (1973).

For comment discussing constitutionality of conviction upon less-than-unanimous jury vote, see 7 Ga. L. Rev. 339 (1973). For comment on South Gwinnett Venture v. Pruitt, 482 F.2d 389 (5th Cir. 1973), appearing below, see 8 Ga. L. Rev. 254 (1973). For comment on Ruff v. Lee, 230 Ga. 426, 197 S.E.2d 376 (1973), appearing below, see 8 Ga. L. Rev. 264 (1973). For comment discussing the death penalty in light of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), see 24 Mercer L. Rev. 891 (1973). For comment discussing aspects of Georgia's bail trover proceeding as violative of due process, in light of Hall v. Stone, 229 Ga. 96, 189 S.E.2d 403 (1972), see 9 Ga. St. B.J. 336 (1973). For comment on Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), refusing to apply decision holding Georgia's alibi instruction unconstitutional retroactively, see 9 Ga. St. B.J. 500 (1973). For comment on Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 93 S. Ct. 1224, 35 L. Ed. 2d 659 (1973), discussing the application of the equal protection reasonableness test to voter qualification and vote weighting, see 10 Ga. St. B.J. 144 (1973). For comment on Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), and Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), see 10 Ga. St. B.J. 153 (1973). For comment on Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399 (1973), see 10 Ga. St. B.J. 164 (1973). For comment as to constitutionality of financing public schools by means of local property taxes, in light of San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), see 23 Emory L.J. 211 (1974). For comment on de facto school segregation, in light of Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (1973), see 23 Emory L.J. 293 (1974). For comment criticizing Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), calling for application of contemporary community standards to determine obscenity, see 23 Emory L.J. 551 (1974). For comment on Scarpa v. United States Bd. of Parole, 477 F.2d 278 (5th Cir.), vacated and remanded, 414 U.S. 809, 94 S. Ct. 79, 38 L. Ed. 2d 44, vacated as moot, 501 F.2d 992 (5th Cir. 1973), declining to accord parole release hearings, judicial review and procedural due process rights, see 23 Emory L.J. 597 (1974). For comment on Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), as to probationer's rights at probation revocation, see 23 Emory L.J. 617 (1974). For comment discussing due process and equal protection rights of illegitimate child denied social security benefits due to birth after father's disability in light of Beaty v. Weinberger, 478 F.2d 300 (5th Cir. 1973), see 23 Emory L.J. 861 (1974). For comment criticizing Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), permitting imposition increased sentence by jury after retrial, see 23 Emory L.J. 879 (1974). For comment on Simmons v. Jones, 478 F.2d 321 (5th Cir. 1973), appearing below, see 8 Ga. L. Rev. 510 (1974). For comment discussing Winters v. Cook, 489 F.2d 174 (5th Cir. 1973), as to validity of waiver of constitutional objection to the racial composition of a grand jury, see 8 Ga. L. Rev. 984 (1974). For comment on Construction Indus. Assoc. v. City of Petaluma, 375 F. Supp. 574 (N.D. Cal. 1974), as to the authority of local governments to restrict population growth by means other than by the operation of demographic and market demands in light of the right to travel, see 9 Ga. L. Rev. 260 (1974). For comment on James v. State, 230 Ga. 29, 195 S.E.2d 448 (1973), see 25 Mercer L. Rev. 935 (1974). For comment on Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974), holding Louisiana ex parte procedure for sequestration of encumbered property did not violate due process, see 26 Mercer L. Rev. 325 (1974). For comment criticizing inadequate standards and nebulous measurements for review under Georgia death penalty statute, in light of Colby v. State, 231 Ga. 829, 204 S.E.2d 612 (1974), see 26 Mercer L. Rev. 331 (1974). For comment criticizing Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), holding petitioner's right to confrontation was preeminent to state policy protecting anonymity of juvenile offenders, see 26 Mercer L. Rev. 343 (1974). For comment discussing elements of due process required for nonprobationary employee discharged without prior evidentiary hearing where administrative appeal is available, in light of Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), see 26 Mercer L. Rev. 1429 (1974). For comment on Ware v. State, 128 Ga. App. 407, 196 S.E.2d 896 (1973), discussing the right of an accused to retract guilty plea prior to judgment, see 10 Ga. St. B.J. 469 (1974). For comment discussing the right to present evidence for the purposes of rebutting presumption, in light of Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973), see 10 Ga. St. B.J. 484 (1974). For comment on Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), discussing the labeling of sex as a suspect classification for equal protection purposes, see 10 Ga. St. B.J. 493 (1974). For comment suggesting equal protection considerations of tax exemption for widows, in light of Kahn v. Shevin, 416 U.S. 351, 94 S. Ct. 1734, 40 L. Ed. 2d 189 (1974), see 24 Emory L.J. 169 (1975). For comment criticizing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974), holding state right-of-reply statute intrudes upon the freedom of the press, see 24 Emory L.J. 217 (1975). For comment criticizing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974), as to termination by privately owned utility of electric service, see 24 Emory L.J. 511 (1975). For comment criticizing Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975), holding abortion advertisement protected by commercial speech doctrine, see 24 Emory L.J. 1165 (1975). For comment on Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975), holding a state may not impose sanctions on accurate publication of name of rape victim obtained from official court records, see 24 Emory L.J. 1205 (1975). For comment on Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975), see 9 Ga. L. Rev. 963 (1975). For comment discussing defamatory falsehoods and first amendment protection in light of Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), see 25 Emory L.J. 705 (1976). For comment on Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), see 27 Mercer L. Rev. 1189 (1976). For comment on Johnson v. Wright, 509 F.2d 828 (5th Cir. 1975), see 27 Mercer L. Rev. 1207 (1976). For comment on United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), holding denial of defendant's request to be represented at trial by a nonattorney not violative of U.S. Const., Amend. 6, see 26 Emory L.J. 457 (1977). For comment on Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977), as to failure to rezone for multifamily housing without discriminatory intent, see 26 Emory L.J. 681 (1977). For comment criticizing Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977), as to corporal punishment in public schools, see 26 Emory L.J. 885 (1977). For comment on Linmark Assocs. v. Township of Willingboro, 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977), as to free speech violation by local ordinance banning "for sale" and "sold" signs on residential property, see 26 Emory L.J. 913 (1977). For comment on Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976), recognizing a liberty interest in state employees against whom damaging charges were published in the course of their discharge by state officials without due process, see 11 Ga. L. Rev. 437 (1977). For comment discussing constitutionality of regulating location of "Adult Theaters" on basis of film content in light of Young v. American Mini Theaters, 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976), see 28 Mercer L. Rev. 587 (1977). For comment on Brown v. Liberty Loan Corp., 539 F.2d 1355 (5th Cir. 1976), as to constitutionality of Florida post judgment garnishment statutes failing to provide notice or hearing on entitlement to statutory wage exemption prior to wage attachment, see 28 Mercer L. Rev. 997 (1977). For comment on Coleman v. Bradford, 238 Ga. 505, 233 S.E.2d 764 (1977), see 29 Mercer L. Rev. 335 (1977). For comment discussing extension of the minimum contacts concept to personal jurisdiction in divorce litigation in light of Whitaker v. Whitaker, 237 Ga. 895, 230 S.E.2d 486 (1976), see 29 Mercer L. Rev. 341 (1977). For comment on Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977), upholding certain prison regulations relating to prisoners "union," see 27 Emory L.J. 137 (1978). For comment discussing doctrine of substituted judgment and constitutional underpinnings of a qualified right to refuse medical treatment asserted for an incompetent, in light of Superintendent of Belcherton State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977), see 27 Emory L.J. 425 (1978). For comment on Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. 2d 965 (1977), as to media's nonprotection under U.S. Const., Amend. 1, and this amendment from suit by performer whose "right of publicity" has been infringed, see 29 Mercer L. Rev. 861 (1978). For comment as to placement of the burden of proving an affirmative defense on defendant, as developed in Patterson v. State, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), see 29 Mercer L. Rev. 875 (1978). For comment criticizing Drummond v. Fulton County Dep't of Family & Children's Servs., 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978), see 29 Mercer L. Rev. 1137 (1978). For comment on United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978), regarding consideration by sentencing judge of his belief that defendant falsely testified during trial, see 28 Emory L. J. 159 (1979). For comment discussing impact of U.S. Const., Amend. 1 upon state statute prohibiting corporate spending to influence voters on referenda not materially affecting corporation's business in light of First Nat'l Bank v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978), see 28 Emory L.J. 183 (1979). For comment on a nuisance-abatement statute applied to authorize prior restraint on exhibition of unnamed films, in the future as violative of the federal Constitution in Universal Amusement Co. v. Vance, 587 F.2d 159 (5th Cir. 1978), probable jurisdiction noted, 442 U.S. 928, 99 S. Ct. 2857, 61 L. Ed. 2d 295 (1979), aff'd, 445 U.S. 308, 100 S. Ct. 1156, 63 L. Ed. 2d 413 (1980), see 13 Ga. L. Rev. 1076 (1979). For comment on Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979), in light of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), see 30 Mercer L. Rev. 761 (1979). For comment on Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979), see 30 Mercer L. Rev. 1079 (1979). For comment on Crim v. McWhorter, 242 Ga. 863, 252 S.E.2d 421 (1979), see 31 Mercer L. Rev. 341 (1979). For comment on Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), see 31 Mercer L. Rev. 349 (1979). For comment, "Bivens and the Creation of a Cause of Action for Money Damages Arising Directly From the Due Process Clauses," see 29 Emory L.J. 231 (1980). For comment on Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979), regarding the equal protection clause and school desegregation, see 29 Emory L.J. 481 (1980). For comment, "The Secularization of the Law and Sex Discrimination," see 31 Mercer L. Rev. 581 (1980). For comment on Hoback v. Alabama, 607 F.2d 680 (5th Cir. 1979), discussing an indigent defendant's rights to expert witnesses, see 31 Mercer L. Rev. 1103 (1980). For comment on Statutes Requiring Consent of Mother, But Not of Father, As Prerequisite to Adoption of Illegitimate Child, Violating the Fourteenth Amendment Equal Protection Clause, see 29 Emory L.J. 833 (1980). For comment on Shakman v. Democratic Organization, 481 F. Supp. 1315 (N.D. Ill. 1979), regarding constitutionality of patronage hiring practices based on political affiliation, see 29 Emory L.J. 1217 (1980). For comment on Fullilove v. Klutznick, 448 U.S. 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980), regarding the constitutionality of the ten percent set aside for minority contractors, etc., see 29 Emory L.J. 1127 (1980). For comment on Rogers v. Medical Ass'n, 244 Ga. 151, 259 S.E.2d 85 (1979), invalidating Georgia statute requiring Governor's appointments to Composite State Board of Medical Examiners be made solely from nominees submitted by state medical society as an unconstitutional delegation of legislative authority to a private organization, see Emory L.J. 1183 (1980). For comment discussing the forcible medication of involuntarily committed mental patients with antipsychotic drugs in light of Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), see 15 Ga. L. Rev. 739 (1981). For comment, "Jurisdiction over Nonresidents in Georgia: Crowder v. Ginn," see 17 Ga. L. Rev. 201 (1982). For comment, "The Expansion of Constitutional and Statutory Remedies for Sex Segregation in Education: The Fourteenth Amendment and Title IX of the Education Amendments of 1972," see 32 Emory L.J. 1111 (1983). For comment, "Retail Liquor Licenses and Due Process: The Creation of Property Through Regulation," see 32 Emory L.J. 1199 (1983). For comment, "Free Press, Privacy, and Privilege: Protection of Researcher-Subject Communications," see 17 Ga. L. Rev. 1009 (1983). For comment discussing the unconstitutional use of deadly force against nonviolent fleeing felons, see 18 Ga. L. Rev. 137 (1983). For comment, "The Right to Adequate Treatment Versus the Right to Refuse Antipsychotic Drug Treatment: A Solution to the Dilemma of the Involuntarily Committed Psychiatric Patient," see 33 Emory L.J. 441 (1984). For comment, "Permissible State Aid to Parochial Schools: A Plea for Neutrality," see 33 Emory L.J. 487 (1984). For comment, "Proposal: Bilingual Education Guidelines for the Courts and the Schools," see 33 Emory L.J. 577 (1984). For comment, "Ohio v. Johnson: Prohibiting the Offensive Use of Guilty Pleas to Invoke Double Jeopardy Protection," see 19 Ga. L. Rev. 159 (1984). For comment, "The Expanding Scope of Appellate Review in Libel Cases - The Supreme Court Abandons the Clearly Erroneous Standard of Review for Findings of Actual Malice," see 36 Mercer L. Rev. 711 (1985). For comment, "Can Georgia's Rape Shield Statute Withstand a Constitutional Challenge?," see 36 Mercer L. Rev. 991 (1985). For comment, "The Psychotherapist-Client Testimonial Privilege: Defining the Professional Involved," see 34 Emory L.J. 777 (1985). For comment, "The Effect of Firefighters Local Union 174 v. Stotts on the Negotiated Settlement of Title VII Suits," see 34 Emory L.J. 827 (1985). For comment, "The Limits of the Neighborhood Justice Center: Why Domestic Violence Cases Should Not Be Mediated," see 34 Emory L.J. 855 (1985). For case comment discussing Miranda v. Arizona ambiguous requests for counsel, see 20 Ga. L. Rev. 221 (1985). For comment, "Legislative Limitations on Medical Malpractice Damages: The Chances of Survival," see 37 Mercer L. Rev. 1583 (1986). For comment, "Just Compensation for Temporary Regulatory Takings: A Discussion of Factors Influencing Damage Awards," see 35 Emory L.J. 729 (1986). For comment, "Use and Abuse of Urinalysis Testing in the Workplace: A Proposal for Federal Legislation Limiting Drug Screening," see 35 Emory L.J. 1011 (1986). For comment, "Private Prisons," see 36 Emory L.J. 253 (1987). For comment, "Enforcing the Right to a Public Education for Children Afflicted with AIDS," see 36 Emory L.J. 603 (1987). For comment, "The Constitutional Implications of Mandatory Testing for Acquired Immunodeficiency Syndrome - AIDS," see 37 Emory L.J. 217 (1988). For comment, "Davis v. Bandemer: Remedial Difficulties in Political Gerrymandering," see 37 Emory L.J. 443 (1988). For comment, "Surrogate Mother Contracts: Analysis of a Remedial Quagmire," see 37 Emory L.J. 721 (1988). For comment, "Batson v. Kentucky: Equal Protection, the Fair Cross-Section Requirement, and the Discriminatory Use of Peremptory Challenges," see 37 Emory L.J. 755 (1988). For case comment, "Booth v. Maryland: Admissibility of Victim Impact Statements During Sentencing Phase of Capital Murder Trials," see 21 Ga. L. Rev. 1191 (1987). For comment, "Nonpsychiatric Expert Assistance and the Requisite Showing of Need: A Catch-22 in the Post-Ake Criminal Justice System," see 37 Emory L.J. 995 (1988). For comment, "Teacher Competency Testing: 'Decertification' and the Federal Constitution and Title VII," see 37 Emory L.J. 1077 (1988). For case comment, "Taylor v. Ledbetter: Vindicating the Constitutional Rights of Foster Children to Adequate Care and Protection," see 22 Ga. L. Rev. 1187 (1988). For case comment, "In re Baby Girl Eason: Balancing Three Competing Interests in Third Party Adoptions," see 22 Ga. L. Rev. 1217 (1988). For comment, "Shapero v. Kentucky Bar Ass'n: First Amendment Protection for 'Targeted' Advertisements by Attorneys," see 23 Ga. L. Rev. 545 (1989). For comment, "New York State Club Ass'n v. City of New York: A Statutory Presumption Against Privacy," see 23 Ga. L. Rev. 569 (1989). For comment, "An Establishment Clause Analysis of Webster v. Reproductive Health Services," see 24 Ga. L. Rev. 399 (1990). For comment, "Capital Punishment: New Weapons in the Sentencing Process," see 24 Ga. L. Rev. 423 (1990). For comment, "Metro Broadcasting, Inc. v. FCC: The Constitutionality of the FCC's Use of Racial Classifications," see 25 Ga. L. Rev. 535 (1991). For comment, "Deeper into the Political Thicket: Racial and Political Gerrymandering and the Supreme Court," see 43 Emory L.J. 1519 (1994). For comment, "Is Georgia's Stalking Law Unconstitutionally Vague?," see 45 Mercer L. Rev. 853 (1994). For comment on the right to counsel in post-conviction proceedings, see 47 Emory L.J. 1079 (1998). For comment, "Taking Steps to Protect Private Property and Endangered Species: Constitutional Implications of Habitat Conservation Planning After Dolan v. Tigard," see 47 Emory L.J. 311 (1998). For comment, "A Back Door Solution: Steinberg v. Carhart and the Answer to the Casey/Salerno Dilemma for Facial Challenges to Abortion Statutes," see 50 Emory L. Rev. 873 (2001). For comment, "Apprendi v. New Jersey: Should Any Factual Determination Authorizing an Increase in a Criminal Defendant's Sentence be Proven to a Jury Beyond a Reasonable Doubt?," see 52 Mercer L. Rev. 1531 (2001). For comment, "A Deep Breath Before the Plunge: Undoing Miranda's Failure Before It's Too Late," see 55 Mercer L. Rev. 1375 (2004). For comment, "Thou Shalt Not Reorganize: Sacraments for Sale First Amendment Prohibitions and Other Complications of Chapter 11 Reorganization for Religious Institutions," see 22 Bank. Dev. J. 293 (2005). For comment, "Due Process Problems Caused by Large Disparities in Grants of Asylum: Will New Department of Justice Recommendations Solve the Problem?," see 22 Emory Int'l L. Rev. 385 (2008). For comment, "'An Era of Human Zoning': Banning Sex Offenders from Communities Through Residence and Work Restrictions," see 57 Emory L.J. 1347 (2008). For comment, "You've Got Libel: How the Can-Spam Act Delivers Defamation Liability to Spam-Fighters and Why the First Amendment Should Delete the Problem," see 58 Emory L.J. 1013 (2009). For comment, "Pinpoint Redistricting and the Minimization of Partisan Gerrymandering," see 59 Emory L.J. 211 (2009). For comment, "I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships," see 59 Emory L.J. 259 (2009). For comment, "Equal Protection for Transgendered Employees? Analyzing the Court's Call for More than Rational Basis in the Glenn v. Brumby Decision," see 28 Ga. St. U.L. Rev. 1315 (2012). For comment, "A Father's Right to Counsel in Georgia Juvenile Court Legitimation Proceedings: Closing the Due Process Loophole," see 29 Ga. St. U.L. Rev. 865 (2013). For comment, "Drawing the Line: DNA Databasing at Arrest and Sample Expungement," see 29 Ga. St. U.L. Rev. 1063 (2013). For comment, "The Guiding Hand of Counsel: Effective Representation for Indigent Defendants in the Cordele Judicial Circuit," see 66 Mercer L. Rev. 781 (2015). For comment, "The Unconstitutional Torture of an American by the U.S. Military: Is there a Remedy Under Bivens?," see 29 Ga. St. U.L. Rev. 1093 (2013). For comment, "L'Amour for Four: Polygyny, Polyamory, and the State's Compelling Economic Interest in Normative Monogamy," see 64 Emory L.J. 2093 (2015). For comment, "The Pursuit of Happiness (and Sexual Freedom): Lawrence v. Texas, Morality Legislation & the Sandy Springs Obscenity Statute," see 66 Mercer L. Rev. 1087 (2015). For comment, "Too Far From Home: Why Daimler's "At Home" Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases," see 66 Emory L.J. 161 (2016). For comment, "Affiliative Discrimination Theory: Title VII Litigation Within the Sixth Circuit," see 32 Ga. St. U.L. Rev. 541 (2016). For comment, "Georgia's Policies Regarding High School Special Education Diplomas: Are Too Many Children Left Behind?," see 32 Georgia St. U.L. Rev. 755 (2016).

JUDICIAL DECISIONS

General Consideration

Protection of life, liberty, and property from state interference.

- Fourteenth Amendment protects life, liberty, and property interests from undue state interference. Williams v. Housing Auth., 158 Ga. App. 734, 282 S.E.2d 141 (1981).

All persons - children and adults - are protected by prohibitions of U.S. Const., amend. 14. J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976), rev'd on other grounds, 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).

Established principle of civilized government.

- While U.S. Const., amend. 14 of the Constitution of the United States is a limitation upon the powers of the states, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in nearly all state Constitutions. By U.S. Const., amend. 5, it was introduced into the Constitution of the United States as a limitation upon the powers of the national Government, and by U.S. Const., amend. 14, as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the states. J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976), rev'd on other grounds, 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).

Sovereign immunity constitutional.

- The statutory bar of sovereign immunity to suit in tort is not a deprivation of property without just compensation, nor a denial of either equal protection or due process under the federal or state Constitutions. Robinson v. City of Decatur, 253 Ga. 779, 325 S.E.2d 752 (1985), overruled on other grounds, Martin v. Georgia Dep't of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987).

Must establish violation of clear constitutional right.

- Plaintiff failed to demonstrate that the defendants violated clearly established constitutional rights of which a reasonable person would have known; therefore, defendants are shielded by qualified immunity. Powell v. Georgia Dep't of Human Resources, 114 F.3d 1074 (11th Cir. 1997).

The Court found that the plaintiff, who was attacked after being released from police custody, was not deprived of the plaintiff's constitutional rights under U.S. Const., amend. 14 when police officers released the plaintiff from custody in an impaired state, since there was no violation of a clearly established constitutional right, the individual police officers were entitled to qualified immunity. Bogle v. City of Warner Robins, 953 F. Supp. 1563 (M.D. Ga. 1997).

Private discriminatory acts come within the purview of sec. 5 of U.S. Const., amend. 14 should Congress believe that a preclusion of such acts is helpful in insuring the effectuation of sec. 1. Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975).

Requirements of U.S. Const., amend. 14 are satisfied if trial is had according to the settled course of judicial procedure obtaining in the particular state and the laws operate on all persons alike and do not subject the individual to the arbitrary exercise of the powers of government. Chatterton v. Dutton, 223 Ga. 243, 154 S.E.2d 213, cert. denied, 389 U.S. 914, 88 S. Ct. 247, 19 L. Ed. 2d 266 (1967).

Compelling state interest required for regulation of fundamental rights.

- When fundamental right is affected, regulations may be justified only if necessary to accomplish compelling state interest. Chatham v. Jackson, 613 F.2d 73 (5th Cir. 1980).

Establishment clause, as applied to states through fourteenth amendment, is limited to governmental action.

- Establishment clause only speaks to acts of the United States Congress, and, as applied to the states under the due process clause of the Fourteenth Amendment it still is limited only to governmental action respecting an establishment of religion. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir.), modified, 698 F.2d 1098 (11th Cir. 1983).

Relationship of presumptions to due process. See Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981).

Constitutional restraints limit state power to terminate entitlement whether the entitlement is denominated a "right" or a "privilege." Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).

Protection of freedom of speech.

- Freedom of speech among fundamental personal rights and liberties protected by U.S. Const., amend. 14 from invasion by state action. Staub v. City of Baxley, 355 U.S. 313, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958).

First amendment, in conjunction with fourteenth, prohibits governments from abridging freedom of speech or of press; or right of people peaceably to assemble and to petition the government for a redress of grievances. These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to functioning of government. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

"Fighting words" constitute one of those narrow speech areas not constitutionally protected. State v. Klinakis, 206 Ga. App. 318, 425 S.E.2d 665 (1992).

The press may not be exposed to liability for truthfully publishing information released to the public in official court records. Munoz v. American Lawyer Media, 236 Ga. App. 462, 512 S.E.2d 347 (1999).

Protection of familial relationship.

- Appointment of a guardian ad litem for the limited purpose of making a best interest determination regarding the need for a 16-year-old to receive a blood transfusion did not constitute a substantive due process violation with respect to the government's intrusion into the familial relationship of the child and the child's mother who, as Jehovah's Witnesses, did not want the transfusion. Novak v. Cobb County-Kennestone Hosp. Auth., 849 F. Supp. 1559 (N.D. Ga. 1994), aff'd, 74 F.3d 1173 (11th Cir. 1996).

Constitutional right to travel from one state to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of the federal union. United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966).

Constitutional right to privacy.

- A person's complaint stating that city police officers violated the person's right to privacy by viewing a videotape which depicted the person and another person engaging in sexual activity alleged a violation of a clearly established constitutional right. James v. City of Douglas, 941 F.2d 1539 (11th Cir. 1991).

Defendant had a legitimate expectation of privacy in the apartment of the defendant's friend's sibling because the defendant was a frequent welcome social visitor, the defendant left possessions there, and the defendant had spent the night as a social guest. State v. Brown, 212 Ga. App. 800, 442 S.E.2d 818 (1994).

Citizen's right to vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution. Toombs v. Fortson, 205 F. Supp. 248 (N.D. Ga. 1962), vacated on other grounds, 379 U.S. 621, 85 S. Ct. 598, 13 L. Ed. 2d 527 (1965).

Residency requirement for candidate upheld.

- Requiring appellee candidate to reside in the district for 12 months prior to the general election did not deny the candidate equal protection under the United States Constitution or the Georgia Constitution as the residency requirement for election to the Georgia Public Service Commission was rationally related to the state's legitimate interests in fostering informed voters and promoting knowledgeable and responsive candidates with ties to the community, and did not place an unreasonable burden on the right of voters to choose a candidate or the right of the candidate to run for public office. Cox v. Barber, 275 Ga. 415, 568 S.E.2d 478 (2002), cert. denied, 537 U.S. 1109, 123 S. Ct. 851, 154 L. Ed. 2d 780 (2003).

Legislation conflicting with court order based on amendment.

- Legislation conflicting with court order drawing its authority from U.S. Const., amend. 14 is unconstitutional. Stell v. Board of Pub. Educ., 334 F. Supp. 909 (S.D. Ga. 1971).

Plaintiff's burden in dispute about discharge.

- When a dispute arises concerning whether a discharge was effected pursuant to a permissible or an impermissible reason, the plaintiff has the burden to show (1) that his conduct was constitutionally protected; and (2) that his conduct was a "substantial" or "motivating" factor in the termination decision. Smith v. Price, 616 F.2d 1371 (5th Cir. 1980).

State regulation of intoxicating beverages.

- States do not escape operation of U.S. Const., amend. 14 in dealing with intoxicating beverages by reason of U.S. Const., amend. 21. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964).

When use of language can be restricted.

- Former Code 1933, § 26-2610 (see now O.C.G.A. § 16-11-39.1), which made use of "fighting words," obscene and vulgar or profane language or harassing phone calls a misdemeanor, was not unconstitutional as a violation of U.S. Const., amends. 1 and 14. Grantham v. State, 151 Ga. App. 707, 261 S.E.2d 445, aff'd, 244 Ga. 775, 262 S.E.2d 777 (1979).

Municipality may not discriminate in regulation of expression on basis of content.

- A municipality may not under U.S. Const., amends. 1 and 14 discriminate in the regulation of expression on the basis of the content of that expression. Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976).

Large self-contained shopping center is not functional equivalent of municipality. Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976).

Exclusiveness of remedy in workers' compensation system.

- Concept of exclusiveness of remedy is rational mechanism for making the workers' compensation system work in accord with the purpose of the Workers' Compensation Act. Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973).

Workers' Compensation Act applicable to personal property damage action.

- Although the Georgia Workers' Compensation Act does not provide a remedy for damage to personal property, the Act does not bar an action for damages to personal property, such as an employee's clothing. To hold otherwise would deny an employee the constitutional right to due process and equal protection of the law. Superb Carpet Mills, Inc. v. Thomason, 183 Ga. App. 554, 359 S.E.2d 370 (1987).

Regulation of distribution of obscenity.

- States have legitimate interest in controlling commercial distribution and exploitation of obscenity. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

Charter and ordinance forbidding showing picture without prior approval not unconstitutional on its face.

- A charter and ordinance which forbids the showing of any picture without its prior approval by a censor does not on its face offend the United States Constitution. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784, 125 S.E.2d 207 (1962).

Provision making distributing obscene materials misdemeanor not unconstitutional.

- Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80) is not violative of the U.S. Const., amends. 1, 4, 5, 9 and 14 on the ground that the constitutional right to mere possession of obscene material necessarily implies the right to purchase such material and, hence, the right of others to distribute it. Gornto v. State, 227 Ga. 46, 178 S.E.2d 894 (1970), cert. denied, 402 U.S. 933, 91 S. Ct. 1525, 28 L. Ed. 2d 868 (1971).

Conviction on obscenity charge not permitted unless work substantially exceeds limits of community standards.

- U.S. Const., amend. 14 does not permit a conviction on obscenity charges unless the work complained of is found substantially to exceed the limits of candor set by contemporary community standards. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

Interim injunctive relief not warranted in challenge to statute restricting distribution of publications to minors.

- Plaintiffs, consisting of booksellers, publishers, distributors, stores, retailers, as well as an author, challenging the constitutionality of O.C.G.A. § 16-12-103 (distribution of sexually explicit materials to minors) on the ground that it would prevent even parents from providing proscribed materials to their children, in violation of the parents' federal constitutional rights to direct their children's upbringing and education, did not establish that any significant portion of their business would consist in selling parents materials covered by the challenged law and, thus, did not show that their injury would be sufficiently great to justify interim injunctive relief to protect the plaintiffs during the federal court's period of abstention while the plaintiffs sought a ruling from the state court on state and federal constitutional grounds. American Booksellers Ass'n v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984).

Statute regulating profane words on bumper stickers unconstitutionally restricts freedom of expression as guaranteed by the first and Fourteenth Amendments of the United States Constitution and by the Georgia Constitution. Cunningham v. State, 260 Ga. 827, 400 S.E.2d 916 (1991).

Loitering ordinances.

- Local ordinance providing that "No person shall remain or loiter upon any premises to which the public has access, including but not limited to such places as business and shopping area parking lots, where the person's presence upon such premises is unrelated to the normal activity, use or business for which such premises are made available to the public" violates U.S. Const., amends. 1 and 14. Bullock v. City of Dallas, 248 Ga. 164, 281 S.E.2d 613 (1981).

Right to wear one's hair as one sees fit not within specific constitutional right.

- Even where the wearing of long hair is assumed to be symbolic expression, it falls within that type of expression which is manifested through conduct and is therefore subject to reasonable state regulation in furtherance of a legitimate state interest. Stevenson v. Wheeler County Bd. of Educ., 306 F. Supp. 97 (S.D. Ga. 1969), aff'd, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S. Ct. 355, 27 L. Ed. 2d 265 (1970).

The right to wear one's hair as one sees fit has not been found to be within the periphery of any of our specific constitutional rights. Ashley v. City of Macon, 377 F. Supp. 540 (M.D. Ga. 1974), aff'd, 505 F.2d 868 (5th Cir. 1975).

There is no constitutionally protected right - plainly expressed or within the penumbra, the shadow, of the U.S. Const., amends. 1, 8, 9, 10 and 14 - to wear one's hair in a public high school in the length and style that suits the wearer. Ashley v. City of Macon, 377 F. Supp. 540 (M.D. Ga. 1974), aff'd, 505 F.2d 868 (5th Cir. 1975).

School regulations concerning hairstyles and dress part of necessary disciplining.

- Public school regulations concerning hairstyles and regulations which deal generally with dress and the like are a part of the disciplinary process which is necessary in maintaining a balance between the rights of individual students and the rights of the whole in the functioning of schools. The touchstone for sustaining such regulations is the demonstration that they are necessary to alleviate interference with the educational process. Stevenson v. Board of Educ., 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S. Ct. 355, 27 L. Ed. 2d 265 (1970).

School officials should possess considerable leeway in promulgating regulations for conduct.

- Public school officials cannot make rules for the sake of making them but they should possess considerable leeway in promulgating regulations for the proper conduct of students. Courts should uphold them where there is any rational basis for the questioned rule. All that is necessary is a reasonable connection of the rule with the proper operation of the schools. Stevenson v. Wheeler County Bd. of Educ., 306 F. Supp. 97 (S.D. Ga. 1969), aff'd, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S. Ct. 355, 27 L. Ed. 2d 265 (1970).

State subdivision can constitutionally restrict facial hair of police officers because of its strong interest in having law enforcement personnel present a uniform appearance to the public. Nalley v. Douglas County, 498 F. Supp. 1228 (N.D. Ga. 1980).

Anti-nepotism ordinance constitutional.

- Municipal anti-nepotism ordinance restricting the rights of law enforcement personnel to intermarry placed only an indirect burden on plaintiff's right to marry while advancing several legitimate governmental purposes in a rational manner. Parks v. City of Warner Robins, 841 F. Supp. 1205 (M.D. Ga. 1994), aff'd, 43 F.3d 609 (11th Cir. 1995).

No citizen with personal right as to location of public schools.

- No property right which could be accorded protection under this section exists in the maintenance of a certain school in a certain location. The location of public schools is a matter in which no citizen has a personal right anymore than he would in the location of any other public facility. Wallis v. Blue, 263 F. Supp. 965 (N.D. Ga. 1967).

Law or regulation requiring or furthering racial discrimination in schools unconstitutional.

- Any law or regulation of a state, county, or municipality requiring or furthering racial discrimination in the public schools violates the federal Constitution. Stell v. Board of Pub. Educ., 334 F. Supp. 909 (S.D. Ga. 1971).

Every school need not reflect racial composition of system in desegregation.

- In the exercise of broad remedial powers, focus must be on dismantling dual school systems rather than on achieving perfect racial balance: the constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole. United States v. Board of Educ., 331 F. Supp. 466 (N.D. Ga. 1971); Drummond v. Acree, 409 U.S. 1228, 93 S. Ct. 18, 34 L. Ed. 2d 33 (1972).

School ethics standard not void for vagueness.

- Good and sufficient cause standard in Interim Ethics Rules 505-2-.03(1)(o), Ga. Comp. R. & Regs. r. 505-2-.03(1)(o), was not void for vagueness as it gave a school superintendent notice that the superintendent's decision to bypass the sheriff's department and take the law into the superintendent's own hands by brandishing a firearm and threatening a suspect of criminal activity on a public highway, during school hours, could constitute "good and sufficient cause" for the suspension of the superintendent's educator certificate. Prof'l Stds. Comm'n v. Alberson, 273 Ga. App. 1, 614 S.E.2d 132 (2005).

Busing is an available tool for use by district courts in achieving school desegregation. Acree v. County Bd. of Educ., 458 F.2d 486 (5th Cir.), cert. denied, 409 U.S. 1006, 93 S. Ct. 431, 34 L. Ed. 2d 299 (1972).

When freedom of choice plans permissible.

- Freedom of choice plans for school desegregation are permissible only where they offer real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, nonracial system. Stell v. Board of Pub. Educ., 334 F. Supp. 909 (S.D. Ga. 1971).

Board of education discretion in dealing with teachers not unbounded.

- It is the board of education and not a court which is empowered by law to manage a county school system, and it is their duty to hire and fire teachers as necessary. To this end, the law grants the board and its superintendent's broad discretion. The orderly operation of the schools depends upon their expertise and not upon whatever skills a judge may possess in the area of school administration. The board's discretion, though, is not unbounded. Standards which they use in the evaluation of prospective teachers must be reasonably related to teaching competency and effectiveness. Their standards must be applied in a uniform fashion so that no group of prospective teachers is singled out for greater scrutiny than other prospective teachers and employment cannot be conditioned upon factors which infringe upon the free exercise of constitutionally protected rights. Doherty v. Wilson, 356 F. Supp. 35 (M.D. Ga. 1973).

Grandparent visitation statute unconstitutional.

- The grandparent visitation statute, O.C.G.A. § 19-7-3, is unconstitutional because it does not clearly promote the health or welfare of the child and does not require a showing of harm before state interference is authorized. Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769 (1995).

Juvenile court jurisdiction statute does not violate the separation of powers doctrine of the state constitution, nor is it violative of the due process and equal protection provisions of the federal and state constitutions. Bishop v. State, 265 Ga. 821, 462 S.E.2d 716 (1995); Murphy v. State, 267 Ga. 100, 475 S.E.2d 590 (1996).

When controls and requirements concerning abortions within legislative discretion.

- Controls and requirements concerning the performance of abortions are properly within the sphere of legislative discretion so long as they do not restrict the reasons for the initial decisions and do not violate the due process and equal protection clauses of U.S. Const., amend. 14. Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), modified and affirmed, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).

Legislature's compliance with duty to furnish party charged with crime due process of law.

- Where the legislature of this state has enacted laws for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish the parties the necessary protection of life, liberty, and property, it has complied with its duty to furnish to a party charged with a crime due process of law. King v. State, 174 Ga. 432, 163 S.E. 168 (1932).

Constructive knowledge provision in statute concerning distribution of obscene materials not unconstitutional.

- Constitutional attack upon former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80) that the constructive knowledge as found therein is a violation of the constitutional requirements as to scienter was not meritorious. Showcase Cinemas, Inc. v. State, 156 Ga. App. 225, 274 S.E.2d 578 (1980), cert. dismissed, 451 U.S. 934, 101 S. Ct. 2037, 68 L. Ed. 2d 343 (1981).

Standing to raise question of constitutionality.

- One cannot raise the question of constitutionality of a statute, or of the action of an administrative agency acting under statutory power, as violative of constitutional rights, unless the interest or rights of such complaining party are affected by the statute or the action of the agency. West v. Housing Auth., 211 Ga. 133, 84 S.E.2d 30 (1954).

Constitutional questions must be raised in trial court in order to be heard on appeal.

- Constitutional questions cannot be considered by the Court of Appeals or the Supreme Court where it does not appear from the record that they were raised in the trial court. Cantrell v. Abernathy, 120 Ga. App. 318, 170 S.E.2d 319 (1969).

Abrogation of state's eleventh amendment immunity.

- U.S. Const., amend. 14 granted Congress authority to abrogate the state's eleventh amendment immunity from suit by individuals for the state's violation of the Bankruptcy Code's discharge injunction. Burke v. Georgia ex rel. Dep't of Revenue, 203 Bankr. 493 (Bankr. S.D. Ga. 1996).

U.S. Const., amend. 14 granted to Congress the authority to abrogate the state's sovereign immunity against individual suits in federal court for damages arising from the state's violation of the automatic stay provisions of the Bankruptcy Code. Headrick v. Georgia, 203 Bankr. 805 (Bankr. S.D. Ga. 1996).

Actions alleging violation of 42 U.S.C.

§ 1983. - The Fourteenth Amendment does not supersede the eleventh amendment in actions alleging violations of 42 U.S.C. § 1983. Section five of the Fourteenth Amendment authorizes Congress to override eleventh amendment immunity to the extent necessary to enforce legislation designed to implement the substantive provisions of the Fourteenth Amendment, but it is well settled that § 1983 does not constitute an exercise of that authority. Thomas v. Devries, 834 F. Supp. 398 (M.D. Ga. 1993).

Liability under federal civil rights statute.

- Recognizing that 42 U.S.C. § 1983 clearly requires a showing of something more than common law tort elements, the court analyzed a deputy sheriff's tort claims for malicious prosecution, abuse of process, false arrest and false imprisonment, in the context of the fourth and Fourteenth Amendments, and found that claims thereunder were validly inferrable for alleged conspiracy by fellow officers to force the deputy to give false testimony against the county sheriff. Mastroianni v. Deering, 835 F. Supp. 1577 (S.D. Ga. 1993).

Where plaintiff alleges federal statutory and constitutional predicates, federal court must assume jurisdiction.

- Where a plaintiff alleges 28 U.S.C. § 1343(3), in conjunction with 42 U.S.C. § 1983, as the jurisdictional predicate, and alleges federal constitutional predicates, such as Fourteenth Amendment property rights, first amendment rights to free speech and association, and fifth amendment just compensation or "taking" clause, a federal court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief, as well as to determine issues of fact arising in the controversy. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).

Failure to voice objection.

- The refusal to grant a mistrial, on the grounds that the state's cross-examination of a witness was improper, is not an abuse of discretion where the defendant failed to voice an objection during the questioning. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984).

Emergency medical care and services.

- County which received an emergency telephone call from a mental health institute in another county had no constitutional duty to provide emergency medical care and services to an institute patient who died before receiving treatment. Cleveland v. Fulton County, 196 Ga. App. 168, 396 S.E.2d 2 (1990).

Transfer of excess reserves in guaranteed student loan program.

- The 1987 amendments to the federal Higher Education Act of 1965 which required the transfer of excess reserves held by guarantors participating in the guaranteed student loan program to the United States Department of Education did not abrogate a state-created guaranty agency's contract in an attempt to lessen the public debt and, therefore, did not violate § 4 of U.S. Const., amend. 14. Georgia Student Fin. Comm'n v. Cavazos, 741 F. Supp. 899 (N.D. Ga. 1990).

Determination of dischargeability of student loan.

- Congress had and exercised its authority under the Fourteenth Amendment to waive the eleventh amendment immunity of a state from an action by an individual to determine the dischargeability in bankruptcy of a student loan. Wilson v. South Carolina State Educ. Assistant Auth. (In re Wilson), 258 Bankr. 303 (Bankr. S.D. 2001).

Hearsay evidence from abused children.

- If it is rational to imprison a defendant who causes a child to witness sexual contact or physical abuse, it is surely rational to make the defendant merely deal with hearsay from such a child, whom the defendant may require to appear in court to testify and face cross-examination; the fact that the General Assembly loosened the hearsay rule for child witnesses to crimes involving only sexual contact and physical abuse, as opposed to all crimes or all violent crimes, should pose no problem under rational basis review. Bunn v. State, 291 Ga. 183, 728 S.E.2d 569 (2012).

Disparate classes of criminal defendants based on age of victim.

- Court of appeals properly held that children's out-of-court statements about sexual conduct that happened to each other in their presence were admissible under the former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), because the court did not err in declining to extend the holding of Woodard v. State, 269 Ga. 317 (1998), which was overruled, to the defendant's case; there was nothing irrational about creating disparate classes of criminal defendants based on the young age of the witnesses to their crimes. Bunn v. State, 291 Ga. 183, 728 S.E.2d 569 (2012).

Cited in Morgan v. Lowry, 168 Ga. 723, 149 S.E. 37 (1929); Atlanta Term. Co. v. Georgia Pub. Serv. Comm'n, 168 Ga. 772, 149 S.E. 189 (1929); Southern Ry. v. Reed, 40 Ga. App. 332, 149 S.E. 582 (1929); Toombs v. Citizens' Bank, 169 Ga. 115, 149 S.E. 645 (1929); Wilkins v. American Sec. Co., 40 Ga. App. 378, 149 S.E. 810 (1929); Toombs v. Citizens Bank, 281 U.S. 643 (1930); Butler v. Mobley, 170 Ga. 265, 152 S.E. 229 (1930); Georgia Power Co. v. City of Decatur, 170 Ga. 699, 154 S.E. 268 (1930); Georgia Pub. Serv. Comm'n v. Saye & Davis Transf. Co., 170 Ga. 873, 154 S.E. 439 (1930); Mobley v. Brundage, 170 Ga. 829, 154 S.E. 452 (1930); Davidson v. Citizens' Bank, 171 Ga. 81, 154 S.E. 775 (1930); Southern Ry. v. Perdue, 171 Ga. 134, 154 S.E. 793 (1930); City of Macon v. Georgia Power Co., 171 Ga. 40, 155 S.E. 34 (1930); Curtis v. Town of Helen, 171 Ga. 256, 155 S.E. 202 (1930); Southern Transf. Co. v. Harrison, 171 Ga. 358, 155 S.E. 338 (1930); Brooks v. Harrison, 171 Ga. 488, 156 S.E. 35 (1930); Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931); Georgia Fertilizer Co. v. Walker, 171 Ga. 734, 156 S.E. 820 (1931); Gregory v. Quarles, 172 Ga. 45, 157 S.E. 306 (1931); Slicer v. State, 172 Ga. 445, 157 S.E. 664 (1931); Sharpe v. Seaboard Air Line Ry., 43 Ga. App. 51, 157 S.E. 875 (1931); American Serv. Co. v. Cohen, 172 Ga. 744, 158 S.E. 599 (1931); Georgia Power Co. v. City of Decatur, 173 Ga. 219, 159 S.E. 863 (1931); Threatt v. American Mut. Liab. Ins. Co., 173 Ga. 350, 160 S.E. 379 (1931); Bank of Jonesboro v. Wilson, 43 Ga. App. 839, 160 S.E. 653 (1931); Citizens' & S. Nat'l Bank v. City of Atlanta, 46 F.2d 88 (N.D. Ga. 1931); Citizens' & S. Nat'l Bank v. City of Atlanta, 53 F.2d 557 (5th Cir. 1931); Thomas v. State, 174 Ga. 654, 163 S.E. 734 (1932); Walden v. Sellers, 174 Ga. 774, 163 S.E. 897 (1932); Buie v. Buie, 175 Ga. 27, 165 S.E. 15 (1932); Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932); Woodall v. Georgia Power Co., 45 Ga. App. 526, 165 S.E. 311 (1932); Perkins v. Mayor of Madison, 175 Ga. 714, 165 S.E. 811 (1932); Board of Comm'rs v. Massachusetts Bonding Ins. Co., 175 Ga. 584, 165 S.E. 828 (1932); Montgomery & Atlanta Freight Lines v. Georgia Pub. Serv. Comm'n, 175 Ga. 826, 166 S.E. 200 (1932); West v. Standard Accident Ins. Co., 176 Ga. 54, 166 S.E. 761 (1932); State Bd. of Barber Exmrs. v. Blocker, 176 Ga. 125, 167 S.E. 298 (1932); Saunders v. Lowry, 58 F.2d 158 (5th Cir. 1932); Downer v. Dunaway, 1 F. Supp. 1001 (M.D. Ga. 1932); Western & A.R.R. v. Leslie, 176 Ga. 385, 168 S.E. 15 (1933); Wilder v. Federal Land Bank, 176 Ga. 813, 169 S.E. 13 (1933); Interstate Co. v. Richardson, 177 Ga. 9, 169 S.E. 373 (1933); Donalson v. City of Bainbridge, 177 Ga. 7, 169 S.E. 886 (1933); National Linen Serv. Corp. v. City of Albany, 177 Ga. 81, 169 S.E. 894 (1933); Hooten v. Holcomb, 177 Ga. 561, 170 S.E. 803 (1933); V.C. Ellington Co. v. City of Macon, 177 Ga. 541, 170 S.E. 813 (1933); Felton v. Huiet, 178 Ga. 311, 173 S.E. 660 (1933); Southern Ry. v. Slaton, 178 Ga. 314, 173 S.E. 161 (1934); Gaskins v. Varn, 178 Ga. 502, 173 S.E. 695 (1934); Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595, 173 S.E. 720 (1934); Collier v. City of Atlanta, 178 Ga. 575, 173 S.E. 853 (1934); Stafford v. City of Valdosta, 49 Ga. App. 243, 174 S.E. 810 (1934); Bradford v. Hammond, 179 Ga. 40, 175 S.E. 18 (1934); Standard Oil Co. v. State Revenue Comm'n, 179 Ga. 371, 176 S.E. 1 (1934); Southeastern Elec. Co. v. City of Atlanta, 179 Ga. 514, 176 S.E. 400 (1934); Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 179 Ga. 431, 176 S.E. 487 (1934); Williams v. McIntosh County, 179 Ga. 735, 177 S.E. 248 (1934); Herndon v. Georgia, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935); Melton v. State, 180 Ga. 104, 178 S.E. 447 (1935); Palmer v. Burke County, 180 Ga. 478, 179 S.E. 344 (1935); Georgia Pub. Serv. Comm'n v. City of Albany, 180 Ga. 355, 179 S.E. 369 (1935); American Sur. Co. v. State, 50 Ga. App. 777, 179 S.E. 407 (1935); Derst Baking Co. v. Mayor of Savannah, 180 Ga. 510, 179 S.E. 763 (1935); Candler v. Gilbert, 180 Ga. 679, 180 S.E. 723 (1935); National Linen Serv. Corp. v. City of Gainesville, 181 Ga. 397, 182 S.E. 610 (1935); Beaudry v. United States, 79 F.2d 650 (5th Cir. 1935); Green v. Page, 9 F. Supp. 844 (S.D. Ga. 1935); Georgia Ry. & Elec. Co. v. City of Decatur, 297 U.S. 620, 56 S. Ct. 606, 80 L. Ed. 925 (1936); Snow's Laundry v. City of Dublin, 182 Ga. 316, 185 S.E. 343 (1936); Griffith v. City of Hapeville, 182 Ga. 333, 185 S.E. 522 (1936); Coleman v. City of Griffin, 55 Ga. App. 123, 189 S.E. 427 (1936); Jenkins v. United States, 86 F.2d 123 (5th Cir. 1936); Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066 (1937); Townsend v. Yeomans, 301 U.S. 441, 57 S. Ct. 842, 81 L. Ed. 1210 (1937); Gray v. City of Atlanta, 183 Ga. 730, 189 S.E. 591 (1937); McKown v. City of Atlanta, 184 Ga. 221, 190 S.E. 571 (1937); Alco Feed Mills v. Hollis, 184 Ga. 594, 192 S.E. 184 (1937); Leoles v. Landers, 184 Ga. 580, 192 S.E. 218; National Fin. Co. v. Citizens Loan & Sav. Co., 184 Ga. 619, 192 S.E. 717 (1937); Jollie v. Hughes, 184 Ga. 860, 193 S.E. 769 (1937); Carmichael v. Atlanta Gaslight Co., 185 Ga. 34, 193 S.E. 896 (1937); Johnson v. Walls, 185 Ga. 177, 194 S.E. 380 (1937); Hornsby v. Bristow, 185 Ga. 577, 196 S.E. 25 (1938); Mayor of Savannah v. Fawcett, 186 Ga. 132, 197 S.E. 253 (1938); Dixie-Ohio Express Co. v. State Revenue Comm'n, 186 Ga. 228, 197 S.E. 887 (1938); State Bd. of Educ. v. Board of Pub. Educ., 186 Ga. 783, 199 S.E.2d 641 (1938); Lloyds Am. v. Brown, 187 Ga. 240, 200 S.E. 292 (1938); Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S. 72, 59 S. Ct. 435, 83 L. Ed. 495 (1939); Methodist Episcopal Church S., Inc. v. Decell, 60 Ga. App. 843, 5 S.E.2d 66 (1939); Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358, 3 S.E.2d 705 (1939); Garner v. Wood, 188 Ga. 463, 4 S.E.2d 137 (1939); Trust Co. v. Finsterwald, 188 Ga. 794, 4 S.E.2d 808 (1939); Newton v. City of Atlanta, 189 Ga. 441, 6 S.E.2d 61 (1939); Piggly-Wiggly Ga. Co. v. May Investing Corp., 189 Ga. 477, 6 S.E.2d 579 (1939); Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633, 10 S.E.2d 46 (1940); Independent Gasoline Co. v. Bureau of Unemployment Comp., 190 Ga. 613, 10 S.E.2d 58; McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5 (1940); Savannah Bank & Trust Co. v. Wolff, 191 Ga. 111, 11 S.E.2d 766 (1940); Rivers v. Miller, 112 F.2d 439 (5th Cir. 1940); Enzor v. Askew, 191 Ga. 576, 13 S.E.2d 374 (1941); Montgomery v. Suttles, 191 Ga. 781, 13 S.E.2d 781 (1941); City of Albany v. Lippitt, 191 Ga. 756, 13 S.E.2d 807 (1941); Williams v. State, 192 Ga. 247, 15 S.E.2d 219 (1941); Washington Sem., Inc. v. Bass, 192 Ga. 808, 16 S.E.2d 565 (1941); Gernatt v. Huiet, 192 Ga. 729, 16 S.E.2d 587 (1941); Barwick v. Roberts, 192 Ga. 783, 16 S.E.2d 867 (1941); Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156 (1941); Anthony v. City of Atlanta, 66 Ga. App. 506, 18 S.E.2d 82 (1941); Morton v. Henderson, 123 F.2d 48 (5th Cir. 1941); Speed Oil of Atlanta, Inc. v. City of Rome, 193 Ga. 327, 18 S.E.2d 628 (1942); Dean v. Georgia Pub. Serv. Comm'n, 193 Ga. 401, 18 S.E.2d 756 (1942); Mason & Dixon Lines v. Odom, 193 Ga. 471, 18 S.E.2d 841 (1942); Bunn v. City of Atlanta, 67 Ga. App. 147, 19 S.E.2d 553; Southern Ry. v. Parker, 194 Ga. 94, 21 S.E.2d 94 (1942); Bainbridge Farm Co. v. Bower, 194 Ga. 304, 21 S.E.2d 224 (1942); Huiet v. Dayan, 194 Ga. 250, 21 S.E.2d 423 (1942); Mutual Life Ins. Co. v. Olliff, 67 Ga. App. 845, 21 S.E.2d 534 (1942); Babb v. Huiet, 67 Ga. App. 861, 21 S.E.2d 663 (1942); Holley v. Lawrence, 194 Ga. 529, 22 S.E.2d 154 (1942); City of Cedartown v. Pickett, 194 Ga. 508, 22 S.E.2d 318 (1942); Lowe v. City Council, 45 F. Supp. 143 (S.D. Ga. 1942); Coates v. Lawrence, 46 F. Supp. 414 (S.D. Ga. 1942); Gaston v. Keehn, 195 Ga. 559, 24 S.E.2d 675 (1943); Head v. Georgia Power Co., 70 Ga. App. 32, 27 S.E.2d 339 (1943); White v. State, 196 Ga. 847, 27 S.E.2d 695 (1943)

Slaten v. Travelers Ins. Co., 197 Ga. 1, 28 S.E.2d 280 (1943); Paul v. Longino, 197 Ga. 110, 28 S.E.2d 286 (1943); Steward v. Peerless Furn. Co., 70 Ga. App. 236, 28 S.E.2d 396 (1943); Derrick v. City Council, 138 F.2d 507 (5th Cir. 1943); Stone v. Sinkfield, 70 Ga. App. 787, 29 S.E.2d 310 (1944); Creaser v. Durant, 197 Ga. 531, 29 S.E.2d 776 (1944); Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780 (1944); Ferguson v. City of Moultrie, 71 Ga. App. 13, 29 S.E.2d 786 (1944); Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944); White v. State, 71 Ga. App. 512, 31 S.E.2d 78 (1944); Parke, Davis & Co. v. Cook, 198 Ga. 457, 31 S.E.2d 728 (1944); Monge v. Sanford, 145 F.2d 227 (5th Cir. 1944); Boyers v. State, 198 Ga. 838, 33 S.E.2d 251 (1945); Watkins v. State, 199 Ga. 81, 33 S.E.2d 325 (1945); Dooley v. Savannah Bank & Trust Co., 199 Ga. 353, 34 S.E.2d 522 (1945); Williams v. State, 199 Ga. 504, 34 S.E.2d 854 (1945); McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945); Miller v. Sanford, 59 F. Supp. 812 (N.D. Ga. 1945); Thompson v. Eastern Air Lines, 200 Ga. 216, 39 S.E.2d 225 (1946); Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399 (1946); Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84, 38 S.E.2d 786 (1946); Andrews v. Aderhold, 201 Ga. 132, 39 S.E.2d 61 (1946); Nastasi v. Aderhold, 201 Ga. 237, 39 S.E.2d 403 (1946); Dade County v. State, 201 Ga. 241, 39 S.E.2d 473 (1946); Mangum v. State, 201 Ga. 519, 40 S.E.2d 423 (1946); Chapman v. King, 154 F.2d 460 (5th Cir. 1946); Cook v. Fortson, 68 F. Supp. 624 (N.D. Ga. 1946); Turman v. Duckworth, 68 F. Supp. 744 (N.D. Ga. 1946); Robinson v. Aderhold, 202 Ga. 340, 43 S.E.2d 262 (1947); Mayor of Savannah v. Savannah Distrib. Co., 202 Ga. 559, 43 S.E.2d 704 (1947); Ford v. State, 202 Ga. 599, 44 S.E.2d 263 (1947); Johnson v. State, 203 Ga. 147, 45 S.E.2d 616 (1947); Refoule v. Ellis, 74 F. Supp. 336 (N.D. Ga. 1947); McKay v. Balkcom, 203 Ga. 790, 48 S.E.2d 453 (1948); Manners v. State, 77 Ga. App. 843, 50 S.E.2d 158 (1948); Cartersville Candlewick, Inc. v. Huiet, 204 Ga. 609, 50 S.E.2d 647 (1948); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Co-Op Cab Co. v. Settle, 171 F.2d 40 (5th Cir. 1948); Gaines v. State, 205 Ga. 210, 52 S.E.2d 847 (1949); Woodruff v. Balkcom, 205 Ga. 445, 53 S.E.2d 680 (1949); Kirkpatrick v. Candler, 205 Ga. 449, 53 S.E.2d 889 (1949); Boyett v. State, 205 Ga. 370, 53 S.E.2d 919 (1949); Burke v. State, 205 Ga. 520, 54 S.E.2d 348 (1949); Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221 (1949); Lamons v. Yarbrough, 206 Ga. 50, 55 S.E.2d 551 (1949); Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949); Copeland v. Leathers, 206 Ga. 280, 56 S.E.2d 530 (1949); Martin v. Hiatt, 174 F.2d 350 (5th Cir. 1949); Zuber v. Pennsylvania R.R., 82 F. Supp. 670 (N.D. Ga. 1949); Walton v. City of Atlanta, 89 F. Supp. 309 (N.D. Ga. 1949); South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 L. Ed. 834 (1950); Redwine v. Southern Co., 206 Ga. 377, 57 S.E.2d 194 (1950); Wallace v. Foster, 206 Ga. 561, 57 S.E.2d 920 (1950); Loomis v. City of Atlanta, 82 Ga. App. 346, 60 S.E.2d 397 (1950); Dixon v. State, 207 Ga. 192, 60 S.E.2d 439 (1950).

Huff v. State, 82 Ga. App. 545, 61 S.E.2d 787 (1950); RD-DR Corp. v. Smith, 183 F.2d 562 (5th Cir. 1950); RD-DR Corp. v. Smith, 89 F. Supp. 596 (N.D. Ga. 1950); South v. Peters, 89 F. Supp. 672 (N.D. Ga. 1950); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Morgan v. Thomas, 207 Ga. 660, 63 S.E.2d 659 (1951); Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301 (1951); Notis v. State, 84 Ga. App. 199, 65 S.E.2d 622 (1951); Stembridge v. Georgia, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 1130 (1952); Barge v. Camp, 209 Ga. 38, 70 S.E.2d 360 (1952); McGill v. State, 209 Ga. 282, 71 S.E.2d 548 (1952); Georgia R.R. & Banking Co. v. Redwine, 122 F. Supp. 93 (N.D. Ga. 1952); McGill v. State, 209 Ga. 500, 74 S.E.2d 78 (1953); Porch v. Foster, 209 Ga. 697, 75 S.E.2d 420 (1953); Seymour v. State, 210 Ga. 21, 77 S.E.2d 519 (1953); Jones v. Balkcom, 210 Ga. 262, 79 S.E.2d 1 (1953); Screven County v. Brier Creek Hunting & Fishing Club, Inc., 202 F.2d 369 (5th Cir. 1953); Williams v. State, 210 Ga. 665, 82 S.E.2d 217 (1954); City of McCaysville v. Tri-State Elec. Coop., 211 Ga. 5, 83 S.E.2d 598 (1954); Williams v. Jenkins, 211 Ga. 10, 83 S.E.2d 614 (1954); Jones v. State, 90 Ga. App. 761, 84 S.E.2d 124 (1954); Plocar v. Foster, 211 Ga. 153, 84 S.E.2d 360 (1954); Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954); Humthlett v. Reeves, 211 Ga. 210, 85 S.E.2d 25 (1954); Williams v. Georgia, 349 U.S. 375, 75 S. Ct. 814, 99 L. Ed. 1161 (1955); City of Thomson v. Davis, 92 Ga. App. 216, 88 S.E.2d 300 (1955); Hutchins v. Howard, 211 Ga. 830, 89 S.E.2d 183 (1955); City of Moultrie v. Colquitt County Rural Elec. Co., 211 Ga. 842, 89 S.E.2d 657 (1955); Taylor v. Shetzen, 212 Ga. 101, 90 S.E.2d 572 (1955); Colgate-Palmolive Co. v. Tullos, 219 F.2d 617 (5th Cir. 1955); United States v. 342.81 Acres of Land, 134 F. Supp. 430 (N.D. Ga. 1955); Dawson v. Hospital Auth., 212 Ga. 146, 91 S.E.2d 12 (1956); Jenkins v. United States, 238 F.2d 83 (5th Cir. 1956); Troup v. McCart, 238 F.2d 289 (5th Cir. 1956); Heyward v. Public Hous. Admin., 238 F.2d 689 (5th Cir. 1956); United States v. Jenkins, 141 F. Supp. 499 (S.D. Ga. 1956); Hill v. Balkcom, 213 Ga. 58, 96 S.E.2d 589 (1957); Looper v. Georgia, S. & Fla. Ry., 213 Ga. 279, 99 S.E.2d 101 (1957); Rockefeller v. First Nat'l Bank, 154 F. Supp. 122 (S.D. Ga. 1957); Woodside v. City of Atlanta, 214 Ga. 75, 103 S.E.2d 108 (1958); Lockridge-Rogers Lumber Co. v. City of East Point, 97 Ga. App. 357, 103 S.E.2d 160 (1958); South Ga. Natural Gas Co. v. Georgia Pub. Serv. Comm'n, 214 Ga. 174, 104 S.E.2d 97 (1958); Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208 (1958); Murphy v. Murphy, 214 Ga. 602, 106 S.E.2d 280 (1958); Stark v. Waters, 214 Ga. 597, 106 S.E.2d 401 (1958); Grammer v. Balkcom, 214 Ga. 691, 107 S.E.2d 213 (1959); Stockham Valves & Fittings, Inc. v. Williams, 214 Ga. 803, 108 S.E.2d 314 (1959); Deloach v. Rogers, 268 F.2d 928 (5th Cir. 1959); Hunt v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959); Crow v. Bryan, 215 Ga. 661, 113 S.E.2d 104 (1960); Buchanan v. State, 215 Ga. 791, 113 S.E.2d 609 (1960); Coleman v. State, 215 Ga. 865, 114 S.E.2d 2 (1960); McCrary v. State, 215 Ga. 887, 114 S.E.2d 133 (1960); Bobo v. Mayor of Savannah Beach, 216 Ga. 12, 114 S.E.2d 374 (1960); Parker v. Mayor of Savannah, 216 Ga. 210, 115 S.E.2d 555 (1960); Middleton v. Moody, 216 Ga. 237, 115 S.E.2d 567 (1960); Josey v. State, 102 Ga. App. 707, 117 S.E.2d 641 (1960); Wittkamper v. Harvey, 188 F. Supp. 715 (M.D. Ga. 1960); Hussey v. Campbell, 189 F. Supp. 54 (S.D. Ga. 1960); Wolfe v. City of Albany, 189 F. Supp. 217 (M.D. Ga. 1960); Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 219 F. Supp. 770 (M.D. Ga. 1960); Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961); Campbell v. Hussey, 368 U.S. 297, 82 S. Ct. 327, 7 L. Ed. 2d 299 (1961); Coates v. Balkcom, 216 Ga. 564, 118 S.E.2d 376 (1961); Fair v. Balkcom, 216 Ga. 721, 119 S.E.2d 691 (1961); Porter v. Watkins, 217 Ga. 73, 121 S.E.2d 120 (1961); Williams v. State, 217 Ga. 312, 122 S.E.2d 229 (1961); Glover v. State, 217 Ga. 401, 122 S.E.2d 744 (1961); City of Atlanta v. Lopert Pictures Corp., 217 Ga. 432, 122 S.E.2d 916 (1961); Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961); Henderson v. State Democratic Executive Comm., 198 F. Supp. 360 (N.D. Ga. 1961); United States v. Raines, 203 F. Supp. 147 (M.D. Ga. 1961); Hill v. Busbia, 217 Ga. 781, 125 S.E.2d 34 (1962); Continental Cas. Co. v. Bump, 218 Ga. 187, 126 S.E.2d 783 (1962); Southern Ry. v. Georgia Pub. Serv. Comm'n, 218 Ga. 157, 127 S.E.2d 12 (1962); Edwards v. State, 106 Ga. App. 535, 127 S.E.2d 475 (1962); Civils v. Fulton County, 218 Ga. 705, 130 S.E.2d 220 (1963); City of Atlanta v. Columbia Pictures Corp., 218 Ga. 714, 130 S.E.2d 490 (1963); Greenfield v. Chronicle Printing Co., 107 Ga. App. 442, 130 S.E.2d 526 (1963); Ferguson v. State, 219 Ga. 33, 131 S.E.2d 538 (1963); Dennis v. State, 108 Ga. App. 646, 134 S.E.2d 519 (1963); Kinney v. Johnson, 319 F.2d 123 (5th Cir. 1963); Gaines v. Dougherty County Bd. of Educ., 222 F. Supp. 166 (M.D. Ga. 1963); Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964); Hankerson v. State, 219 Ga. 687, 135 S.E.2d 274 (1964); Middleton v. State, 219 Ga. 684, 135 S.E.2d 276 (1964); Carswell v. Cannon, 219 Ga. 698, 135 S.E.2d 282 (1964); Allen v. State, 219 Ga. 777, 135 S.E.2d 885 (1964); Raif v. State, 109 Ga. App. 354, 136 S.E.2d 169 (1964); Glass v. State, 109 Ga. App. 353, 136 S.E.2d 199 (1964); State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964); Rogers v. Mayor of Atlanta, 219 Ga. 799, 136 S.E.2d 342 (1964); Hunsucker v. Balkcom, 220 Ga. 73, 137 S.E.2d 43 (1964); Vanleeward v. State, 220 Ga. 135, 137 S.E.2d 452 (1964); Pippin v. Sheffield, 220 Ga. 179, 137 S.E.2d 627 (1964); Sheppard v. DeKalb County Bd. of Educ., 220 Ga. 219, 138 S.E.2d 271 (1964); State Hwy. Dep't v. Mann, 110 Ga. App. 390, 138 S.E.2d 610 (1964); Brown v. State, 110 Ga. App. 401, 138 S.E.2d 741 (1964); Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964); Willis v. Pickrick Restaurant, 231 F. Supp. 396 (N.D. Ga. 1964); Fortson v. Dorsey, 379 U.S. 433, 85 S. Ct. 498, 13 L. Ed. 2d 401 (1965); Plaza Liquor Store, Inc. v. City of Atlanta, 220 Ga. 615, 140 S.E.2d 868 (1965); Senters v. Wright & Lopez, Inc., 220 Ga. 611, 140 S.E.2d 904 (1965); National Acceptance Co. of Am. v. Spiller & Spiller, Inc., 111 Ga. App. 314, 141 S.E.2d 550 (1965); Henson v. Georgia Indus. Realty Co., 220 Ga. 857, 142 S.E.2d 219 (1965); Shirley v. City of Commerce, 220 Ga. 896, 142 S.E.2d 784 (1965); NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d 816 (1965); City of Atlanta v. Donald, 221 Ga. 135, 143 S.E.2d 737 (1965); Champion Papers, Inc. v. Williams, 221 Ga. 345, 144 S.E.2d 514 (1965); Watkins v. Conway, 221 Ga. 374, 144 S.E.2d 721 (1965); Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726 (1965); Glisson v. Mayor of Savannah Beach, 346 F.2d 135 (5th Cir. 1965); Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir. 1965); Paige v. Potts, 354 F.2d 212 (5th Cir. 1965); Barnum v. Chambliss, 247 F. Supp. 794 (M.D. Ga. 1965); Kingsberry Homes Corp. v. Gwinnett County, 248 F. Supp. 765 (N.D. Ga. 1965); Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966); Ricks v. State, 221 Ga. 837, 147 S.E.2d 431 (1966); Blevins v. State, 113 Ga. App. 413, 148 S.E.2d 192 (1966); Massey v. State, 222 Ga. 143, 149 S.E.2d 118 (1966); Taylor v. City of Griffin, 113 Ga. App. 589, 149 S.E.2d 177 (1966); Williams v. State, 222 Ga. 208, 149 S.E.2d 449 (1966); Lewis v. State, 113 Ga. App. 714, 149 S.E.2d 596 (1966); O'Bryant v. State, 222 Ga. 326, 149 S.E.2d 654 (1966); Williams v. Shaffer, 222 Ga. 334, 149 S.E.2d 668 (1966); Woods v. State, 222 Ga. 321, 149 S.E.2d 674 (1966); McLennan v. Undercofler, 222 Ga. 302, 149 S.E.2d 705 (1966); Darlington Corp. v. Finch, 113 Ga. App. 825, 149 S.E.2d 861 (1966); Boatright v. Brown, 222 Ga. 497, 150 S.E.2d 680 (1966); Thompkins v. State, 222 Ga. 420, 151 S.E.2d 153 (1966)

Slowik v. Knorr, 222 Ga. 669, 151 S.E.2d 726 (1966); Givens v. Dutton, 222 Ga. 756, 152 S.E.2d 358 (1966); State Hwy. Dep't v. Branch, 222 Ga. 770, 152 S.E.2d 372 (1966); Elkins v. State, 222 Ga. 746, 152 S.E.2d 377 (1966); Sullivan v. State, 222 Ga. 691, 152 S.E.2d 382 (1966); Peterson v. Wade, 222 Ga. 805, 152 S.E.2d 745 (1966); Tolg v. Grimes, 355 F.2d 92 (5th Cir. 1966); Vanleeward v. Rutledge, 369 F.2d 584 (5th Cir. 1966); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966); Toombs v. Fortson, 275 F. Supp. 128 (N.D. Ga. 1966); Whisman v. State, 223 Ga. 124, 153 S.E.2d 548 (1967); White v. McHan, 223 Ga. 136, 153 S.E.2d 705 (1967); Berta v. State, 223 Ga. 267, 154 S.E.2d 594 (1967); Gunter v. State, 223 Ga. 290, 154 S.E.2d 608 (1967); Thompson v. Willson, 223 Ga. 370, 155 S.E.2d 401 (1967); Green v. State, 115 Ga. App. 685, 155 S.E.2d 655 (1967); Williams v. Housing Auth., 223 Ga. 407, 155 S.E.2d 923 (1967); Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967); Crews v. Undercofler, 371 F.2d 534 (5th Cir. 1967); Sellers v. Georgia, 374 F.2d 84 (5th Cir. 1967); Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967); Davis v. Thomas County, 380 F.2d 93 (5th Cir. 1967); In re Sims, 389 F.2d 148 (5th Cir. 1967); Coon v. Tingle, 277 F. Supp. 304 (N.D. Ga. 1967); Epstein v. Maddox, 277 F. Supp. 613 (N.D. Ga. 1967); United States v. Johnson, 390 U.S. 563, 88 S. Ct. 1231, 20 L. Ed. 2d 132 (1968); McLennan v. Aldredge, 223 Ga. 879, 159 S.E.2d 682 (1968); Tuggle v. Manning, 224 Ga. 29, 159 S.E.2d 703 (1968); Clary v. Mathews, 224 Ga. 82, 160 S.E.2d 338 (1968); Tolbert v. State, 224 Ga. 291, 161 S.E.2d 279 (1968); Parish v. State, 117 Ga. App. 616, 161 S.E.2d 426 (1968); Price v. State, 224 Ga. 306, 161 S.E.2d 825 (1968); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1 (1968); Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 403, 162 S.E.2d 333 (1968); Bryan v. State, 224 Ga. 389, 162 S.E.2d 349 (1968); Hogan v. Atkins, 224 Ga. 358, 162 S.E.2d 395 (1968); Grice v. State, 224 Ga. 376, 162 S.E.2d 432 (1968); Burger v. State, 118 Ga. App. 328, 163 S.E.2d 333 (1968); Holmes v. State, 224 Ga. 553, 163 S.E.2d 803 (1968); National Factor & Inv. Corp. v. State Bank, 224 Ga. 535, 163 S.E.2d 817 (1968); Akins v. State, 224 Ga. 650, 164 S.E.2d 125 (1968); Whippler v. Dutton, 391 F.2d 425 (5th Cir. 1968); Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968); Henderson v. Dutton, 397 F.2d 375 (5th Cir. 1968); Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968); Carter v. County Bd. of Educ., 393 F.2d 487 (5th Cir. 1968); Creel v. City of Atlanta, 399 F.2d 777 (5th Cir. 1968); Acree v. County Bd. of Educ., 294 F. Supp. 1034 (S.D. Ga. 1968); Rentfrow v. Carter, 296 F. Supp. 301 (N.D. Ga. 1968); Anderson v. Burson, 300 F. Supp. 401 (N.D. Ga. 1968); Presbyterian Church v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969); Foster v. Caldwell, 225 Ga. 1, 165 S.E.2d 724 (1969); Robinson v. State, 225 Ga. 167, 167 S.E.2d 158 (1969); Freeman v. Wilcox, 119 Ga. App. 325, 167 S.E.2d 163 (1969); Crumley v. Head, 225 Ga. 246, 167 S.E.2d 651 (1969); Moore v. Moore, 225 Ga. 340, 168 S.E.2d 318 (1969); Wilson v. State Bar, 225 Ga. 343, 168 S.E.2d 584 (1969); Ballard v. Smith, 225 Ga. 416, 169 S.E.2d 329 (1969); Bugden v. Bugden, 225 Ga. 413, 169 S.E.2d 337 (1969).

Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969); City of Atlanta v. Royal Peacock Social Club, Inc., 225 Ga. 474, 169 S.E.2d 807 (1969); Carroway v. Stynchcombe, 225 Ga. 586, 170 S.E.2d 396 (1969); Chaffin v. State, 225 Ga. 602, 170 S.E.2d 426 (1969); Salisbury v. Grimes, 406 F.2d 50 (5th Cir. 1969); Davis v. Georgia State Bd. of Educ., 408 F.2d 1014 (5th Cir. 1969); Elkins v. Kelley, 410 F.2d 734 (5th Cir. 1969); Johnson v. Smith, 414 F.2d 645 (5th Cir. 1969); Zayre of Ga., Inc. v. City of Marietta, 416 F.2d 251 (5th Cir. 1969); United States v. Board of Educ., 295 F. Supp. 1041 (S.D. Ga. 1968); Scott v. Crescent Tool Co., 296 F. Supp. 147 (N.D. Ga. 1968); Great Speckled Bird v. Stynchcombe, 298 F. Supp. 1291 (N.D. Ga. 1969); Cato v. Georgia, 302 F. Supp. 1143 (N.D. Ga. 1969); Stephens v. Lindsey, 304 F. Supp. 203 (S.D. Ga. 1969); Brown v. State Realty Co., 304 F. Supp. 1236 (N.D. Ga. 1969); Roberson v. Great Am. Ins. Cos., 48 F.R.D. 404 (N.D. Ga. 1969); Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970); Evans v. Abney, 396 U.S. 435, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970); Reese v. State, 121 Ga. App. 189, 173 S.E.2d 351 (1970); Daniels v. State, 226 Ga. 269, 174 S.E.2d 422 (1970); Pettiford v. Frazier, 226 Ga. 438, 175 S.E.2d 549 (1970); Lingo v. State, 226 Ga. 496, 175 S.E.2d 657 (1970); Little v. State, 121 Ga. App. 792, 175 S.E.2d 922 (1970); Bradfield v. Hospital Auth., 226 Ga. 575, 176 S.E.2d 92 (1970); American Liberty Ins. Co. v. Sanders, 122 Ga. App. 407, 177 S.E.2d 176 (1970); Williams v. Mayor of Athens, 122 Ga. App. 465, 177 S.E.2d 581 (1970); City of Gainesville v. Southern Ry., 423 F.2d 588 (5th Cir. 1970); Cook v. Smith, 427 F.2d 1172 (5th Cir. 1970); Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970); United States v. Zarzour, 432 F.2d 1 (5th Cir. 1970); Edwards v. Selective Serv. Local Bd. 111, 432 F.2d 287 (5th Cir. 1970); Glover v. Daniel, 434 F.2d 617 (5th Cir. 1970); Campbell v. Smith, 308 F. Supp. 796 (S.D. Ga. 1970); Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970); Stinson v. Finch, 317 F. Supp. 581 (N.D. Ga. 1970); Webster v. Wofford, 321 F. Supp. 1259 (N.D. Ga. 1970); Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); Smith v. Hightower, 227 Ga. 144, 179 S.E.2d 242 (1971); Hart v. Smith, 227 Ga. 357, 180 S.E.2d 735 (1971); Ken Stanton Music, Inc. v. Board of Educ., 227 Ga. 393, 181 S.E.2d 67 (1971); City of Doraville v. Southern Ry., 227 Ga. 504, 181 S.E.2d 346 (1971); Evans v. State, 227 Ga. 571, 181 S.E.2d 845 (1971); Bassett v. Smith, 227 Ga. 588, 182 S.E.2d 94 (1971); Steele v. State, 227 Ga. 653, 182 S.E.2d 475 (1971); Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971); Laidler v. Smith, 227 Ga. 759, 182 S.E.2d 891 (1971); Jenkins v. Thomas, 124 Ga. App. 286, 183 S.E.2d 489 (1971); Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622 (1971); Southern Ry. v. Insurance Co. of N. Am., 228 Ga. 23, 183 S.E.2d 912 (1971); Morris v. State, 228 Ga. 39, 184 S.E.2d 82 (1971); 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Ward v. Smith, 228 Ga. 137, 184 S.E.2d 592 (1971); Richmond County v. Richmond County Bus. Ass'n, 228 Ga. 281, 185 S.E.2d 399 (1971); Merriweather v. Burson, 439 F.2d 1092 (5th Cir. 1971); United States v. Nooks, 446 F.2d 1283 (5th Cir. 1971); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Rietz v. Butler, 322 F. Supp. 1029 (N.D. Ga. 1971); Thornton v. Stynchcombe, 323 F. Supp. 254 (N.D. Ga. 1971); Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971); Cheley v. Burson, 324 F. Supp. 678 (N.D. Ga. 1971); Allanson v. Camp, 324 F. Supp. 734 (N.D. Ga. 1971); Jackson v. Atlantic Monthly Co., 324 F. Supp. 1302 (N.D. Ga. 1971); Jernigan v. Economy Exterminating Co., 327 F. Supp. 24 (N.D. Ga. 1971); Copeland v. Parham, 330 F. Supp. 383 (N.D. Ga. 1971); Cooley v. Endictor, 340 F. Supp. 15 (N.D. Ga. 1971); Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 186 S.E.2d 732 (1972); Fryer v. Stynchcombe, 228 Ga. 576, 186 S.E.2d 885 (1972); Evans v. State, 228 Ga. 867, 188 S.E.2d 861 (1972); Davis v. State, 229 Ga. 437, 192 S.E.2d 149 (1972); Payton v. State, 229 Ga. 454, 192 S.E.2d 266 (1972); Yeomans v. State, 229 Ga. 488, 192 S.E.2d 362 (1972); Williams v. Caldwell, 229 Ga. 453, 192 S.E.2d 378 (1972); Davis v. Caldwell, 229 Ga. 605, 193 S.E.2d 617 (1972); Mays v. State, 229 Ga. 609, 193 S.E.2d 825 (1972); Thomason v. Caldwell, 229 Ga. 637, 194 S.E.2d 112 (1972); Satterfield v. State, 127 Ga. App. 528, 194 S.E.2d 295 (1972); Grantling v. State, 229 Ga. 746, 194 S.E.2d 405 (1972); Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972); Jinks v. Mays, 464 F.2d 1223 (5th Cir. 1972); Neal v. Georgia, 469 F.2d 446 (5th Cir. 1972); United States v. Dyson, 469 F.2d 735 (5th Cir. 1972); Acree v. Drummond, 336 F. Supp. 1275 (S.D. Ga. 1972); Holloway v. Parham, 340 F. Supp. 336 (N.D. Ga. 1972); Jones v. Luzier, 345 F. Supp. 724 (N.D. Ga. 1972); Stoner v. Fortson, 345 F. Supp. 1369 (N.D. Ga. 1972); McCoy v. McLeroy, 348 F. Supp. 1034 (M.D. Ga. 1972); United States v. Georgia, 351 F. Supp. 444 (N.D. Ga. 1972); DeKalb County v. Southern Bell Tel. & Tel. Co., 358 F. Supp. 498 (N.D. Ga. 1972); Georgia v. United States, 411 U.S. 526, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973); City of Midway v. Midway Nursing & Convalescent Ctr., Inc., 230 Ga. 77, 195 S.E.2d 452 (1973); Jackson v. State, 230 Ga. 181, 195 S.E.2d 921 (1973); Pollard v. State, 128 Ga. App. 470, 197 S.E.2d 158 (1973); Breaux v. State, 230 Ga. 506, 197 S.E.2d 695 (1973); Currington v. State, 129 Ga. App. 161, 199 S.E.2d 268 (1973); Geter v. State, 129 Ga. App. 108, 199 S.E.2d 272 (1973); Allison v. State, 129 Ga. App. 364, 199 S.E.2d 587 (1973); Alexander v. State, 129 Ga. App. 395, 199 S.E.2d 918 (1973); Daniel v. Federal Nat'l Mtg. Ass'n, 231 Ga. 385, 202 S.E.2d 388 (1973); McKenzie v. State, 231 Ga. 513, 202 S.E.2d 417 (1973); Strong v. State, 231 Ga. 514, 202 S.E.2d 428 (1973), overruled on other grounds Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015); Community Action Group v. City of Columbus, 473 F.2d 966 (5th Cir. 1973); Simmons v. Jones, 478 F.2d 321 (5th Cir. 1973); Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); Bryant v. Caldwell, 484 F.2d 65 (5th Cir. 1973); United States v. Jones, 486 F.2d 599 (5th Cir. 1973); Finish Allatoona's Interstate Right, Inc. v. Volpe, 355 F. Supp. 933 (N.D. Ga. 1973); Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga. 1973); Hunnicutt v. Burge, 356 F. Supp. 1227 (M.D. Ga. 1973); Goodman v. Ault, 358 F. Supp. 743 (N.D. Ga. 1973); Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973); Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974); Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974); Payne v. State, 231 Ga. 755, 204 S.E.2d 128 (1974); Hodges v. Hodges, 231 Ga. 810, 204 S.E.2d 291 (1974); Freeman v. State, 130 Ga. App. 718, 204 S.E.2d 445 (1974); Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974); Dill v. Dill, 232 Ga. 231, 206 S.E.2d 6 (1974); Spaulding v. State, 232 Ga. 411, 207 S.E.2d 43 (1974); Security Mgt. Co. v. King, 132 Ga. App. 618, 208 S.E.2d 576 (1974); Spalding County v. East Enters., Inc., 232 Ga. 887, 209 S.E.2d 215 (1974); South Gwinnett Venture v. Pruitt, 491 F.2d 5 (5th Cir. 1974); Stoner v. Thompson, 377 F. Supp. 585 (M.D. Ga. 1974); Kelley v. Godbout, 379 F. Supp. 532 (N.D. Ga. 1974); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975); Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760 (1975); Williams v. Georgia Power Co., 233 Ga. 517, 212 S.E.2d 348 (1975); Copeland v. State, 133 Ga. App. 713, 213 S.E.2d 17 (1975); Butler v. State, 134 Ga. App. 131, 213 S.E.2d 490 (1975); State v. Bailey, 233 Ga. 795, 213 S.E.2d 661 (1975); Doran v. Home Mart Bldg. Ctrs., Inc., 233 Ga. 705, 213 S.E.2d 825 (1975); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975)

Ferguson v. Caldwell, 233 Ga. 887, 213 S.E.2d 855 (1975); Gilstrap v. Wilder, 233 Ga. 968, 213 S.E.2d 895 (1975); Pace v. City of Atlanta, 135 Ga. App. 399, 218 S.E.2d 128 (1975); Reed v. Jopper, 235 Ga. 298, 219 S.E.2d 409 (1975); Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975); Maddox v. State, 136 Ga. App. 370, 221 S.E.2d 231 (1975); Tucker Door & Trim Corp. v. Fifteenth St. Co., 235 Ga. 727, 221 S.E.2d 433 (1975); Nunnally v. State, 235 Ga. 693, 221 S.E.2d 547 (1975); Greenfield v. Portman, 136 Ga. App. 541, 221 S.E.2d 704 (1975); Barnum v. State, 136 Ga. App. 469, 221 S.E.2d 829 (1975); State v. King, 137 Ga. App. 26, 222 S.E.2d 859 (1975); Burston v. Caldwell, 506 F.2d 24 (5th Cir. 1975); United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975); Calhoun v. Cook, 525 F.2d 1203 (5th Cir. 1975); Mahavongsanan v. Hall, 529 F.2d 448 (5th Cir. 1976); Board of Educ. v. AFSCME, 401 F. Supp. 687 (N.D. Ga. 1975); Finch v. Weinberger, 407 F. Supp. 34 (N.D. Ga. 1975); Webb v. Board of Tax Assessors, 235 Ga. 790, 221 S.E.2d 810 (1976); Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Johnston v. State, 236 Ga. 370, 223 S.E.2d 808 (1976); Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976); Porterfield v. State, 137 Ga. App. 449, 224 S.E.2d 94 (1976); Process Sys. v. Dixie Packaging Co., 137 Ga. App. 452, 224 S.E.2d 103 (1976); Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976); Tyree v. First Nat'l Bank, 236 Ga. 740, 225 S.E.2d 435 (1976); Godwin v. State, 138 Ga. App. 131, 225 S.E.2d 723 (1976); Herrin v. State, 138 Ga. App. 729, 227 S.E.2d 498 (1976); Hall v. State, 139 Ga. App. 488, 229 S.E.2d 12 (1976); Watts v. Six Flags Over Ga., Inc., 140 Ga. App. 106, 230 S.E.2d 34 (1976); Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976); State v. Cox, 140 Ga. App. 30, 230 S.E.2d 87 (1976); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976); United States ex rel. Gereau v. Henderson, 526 F.2d 889 (5th Cir. 1976); Sandbach v. City of Valdosta, 526 F.2d 1259 (5th Cir. 1976); Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976); J.L. v. Parham, 412 F. Supp. 141 (M.D. Ga. 1976); Wilder v. Irvin, 423 F. Supp. 639 (N.D. Ga. 1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Merritt v. State, 238 Ga. 331, 232 S.E.2d 924 (1977); Bickford v. Nolen, 142 Ga. App. 256, 235 S.E.2d 743 (1977); Bell v. State, 239 Ga. 146, 236 S.E.2d 47 (1977); State v. Robinson, 142 Ga. App. 705, 237 S.E.2d 1 (1977); Hill v. Delta Air Lines, 143 Ga. App. 103, 237 S.E.2d 597 (1977); Fouts v. State, 240 Ga. 39, 239 S.E.2d 366 (1977); Birge v. State, 143 Ga. App. 632, 239 S.E.2d 395 (1977); Baranan v. State Bd. of Nursing Home Adm'rs, 143 Ga. App. 605, 239 S.E.2d 533 (1977); Seabolt v. Hopper, 240 Ga. 171, 240 S.E.2d 57 (1977); McAllister v. American Nat'l Red Cross, 240 Ga. 246, 240 S.E.2d 247 (1977); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); Cargal v. State, 144 Ga. App. 238, 241 S.E.2d 8 (1977); United States v. Brown, 555 F.2d 407 (5th Cir. 1977); United States v. Clark, 559 F.2d 420 (5th Cir. 1977); Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Cannon v. Georgia Farm Bureau Mut. Ins. Co., 240 Ga. 479, 241 S.E.2d 238 (1978); Bowery Sav. Bank v. DeKalb County, 240 Ga. 528, 242 S.E.2d 50 (1978); Georgia Franchise Practices Comm'n v. Massey-Ferguson, Inc., 240 Ga. 743, 242 S.E.2d 69 (1978); City of Smyrna v. Parks, 240 Ga. 699, 242 S.E.2d 73 (1978); Brown v. Rooks, 240 Ga. 674, 242 S.E.2d 128 (1978).

Simpson v. State, 144 Ga. App. 657, 242 S.E.2d 265 (1978); Underwood v. State, 144 Ga. App. 684, 242 S.E.2d 339 (1978); Sims v. State, 144 Ga. App. 825, 242 S.E.2d 745 (1978); State v. Bass, 144 Ga. App. 834, 243 S.E.2d 87 (1978); Thomas v. State, 145 Ga. App. 69, 243 S.E.2d 250 (1978); Hughes v. Parham, 241 Ga. 198, 243 S.E.2d 867 (1978); Fayetteville-85 Assocs. v. Samas, Inc., 241 Ga. 119, 243 S.E.2d 887 (1978); Harrell v. State, 241 Ga. 181, 243 S.E.2d 890 (1978); Pierce v. State, 145 Ga. App. 680, 244 S.E.2d 589 (1978); Odum v. State, 145 Ga. App. 701, 244 S.E.2d 631 (1978); Ballew v. State, 145 Ga. App. 829, 245 S.E.2d 169 (1978); Williams v. Owen, 241 Ga. 363, 245 S.E.2d 638 (1978); Leonard v. State, 146 Ga. App. 439, 246 S.E.2d 450 (1978); Raymond v. State, 146 Ga. App. 452, 246 S.E.2d 461 (1978); Hess v. State, 146 Ga. App. 874, 247 S.E.2d 546 (1978); Lockett v. State, 147 Ga. App. 102, 248 S.E.2d 177 (1978); Burks v. State, 147 Ga. App. 234, 248 S.E.2d 329 (1978); Beall v. Department of Revenue, 148 Ga. App. 5, 251 S.E.2d 4 (1978); Paperback Book Mart, Inc. v. State, 148 Ga. App. 377, 251 S.E.2d 396 (1978); Howell v. Blair, 566 F.2d 525 (5th Cir. 1978); United States v. Kilrain, 566 F.2d 979 (5th Cir. 1978); United States v. Herring, 568 F.2d 1099 (5th Cir. 1978); Thomasville Branch of NAACP v. Thomas County, 571 F.2d 257 (5th Cir. 1978); Collum v. Edwards, 578 F.2d 110 (5th Cir. 1978); Gibson v. Jackson, 578 F.2d 1045 (5th Cir. 1978); Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978); Williams v. DeKalb County, 582 F.2d 2 (5th Cir. 1978); Davidson v. Lovett, 446 F. Supp. 1171 (S.D. Ga. 1978); Penthouse Int'l, Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. 1978); Housworth v. Glisson, 485 F. Supp. 29 (N.D. Ga. 1978); Williams v. Ryan, 78 F.R.D. 364 (S.D. Ga. 1978); Ferrell v. State, 149 Ga. App. 405, 254 S.E.2d 404 (1979); Corn v. Hopper, 244 Ga. 28, 257 S.E.2d 533 (1979); Daniel v. State, 150 Ga. App. 798, 258 S.E.2d 604 (1979); Bowers v. State, 151 Ga. App. 46, 258 S.E.2d 623 (1979); Hall v. State, 244 Ga. 86, 259 S.E.2d 41 (1979); Great N. Nekoosa Corp. v. Board of Tax Assessors, 244 Ga. 624, 261 S.E.2d 346 (1979); In re M.A.C., 244 Ga. 645, 261 S.E.2d 590 (1979); Georgia Franchise Practices Comm'n v. Massey-Ferguson, Inc., 244 Ga. 800, 262 S.E.2d 106 (1979); United States v. King, 587 F.2d 209 (5th Cir. 1979); Attwell v. Nichols, 466 F. Supp. 206 (N.D. Ga. 1979); Doe v. Busbee, 471 F. Supp. 1326 (N.D. Ga. 1979); Doe v. Busbee, 481 F. Supp. 46 (N.D. Ga. 1979); Wilson v. State, 245 Ga. 49, 262 S.E.2d 810 (1980); Huskins v. State, 245 Ga. 541, 266 S.E.2d 163 (1980); Playmate Cinema, Inc. v. State, 154 Ga. App. 871, 269 S.E.2d 883 (1980); Davis v. State, 155 Ga. App. 146, 270 S.E.2d 343 (1980); Insurance Co. of N. Am. v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980); Newsome v. Richmond County, 246 Ga. 300, 271 S.E.2d 203 (1980); DeFrancis v. Manning, 246 Ga. 307, 271 S.E.2d 209 (1980); Baker v. State, 246 Ga. 317, 271 S.E.2d 360 (1980); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980); Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980); Strong v. State, 246 Ga. 612, 272 S.E.2d 281 (1980); Hollingsworth v. State, 155 Ga. App. 878, 273 S.E.2d 639 (1980); Spry v. State, 156 Ga. App. 74, 274 S.E.2d 2 (1980); Rogers v. State, 156 Ga. App. 466, 274 S.E.2d 815 (1980); Austin v. McNeese, 156 Ga. App. 533, 275 S.E.2d 79 (1980); Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1980); Seagraves v. Harris, 629 F.2d 385 (5th Cir. 1980); Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980); Crist v. Crist, 632 F.2d 1226 (5th Cir. 1980); Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980); Jenkins v. Chatham Properties, Ltd., 496 F. Supp. 250 (S.D. Ga. 1980); Daye v. City of Albany, 496 F. Supp. 1227 (M.D. Ga. 1980); Speight v. Whiddon, 516 F. Supp. 905 (M.D. Ga. 1980); In re Chicken Antitrust Litig., 560 F. Supp. 957 (N.D. Ga. 1980); Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); State v. Hudson, 247 Ga. 36, 273 S.E.2d 616 (1981); Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49 (1981); Swiedler v. Fulton County, 247 Ga. 164, 275 S.E.2d 310 (1981); Atlanta Cas. Co. v. Jones, 247 Ga. 238, 275 S.E.2d 328 (1981); West v. Sprayberry, 247 Ga. 306, 275 S.E.2d 654 (1981); McElroy v. State, 247 Ga. 355, 276 S.E.2d 38 (1981); Sarnie v. State, 247 Ga. 414, 276 S.E.2d 589 (1981); Allen v. Board of Tax Assessors, 247 Ga. 568, 277 S.E.2d 660 (1981); Williams v. Church's Fried Chicken, Inc., 158 Ga. App. 26, 279 S.E.2d 465 (1981); Campbell v. State, 158 Ga. App. 616, 281 S.E.2d 352 (1981); Fluker v. State, 248 Ga. 290, 282 S.E.2d 112 (1981); Rutledge v. State, 159 Ga. App. 229, 283 S.E.2d 86 (1981); Vaughn v. State, 160 Ga. App. 283, 287 S.E.2d 277 (1981); Carl v. State, 160 Ga. App. 464, 287 S.E.2d 379 (1981); Barrett v. Carter, 248 Ga. 389, 283 S.E.2d 609 (1981); McCrary v. Poythress, 638 F.2d 1308 (5th Cir. 1981); Johnson v. Hopper, 639 F.2d 236 (5th Cir. 1981); Lee v. Lee County Bd. of Educ., 639 F.2d 1243 (5th Cir. 1981); Thomasville Branch of NAACP v. Thomas County, 639 F.2d 1384 (5th Cir. 1981); Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981); Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981); Spruell v. Jarvis, 654 F.2d 1090 (5th Cir. 1981); Shaw v. Stone, 506 F. Supp. 571 (M.D. Ga. 1981); Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981); Georgia Ass'n of Retarded Citizens v. McDaniel, 511 F. Supp. 1263 (N.D. Ga. 1981); Bailey v. Vining, 514 F. Supp. 452 (M.D. Ga. 1981); Kendrick v. City Council, 516 F. Supp. 1134 (S.D. Ga. 1981); Houser v. Morris, 518 F. Supp. 873 (N.D. Ga. 1981); Dunten v. Kibler, 518 F. Supp. 1146 (N.D. Ga. 1981); CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981); Smith v. State, 161 Ga. App. 512, 288 S.E.2d 754 (1982); Hines v. State, 249 Ga. 257, 290 S.E.2d 911 (1982); High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982); Dills v. City of Marietta, 674 F.2d 1377 (11th Cir. 1982); Jones v. Kemp, 678 F.2d 929 (11th Cir. 1982); American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 678 F.2d 1379 (11th Cir. 1982); Scott v. Donovan, 539 F. Supp. 255 (N.D. Ga. 1982); McCroan v. Bailey, 543 F. Supp. 1201 (S.D. Ga. 1982); Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983); American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (11th Cir. 1983); Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Baranan v. Fulton County, 250 Ga. 531, 299 S.E.2d 722 (1983); Smith v. Zant, 250 Ga. 645, 301 S.E.2d 32 (1983); Howe v. State, 250 Ga. 811, 301 S.E.2d 280 (1983) (burden of showing understanding waiver met); Newberry v. State, 250 Ga. 819, 301 S.E.2d 282 (1983); Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983); Kemp v. Spradlin, 250 Ga. 829, 301 S.E.2d 874 (1983); Lee v. State, 165 Ga. App. 549, 301 S.E.2d 906 (1983); State v. Roberson, 165 Ga. App. 727, 302 S.E.2d 591 (1983); Johnston v. State, 165 Ga. App. 792, 302 S.E.2d 708 (1983); Palmer v. State, 167 Ga. App. 705, 307 S.E.2d 275 (1983); Harris v. State, 168 Ga. App. 159, 308 S.E.2d 406 (1983); Dalton v. State, 251 Ga. 641, 308 S.E.2d 835 (1983); Harris v. State, 168 Ga. App. 458, 309 S.E.2d 431 (1983); State v. Benton, 168 Ga. App. 665, 310 S.E.2d 243 (1983); Bowles v. State, 168 Ga. App. 763, 310 S.E.2d 250 (1983); Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983); Coleman v. Zant, 708 F.2d 541 (11th Cir. 1983); Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983); Spencer v. Zant, 715 F.2d 1562 (11th Cir. 1983); Stephens v. Kemp, 721 F.2d 1300 (11th Cir. 1983); Smith v. Snow, 722 F.2d 630 (11th Cir. 1983); Moore v. Zant, 722 F.2d 640 (11th Cir. 1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Stynchcombe v. Floyd, 252 Ga. 113, 311 S.E.2d 828 (1984); In re T.E.D., 169 Ga. App. 401, 312 S.E.2d 864 (1984); Miller v. State, 169 Ga. App. 552, 314 S.E.2d 120 (1984); Fernandez v. State, 171 Ga. App. 290, 319 S.E.2d 503 (1984); Drake v. Francis, 727 F.2d 990 (11th Cir. 1984)

United States v. Sneed, 729 F.2d 1333 (11th Cir. 1984); Strickland v. Francis, 738 F.2d 1542 (11th Cir. 1984); Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984); Shelby v. City of Atlanta, 578 F. Supp. 1368 (N.D. Ga. 1984); Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga. 1984); Airport Taxi Cab Advisory Comm. v. City of Atlanta, 584 F. Supp. 961 (N.D. Ga. 1983); Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984); Primary Care Physicians Group v. Ledbetter, 102 F.R.D. 254 (N.D. Ga. 1984); Chemical Bank v. Grigsby's World of Carpet, Inc. (In re WWG Indus., Inc.), 44 Bankr. 287 (N.D. Ga. 1984); Smith v. Georgia, 749 F.2d 683 (11th Cir. 1985); Risdon Enters., Inc. v. Colemill Enters., Inc., 172 Ga. App. 902, 324 S.E.2d 738 (1984); Doby v. State, 173 Ga. App. 348, 326 S.E.2d 506 (1985); Spencer v. McCarley Moving & Storage Co., 174 Ga. App. 525, 330 S.E.2d 753 (1985); Arras v. Herrin, 255 Ga. 11, 334 S.E.2d 677 (1985); Reeves v. Wilkes, 754 F.2d 965 (11th Cir. 1985); Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985); Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985); Amadeo v. Kemp, 773 F.2d 1141 (11th Cir. 1985); Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 773 F.2d 1528 (11th Cir. 1985); Madden v. Cleland, 105 F.R.D. 520 (N.D. Ga. 1985); Fernandez-Roque v. Smith, 622 F. Supp. 887 (N.D. Ga. 1985); American Fed'n of Gov't Employees v. United States, 622 F. Supp. 1109 (N.D. Ga. 1984); Moore v. State, 176 Ga. App. 882, 339 S.E.2d 271 (1985); Johnson v. Jones, 178 Ga. App. 346, 343 S.E.2d 403 (1986); Watson v. State, 178 Ga. App. 778, 344 S.E.2d 667 (1986); Wise v. State, 179 Ga. App. 115, 346 S.E.2d 393 (1986); Johnson v. State, 179 Ga. App. 467, 346 S.E.2d 903 (1986); Brown v. Bowden, 179 Ga. App. 626, 347 S.E.2d 356 (1986); Robinson v. State, 180 Ga. App. 248, 348 S.E.2d 761 (1986); Hamilton v. State, 180 Ga. App. 284, 349 S.E.2d 230 (1986); Ford v. State, 256 Ga. 375, 349 S.E.2d 361 (1986); Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986); Sparks v. State, 180 Ga. App. 467, 349 S.E.2d 504 (1986); Thomas v. State, 180 Ga. App. 685, 350 S.E.2d 253 (1986); Jones v. Kemp, 794 F.2d 1536 (11th Cir. 1986); Shelton v. City of Atlanta, 796 F.2d 1391 (11th Cir. 1986); United States v. Alexander, 805 F.2d 1458 (11th Cir. 1986); Davis v. Pringle, 642 F. Supp. 171 (N.D. Ga. 1986); Wansley v. State, 256 Ga. 624, 352 S.E.2d 368 (1987); Hubbard v. State, 256 Ga. 637, 352 S.E.2d 383 (1987); Penland v. State, 256 Ga. 641, 352 S.E.2d 385 (1987); Marbury v. Marbury, 256 Ga. 651, 352 S.E.2d 564 (1987); Proffitt v. State, 181 Ga. App. 564, 353 S.E.2d 61 (1987); Lindsey v. State, 182 Ga. App. 10, 354 S.E.2d 650 (1987); Ring v. Crisp County Hosp. Auth., 652 F. Supp. 477 (M.D. Ga. 1987); Thompson v. Lancaster, 652 F. Supp. 703 (M.D. Ga. 1987); Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

Cited in Ivey v. DeKalb County Dep't of Pub. Safety, 668 F. Supp. 1579 (N.D. Ga. 1987); Grant v. State, 258 Ga. 299, 368 S.E.2d 737 (1988); Walker v. State, 258 Ga. 443, 370 S.E.2d 149 (1988); United States v. Sims, 845 F.2d 1564 (11th Cir. 1988); O'Neal v. DeKalb County, 850 F.2d 653 (11th Cir. 1988); Ortiz v. State, 188 Ga. App. 532, 374 S.E.2d 92 (1988); Jones v. Automobile Ins. Co., 698 F. Supp. 226 (N.D. Ga. 1988); Frost v. State, 200 Ga. App. 267, 407 S.E.2d 765 (1991); United States v. Williams, 954 F.2d 668 (11th Cir. 1992); Brown v. Crawford County, 960 F.2d 1002 (11th Cir. 1992); United States v. Myers, 972 F.2d 1566 (11th Cir. 1992), cert. denied, 507 U.S. 1017, 113 S. Ct. 1813, 123 L. Ed. 2d 445 (1993); Van Dyck v. Van Dyck, 262 Ga. 720, 425 S.E.2d 853 (1993); Quiller v. Bowman, 262 Ga. 769, 425 S.E.2d 641 (1993); Fiscus v. City of Roswell, 832 F. Supp. 1558 (N.D. Ga. 1993); Clark v. City of Zebulon, 156 F.R.D. 684 (N.D. Ga. 1993); Strickland v. Alderman, 74 F.3d 260 (11th Cir. 1996); Braden v. Bell, 222 Ga. App. 144, 473 S.E.2d 523 (1996); DeKalb County Sch. Dist. v. Schrenko, 109 F.3d 680 (11th Cir. 1997), cert. denied, 522 U.S. 1015, 118 S. Ct. 601, 139 L. Ed. 2d 489 (1997); Anderson v. State, 231 Ga. App. 807, 499 S.E.2d 717 (1998); Dollar v. Dalton Pub. Schs., 233 Ga. App. 827, 505 S.E.2d 789 (1998); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998); Veasey v. State, 234 Ga. App. 795, 507 S.E.2d 799 (1998); O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008); Std. Bldg. Co. v. Wallen Concept Glazing, Inc., 298 Ga. App. 443, 680 S.E.2d 527 (2009); McClure v. Kemp, 285 Ga. 801, 684 S.E.2d 255 (2009); Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011); Gissendaner v. Comm'r, Ga. Dep't of Corr., 794 F.3d 1327 (11th Cir. 2015), cert. denied, stay denied, 136 S. Ct. 25, 192 L. Ed. 2d 996 (U.S. 2015).

State Action

U.S. Const., amend. 14 applies only where there is state action. Graves v. Walton County Bd. of Educ., 300 F. Supp. 188 (M.D. Ga. 1968), aff'd, 410 F.2d 1152 (5th Cir. 1969), 1153 Jewell v. City of Covington, 425 F.2d 459 (5th Cir.), cert. denied, 400 U.S. 929, 91 S. Ct. 195, 27 L. Ed. 2d 189 (1970); Metz v. McKinley, 583 F. Supp. 683 (S.D. Ga.), aff'd, 747 F.2d 709 (11th Cir. 1984).

Before the due process clause of the Fourteenth Amendment comes into play, governmental deprivation of a person's liberty or property must be shown. Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 (11th Cir.), cert. denied, 459 U.S. 1043, 103 S. Ct. 462, 74 L. Ed. 2d 612 (1982).

The due process protection of U.S. Const., amend. 14 protects the citizens against state action rather than against citizen action. Duck v. State, 250 Ga. 592, 300 S.E.2d 121 (1983).

Only egregious abuse of governmental power constitutionally tortious.

- Neither the federal Civil Rights Act (42 U.S.C. § 1983) nor U.S. Const., amend. 14 is a font of tort law. An act must constitute a sufficiently egregious abuse of governmental power to be constitutionally tortious. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).

Although the right to life is undisputedly of constitutional dimension, because 42 U.S.C. § 1983 is not a general tort statute, the plaintiff must show that the injury inflicted arose to the level of a constitutional tort, being sufficiently egregious to exceed the boundaries of wrongful injuries redressable under tort law and depriving the victim of a Fourteenth Amendment "liberty" interest without due process of law. McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983), appeal dismissed, 724 F.2d 881 (11th Cir. 1984).

County ordinance not unconstitutionally vague.

- Cherokee County, Ga., Code of Ordinances § 46-61(d) was not unconstitutionally vague where "litter" and "rubbish" were defined in the county code such that individuals were given sufficient warning that they could avoid doing that which was forbidden; it could also readily be ascertained whether a person was "accumulating" rubbish or litter on the person's property. Franklin v. State, 279 Ga. 150, 611 S.E.2d 21 (2005).

Amendment not applicable to private action.

- U.S. Const., amend. 14 protects individual against state action, not against wrongs done by individuals. United States v. Sutherland, 37 F. Supp. 344 (N.D. Ga. 1940); United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966).

No shield against merely private conduct.

- The action inhibited by the first section of U.S. Const., amend. 14 is only such action as may fairly be said to be that of the states. U.S. Const., amend. 14 erects no shield against merely private conduct, however discriminatory or wrongful. Barnes v. Atlanta Transit Sys., 144 F. Supp. 156 (N.D. Ga. 1956).

State has no duty to protect citizens from "private violence" and, thus, there was no violation of substantive due process rights where, at the time the state allegedly failed to act to protect an infant, it did not have custody and control of the infant. Powell v. Department of Human Resources, 918 F. Supp. 1575 (S.D. Ga. 1996), aff'd, 114 F.3d 1074 (11th Cir. 1997).

State action defined.

- Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law. Shelton v. GECC, 359 F. Supp. 1079 (M.D. Ga. 1973).

In order for wrong to be subject to redress under U.S. Const., amend. 14 it must result from state action or, at the very least, the state must have some way of knowing of its occurrence. Johnson v. Smith, 295 F. Supp. 835 (N.D. Ga. 1968), aff'd, 414 F.2d 645 (5th Cir. 1969), cert. denied, 397 U.S. 951, 90 S. Ct. 975, 25 L. Ed. 2d 133 (1970).

No constitutional deprivation where no state created right or privilege.

- There can be no deprivation of due process and equal protection of the laws in civil actions for deprivation of these rights where there is no exercise of a right or privilege created by the state and the party charged with such deprivation is not a "state actor." Poss v. Moreland, 253 Ga. 730, 324 S.E.2d 456, cert. dismissed, 474 U.S. 807, 106 S. Ct. 182, 88 L. Ed. 2d 151 (1985).

No duty of care owed to sexually harassed student.

- A state owes a duty of care to the individual only where the state has acted to render the person incapable, or significantly less capable of caring for or protecting oneself, or where the state places an individual in a dangerous situation or makes the individual more vulnerable to harm. Therefore, a student who was repeatedly sexually harassed by a fifth-grade student classmate did not state a constitutional deprivation because, despite a mandatory attendance policy and the loco parentis authority of the school over the children, students are not in state custody during school hours. Aurelia D. v. Monroe County Bd. of Educ., 862 F. Supp. 363 (M.D. Ga. 1994), aff'd, 120 F.3d 1390 (11th Cir. 1997).

Due process of law is denied when an arm of the state acts directly against an individual's property and deprives the individual of it without notice or an opportunity to be heard. Thus, the requirements of "state" action can rarely be satisfied when the action is taken by one not a state official. Reinertsen v. Porter, 242 Ga. 624, 250 S.E.2d 475 (1978).

State statutes denying equal protection and due process rendered unconstitutional.

- U.S. Const., amend. 14 renders state statutes unconstitutional that deny equal protection of the law, due process of the law, etc. Screws v. United States, 140 F.2d 662 (5th Cir. 1944), rev'd on other grounds, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).

State need not be directly involved for finding of discrimination.

- It is not necessary that state be overtly or directly involved in order to find state-caused discrimination. Ingram v. Dunn, 383 F. Supp. 1043 (N.D. Ga. 1974), aff'd, 514 F.2d 1070 (5th Cir. 1975).

State action where one in public position acts in name and for state.

- Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the Constitution; and as the official acts in the name and for the state, and is clothed with the state's power, the official's act is that of the state. United States v. Sutherland, 37 F. Supp. 344 (N.D. Ga. 1940).

Municipal police officer's arrival with a motor vehicle repossessor might have given the repossession a cachet of legality and had the effect of intimidating the vehicles' possessor into not exercising his right to resist, thus facilitating the repossession. Even if unintended, such an effect could have constituted "intervention and aid" sufficient to establish state action. Thus, the city would not be insulated from liability if its actual practice, as opposed to its stated policy, facilitated repossession. Booker v. City of Atlanta, 776 F.2d 272 (11th Cir. 1985).

Official acted contrary to express command of state law.

- Acts done by virtue of public position under a state government, and in the name and for the state, are not to be treated as if they were the acts of private individuals, although in doing them the official acted contrary to an express command of the state law. If a state official, acting under color of state authority, invades in the course of the official's duties, a private right secured by the federal Constitution, that right is violated, even if the state officer not only exceeded the official's authority but disregarded special commands of the state law. United States v. Sutherland, 37 F. Supp. 344 (N.D. Ga. 1940).

Every state official bound by Constitution.

- Every state official, high and low, is bound by U.S. Const., amends. 14 and 15. United States v. Raines, 362 U.S. 17, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960).

Actions of officials held state action.

- Action of duly qualified officer, acting within scope of the officer's authority, constitutes state action, even though the particular acts complained of may not be authorized. United States v. Sutherland, 37 F. Supp. 344 (N.D. Ga. 1940).

Action of prosecuting officers on behalf of the state, like that of administrative officers in execution of its laws, may constitute state action within the purview of U.S. Const., amend. 14. U.S. Const., amend. 14 governs any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers. This is true where the officer acts without specific authority to do the particular acts alleged and also where such acts are expressly forbidden by state law. United States v. Sutherland, 37 F. Supp. 344 (N.D. Ga. 1940).

As alleged threats, assaults and torture inflicted by police officer while exercising authority of the officer's office in an effort to extort from petitioner a confession of guilt of theft, constituted state action and were in violation of U.S. Const., amend. 14. United States v. Sutherland, 37 F. Supp. 344 (N.D. Ga. 1940).

Action of administrative officers of State Board of Education is state action within U.S. Const., amend. 14. They are acting for the state under authority of its laws. If in doing this they deny any person the equal protection of the law they may be stopped by virtue of U.S. Const., amend. 14 as officers. Cook v. Davis, 178 F.2d 595 (5th Cir. 1949), cert. denied, 340 U.S. 811, 71 S. Ct. 38, 95 L. Ed. 596 (1950).

Business tort not civil rights case merely because state agency is party.

- A tort count arising out of a business relationship does not become a federal civil rights case because of the mere fortuity that one of the parties is a state agency. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).

Amendment made constitutional guarantees applicable to states and gave Congress enforcement powers.

- U.S. Const., amend. 14 made the guarantees of the Constitution of the United States applicable to each of the states and gave Congress "the power to enforce provisions" thereof against those who carry a badge of authority of a state and represent it in some capacity, whether they act in accordance with their authority or misuse it. Palmer v. Hall, 380 F. Supp. 120 (M.D. Ga. 1974), modified, 517 F.2d 705 (5th Cir. 1975).

Inquiry concerning whether state authorized misuse of power irrelevant.

- Amendment presupposes possibility of abuse by state officer or representative of powers possessed, and deals with such a contingency. It provides, therefore, for the case in which one who is in possession of state power uses that power to do wrongs which the amendment forbids, although the consummation of the wrong may be within the powers possessed, if the commission of the wrong itself is rendered possible or is efficiently aided by the state authority lodged in the wrongdoer. That is to say, the theory of the amendment is that where an officer or other representative of a state, in the exercise of the authority with which the officer is clothed misuses the power possessed to do a wrong forbidden by the amendment, inquiry concerning whether the state has authorized the wrong is irrelevant, and the federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of the officer's exertion of power. Davis v. Cook, 55 F. Supp. 1004 (N.D. Ga. 1944), later appeal, 80 F. Supp. 443 (N.D. Ga. 1948), rev'd on other grounds, 178 F.2d 595 (5th Cir. 1949), cert. denied, 340 U.S. 811, 71 S. Ct. 38, 95 L. Ed. 596 (1950); Refoule v. Ellis, 74 F. Supp. 336 (N.D. Ga. 1947).

Freedom of speech and freedom of press protected from invasion by state action.

- Freedom of speech and freedom of the press, which are protected by the U.S. Const., amend. 1 from infringement by Congress, are among the fundamental personal rights and liberties which are protected by U.S. Const., amend. 14 from invasion by state action. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938); Walter v. State, 131 Ga. App. 667, 206 S.E.2d 662, appeal dismissed, 233 Ga. 10, 209 S.E.2d 605 (1974).

Voting rights protected.

- Among the basic civic and political rights that have been found to be protected and preserved from discriminatory action on the part of states is the right of suffrage - the right or privilege of casting a vote at public elections. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

Concern of preserving civic and political rights from discriminatory state action based on race or color.

- The primary concern of the framers of U.S. Const., amend. 14 was the establishment of equality in the enjoyment of basic civic and political rights and the preservation of those rights from discriminatory action on the part of the states based on considerations of race or color. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

Amendment protects rather than creates individual rights.

- The right to the enjoyment of life and liberty is a fundamental or natural right, and is not derived from or created by the federal Constitution; nevertheless, U.S. Const., amend. 14 was designed to safeguard and protect the individual against the deprivation without due process of law of those rights by the state rather than to create new rights in the individual. Screws v. United States, 140 F.2d 662 (5th Cir. 1944), rev'd on other grounds, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).

States with wide discretion in deciding whether law should operate statewide or in certain counties.

- There is nothing in U.S. Const., amend. 14 that prohibits a state from creating different kinds of political subdivisions and providing a different process for selecting and removing officials in those subdivisions. The states have wide discretion in deciding whether a law should operate statewide or only in certain counties. Smith v. Abercrombie, 235 Ga. 741, 221 S.E.2d 802 (1975).

Licensing agency regulations causing discrimination.

- Licensing agency is not legal cause of discrimination unless agency regulation requires or fosters discrimination. Ingram v. Dunn, 383 F. Supp. 1043 (N.D. Ga. 1974), aff'd, 514 F.2d 1070 (5th Cir. 1975).

Municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938); Staub v. City of Baxley, 355 U.S. 313, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958).

Statutory declaration of noninterference with innkeepers' liens.

- Where the sole action attributable to the state is the General Assembly's enactment of statutes announcing the circumstances under which the courts of this state will not interfere with the private enforcement of innkeepers' liens, there is no violation of hotel lodgers' due process rights. Evans v. Harley Hotels, Inc., 253 Ga. 53, 315 S.E.2d 896, appeal dismissed, 469 U.S. 803, 105 S. Ct. 58, 83 L. Ed. 2d 9 (1984).

Action of political party in conducting primary election constitutes state action.

- The conduct of a primary election in Georgia is such an essential part in the total election process, its conduct and management is so closely supervised by state law and the effect to be given it is so clearly determined by statute that the action of the party in the conduct of its primary constitutes state action within the contemplation of U.S. Const., amend. 14. Sanders v. Gray, 203 F. Supp. 158 (N.D. Ga. 1962), vacated on other grounds, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963).

In private litigation state merely furnishes forum.

- If the plaintiffs have been parties to state court litigations with results considered by them to be unsatisfactory, it cannot be seriously contended that the lawyers who participated in the trial of these matters, or the judges who presided over the proceedings in the state court, are state functionaries acting under color of state law within the meaning of U.S. Const., amend. 14. This was private litigation and the state merely furnished the forum and had no interest one way or another in the outcome. Swift v. Fourth Nat'l Bank, 205 F. Supp. 563 (M.D. Ga. 1962).

Nonrecognition of cause of action not state action.

- Where appellants contended that a doctor's negligence interfered with the woman's right to make a choice whether to continue her pregnancy, the State of Georgia was not involved; Georgia's nonrecognition of a cause of action was not state action that brought the doctor's conduct within the purview of the Fourteenth Amendment. Campbell v. United States, 962 F.2d 1579 (11th Cir. 1992), cert. denied, 507 U.S. 909, 113 S. Ct. 1254, 122 L. Ed. 2d 653 (1993).

Whether state sufficiently interjected itself into challenged conduct requires factual determination.

- Whether the state has sufficiently interjected itself into the challenged conduct must be determined by weighing the facts and circumstances of each particular case. Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

Determining whether private bodies required to provide due process.

- In determining whether due process mandates are applicable to private bodies, initial question is whether the state or the federal government has become so involved in the conduct of these otherwise private bodies that their activities are also governmental activities and performed under governmental aegis without the private body necessarily becoming either a governmental instrumentality or agent in a strict sense. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Determining line between private and governmental action.

- Line between private conduct and governmental action cannot be defined by reference to any general formula unrelated to particular exercises of governmental authority. When governmental action is alleged there must be cautious analysis of the quality and degree of government relationship to the particular acts in question. Shelton v. GECC, 359 F. Supp. 1079 (M.D. Ga. 1973).

No infallible test for determining whether state significantly involved in private discrimination.

- The United States Supreme Court has never attempted the impossible task of formulating an infallible test for determining whether the state in any of its manifestations has become significantly involved in private discrimination. Shelton v. GECC, 359 F. Supp. 1079 (M.D. Ga. 1973).

State involvement with invidious discrimination.

- Where impetus for discrimination is private, state must have significantly involved itself with invidious discriminations, in order for the discriminatory action to fall within the ambit of the constitutional prohibition. Shelton v. GECC, 359 F. Supp. 1079 (M.D. Ga. 1973).

Private individuals clothed with state authority.

- State courts that aid private parties to perform public function on segregated basis implicate the state in conduct proscribed by U.S. Const., amend. 14. Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966).

When private individuals or groups are endowed by the state with powers or functions governmental in nature, they become agencies or instrumentalities of the state and subject to its constitutional limitations. Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966).

To determine whether private individuals were clothed with state authority one must look to the degree of involvement, for only by sifting facts and weighing circumstances can the nonobvious involvement of the state in private conduct be attributed its true significance. Shelton v. GECC, 359 F. Supp. 1079 (M.D. Ga. 1973).

When private citizen's conduct attributable to state.

- The private citizen's conduct may be attributable to the state where the government affirmatively facilitates, encourages, or authorizes the objectionable practice. Jeffries v. Georgia Residential Fin. Auth., 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

The relevant inquiry is whether there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself. Jeffries v. Georgia Residential Fin. Auth., 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

"Special relationship" protection from violence from non-government actors.

- Plaintiff did not fit within the "special relationship" exception to the general rule that due process does not entitle a citizen to be protected from violence at the hands of non governmental actors. Lovins v. Lee, 53 F.3d 1208 (11th Cir. 1995).

Action of private hospital not state action.

- Private, operated for profit hospital's decision to change bylaws so as to allow only doctors eligible for membership in the American Medical and Dental Associations (AMA and ADA) to obtain medical staff privileges and thus denying defendants continued staff privileges because they were doctors of podiatric medicine ineligible for membership in the AMA or ADA was neither state nor federal action subject to scrutiny under the due process or equal protection clauses of the federal Constitution; nor did it constitute a restraint of trade in violation of O.C.G.A. § 16-10-22 merely because the hospital derived 55 percent of its income from federal medicaid and medicare funds, was licensed by the state and was regulated as a certified provider under the medicare and medicaid programs. Todd v. Physicians & Surgeons Community Hosp., 165 Ga. App. 656, 302 S.E.2d 378 (1983).

Action of regulated utility not state action.

- Regulated utility did not engage in "state action" because it obtained court judgment. Cobb v. Georgia Power Co., 757 F.2d 1248 (11th Cir. 1985).

Creditor's power of sale derived from parties' contract, not statute.

- A creditor's power of sale is derived from the parties' contractual undertaking rather than from statute. Therefore, the mere enactment and enforcement of former Code 1933, § 67-1506 (see O.C.G.A. § 44-14-162) does not itself constitute state action. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Liability under federal civil rights statute.

- Because a plaintiff in a civil rights case prosecuted under 42 U.S.C. § 1983 alleging excessive force used in arrest may receive compensatory damages for such things as physical pain and suffering and mental and emotional anguish, and because such a plaintiff whose constitutional rights are violated is entitled to receive nominal damages even if the plaintiff fails to produce any evidence of compensatory damages, the district court erred in granting judgment to defendant officers as a matter of law. Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000).

Police Power

Regulation for promotion of public welfare under police power.

- While the maxim salus populi suprema lex cannot be used as a mere pretext for the curtailment of constitutional safeguards still, where it does apply, it acts as a limitation on the rights of the individual which otherwise would be beyond the power of the Legislature to regulate or circumscribe. Ingram v. State, 193 Ga. 565, 19 S.E.2d 493 (1942).

Principle of laws passed under inherent police power.

- When a law is attacked on the ground that it deprives a citizen of liberty or property without due process of law, the underlying principle of laws passed under the inherent police power of the government is that it is the duty of each citizen to use the citizen's property and exercise the citizen's rights and privileges with due regard to the personal and property rights of others. De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

Punishment of those abusing freedom of speech and press within police power.

- That a state in the exercise of its police power may punish those who abuse the freedom of speech and press by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace is not open to question. Carr v. State, 176 Ga. 55, 166 S.E. 827 (1932), later appeal, 176 Ga. 747, 169 S.E. 201 (1933).

Due process clauses not designed to interfere with police power.

- The due process clauses of the state and federal Constitutions were not designed to interfere with the police power of the state. Davis v. Stark, 198 Ga. 223, 31 S.E.2d 592 (1944).

All property is held subject to police power of the state.

- The due process clauses are not intended to limit the right of the state to properly exercise the police power in the enhancement of public safety. Damages cannot be recovered by one because he incurs expense in obeying a police regulation enacted for the common welfare and safety of the public. The police power has never been surrendered by the states; and all rights of natural persons and corporations are subject to the exercise of police power. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Constitutional amendments not designed to interfere with police power.

- U.S. Const., amend. 14 does not curtail, restrain, destroy or take from states right duly and properly to exercise police power, but the law passed by reason of such inherent powers of government must not unreasonably invade the rights guaranteed by the Constitution and thus become repugnant to it. De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

Neither U.S. Const., amend. 14 - broad and comprehensive as it is - nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Police power may not be exerted arbitrarily or unreasonably.

- A statute valid as to one set of facts may be invalid as to another, and a statute valid when enacted may become invalid by change in the conditions to which it is applied; the police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955) (on motion for rehearing).

Governmental purpose may not be achieved by unnecessarily broad means invading protected freedoms.

- A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971).

Even though governmental purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can more narrowly be achieved. Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971).

Power of state to classify in adoption of police powers.

- Only when attempted classification is arbitrary and unreasonable can statute be declared beyond legislative authority. McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965).

The equal protection clause does not take the power away from the states to make classifications. It commands only that the classifications not be arbitrary. Atlanta Bowling Ctr., Inc. v. Allen, 389 F.2d 713 (5th Cir. 1968).

U.S. Const., amend. 14 does not absolutely deny the state the power to set up classes of persons and treat them differently. This is especially true in the area of economic and social welfare. What U.S. Const., amend. 14 does, however, is deny to states the power to put persons into classes based upon criteria unrelated to the purpose of the legislation. DeKalb Real Estate Bd., Inc. v. Chairman & Bd. of Comm'rs of Rds. & Revenues, 372 F. Supp. 748 (N.D. Ga. 1973).

Equal protection clause of U.S. Const., amend. 14 does not take from state power to classify in adoption of police laws, but allows the exercise of the police power with great discretion in that regard and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

Classification must rest on difference with substantial relation to object of legislation.

- When classification in a law is called in question, if any state of facts reasonably can be conceived that will sustain it, the existence of that state of facts at the time the law was enacted must be assumed. McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965).

Classification or regulation reasonable in relation to subject and adopted in interests of community does not deny due process. Milner v. Burson, 320 F. Supp. 706 (N.D. Ga. 1970).

A classification by a state must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. DeKalb Real Estate Bd., Inc. v. Chairman & Bd. of Comm'rs of Rds. & Revenues, 372 F. Supp. 748 (N.D. Ga. 1973).

Classification of subjects for taxation.

- Law recognizes right and power of municipal government to make reasonable classifications of subjects for taxation and to make subclassifications of such classes. But it does not permit an arbitrary classification, the basis for which has no reasonable relationship to the purpose for which classification is made. Elder v. Smith, 188 Ga. 65, 2 S.E.2d 670 (1939).

Great leeway allowed in making taxation classifications.

- Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the state has large leeway in making classifications and drawing lines which in its judgment produces reasonable systems of taxation. Blackmon v. Monroe, 233 Ga. 656, 212 S.E.2d 827 (1975); Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S. Ct. 574, 66 L. Ed. 2d 474 (1980).

Classification of trades, callings, businesses, or occupations.

- Very wide discretion must be conceded to legislative power of state in classification of trades, callings, businesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law. Nance v. Harrison, 176 Ga. 674, 169 S.E. 22 (1933).

Statute protecting confidentiality of records of licensing agency.

- The provision of O.C.G.A. § 43-40-27(d), prohibiting the discovery of any document in the possession of the Real Estate Commission, is not violative of due process. Demery v. Georgia Real Estate Comm'n, 266 Ga. 288, 466 S.E.2d 591 (1996).

When state regulation for public welfare not violative of due process.

- State regulation for the public welfare is not violative of the due process clause of U.S. Const., amend. 14 so long as the law has a reasonable relation to a proper legislative purpose, and the means selected have a real and substantial relation to the object sought to be obtained. Eubanks v. Ferrier, 245 Ga. 763, 267 S.E.2d 230 (1980).

Social welfare statutory classification valid if rationally based and free from invidious discrimination.

- A statutory classification in the area of social welfare is consistent with the equal protection clauses of the U.S. Const., amends. 5 and 14 if it is rationally based and free from invidious discrimination. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga.), aff'd, 518 F.2d 1405 (5th Cir. 1975).

Regulation of businesses affected with public interest.

- The prohibitory provisions as to due process of law and the equal protection of the laws do not preclude the state Legislature from regulating a business affected with a public interest, which is the equivalent of saying subject to the exercise of the police power, where, such regulation is not unreasonable, arbitrary, capricious, or discriminatory, and the means selected have a real and substantial relation to the object sought to be attained. Under the decision, such regulation may include the prices to be charged for the products or commodities. The function of courts in the application of U.S. Const., amend. 14 is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory. Bohannon v. Duncan, 185 Ga. 840, 196 S.E. 897 (1938).

State regulation of business transactions.

- As a necessary consequence of a state's possession of powers, the state has the right to enforce any conditions imposed by the laws as preliminary to the transaction of business within its confines by a foreign corporation, and the state has also the further right to prohibit a citizen from contracting within the jurisdiction with any foreign company which has not acquired the privilege of engaging in business therein, either in its own behalf or through an agent empowered to that end. Such an intrastate transaction does not fall within the guaranty of U.S. Const., amend. 14 of the federal Constitution. Cooper Co. v. State, 187 Ga. 497, 1 S.E.2d 436 (1939) (decided under former Code 1933, §§ 56-528 to 56-530).

Prohibition on granting of licenses to operate adult bookstore valid.

- A prohibition against granting a license to operate an adult bookstore to any person who has been convicted in the previous five years of a felony or misdemeanor involving moral turpitude, or sexual, gambling, drug, alcohol or similar offenses, is valid as a proper exercise of the police power. Airport Bookstore, Inc. v. Jackson, 242 Ga. 214, 248 S.E.2d 623 (1978), cert. denied, 441 U.S. 952, 99 S. Ct. 2182, 60 L. Ed. 2d 1057 (1979).

Business regulations void where without reasonable or substantial relation to general welfare.

- Ga. L. 1937, p. 280, establishing a state board of photographic examiners, and providing, among other things that except as to stated classes, person desiring to engage in the business of photography or photofinishing must stand an examination and thereby qualify as to competency, ability, and integrity, and denouncing as a crime a violation of any of the terms of the act, is unconstitutional and void as an exercise of the police power. The prescribed regulations are imposed upon a lawful business, and considered as a whole do not bear any reasonable or substantial relation to the public health, safety, or morality, or other phase of the general welfare. Bramley v. State, 187 Ga. 826, 2 S.E.2d 647 (1939).

Defining qualifications for those in occupation or profession affecting public health or welfare proper.

- Legislation which defines the qualifications for one who engages in an occupation or profession affecting the public health, safety, morals or welfare is a proper exercise of the police power. Airport Bookstore, Inc. v. Jackson, 242 Ga. 214, 248 S.E.2d 623 (1978), cert. denied, 441 U.S. 952, 99 S. Ct. 2182, 60 L. Ed. 2d 1057 (1979).

Regulation of right to practice medicine.

- Right to practice medicine is conditional right subordinate to state's power and duty to safeguard public health; and it is the universal rule that in the performance of such duty and in the exercise of such power, the state may regulate and control the practice of medicine and those engaging in it, subject only to the limitation that the measures adopted must be reasonable, necessary, and appropriate to accomplish the Legislature's valid objective of protecting the health and welfare of its inhabitants. Geiger v. Jenkins, 316 F. Supp. 370 (N.D. Ga. 1970), aff'd, 401 U.S. 985, 91 S. Ct. 1236, 28 L. Ed. 2d 525 (1971).

Residency requirement for license for retail malt beverage and wine sellers upheld.

- It is not an unreasonable exercise of the police power to require that a licensee, whether as an individual or as a member of a partnership, must have been a resident of the county for one year preceding the application for license. There is a reasonable basis for distinction between wholesale and retail dealers, and the residence requirement as to retail dealers is not unfairly discriminatory because it does not apply to wholesale dealers. Bonner v. Maddox, 227 Ga. 598, 182 S.E.2d 122 (1971).

Objective standards for obtaining liquor license required.

- While it is firmly established that the state has the right to regulate or prohibit traffic in intoxicating liquor in the valid exercise of its police power, the due process requirement of U.S. Const., amend. 14 mandates that objective standards be set out to afford notice to applicants of requirements for obtaining a license. Mayor of Hapeville v. Anderson, 246 Ga. 786, 272 S.E.2d 713 (1980).

Regulation of nonuseful occupation potentially harmful to public.

- U.S. Const., amend. 14 does not prevent state from regulating or prohibiting nonuseful occupation which may become harmful to public, and the regulation or prohibition need not be postponed until the evil is flagrant. One cannot be heard to complain about loss of money because a business which may be subject to regulation under the police power of the state is legislated out of existence. Phillips v. City of Atlanta, 57 F. Supp. 588 (N.D. Ga.), aff'd, 145 F.2d 470 (5th Cir. 1944).

Only invidious discrimination or patently arbitrary classifications barred.

- Only "invidious" discrimination or classifications which are "patently arbitrary and utterly lacking in rational justification" are barred by either the due process or equal protection clauses. Milner v. Burson, 320 F. Supp. 706 (N.D. Ga. 1970).

Burden on one assailing classification to show it arbitrary.

- One who assails the classification in a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965).

Justification necessary for zoning classification.

- As the individual's right to the unfettered use of the individual's property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality or general welfare. Lacking such justification, the zoning may be set aside as arbitrary or unreasonable. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).

Police power to zone to prevent future use not subject to question or requirement for compensation.

- The police power of the state to zone property to prevent its use for certain purposes in the future, as distinguished from the taking or damaging in respect to a use already in existence, is not open to question, and does not require the payment of any compensation. National Adv. Co. v. State Hwy. Dep't, 230 Ga. 119, 195 S.E.2d 895 (1973).

Power to enforce building code regulation.

- Plaintiffs violated building code regulation by transporting a house through the streets of the county without having obtained a permit or giving the county the required 24 hours notice, and damaged a traffic light in the process. In the course of investigating the offense and determining how and whether to cite the plaintiffs, the police officer detained them and, although the police officer perhaps could have acted somewhat more quickly in making the officer's determination and perhaps could have been more solicitous of the discomfort that the plaintiffs purportedly suffered by having to sit in a hot car during the process, neither the officer nor the county violated the plaintiffs' constitutional rights. Lyle v. Dodd, 857 F. Supp. 958 (N.D. Ga. 1994).

Municipal ordinance duly enacted under ample grant of power is presumably constitutional and binding. Hart v. Columbus, 125 Ga. App. 625, 188 S.E.2d 422 (1972).

Constitutionality of ordinances favored.

- It is a general rule governing the validity and construction of ordinances that their constitutionality is favored and courts are reluctant to declare an ordinance unconstitutional. Hart v. Columbus, 125 Ga. App. 625, 188 S.E.2d 422 (1972).

Municipal ordinances must be reasonable; the limitations of the power of a city council in this regard are not to be measured by the more extensive powers of the state Legislature. De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

Any municipal ordinance that is unreasonable will be held void. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Municipal ordinance cannot be oppressive or unfairly discriminate.

- Ordinances cannot be oppressive or unreasonable, nor can they unfairly discriminate in favor of one citizen or of one class against another. De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

Municipality may make reasonable rules and regulations and may require permits.

- While a municipality may make reasonable rules and regulations looking to the protection, safety and health of its citizens and may require permits for the exercise of its power of regulation, the grant or refusal of a permit to dig a well cannot be left to arbitrary discretion. City of Hawkinsville v. Clark, 135 Ga. App. 875, 219 S.E.2d 577 (1975).

Ordinance is unconstitutional if city board of commissioners given arbitrary authority to grant permits.

- An ordinance is constitutionally defective if it grants to the board of commissioners of a city the arbitrary authority to grant a permit to dig a well to some and to refuse others by prescribing no rule or guide by which it may be impartially executed and which will preclude partiality. City of Hawkinsville v. Clark, 135 Ga. App. 875, 219 S.E.2d 577 (1975).

Subjecting municipal bylaws and ordinances to court investigation.

- Municipal bylaws and ordinances undertaking to regulate useful business enterprises are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulation, there has been an unwarranted and arbitrary interference with the constitutional right to carry on a lawful business or use and enjoy property. Borough of Atlanta v. Kirk, 175 Ga. 395, 165 S.E. 69 (1932).

Determination of reasonableness of ordinance made under circumstances and conditions at time of case.

- In determining the reasonableness of an ordinance based upon statutory authority, such determination must be made under the circumstances and conditions of the case at the present time, and not contemporaneous with the passage of the original ordinance. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Municipal government without power under "police power" to discriminate between licensees arbitrarily and without cause.

- A municipal government, after adopting an ordinance pursuant to the state law regulating intoxicating liquors, providing for sale of licenses for one year unless sooner revoked for violation of rules and regulations therein, is without power under "police power" to arbitrarily and without cause discriminate between such licensees by revoking one license and not those of others who occupy exactly the same position since the licensee had something more than a "mere privilege" and was entitled to the equal protection guaranteed by the Constitution. Mayor of Savannah v. Savannah Distrib. Co., 202 Ga. 559, 43 S.E.2d 704 (1947).

Municipal ordinance prohibiting sales during certain times at certain place valid under police power.

- A municipal ordinance providing that it shall be illegal "for any person, firm, or corporation to sell or offer for sale any goods, wares, merchandise, pamphlets, magazines, maps, or other article of value, on any Saturday between the hours of 12 noon and 9 p.m. on any of the following congested sidewalks of said city," designating certain sidewalks and providing a penalty therefor, is a valid and reasonable regulation for public safety and convenience, under the police power of the city. Where plaintiffs seek to enjoin enforcement of the ordinance against them, on the grounds that the magazines sold and offered for sale are devoted to religious subjects, and advocate the adoption of a particular form of religion, the distribution of which is a part of their religious belief, and urge that to prohibit the sale of the magazines would be in violation of their rights of religious freedom under the state and federal Constitutions, it is not error to deny an injunction. Jones v. City of Moultrie, 196 Ga. 526, 27 S.E.2d 39 (1943).

Reasonable basis must be shown for injunctive relief or declaratory judgment.

- While a municipality can, in the exercise of its police power, make reasonable regulations to protect its citizens, including measures designed to preclude the use of water unfit for human consumption or other use, as obtained from a users' private source, or as supplied to a user by others, there is no reason to recognize a claim for injunctive relief or declaratory judgment by the city absent some indication from the claim, as alleged, to show that some reasonable basis exists for protecting the health and welfare of its citizens in this manner. City of Midway v. Midway Nursing & Convalescent Ctr., Inc., 230 Ga. 77, 195 S.E.2d 452 (1973).

Constitutional restraints limit state power to terminate entitlement whether the entitlement is denominated a "right" or a "privilege." Davis v. Weir, 328 F. Supp. 317 (N.D. Ga. 1971).

Regulation of game fish proper.

- While it is true that ownership of fish in private ponds is a property right, it is not an absolute and unqualified right, and is bounded by the limitation that it must always yield to the state's power to regulate and preserve for the public good. Therefore, O.C.G.A. § 27-4-74 (sale, purchase, transportation, etc. of game fish generally) functions to protect the stocks of fish swimming freely in waters of this state and as such is a proper exercise of the police power. Maddox v. State, 252 Ga. 198, 312 S.E.2d 325, cert. denied, 469 U.S. 820, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984).

Deputy's power to direct owner away from burning building.

- Under the police power, a deputy sheriff is authorized to go upon private property and direct the owner to move back from a burning building when the deputy has been made aware of the possibility of an explosion. Veit v. State, 182 Ga. App. 753, 357 S.E.2d 113 (1987).

Nude and sexual conduct on premises where alcohol served.

- Statute prohibiting certain nude and sexual conduct on premises where alcoholic beverages are sold or dispensed for consumption on the premises infringes upon protected speech and must fall as an improper exercise of the state's police power. Harris v. Entertainment Sys., 259 Ga. 701, 386 S.E.2d 140 (1989).

Although a state may have a certain amount of its police power restored to it under the twenty-first amendment that would otherwise be limited under the first amendment, the expression involved in an establishment offering sexually-oriented communication where alcohol is served is still within the purview of the first amendment, and is still protected by Georgia's free expression guarantees. Because Georgia has no constitutional equivalent to the twenty-first amendment, the state's police power, though possibly not limited under the U.S. Constitution, is limited by Georgia's Constitution. Harris v. Entertainment Sys., 259 Ga. 701, 386 S.E.2d 140 (1989).

Privileges and Immunities

Privileges and immunities not abridged by statute regulating practice of medicine where open to qualified.

- A statute regulating the right to practice medicine, but leaving the field open to all who possess the prescribed qualifications, does not abridge the privileges or immunities of citizens. Yeargin v. Hamilton Mem. Hosp., 225 Ga. 661, 171 S.E.2d 136 (1969), cert. denied, 397 U.S. 963, 90 S. Ct. 997, 25 L. Ed. 2d 255 (1970), later appeal, 229 Ga. 870, 195 S.E.2d 8 (1972).

Motor carriers' privilege to use highways in business may be conditioned or withholding.

- Motor carriers are engaged in a business that is regulable, and doing that business on the highways by a privilege which may be conditioned or withheld. Southern Motorways, Inc. v. Perry, 39 F.2d 145 (N.D. Ga. 1930).

Maintenance tax on operation of vehicles on public roads upheld.

- Former Code 1933, Ch. 92-29 (see O.C.G.A. Ch. 10, T. 48), which imposes a maintenance tax on the operation of motor buses, trucks, and trailers on public roads, in addition to any and all other taxes, licenses, or registration fees required, for the privilege of using the highways of the state is not violative of the commerce clause or of the privileges and immunities clause of U.S. Const., amend. 14. Dixie-Ohio Express Co. v. State Revenue Comm'n, 186 Ga. 228, 197 S.E. 887 (1938), aff'd, 306 U.S. 72, 59 S. Ct. 435, 83 L. Ed. 495 (1939).

Municipal corporation created by state without privileges or immunities invokable in opposition to state.

- A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the federal Constitution which it may invoke in opposition to the will of its creator. Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S. Ct. 574, 66 L. Ed. 2d 474 (1980).

Statute penalizing writings to incite insurrection upheld.

- Statute penalizing printing or circulating writings to incite insurrection does not abridge privileges and immunities guaranteed under U.S. Const., amend. 14. Dalton v. State, 176 Ga. 645, 169 S.E. 198 (1933).

State cannot condition granting of even privilege upon renunciation of constitutional right to procedural due process. Benefits conferred by the government cannot be conditioned on the relinquishment of constitutional rights. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Right to move from state to state is protected by privileges and immunities clause.

- Right to move freely from state to state is an incident of national citizenship protected by privileges and immunities clause of Fourteenth Amendment against state interference. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Right to travel is protected by due process clause.

- Right to travel is a privilege of national citizenship, and an aspect of liberty that is protected by due process clauses of fifth and Fourteenth Amendments. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Persons, including indigents and other migrants, have a right to free travel. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Distinction between precluding inward migration and efforts to obtain return of alleged criminals for prosecution.

- There is an entirely obvious difference between an attempt by a "receiving state" to preclude or discourage inward migration from "sending states" of persons deemed by the receiving state to be "undesirables," "noncontributors" or "economically burdensome persons," and efforts by a sending state to bring persons accused of crimes back from receiving states to face criminal trial and punishment in the sending state. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Delivering person charged with crime to state having jurisdiction.

- Persons charged with commission of crimes shall be delivered up to state having jurisdiction over crime. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Right to travel cannot bar prosecution.

- Person charged in Georgia with commission of a crime who has left Georgia and entered another state cannot be said to have a constitutionally protected right of free travel in interstate commerce that can be asserted to bar prosecution for Georgia offense. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

One who has committed an offense against laws of Georgia may be stopped at its borders and temporarily deprived of the freedom to travel elsewhere within or without the state. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Due Process

1. In General

Due process defined.

- If one who has been indicted for murder has had full opportunity under the Constitution and laws of the state to defend the defendant's case in the courts having jurisdiction thereof in person, by attorney, or both, according to established constitutional rules of procedure, the defendant has been afforded due process of law under the state and federal Constitutions, which provide that no person shall be deprived of life, liberty, or property, without due process of law, and where such an opportunity has been afforded the defendant, the defendant has been accorded the equal protection of the laws. Meyers v. Whittle, 171 Ga. 509, 156 S.E. 120 (1930), appeal dismissed, 283 U.S. 795, 51 S. Ct. 489, 75 L. Ed. 1419 (1931).

Due process of law means the administration of laws which apply equally to all persons according to established rules, and which are not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. Norman v. State, 171 Ga. 527, 156 S.E. 203 (1930); King v. State, 174 Ga. 432, 163 S.E. 168 (1932); Shoemake v. Whitlock, 226 Ga. 771, 177 S.E.2d 677 (1970).

If one indicted has had full opportunity, under the Constitution and laws of the state, to defend the defendant's case in the courts of the state having jurisdiction thereof, in person, by attorney, or both, according to established constitutional rules of procedure the defendant has been afforded due process of law. Shoemake v. Whitlock, 226 Ga. 771, 177 S.E.2d 677 (1970).

Traditionally, due process right concerns opportunity to be heard on factual basis underlying loss of liberty or property interest, rather than standard upon which that interest was lost. Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981).

Sovereign immunity.

- Sovereign immunity does not violate the right to due process as it does not constitute a deprivation with no remedy. Dollar v. Dalton Pub. Schs., 233 Ga. App. 827, 505 S.E.2d 789 (1998).

Due process of law merely means according to the law of the land. Brooks v. State, 178 Ga. 784, 175 S.E. 6 (1934).

Purpose of the due process clause is to protect the people from the state, not to ensure that the state protect them from each other. Green v. Moreland, 200 Ga. App. 167, 407 S.E.2d 119 (1991).

Due process requires process of decision to be impartial.

- The right to due process of law is not merely to have one's case heard by an impartial tribunal in the first instance. The process of decision must be impartial in every instance and in every respect. Wall v. American Optometric Ass'n, 379 F. Supp. 175 (N.D. Ga.), aff'd, 419 U.S. 888, 95 S. Ct. 166, 42 L. Ed. 2d 134 (1974).

Waiver of due process.

- Party may waive the party's constitutional and statutory rights. Pacolet Mfg. Co. v. Crescent Textiles, Inc., 219 Ga. 268, 133 S.E.2d 96 (1963).

Due process can under certain circumstances be waived, even in criminal context. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973).

Due process can be waived in civil contracts between debtor and creditor. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973).

Due process principles extend to every proceeding which may deprive person of life, liberty, or property.

- "Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty, or property," a fortiori the finding of a bureau chief or a government department head ruling cannot do so, consistently with the guarantees embodied in the Constitutions of this state and of the United States. The protective principles summed up in these due process clauses extend to every proceeding which may deprive a person of life, liberty, or property, whether the process be judicial, administrative or executive in its nature. Zachos v. Huiet, 195 Ga. 780, 25 S.E.2d 806 (1943).

Due process of law does not require judicial procedure. City of Macon v. Benson, 175 Ga. 502, 166 S.E. 26 (1932).

First amendment guarantees protected.

- States and municipalities may no more interfere with freedom of speech than may national government. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Guarantees in U.S. Const., amend. 1 are protected by U.S. Const., amend. 14. Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975).

Defendant's conviction for violating O.C.G.A. § 46-5-21(a)(1) was reversed as the statute was an overbroad infringement on defendant's first amendment and Ga. Const. 1983, Art. I, Sec. I, Para. V rights to free speech; the statute does not contain the necessary language setting out the least restrictive means to further a compelling state interest as it applies to indecent or obscene speech, whether heard by children or adults, and whether not welcomed by listeners or spoken with intent to please. McKenzie v. State, 279 Ga. 265, 626 S.E.2d 77 (2005).

Fifth and fourteenth amendment restraints essentially same.

- The restraint imposed upon legislation by the due process clause of the fifth and Fourteenth Amendments is essentially the same. DeLaigle v. Federal Land Bank, 568 F. Supp. 1432 (S.D. Ga. 1983), overruled on other grounds, Smith v. Russellville Prod. Credit Ass'n, 777 F.2d 1544 (11th Cir. 1985).

Protection from arbitrary action of government.

- Touchstone of due process is protection of individual against arbitrary action of government. J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976), rev'd on other grounds, 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).

Protection from undue state interference.

- U.S. Const., amend. 14 protects life, liberty and property interests from undue interference by the state. Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 449, 228 S.E.2d 839 (1976), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977).

Applicability of due process requirements to persons and organizations in private sector.

- Constitutional due process requirements are applicable in some situations to persons and organizations in the private sector, as where the state or the federal government has become so involved in the conduct of otherwise private bodies that their activities are also governmental activities and performed under government aegis without the private body's necessarily becoming either a governmental instrumentality or agent in a strict sense. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Priority or preferential protection not to be given life or liberty or property interest.

- The heart of U.S. Const., amend. 14 - everything it seeks to protect - is found in its provision that there must be equal protection of the law and there must be no deprivation of "life, liberty or property" without due process of law. No judge can, with good conscience, give to either "life" or "liberty" or "property" a priority or preferential protection over the other two. Clark v. State, 219 Ga. 680, 135 S.E.2d 270 (1964).

Applicability of due process depends on nature of interest at stake.

- To determine whether due process requirements apply in the first place, the court must look not to the weight but to the nature of the interest at stake. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Consideration of interests with regard to procedural due process.

- Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Tucker v. Caldwell, 608 F.2d 140 (5th Cir. 1979); Crocker v. Hakes, 616 F.2d 237 (5th Cir. 1980).

In a due process claim, three distinct factors must be weighed in a balancing approach: first, the court must consider the private interest that will be affected; second, the risk of an erroneous deprivation of such an interest through the procedures used, and the probable value, if any, of additional or alternative procedural safeguards should be considered; finally, the government interest, both the fiscal and administrative burdens placed on government agencies and the government function involved, is to be weighed and enters into the balancing formula. Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

Due process test looks to totality of surrounding circumstances. Ambros v. State, 159 Ga. App. 492, 283 S.E.2d 706 (1981).

Extent of due process afforded depends on importance of interest at stake.

- Extent of due process protections which must be afforded in a particular instance varies with the importance of the interest to be protected, as compared with the interest of the state in protecting the public welfare from abuse of this interest. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).

Whether due process requires a particular procedure in a given situation must be determined by balancing an individual's interest in avoiding loss which lack of procedure inflicts upon the individual against interests which the government seeks to advance by denying it. Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981).

No particular state procedure guaranteed.

- U.S. Const., amend. 14 does not guarantee to the citizen of the state any particular form or method of state procedure. Its requirements are satisfied if the individual has reasonable notice and opportunity to be heard, and to present the individual's claim or defense, with due regard given to the nature of the proceeding and the character of the rights that may be affected by it. City of Macon v. Benson, 175 Ga. 502, 166 S.E. 26 (1932); State v. Sanks, 225 Ga. 88, 166 S.E.2d 19 (1969), appeal dismissed, 401 U.S. 144, 91 S. Ct. 593, 27 L. Ed. 2d 741 (1971).

Due process has two requirements: (1) laws must provide fair notice to persons of ordinary intelligence of precise conduct proscribed; and (2) laws must provide standards and guidance to law enforcement officers, judges, and juries, to prevent arbitrary and discriminatory enforcement. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).

Prerequisite for application of procedural due process.

- Before the requirements of procedural due process apply there must be a deprivation of interest encompassed by U.S. Const., amend. 14's protection of liberty and property. Shaw v. Hospital Auth., 507 F.2d 625 (5th Cir. 1975).

In order to state claim of deprivation of U.S. Const., amend. 14's due process rights a plaintiff must demonstrate that: (1) the plaintiff has been deprived of liberty or property in the constitutional sense; and (2) the procedure used to deprive the plaintiff of that interest was constitutionally deficient. Drummond v. Fulton County Dep't of Family & Children's Servs., 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

When due process denied.

- Where a body which is vested with a duty to make judgments has unlawfully delegated that responsibility to another, or where the inseparation of judicial and prosecutory functions engenders a biased hearing, due process is denied. Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359 (1975).

Notice and hearing required prior to deprivation of property or liberty interest.

- Constitutional guarantee of procedural due process applies to governmental deprivation of legitimate "property" or "liberty" interest within the meaning of U.S. Const., amend. 5 or U.S. Const., amend. 14 and requires that any such deprivation be accompanied by minimum procedural safeguards, including some form of notice and a hearing. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Opportunity to vindicate liberty interest is basic entitlement provided by due process.

- An opportunity to vindicate a liberty interest, such as when one is publicly subjected to a badge of infamy, is one of the basic entitlements provided by the due process clause. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).

Hearing for violation of liberty interest.

- Due process claim for violation of "liberty interest" entitling party to full hearing arises if - and only if - the reason given or the dismissal procedure adopted resulted in a "badge of infamy," public scorn or the like. Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980).

When protected interests implicated, right to prior hearing is paramount.

- The requirements of procedural due process apply only to the deprivation of interests encompassed by U.S. Const., amend. 14's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. The range of interests protected by procedural due process is, however, not infinite. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Agencies to follow regulations pertaining to adjudication processes.

- It is denial of due process for any government agency to fail to follow its regulations pertaining to adjudication processes. Courts v. Economic Opportunity Auth. For Savannah - Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978).

Negligent act of official.

- Due process clause is not implicated by negligent act of official causing unintended loss of or injury to life, liberty, or property. Terrell v. Shope, 687 F. Supp. 579 (N.D. Ga. 1988), aff'd, 911 F.2d 741 (11th Cir. 1990).

Due process principle of impartial tribunal applies to administrative proceedings.

- The due process principles of impartial and fair tribunal free from bias applies not only to trials, but equally, if not more so, to administrative proceedings. Wall v. American Optometric Ass'n, 379 F. Supp. 175 (N.D. Ga.), aff'd, 419 U.S. 888, 95 S. Ct. 166, 42 L. Ed. 2d 134 (1974).

Due process applies to administrative acts affecting protected interest.

- Not every administrative act gives rise to constitutional right of participation under due process clause. Traditionally, due process requires that an affected individual be given the right of participation, whether by a hearing or otherwise, only when the administrative act complained of directly affects a zone of interest protected by the Constitution. Wells Fargo Armored Serv. Corp. v. Georgia Pub. Serv. Comm'n, 547 F.2d 938 (5th Cir. 1977).

Liberty guaranteed by U.S. Const., amend. 14 denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized as essential to the orderly pursuance of happiness by free persons. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir. 1977), rev'd on other grounds en banc, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

Refusal to permit child to testify in deprivation hearing.

- Because a child was available to testify in a deprivation hearing and the child's statements were reliable, a juvenile court's refusal to permit the child to testify, despite the mother's request, rendered the evidence regarding the child's statements to other witnesses inadmissible under O.C.G.A. § 24-3-16. In the Interest of B.W., 268 Ga. App. 862, 602 S.E.2d 869 (2004).

Determination of what is liberty interest as matter of federal constitutional law.

- While property rights that are protectable under the due process clause of the Constitution are generally created by state law, a determination of what is a "liberty" interest is a matter of federal constitutional law. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir. 1977), rev'd on other grounds en banc, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

Creation of nonconstitutionally based liberty interests.

- Nonconstitutionally based liberty interest may be created by acts or rules "defining the obligations of the authority charged with exercising" that power, and a liberty interest will be found where the government signals the existence of such right by placing substantive limitations on official discretion in the form of particularized standards or criteria to guide decisionmakers. Garcia-Mir v. Meese, 781 F.2d 1450 (11th Cir.), aff'd in part and rev'd in part on other grounds, 788 F.2d 1446 (11th Cir.), cert. denied, 479 U.S. 889, 107 S. Ct. 289, 93 L. Ed. 2d 263 (1986).

Liberty extends to full range of conduct individual is free to pursue.

- Liberty is not confined to mere freedom from bodily restraint but extends to the full range of conduct which the individual is free to pursue. Shaw v. Hospital Auth., 507 F.2d 625 (5th Cir. 1975).

"Deprived of liberty without due process of law" defined.

- To be deprived of liberty "without due process of law" means to be deprived of liberty without authority of law. Palmer v. Hall, 380 F. Supp. 120 (M.D. Ga. 1974), modified, 517 F.2d 705 (5th Cir. 1975).

State law not source of true liberty rights.

- True liberty rights do not flow from state laws, which can be repealed by action of the Legislature. Drummond v. Fulton County Dep't of Family & Children's Servs., 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

Defendant not under arrest.

- Miranda played no part in the admissibility of field sobriety test results, notwithstanding the definition of arrest contained in O.C.G.A. § 17-4-1, as the defendant was not under arrest for constitutional purposes where the defendant failed to show any restraints comparable to those associated with formal arrest, the defendant's statement that the defendant knew the officer was going to "take her in" demonstrated the defendant's apprehension, not the fact of an arrest, the defendant was not informed that the defendant's detention would not be temporary, and the defendant's performance on the field sobriety tests did not support a claim that the defendant was exposed to custodial interrogation at the scene. Evans v. State, 267 Ga. App. 706, 600 S.E.2d 671 (2004).

Refusal to allow hearsay.

- Trial court did not violate the defendant's right to a fair trial under the Fourteenth Amendment due process clause by preventing the introduction of hearsay testimony from a person claiming to have committed the offenses the defendant was on trial for, as the trial court saw no persuasive indicia of reliability in the proffered testimony and declined to permit the defendant to present it to the jury. Inman v. State, 281 Ga. 67, 635 S.E.2d 125 (2006), cert. denied, 552 U.S. 828, 128 S. Ct. 42, 169 L. Ed. 2d 40 (2007).

Requirements for restricting liberty.

- A person's liberty interest dictates that rights may only be restricted upon a showing that: (1) the person was given an adequate procedural due process hearing; and (2) any decision to abridge the person's liberty interest was grounded upon a rational basis designed to further a legitimate state interest. Shaw v. Hospital Auth., 614 F.2d 946 (5th Cir.), cert. denied, 449 U.S. 955, 101 S. Ct. 362, 66 L. Ed. 2d 220 (1980).

Because the plaintiff relied merely upon stigmatizing statements in conjunction with the plaintiff's suspension without pay, plaintiff failed to state a claim for deprivation of a constitutionally protected liberty interest. Thomas v. Harvard, 45 F. Supp. 2d 1353 (N.D. Ga. 1999).

Freedom of speech and of press among personal rights and liberties protected.

- Freedom of speech and of the press - which are protected by the U.S. Const., amend. 1 from abridgement by Congress - are among the fundamental personal rights and "liberties" protected by the due process clause of U.S. Const., amend. 14 from impairment by the states. Carr v. State, 176 Ga. 55, 166 S.E. 827 (1932), later appeal, 176 Ga. 747, 169 S.E. 201 (1933).

Liberty includes freedom to use property to get from place to place.

- The freedom to make use of one's own property, such as a motor vehicle, as a means of getting about from place to place, whether in pursuit of business or pleasure, is a "liberty" which cannot be denied or curtailed by a state without due process of law under U.S. Const., amend. 14. Roberts v. Burson, 322 F. Supp. 380 (N.D. Ga. 1969).

Liberty includes freedom of association.

- Due process clause of U.S. Const., amend. 14 prevents state governments from infringing upon right of free association. Doherty v. Wilson, 356 F. Supp. 35 (M.D. Ga. 1973).

Freedom to engage in association for advancement of beliefs and ideas is inseparable aspect of "liberty" assured by the due process clause of U.S. Const., amend. 14 which embraces freedom of speech. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

Compelled disclosure of affiliation with group advocating beliefs constitutes restraint on freedom of association.

- Where a group is engaged in advocacy of particular beliefs, whether they be political, economic, religious, or cultural, compelled disclosure of affiliation with such a group constitutes a restraint on one's freedom of association. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

State flag.

- The state flag, incorporating the stars and bars of the Confederate flag, did not violate the due process clause by depriving an African-American citizen of any fundamental privacy interest in associating with white people free from unwarranted government intrusion since the record did not support the claim and, moreover, plaintiff's right to associate with white people in general was not the type of intimate relationship garnering constitutional protection under this theory. Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

Peaceful picketing at department stores open to public.

- Peaceful picketing to eliminate racial discrimination in department stores open to public is right embraced in free speech under the U.S. Const., amend. 1, and made applicable to the states by U.S. Const., amend. 14. Kelly v. Page, 335 F.2d 114 (5th Cir. 1964).

Liberty may include, but not limited to, freedom of speech.

- There is more than one kind of liberty; the term may include, but is not limited to, freedom of speech. Herndon v. State, 179 Ga. 597, 176 S.E. 620 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Narrow construction of statutes regulating speech.

- Constitutionally guaranteed freedom of speech forbids states' punishing use of language not within "narrowly limited classes of speech." In other words, a statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972).

No absolute right to speak or publish.

- It is a fundamental principle, long established that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Carr v. State, 176 Ga. 55, 166 S.E. 827 (1932).

Constitutional protection of speech and press outside of infringement of rights of others.

- When taken as it must be as a harmonious part of the entire Constitution, and in light of history, a construction is demanded that the U.S. Const., amend. 1, by the words "speech" and "press," means only speech and press outside of infringement of the rights of others. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784, 125 S.E.2d 207 (1962).

State may penalize utterances openly advocating overthrow of government.

- A state may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several states, by violence or other unlawful means. Carr v. State, 176 Ga. 55, 166 S.E. 827 (1932), later appeal, 176 Ga. 747, 169 S.E. 201 (1933).

Right of free speech subject to restriction where required to protect state.

- Freedom of speech and press does not protect disturbances to public peace or attempt to subvert government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. Carr v. State, 176 Ga. 55, 166 S.E. 827 (1932), later appeal, 176 Ga. 747, 169 S.E. 201 (1933).

The right of free speech is not absolute and is subject to restriction "if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic, or moral." Herndon v. State, 179 Ga. 597, 176 S.E. 620 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Necessity which is essential to valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent. Herndon v. State, 179 Ga. 597, 176 S.E. 620 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Conviction and confinement for flag burning overturned.

- Defendant's conviction and confinement for burning of American flag violated her rights under the first amendment, applicable to the state by virtue of U.S. Const., amend. 14. Monroe v. State Court, 739 F.2d 568 (11th Cir. 1984).

State's withholding expected promotion or pay raise as sanction for exercise of free speech is unconstitutional.

- For a state to withhold an expected promotion or pay raise as a sanction for the exercise of the right to free speech is a restriction of that right in violation of the U.S. Const., amends. 1 and 14. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977).

Provisions of the Tort Reform Act (O.C.G.A. § 51-12-5.1), relating to punitive damages, violated the due process and equal protection clauses of the federal and state constitutions, violated the excessive fines provisions of both constitutions, and violated the double jeopardy provision of the fifth amendment to the federal constitution. McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).

Immunity granted employers in the workers' compensation act does not violate the due process and equal protection provisions of the state and federal constitutions. Georgia Dep't of Human Resources v. Joseph Campbell Co., 261 Ga. 822, 411 S.E.2d 871 (1992).

Obscenity not protected liberty.

- But freedom of expression does not extend to obscenity, though state regulation of obscenity must conform to procedure that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969); Central Agency, Inc. v. Brown, 306 F. Supp. 502 (N.D. Ga. 1969).

Publications obscene as matter of law and fact.

- Where publications depict acts of natural and aberrational sexual conduct, including the participants' genitals, solely for their own lewd and lascivious purpose and there is no discernible meaning other than pornographic, these magazines are obscene as a matter of law and fact. They are not protected expression under U.S. Const., amends. 1 and 14. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

Private possession of obscene materials, not obscenity, is within protection of U.S. Const., amend. 14. - Obscenity is not within the protected pale of U.S. Const., amends. 1 and 14, but the private possession of obscene materials is so protected. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595 (1970).

Motion pictures protected by Constitution.

- Motion pictures are within ambit of constitutional guarantees of freedom of speech and of the press. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784, 125 S.E.2d 207 (1962); Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

Right of commercial exploitation of film amounts to private right.

- Although expression by means of motion pictures is included within the free expression or free press guarantee of U.S. Const., amends. 1 and 14, the right of commercial exploitation of a film does not represent a great public interest, but amounts to a private right. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

Right of privacy guaranteed.

- The right of privacy within certain limits is a right derived from natural law, recognized by the principles of municipal law, and guaranteed to persons in this state both by the Constitutions of the United States and of the State of Georgia, in those provisions which declare that no person shall be deprived of liberty except by due process of law. McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92, 2 S.E.2d 810 (1939).

Right to privacy includes only personal rights deemed fundamental or implicit in concept of ordered liberty.

- A right to privacy guaranteed by U.S. Const., amend. 14 includes only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173 (1974).

Though public interest in privacy may be subordinated and clandestine surveillance allowed.

- Where the police have reasonable cause to believe that public toilet stalls are being used in the commission of crime, and when they confine their activities to the times when such crimes are most likely to occur, they are entitled to institute clandestine surveillance, even though they do not have probable cause to believe that the particular persons whom they may thus catch in flagrante delicto have committed or will commit the crime. The public interest in its privacy must, to that extent, be subordinated to the public interest in law enforcement. Mitchell v. State, 120 Ga. App. 447, 170 S.E.2d 765 (1969).

Derogatory information in confidential files.

- Liberty is not infringed by mere presence of derogatory information in confidential files. Sims v. Fox, 505 F.2d 857 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975).

Harm to reputation.

- Governmental attack on one's reputation may infringe constitutionally protected liberty in two respects: (1) governmental degradation of one's standing in his community may be denial of "liberty"; (2) governmental communication of derogatory information to employers may be an attack on "liberty." Sims v. Fox, 505 F.2d 857 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975).

To make out a constitutional claim for harm to reputation, a person must demonstrate that the person has been denied a right previously recognized by the state in conjunction with a defamatory finding about the person; the person must challenge this finding as factually inaccurate; and there must be publication of the defamation outside the context of litigation. Drummond v. Fulton County Dep't of Family & Children's Servs., 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

Judge's comment about juror's "perjury" not deprivation of liberty interest.

- An out-of-court comment by a state court judge about a juror in a murder trial who voted against the death penalty, that the judge considered lodging perjury charges against the juror, however seriously it may have harmed the juror's reputation, did not deprive him of any constitutionally protected liberty interest. The juror's interest in his reputation was protected by state tort law. Emory v. Peeler, 756 F.2d 1547 (11th Cir. 1985).

Applicant Drug Screening Act unconstitutional.

- Georgia's Applicant Drug Screening Act (O.C.G.A. § 45-20-110 et seq.), requiring applicants for state employment to submit to urine tests for the presence of illegal drugs, violates applicants' rights to privacy under the fourth and Fourteenth Amendments. Georgia Ass'n of Educators v. Harris, 749 F. Supp. 1110 (N.D. Ga. 1990).

No general right to medical treatment and services.

- Due process clause confers no general right to the provision of medical treatment and services by a state or municipality. Wideman v. Shallowford Community Hosp., 826 F.2d 1030 (11th Cir. 1987).

Protective services in event of medical emergency.

- Federal constitutional law does not require a state to provide its citizens with protective services in the event of medical emergencies. Even if the state undertakes to provide protective services in medical emergency services, its failure to render same in a proper manner or in violation of state law does not violate the due process clause of the United States Constitution, unless the state created the medical emergency or the person was in state custody or control at the time of the emergency. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).

Treatment of state mental health patients.

- State mental health patients have the right under the due process clause to have all major choices concerning their treatment made in accordance with the judgment of qualified professionals who are acting within professionally accepted minimum standards. Griffith ex rel. Griffith v. Ledbetter, 711 F. Supp. 1108 (N.D. Ga. 1989).

The state's policy and procedure for the involuntary administration of antipsychotic drugs to patients at the state mental hospital does not violate substantive or procedural due process. Hightower by Dehler v. Olmstead, 959 F. Supp. 1549 (N.D. Ga. 1996).

Proof required in civil proceeding for involuntary commitment to mental hospital.

- Precepts of due process require a clear and convincing standard of proof in a civil proceeding to commit an individual to a mental hospital involuntarily. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

Habilitation of mentally-retarded patients.

- Mentally-retarded patients residing in state institutions have no substantive due process right to habilitation in a community setting. S.H. v. Edwards, 860 F.2d 1045 (11th Cir. 1988), cert. denied, 491 U.S. 905, 109 S. Ct. 3187, 105 L. Ed. 2d 696, reh'g granted, 880 F.2d 1203 (11th Cir. 1989).

Commitment of juvenile to institution.

- Due process of law is requisite to the constitutional validity of proceedings in which a court reaches the conclusion that a juvenile has been at fault, has engaged in conduct prohibited by law, or has otherwise misbehaved with the consequence that the juvenile is committed to an institution in which the juvenile's freedom is curtailed. J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976), rev'd on other grounds, 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).

Requiring putative father to pay for paternity blood test.

- Requiring indigent putative father to bear initial burden of paying for paternity blood test is violative of the due process and equal protection clauses of the Fourteenth Amendment. Pierce v. State, 251 Ga. 590, 308 S.E.2d 367 (1983).

Trial court's denial of a putative father's request to require the state to make pretrial payment of the costs of the blood tests to determine paternity effectively denied the putative father access to blood test evidence and amounted to a violation of due process. Peterson v. Moffitt ex rel. Department of Human Resources, 253 Ga. 253, 319 S.E.2d 449 (1984). (See also Burns v. State, 252 Ga. 140, 312 S.E.2d 317 (1984), annotated under "10. Criminal Trials" below.)

Unwed father's right to fitness test or veto power.

- An unwed father possesses an opportunity interest to develop a relationship with his child, which interest is protected by due process of law, and, as long as he has not abandoned that interest, because Georgia law affords an unwed mother a fitness test or veto power under the same circumstances, it must also afford an unwed father a fitness test or veto power. In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459 (1987).

Proceedings to legitimate child.

- O.C.G.A. § 19-7-22, which allows fathers, but not mothers, to petition for legitimation of a child born out of wedlock, does not violate constitutional guarantees of due process and equal protection. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750 (1991).

Modification of child support award.

- Plaintiff ex-husband was correct that the due process clause of the Fourteenth Amendment protected a parent's fundamental right to participate in the care, custody, and management of their children, but he failed to show that O.C.G.A. § 19-9-3 violated his substantive due process rights because neither the U.S. Supreme Court nor the U.S. Court of Appeals for the Eleventh Circuit had held that a state had to impose a specific standard of proof for modification of visitation rights. Gottschalk v. Gottschalk, F.3d (11th Cir. June 16, 2011).

Termination of parental rights.

- An "any evidence" standard or "preponderance of the evidence" standard is inadequate in dealing with finding of deprivation of a child or termination of parental rights and would violate U.S. Const., amend. 14. In re Suggs, 249 Ga. 365, 291 S.E.2d 233 (1982).

Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982), aff'd, 168 Ga. App. 66, 308 S.E.2d 193 (1983).

Where a fundamental liberty interest involving the right to the companionship, care, custody and management of a child is at stake, neither the "any evidence" standard of review in civil cases nor the "reasonable evidence" standard of review currently applied in termination of parental rights cases is of sufficient quality and substantiality to support the rationality of the judgment. Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982), aff'd, 168 Ga. App. 66, 308 S.E.2d 193 (1983).

Parent incarcerated in Michigan was not required to be treated as though the parent were a Georgia prisoner for purposes of attendance at a parental rights termination proceeding. In re R.J.P., 222 Ga. App. 771, 476 S.E.2d 268 (1996).

Children taken into custody when parent arrested.

- Police officers who deliberately chose to transfer children to a detention facility with their parent upon the parent's arrest restrained the children's liberty such that the officers had an affirmative duty to protect the children's interests. Matheny v. Boatright, 970 F. Supp. 1039 (S.D. Ga. 1997).

Relationship between child and state required.

- Where the noncustodial parent took and killed the child, there was no special relationship between the state and the child which imposed an affirmative duty on the state to protect the child, because the child did not rely on the state for the child's physical needs and safety, because the custodial parent was able to protect the child because the custodial parent had physical custody, because the custodial parent had access to the courts if the custodial parent was displeased with the unsupervised visitation by the killing parent, and because the custodial parent could have intervened to stop such unsupervised visitation. Therefore, the custodial parent had no substantive due process claim. Wooten v. Campbell, 49 F.3d 696 (11th Cir.), cert. denied, 516 U.S. 943, 116 S. Ct. 379, 133 L. Ed. 2d 302 (1995).

Relatives have no due process right in decedent's body.

- Surviving relatives have no constitutionally protected due process right in a decedent's body. Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985), cert. denied, 475 U.S. 1084, 106 S. Ct. 1464, 89 L. Ed. 2d 721 (1986).

Circumstances giving rise to right to police protection.

- Government officials may be held liable for the deprivation of due process arising from the failure to protect private citizens when a special relationship exists between the victim and the criminal or the victim and the officials, and similarly, a constitutional right to police protection may exist when there has been some showing that the victim, as distinguished from the public at large, faced a special danger, but without a special relationship, there is no constitutional right to police protection. Trethewey v. DeKalb County, 662 F. Supp. 246 (N.D. Ga. 1987).

Claim of excessive force.

- Although a non-seizure Fourteenth Amendment substantive due process claim of excessive force is viable, where the deputies were reasonably attempting to serve a valid warrant, and the deputies did not know that the deceased was mentally disturbed or that the deceased definitely had a gun in the bathroom, their conduct fell below the minimum requisite level of gross negligence to trigger procedural protections. Wilson v. Northcutt, 987 F.2d 719 (11th Cir. 1993).

In an arrestee's 42 U.S.C. § 1983 suit that alleged that the arrestee's fourth and Fourteenth Amendment rights against the use of excessive force were violated when a sheriff's deputy crashed a cruiser into the car during a high-speed pursuit, rendering the arrestee a quadriplegic, the arrestee's Fourteenth Amendment claims were dismissed on summary judgment because the court found that the fourth amendment claims for excessive use of force raised disputed issues of fact and were cognizable. Harris v. Coweta County, F. Supp. 2d (N.D. Ga. Sept. 25, 2003).

Sheriff, county, liable for excessive force.

- Consistent with U.S. Const., amend. 14's protection of a pretrial arrestee's constitutional right to be free from the use of excessive force, where substantial evidence supported the jury's conclusion that a county sheriff had broken the jaw of the hospitalized arrestee, both the sheriff in the sheriff's official capacity, and the county for its inadequate supervisory policies reflecting a deliberate indifference to these rights, were liable under a redressory claim pursuant to 42 U.S.C. § 1983. Vineyard v. County of Murray, 990 F.2d 1207 (11th Cir.), cert. denied, 510 U.S. 1024, 114 S. Ct. 636, 126 L. Ed. 2d 594 (1993).

Deadly force by police officer against threatening person.

- As a matter of law, an officer who uses deadly force against a person who threatens the officer or others with serious harm or who the officer has probable cause to believe has already inflicted serious harm on others does not thereby commit the constitutional tort of an unreasonable seizure or deprivation of life or liberty without due process. The use of deadly force by police officers in such circumstances is not, as a matter of law, unreasonable or excessive. O'Neal v. DeKalb County, 667 F. Supp. 853 (N.D. Ga. 1987), aff'd, 850 F.2d 653 (11th Cir. 1988).

Balancing test for determining excessive use of force by police.

- In a case involving use of excessive force by police officers brought under 42 U.S.C § 1983, the balancing test for determining whether a substantive due process violation has been committed, while similar in many respects to that for assessing a fourth amendment claim, requires a plaintiff to show that the force used by a defendant officer was applied maliciously and sadistically for the very purpose of causing harm. The fourth amendment balancing test, on the other hand, does not include a "malicious and sadistic" element; rather, the reasonableness of the seizure or intrusion is the central inquiry, as is the case with respect to fourth amendment analyses outside of the police abuse context. Thompson v. Spikes, 663 F. Supp. 627 (S.D. Ga. 1987).

Excessive use of force against arrestee unconstitutional.

- A supervisory or nonsupervisory official's failure or refusal to intervene when a constitutional violation such as the use of a chokehold once an arrestee is shackled is taking place in the official's presence establishes direct liability under 42 U.S.C. § 1983 for excessive use of force against the arrestee in violation of the arrestee's rights under the fourth and Fourteenth Amendments. McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983), appeal dismissed, 724 F.2d 881 (11th Cir. 1984).

Policy and practice of police brutality unconstitutional.

- Because the plaintiffs asserted in their claim against a city that the police force had an unwritten practice of deliberately overlooking acts of police brutality in order to foster a "shoot to kill" attitude among the members of the police force; and submitted an affidavit of a former officer that the officer had knowledge of its policies and practices, and that the department had a practice of not conducting thorough investigations of acts of police brutality; if believed, clearly established a cause of action against the city. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir. 1988).

Intentional conduct by a police officer is probably necessary to hold the officer liable for a violation of substantive due process. While negligent conduct does not violate due process, the due process clause does protect against arbitrariness and abuse of power. Easterling v. City of Glennville, 694 F. Supp. 911 (S.D. Ga. 1986).

Custodial interrogation not found.

- Defendant was not subjected to improper custodial interrogation because the officer read the defendant the defendant's implied consent warnings for suspects over 21, and placed the defendant in the back of the patrol car, during an impound search of the defendant's car, the officer found an identification card that showed that the defendant was under 21, the officer asked the defendant's age, and learned that the defendant was under 21, the officer read the defendant the implied consent notice for suspects under 21, and the question was not designed to incriminate the defendant, as the officer was arresting the defendant for driving under the influence (less safe driver), and the defendant's age was not an element of the offense. Evans v. State, 267 Ga. App. 706, 600 S.E.2d 671 (2004).

City's use of handcuffs and ankle cuffs on a pre-trial detainee while the detainee was at a hospital did not violate the detainee's substantive due process right under U.S. Const., amend. 14, as these restraints did not amount to "punishment". Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986).

Automobile negligence action not constitutional deprivation.

- A person injured in an automobile accident caused by the negligent, or even grossly negligent, operation of a motor vehicle by a policeman acting in the line of duty has no federal civil rights cause of action for violation of a federal right, since automobile negligence actions do not arise to the level of a constitutional deprivation. Cannon v. Taylor, 782 F.2d 947 (11th Cir. 1986).

"Bivens" action could not be maintained by a parolee against the parole officer for alleged procedural due process violations, since the Parole Commission and Reorganization Act of 1978, a complex and comprehensive remedial system to govern parole situations, which provided the parolee with adequate relief from the deprivations at the time they were occurring, constituted a "special factor counselling hesitation" against allowing a "Bivens" action. Rauschenberg v. Williamson, 785 F.2d 985 (11th Cir. 1986).

Requiring graduates of unapproved law schools to pass state bar within five years in order to be admitted to the state bar does not create an unconstitutional irrebuttable presumption of incompetence on the part of those who fail to pass within that time period. Cline v. Supreme Court, 781 F.2d 1541 (11th Cir. 1986).

Arbitration of attorney fee disputes.

- Neither State Bar Rule 6-303(a) nor Rule 6-502 violate the state and federal constitutional rights to equal protection as the interest of a state in regulating the legal profession and attorney-client relationship is a "compelling" one. Nodvin v. State Bar, 273 Ga. 559, 544 S.E.2d 142 (2001).

Specialty training for physicians.

- Public hospital bylaw requiring specific postgraduate specialty training or residency in order for physicians to be eligible for admission to the medical staff did not transgress the equal protection or due process rights of osteopathic physicians. Silverstein v. Gwinnett Hosp. Auth., 861 F.2d 1560 (11th Cir. 1988).

Preservation of breath sample from auto-intoximeter test not required.

- Neither the federal nor the state constitutional guarantee of due process requires the state to preserve a sample of the breath used in the administration of the auto-intoximeter test. Hopper v. State, 175 Ga. App. 358, 333 S.E.2d 201 (1985).

Use of "control questions" in polygraph examinations.

- The use of "control questions" in polygraph examinations of city firefighters - questions designed to evoke a deceptive or nervous response from everyone tested - was not a violation of the firefighters' constitutional right to privacy, since the questions were general in nature, were asked for a specific, limited purpose, and, although potentially embarrassing, avoided those issues, such as those related to marriage, family, and sexual relations, generally considered to be the most personal. Further, there was no indication that the city planned to take disciplinary actions based on the control questions, release the responses to the public, or even make the responses part of the subjects' employment records. Hester v. City of Milledgeville, 777 F.2d 1492 (11th Cir. 1985).

Due process guaranteed by university bulletin.

- A provision in a private university bulletin to the effect that no student shall be dismissed without "due process" does not contractually obligate an educational institution to provide the full range of constitutional due-process protections enjoyed by students at tax-supported institutions, but only those procedures specifically provided for in the bulletin itself. Life Chiropractic College, Inc. v. Fuchs, 176 Ga. App. 606, 337 S.E.2d 45 (1985).

Ordinance unconstitutional if enjoyment of freedoms contingent upon official's uncontrolled will.

- An ordinance which makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official - as by requiring a permit or license which may be granted or withheld in the discretion of such official - is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub v. City of Baxley, 355 U.S. 313, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958).

Ordinance unconstitutional for placing condition precedent on and unlawfully restricting freedoms of speech, press and assembly.

- Ordinance of city of Baxley shows on its face that it is violative of the U.S. Const., amends. 1 and 14 in that it places a condition precedent upon, and otherwise unlawfully restricts, the defendant's freedom of speech as well as freedom of the press and freedom of lawful assembly by requiring, as conditions precedent to the exercise of those rights, the issuance of a "license" which the mayor and city council are authorized by the ordinance to grant or refuse in their discretion, and the payment of a "license fee" that is discriminatory and unreasonable in amount and constitutes a prohibitory flat tax upon the privilege of soliciting persons to join a labor union. Staub v. City of Baxley, 97 Ga. App. 221, 102 S.E.2d 643 (1958).

Discrimination by municipality in regulation of expression on basis of content of expression forbidden.

- While a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for purposes of U.S. Const., amend. 1, what a municipality may not do under the U.S. Const., amends. 1 and 14 is to discriminate in the regulation of expression on the basis of the content of that expression. Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976).

Creation and definition of property interests.

- U.S. Const., amend. 14 speaks of "property" generally. There may be many gradations in the "importance" or "necessity" of various consumer goods; but if the root principle of procedural due process is to be applied with objectivity, it cannot rest on such distinctions. Morrow Elec. Co. v. Cruse, 370 F. Supp. 639 (N.D. Ga. 1974).

Determination of whether interest is "property" entitled to due process protection, or a mere expectancy, is made by reference to the sufficiency of the interest under state law. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).

Property interests are defined by state law. Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 449, 228 S.E.2d 839 (1976), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977), overruled on other grounds, Boozer v. Higdon, 252 Ga. 276, 313 S.E.2d 100 (1984).

Property interest is created and defined by source independent of the Constitution, including state laws, ordinances, or implied contracts with secure certain benefits and support claims of entitlement to those benefits. Harrison v. Housing Auth., 445 F. Supp. 356 (N.D. Ga. 1978), aff'd, 592 F.2d 281 (5th Cir. 1979); Arundar v. DeKalb County Sch. Dist., 620 F.2d 493 (5th Cir. 1980).

Property interests are created and dimensions defined by existing rules or understandings that stem from an independent source such as state law. Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980).

Protection from deprivation of property by government.

- Constitutional prohibition against deprivations of property without due process of law applies only to government action. Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

Severity of deprivation of property interest at stake provides initial measure of degree of procedural protection that individual is entitled to demand from government. Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

Prejudgment garnishment restricted to extraordinary situations.

- Prejudgment garnishment not restricting summary seizure of property to "extraordinary situations," violates U.S. Const., amend. 14. Aaron v. Clark, 342 F. Supp. 898 (N.D. Ga. 1972).

Garnishment of wages for alimony.

- Garnishment of wages to satisfy alimony orders or judgments meets the demands of due process. Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980).

Degree of property deprivation.

- Any invasions, regardless of degree, of owner's dominion over use or sale of private property is interdicted by U.S. Const., amend. 14 as well as by Ga. Const. 1983, Art. I, Sec. I, Para. I. Durham v. State, 219 Ga. 830, 136 S.E.2d 322 (1964).

Any significant taking of property by state is within purview of due process clause. U.S. Const., amend. 14 draws no bright lines around three-day, ten-day, or 50-day deprivations of property. North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975).

Only "significant property interest" is protected by U.S. Const., amend. 14. Gordon Junior College Chapter of Am. Ass'n of Univ. Professors v. Board of Regents, 484 F. Supp. 614 (N.D. Ga. 1980).

Temporary nonfinal deprivation of property.

- Temporary, nonfinal deprivation of property is nonetheless deprivation in terms of U.S. Const., amend. 14. Brainard v. State, 246 Ga. 586, 272 S.E.2d 683 (1980).

Right to pursue profession is property right.

- The right to follow a profession, which includes the right to be compensated for services rendered, is a property right. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).

Right to follow one's profession, business, or occupation, or to labor, is valuable property right, protected by the Constitution and laws of Georgia, subject only to such restrictions as the government may impose for the welfare and safety of society. Horne v. Skelton, 152 Ga. App. 654, 263 S.E.2d 528 (1979).

Ordinance or implied contract creating property interest in employment.

- Property interest in employment sufficient to invoke procedural due process protections need not be formal contract or tenure system, but may be created by ordinance or by implied contract. Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980).

Privileges, licenses, certificates, and franchises as property interests.

- Privileges, licenses, certificates, and franchises qualify as property interests for purposes of procedural due process. The extent of the injury is irrelevant except for determining what process is due. Wells Fargo Armored Serv. Corp. v. Georgia Pub. Serv. Comm'n, 547 F.2d 938 (5th Cir. 1977).

Fundamental requirements of due process applicable to licensing.

- Licenses are not to be taken away without procedural due process required by U.S. Const., amend. 14. Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).

Since licensing consists in the determination of factual issues and the application of legal criteria to them - a judicial act - the fundamental requirements of due process are applicable to it. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

Procedural due process to be followed when goods taken from user.

- Statutes cannot constitutionally allow one who has a propriety interest in goods to take them from the user of the goods without following procedural due process. It follows a fortiori that statutes cannot constitutionally allow one who has only a security interest in goods to take them from the user without following procedural due process. Mason v. Garris, 360 F. Supp. 420 (N.D. Ga. 1973), clarified, 364 F. Supp. 452 (N.D. Ga. 1973).

Vested rights required where substantial property-related expenditures made in reliance of permit.

- Where substantial expenditures are made in the acquisition of property or in preparations for the construction of a building in reliance upon the granting of a permit, vested rights are acquired which cannot be displaced by the passage of a new ordinance. Clairmont Dev. Co. v. Morgan, 222 Ga. 255, 149 S.E.2d 489 (1966).

Debtor's equity interest in land and right to use constitute property entitled to procedural due process.

- A challenged statute which provides that any security interest holder can upon default by the debtor invoke a summary foreclosure procedure is unconstitutional. The debtor's equity interest in the land and the right to its use would constitute property entitled to procedural due process. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973).

Issuance of building permits.

- The issuance of a building permit by the county for land it either knew or should have known would not support a septic system may have given rise to an action under state law, but was not a "taking " under the fifth amendment, nor was it such an abuse of governmental power sufficient to raise the tort alleged to the stature of a substantive due process violation. Since the county could have been sued for this type of injury, a claim of denial of procedural due process was foreclosed. Rymer v. Douglas County, 764 F.2d 796 (11th Cir. 1985).

Liquor license holder has sufficient property interest in holding the license to the date of its automatic termination that the revocation of that license must be accompanied by rudimentary due process protections. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).

Lack of standards for issuance of liquor licenses.

- Because state law does not grant an applicant a property interest in the opportunity to acquire a liquor license, a county commissioner's failure to establish standards for the granting of a license does not violate the applicant's due process rights. Further, where the commissioner refuses to grant any licenses whatsoever, Georgia law does not require the commissioner to follow the procedural safeguards outlined in O.C.G.A. § 3-3-2 when denying a license request. Cheek v. Gooch, 779 F.2d 1507 (11th Cir. 1986).

Granting beer and wine license applications based on public opposition.

- Whether pursuant to specific statute or de facto practice, the granting of beer and wine license applications based on public opposition is an unconstitutional due process and equal protection violation. McCollum v. City of Powder Springs, 720 F. Supp. 985 (N.D. Ga. 1989).

What due process requires prior to professional board's decision to initiate proceedings against professional.

- Where an investigator was attempting to gain information concerning a doctor's fitness to practice medicine, due process did not require at this stage of the matter that the doctor be informed of the nature of the charges that have been made to the board or the names of the doctor's accusers, nor was the doctor denied due process because the doctor was not permitted to participate in selecting the documents to be collected by the investigator or to participate in the deliberations prior to the decision to initiate proceedings against the doctor. Gilmore v. Composite State Bd. of Medical Exmrs., 243 Ga. 415, 254 S.E.2d 365 (1979).

Right to practice law as property right.

- Right to practice law is property right within meaning of due process and equal protection provisions of U.S. Const., amend. 14 to the Constitution of the United States. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).

Suspension of attorney convicted of crime of moral turpitude before appeals final not violative of due process.

- Promoting public confidence in the judicial system is a legitimate state end and suspension of an attorney upon conviction of a crime of moral turpitude, even before all appeals are final, is rationally related to that end and does not violate due process. In re Stoner, 246 Ga. 581, 272 S.E.2d 313 (1980).

Out-of-state lawyer without property interest requiring automatic recognition of right to appear.

- An out-of-state lawyer has no property interest cognizable under U.S. Const., amend. 14 which requires automatic recognition of a right to appear pro hac vice in a criminal prosecution. Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980).

Right to practice medicine as property right.

- Right to practice medicine is valuable property right, in which, under the Constitution and laws of the state, one is entitled to be protected and secure. Yeargin v. Hamilton Mem. Hosp., 225 Ga. 661, 171 S.E.2d 136 (1969), cert. denied, 397 U.S. 963, 90 S. Ct. 997, 25 L. Ed. 2d 255 (1970), later appeal, 229 Ga. 870, 195 S.E.2d 8 (1972).

Hospital's evaluation of physician's personal qualities consistent with due process.

- It is consistent with due process for a hospital to evaluate those personal qualities of a physician that reasonably relate to the physician's ability to function effectively within a hospital environment, such as a doctor's ability to work well with others, which is a factor that could significantly influence the standard of care the physician's patients received. Robbins v. Ong, 452 F. Supp. 110 (S.D. Ga. 1978).

"Right" to attend school does not fall into the category of a fundamental right protected by substantive due process. Kicklighter v. Evans County Sch. Dist., 968 F. Supp. 712 (S.D. Ga. 1997), aff'd, 140 F.3d 1043 (11th Cir. 1998).

Protection of student from bodily injury.

- The school district, members of its board of education, its superintendent, and the high school principal did not have a constitutionally recognized duty to protect a student from the threats, intimidation and bodily injury from another student. Russell v. Fannin County Sch. Dist., 784 F. Supp. 1576 (N.D. Ga.), aff'd, 981 F.2d 1263 (11th Cir. 1992).

Student has no property right in interscholastic sports.

- Since a student has no right to participate in interscholastic sports, the student has no protectable property interest that would give rise to a due process claim. Smith v. Crim, 240 Ga. 390, 240 S.E.2d 884 (1977).

Applicability to institutionalized student.

- Although the plaintiff, a residential student in the Georgia School of the Deaf, was sexually assaulted by a fellow classmate, because the plaintiff's due process claim was not clearly established at the time, the defendants were entitled to qualified immunity. Spivey v. Elliott, 29 F.3d 1522 (11th Cir. 1994), op. withdrawn in part on other grounds, reaff'd in part, 41 F.3d 1497 (11th Cir. 1995).

Judgment creditor without right to deprive debtor of property without due process.

- The mere fact that a creditor has obtained a judgment does not give the creditor a right to enforce that judgment by depriving the alleged judgment debtor of his property without due process of law. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699, 240 S.E.2d 171 (1977).

Custom of child carrying parental surname not protectible interest.

- Father's protectible interest in having his child bear the parental surname as customary is not property right within meaning of due process. Fulghum v. Paul, 229 Ga. 463, 192 S.E.2d 376 (1972).

Utility rate set by Public Service Commission as confiscation.

- Rate set by Public Service Commission must reach the point of confiscation for utility to show legally protected interest. Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975).

Public utility has standing to challenge rate schedule on ground that schedule is so low that it is confiscatory and denies the utility substantive due process. Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975).

Utility rate increase not customers' property right.

- Utility customers have no sufficient property interest in given utility rate increase to invoke procedural protections of due process clause of U.S. Const., amend. 14. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Pledging political subdivisions' power under Municipal Electric Authority of Georgia Act not taking of property without due process.

- Under the Municipal Electric Authority of Georgia Act, former Code 1933, ch. 24B-4 (see O.C.G.A. § 46-3-110 et seq.), the pledging of the full faith and credit and taxing power of the political subdivisions does not constitute a taking of property without due process of law. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

County landfill fee schedule upheld.

- County's sanitary landfill and fee schedules were not violative of due process or equal protection clauses of the United States and Georgia Constitutions. City of Covington v. Newton County, 243 Ga. 476, 254 S.E.2d 855 (1979).

Where telephone company has no property right guaranteeing against competition.

- If a telephone company does not show before the Public Service Commission that its toll service to its subscribers would be operated at a loss or that it would not receive a fair return on its investment, or that it would be unable to meet its financial or service obligations if competition is allowed, and its toll certificate was granted subject to the prospect of competition existing in the governing telephone utilities act, then it has no property right guaranteeing it against competition. Statesboro Tel. Co. v. Georgia Pub. Serv. Comm'n, 235 Ga. 179, 219 S.E.2d 127 (1975).

Requiring extension of existing power lines beyond carrier's public service commitment violates due process.

- To require extension of existing power lines beyond the scope of the carrier's commitment to the public service is taking of property in violation of the federal Constitution. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).

Where state's compelling railroad company to operate at loss would deprive it of property without due process.

- The usual permissive charter of a railroad company does not oblige the company to operate its railroad at a loss, so that, where it is reasonably certain that future operation will be at a loss, the company, in the absence of contract obligation to continue, may cease, and if in such circumstances the company be compelled by the state to continue to operate at a loss, it would be deprived of its property without due process of law. Georgia Power Co. v. City of Decatur, 281 U.S. 505, 50 S. Ct. 369, 74 L. Ed. 999 (1930).

Deprivation or regulation of liberty to contract.

- Deprivation of liberty to contract is forbidden by the Constitution if without due process of law; but restraint or regulation of this liberty, if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process. Griffin v. Vandegriff, 205 Ga. 288, 53 S.E.2d 345 (1949).

State without power over citizen's contracts outside state.

- There is a vital distinction between acts done within and acts done without the jurisdiction of the state; and since under U.S. Const., amend. 14 a citizen of a state has "a right to contract outside of the state for insurance on his property," the power of the state does not extend to such extra-territorial transactions, and a statute imposing restrictions thereon is in violation of the due process provision of that amendment. Cooper Co. v. State, 187 Ga. 497, 1 S.E.2d 436 (1939).

Seniority among railway workers is fundamentally and wholly contractual, does not arise from mere employment, and is not an inherent, natural, or constitutional right. Lamon v. Georgia S. & F. Ry., 212 Ga. 63, 90 S.E.2d 658 (1955).

An employee has no inherent right to seniority in service; and where seniority arises only out of contract, such rights created and arising under the contract do not extend beyond its life when it has been legally terminated. Lamon v. Georgia S. & F. Ry., 212 Ga. 63, 90 S.E.2d 658 (1955).

Violation or misapplication of existing bargaining agreement deprives employee of protectible rights.

- Violation or misapplication of an existing bargaining agreement, as by preferring an employee with less seniority over another with greater seniority, where the employee is still in service of the employer under the contract, deprives the employee of the employee's seniority rights, and such seniority rights, which are property rights, will be protected in the courts. Lamon v. Georgia S. & F. Ry., 212 Ga. 63, 90 S.E.2d 658 (1955).

Reduction in social security benefits to reflect workers' compensation payments.

- Reduction in social security benefits to reflect workers' compensation payments to beneficiary has rational basis and does not violate the due process clause. Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973).

Application of Workers' Compensation Law to public employee comports with due process.

- Ga. L. 1920, p. 167 (see O.C.G.A. § 34-9-3), making the chapter on workers' compensation applicable to public employees, is not invalid as being in violation of the due process clauses of the state and federal Constitutions; nor does it deny to the defendant the equal protection of the laws. City of Macon v. Benson, 175 Ga. 502, 166 S.E. 26 (1932).

Review of Department of Natural Resources decisions.

- The Georgia Administrative Procedure Act and O.C.G.A. § 12-2-1 govern the procedure for judicial review of final decisions of the Department of Natural Resources and, where a party seeking review failed to make a timely request therefor, affirmance of the final decision of the department did not violate due process. Nix v. Long Mtn. Resources, Inc., 262 Ga. 506, 422 S.E.2d 195 (1992).

Property interest in public office explicated.

- The broad statement that a public office is not property within the sense of the constitutional guaranties of due process of law does not mean that an officer duly inducted into office for a definite term may be deprived of its possession without a hearing, when the right to have it terminate is limited to specified causes. The statement that public office is not property means that it is not property in the sense that an officer is not denied due process of law by the abolition of the office before the expiration of his term, or by the passage of a statute limiting or reducing the officer's compensation, and that an officer has no property right in the books and papers pertaining to the officer's office. Walton v. Davis, 188 Ga. 56, 2 S.E.2d 603 (1939).

Property interests in public employment for which a person may claim U.S. Const., amend. 14's due process protection are created and their dimensions defined by existing rules and understandings that stem from an independent source such as state law, which secure certain benefits and that support claims of entitlement to those benefits. Cotten v. Board of Regents of Univ. Sys., 395 F. Supp. 388 (S.D. Ga. 1974), aff'd, 515 F.2d 1098 (5th Cir. 1975).

Permanent or "classified" state employee has sufficient property interest in job to warrant due process protection, even though such protection may not include the right to a pretermination hearing. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Employment benefit as property interest.

- Person's interest in employment benefit is "property" interest for due process purposes if there are rules or mutually explicit understandings that support the person's claim of entitlement to the benefit and that he may invoke at a hearing. Harrison v. Housing Auth., 445 F. Supp. 356 (N.D. Ga. 1978), aff'd, 592 F.2d 281 (5th Cir. 1979).

Explicit recognition of property right in government benefit by positive law is not necessary in order for an interest to be greater than an abstract need or unilateral expectation. Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

When government benefit may only be withdrawn for cause, legitimate expectation, entitlement, or property interest arises. Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

Person must have legitimate claim of entitlement to have property interest in benefit.

- To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it and more than a unilateral expectation of it. The person must, instead, have a legitimate claim of entitlement to it. Sims v. Fox, 505 F.2d 857 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975); Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975); Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 449, 228 S.E.2d 839 (1976), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977); Wells Fargo Armored Serv. Corp. v. Georgia Pub. Serv. Comm'n, 547 F.2d 938 (5th Cir. 1977); Gordon Junior College Chapter of Am. Ass'n of Univ. Professors v. Board of Regents, 484 F. Supp. 614 (N.D. Ga. 1980); Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980); Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

Probationary employee without sufficient property interest for procedural due process.

- Before the requirements of procedural due process come into play, one must be deprived of an interest in "life, liberty, or property." A probationary employee, who has no reasonable expectation of continued employment while in the probationary status, has no property interest in his or her continued employment sufficient to call forth procedural due process when that employment is terminated. Burnley v. Thompson, 524 F.2d 1233 (5th Cir. 1975).

Attachment of due process protection to employment or administrative position.

- The success of due process arguments depends upon the finding of a constitutionally protected property interest in the expectation of continued employment, or of a liberty interest infringed by the state; absent such interest no due process protections attach to a plaintiff's employment or administrative position. Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980).

Termination of employment "for cause".

- When a teacher to be terminated for cause opposes the termination, minimum procedural due process requires that the teacher be advised of the cause or causes for the termination in sufficient detail to fairly enable the teacher to show any error that may exist, the teacher be advised of the names and the nature of the testimony of witnesses against the teacher, and at a reasonable time after such advice the teacher must be accorded a meaningful opportunity to be heard in the teacher's own defense before a tribunal that both possesses some academic expertise and has an apparent impartiality toward the charges. Callaway v. Kirkland, 320 F. Supp. 1135 (N.D. Ga. 1970), supplemented, 334 F. Supp. 1034 (N.D. Ga. 1971).

Civil employment which allows termination only "for cause" creates expectation of continued employment that is constitutionally protected. Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980).

Substantial evidence of "cause" not to renew teacher's contract.

- There was substantial evidence - in the form of testimony by school personnel that a teacher repeatedly left school grounds without permission, failed to attend classes and lunchroom duties to which the teacher was assigned, threatened students with academic failure if they did not play football, and directed profanity at students - to support the school board's finding of "cause" not to renew that teacher's contract. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).

Fair Dismissal Act constitutional.

- The Fair Dismissal Act of Georgia, both on its face and as applied, not only met, but exceeded, the minimum due process standard in a situation where a teacher who was to be terminated for cause opposed his termination. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).

Standard of review for personnel appeals.

- The fact that the Georgia legislature and courts have confined the scope of review in appeals from the State Personnel Board to an "any evidence" standard does not present a constitutional due process violation and, hence, the plaintiff was precluded as a matter of law from litigating the plaintiff's federal constitutional claim because of the plaintiff's previous state suit involving the same cause of action. Howkins v. Caldwell, 587 F. Supp. 98 (N.D. Ga. 1983), aff'd, 749 F.2d 731 (11th Cir. 1984), cert. denied, 471 U.S. 1117, 105 S. Ct. 2361, 86 L. Ed. 2d 261 (1985).

Termination for inability to work with others not liberty violation.

- Charge of inability to get along with administrative superiors or coworkers is not sufficient to create a "badge of infamy" sufficient to implicate a "liberty interest" protected by U.S. Const., amend. 14. Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980).

Discharge of city employee.

- Discharged city employee failed to produce any evidence that the decision to terminate the employee and the personnel board's decision to uphold the termination were arbitrary, capricious or pretextual and therefore constituted a substantive due process violation. Jones v. City of E. Point, 795 F. Supp. 408 (N.D. Ga. 1992), aff'd, 987 F.2d 775 (11th Cir. 1993).

Georgia's state law provision for review of the personnel board's decision through certiorari to the county superior court satisfies the requirements of procedural due process. Jones v. City of E. Point, 795 F. Supp. 408 (N.D. Ga. 1992), aff'd, 987 F.2d 775 (11th Cir. 1993).

City employees fired for drug use not denied due process.

- Employees of city board of lights and water fired for use of drugs on the job in violation of city policy were not denied due process where the city had evidence of such drug use and could reasonably conclude that such drug use constituted a threat to the safety of the community, the employees were given a full and fair opportunity to attack that evidence and its credibility, the process for the adjudication of the grounds for their termination satisfied the requirements of procedural due process, and state judicial avenues of appeal of the errors presently alleged had not been utilized. Allen v. City of Marietta, 601 F. Supp. 482 (N.D. Ga. 1985).

No protection from incorrect or ill-advised personnel decisions.

- Due process clause of U.S. Const., amend. 14 is not guarantee against incorrect or ill-advised personnel decisions. Harrison v. Housing Auth., 445 F. Supp. 356 (N.D. Ga. 1978), aff'd, 592 F.2d 281 (5th Cir. 1979); Courts v. Economic Opportunity Auth. For Savannah - Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978).

United States Constitution cannot feasibly be construed to require federal judicial review for every public agency error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, reviewing federal courts must presume that official action was regular and, if erroneous, can best be corrected in other ways. The due process clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions. Williams v. Housing Auth., 158 Ga. App. 734, 282 S.E.2d 141 (1981).

Pretermination hearing to protect state employees interests before termination.

- Statutory and regulatory scheme governing termination of classified state employees covered by State Merit System was unconstitutional in failing to provide a list of specific charges prior to termination and in failing to provide for a pretermination hearing or other meaningful opportunity to protect employees' interests before termination. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Employee may not be deprived of the employee's property or liberty interest in continued government employment absent some due process protection. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Post termination hearing.

- Post termination hearing was sufficient to protect interests of discharged government employee meriting due process protection, whether those interests were in the nature of property or liberty. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Exceptional cases warranting immediate discharge.

- Adequate pretermination procedures for public employees may contain provision for exceptional cases warranting immediate discharge. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

In emergency situations, the government may terminate a protected interest without affording any protections other than the right to a hearing before the termination becomes final. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Suspended police officer with no protected liberty interest.

- In suit brought under 42 U.S.C. § 1983 any "stigma" suffered by suspended police officer plus the suspension and subsequent rescinding of the suspension gave rise to no liberty interest protected by due process of law. Sparks v. City of Atlanta, 496 F. Supp. 770 (N.D. Ga. 1980).

Right of defendant to fair trial versus rights of public to gain access to hearings in criminal cases.

- See R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982).

Hearing for certificate of public convenience and necessity.

- A hearing on an application for a certificate of public convenience and necessity, whether granted or denied, is not a judicial or quasi-judicial proceeding to which due process rights applicable in such proceedings attach. RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539, 301 S.E.2d 896 (1983).

The failure of the Public Service Commission to set forth its findings of fact and conclusions of law does not result in a denial of the due process rights of applicants for issuance or amendment of motor carriers' certificates. RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539, 301 S.E.2d 896 (1983).

Hearing officer's lack of discretionary power not denial of due process.

- Licensee was not denied due process and equal protection in the Department of Public Safety hearing simply because the hearing officer had no authority or discretion to reinstate a habitual violator. Hardison v. Booker, 179 Ga. App. 693, 347 S.E.2d 681 (1986).

When injunction not invalid as illegal prior restraint.

- If prior to the issuance of an injunction an adequate determination is made that certain communication is unprotected by constitutional provisions safeguarding freedom of speech; that the order is based on a continuing course of repetitive conduct; and that the order is clear and sweeps no more broadly than necessary, then the injunction is not invalid as an illegal prior restraint. Retail Credit Co. v. Russell, 234 Ga. 765, 218 S.E.2d 54 (1975).

Claimant must act in timely manner.

- If a claimant has a remedy provided by law, under which the claimant can assert the claim within a reasonable time, then the claimant has the claimant's "day in court." If the claimant fails to assert it within such time, then the claimant, not the law, is at fault. The claimant has sinned away the claimant's day of grace. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).

Venue needs clear proof beyond reasonable doubt to protect due process.

- Jury instructions set forth in O.C.G.A. § 17-2-2(c) violated the habeas petitioner's due process rights since Ga. Const. 1983, Art. VI, Sec. II, Para. V made venue an essential element of malice murder, and the instruction's mandate that jurors had to consider the cause of death to have occurred where the body was found improperly shifted the burden of proving otherwise onto the defendant. Owens v. McLaughlin, 733 F.3d 320 (11th Cir. 2013).

Courts not only forum for redress.

- The constitutional due process clause was not intended to give procedural protection to every person who has an interest in action taken by the state even though that action may affect a person by increasing the amount the person must pay for a service. The courts are not the only forum wherein an aggrieved person may seek redress. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Fee system courts as they existed prior to July 1, 1982, in which judges relied for all of their judicial income on the fees paid by litigants before them, violated due process by creating a pecuniary interest in the fees on the part of judges of such courts, and, therefore such judges and their successors in office were enjoined from making any effort to enforce judgments rendered by those courts rendered prior to that date. Doss v. Long, 629 F. Supp. 127 (N.D. Ga. 1985).

Overlap in judicial and prosecutory functions at administrative hearings.

- Considerable overlap in judicial and prosecutory functions at administrative type hearings is not per se violative of due process. Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359 (1975).

Legislative limitation of recoverable damages after tort committed not deprivation of property without due process.

- The fact that alleged libelous articles were published before the adoption of an act limiting the plaintiff's previously existing right to recover punitive damages, did not render the law unconstitutional as violating federal and state provisions against the deprivation of property without due process of law. Kelly v. Hall, 191 Ga. 470, 12 S.E.2d 881 (1940).

County or municipal corporation created by legislature without standing to invoke due process argument against legislature.

- A county or municipal corporation, created by the legislature, does not have standing to invoke the equal protection and due process clauses of the state or federal Constitution in opposition to the legislature. City of Atlanta v. Spence, 242 Ga. 194, 249 S.E.2d 554 (1978).

Standing to challenge constitutionality of law or municipal ordinance.

- Before a law or municipal ordinance can be attacked by any person on the ground of its unconstitutionality, the person must show that its enforcement infringes upon rights of person or property, and neither a threat of arrest nor threats of repeated arrests amount to interference with person or property rights. Jenkins v. Thomas, 124 Ga. App. 286, 183 S.E.2d 489 (1971).

Before a statute can be attacked by anyone on the ground of its unconstitutionality, an individual must show that its enforcement is an infringement upon the right of personal property, and that such infringement results from the unconstitutional feature of the statute upon which the individual bases the attack. Bryant v. Prior Tire Co., 230 Ga. 137, 196 S.E.2d 14 (1973).

Identity fraud statute not unconstitutionally vague as applied.

- O.C.G.A. § 16-9-21 expressly prohibited the improper access of another's account at a financial institution such that the defendant was placed on notice that the use of a victim's social security number to obtain a job and thus access the victim's Internal Revenue Service account was illegal; thus, O.C.G.A. § 16-9-121 was not unconstitutionally vague as applied to the defendant. Hernandez v. State, 281 Ga. 559, 639 S.E.2d 473 (2007).

No personal jurisdiction where no transaction of business in state.

- In an action seeking collection of a certain promissory note for which the nonresident defendant executed a guaranty in favor of the resident plaintiff, the defendant did not "transact business" in this state, and there was, accordingly, no personal jurisdiction over the defendant under the following circumstances: (1) The guaranty was neither solicited nor executed in Georgia; (2) no contract negotiations occurred within Georgia; (3) the defendant did not have any other financial dealings with the plaintiff; and (4) the guaranty contained a choice-of-law provision calling for the application of Georgia law. Algemene Bank Nederland v. Mattox, 611 F. Supp. 144 (N.D. Ga. 1985).

Exercise of jurisdiction over nonresident former spouse in action for contempt and modification of Georgia divorce decree was consonant with due process notions of "fair play" and "substantial justice" because: (1) Georgia has a legitimate interest in protecting resident spouses and children; (2) The courts of Georgia remain open to the appellant to enforce the appellant's rights, and the appellant enjoys the benefits and protection of the laws of Georgia; (3) the inconvenience to the appellant is outweighed by the inconvenience to the appellee who would be forced to sue in a foreign forum on a cause of action which arose from their Georgia matrimonial domicile and their Georgia divorce; and (4) the Legislature gave the courts of Georgia, through O.C.G.A. § 9-10-91(5), the authority to entertain litigation against nonresidents who incur some form of family-related obligation while maintaining a matrimonial domicile or while residing within this state. Smith v. Smith, 254 Ga. 450, 330 S.E.2d 706 (1985).

Doctrine of sovereign immunity prevents citizen's suit against state or its political subdivisions.

- The Georgia Supreme Court has often affirmed and acknowledged that the doctrine of sovereign immunity prevents a suit by a citizen against the state, or a political subdivision thereof. Haber v. Fulton County, 124 Ga. App. 789, 186 S.E.2d 152 (1971), overruled on other grounds, Blackston v. State Department of Natural Resources, 255 Ga. 15, 334 S.E.2d 679 (1985).

Government not liable for mistakes in prosecution of crimes without its consent.

- The safeguarding of society by the prosecution of crimes against it is a sovereign attribute inherent in all governments, and for mistakes in exercising this sovereign right there can be no liability against the government without its consent. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

U.S. Const., amend. 14 is applicable to criminal trials in state courts. King v. State, 174 Ga. 432, 163 S.E. 168 (1932).

No deprivation of due process where right to sue the state is withdrawn.

- The right to sue the state is not a vested right and cannot be property of the appellant. There is, therefore, no deprivation of due process when the right to sue is withdrawn. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977).

Withdrawal of right to sue state for loss of consortium.

- Taking away right to action for loss of consortium of injured spouse is not deprivation of due process. Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973).

Framing of question as to constitutionality of statute.

- Where question as to constitutionality of statute is properly raised by attacking specific Code sections as denying the defendant equal protection and due process of law as guaranteed by the Constitution of Georgia and U.S. Const., amend. 14, and the answer clearly points out wherein the statute violates the constitutional provisions, the court cannot refuse to consider the question merely because it fails to point out the exact location of the due process and the equal protection clauses in the Constitutions. Buchanan v. Heath, 210 Ga. 410, 80 S.E.2d 393 (1954).

Sufficiency of constitutional challenge of ordinance posed by motion to dismiss.

- In prosecution for violation of city code provision making it unlawful to possess lottery ticket demurrer (now motion to dismiss) on constitutional grounds which does not specify by chapter number, section number, or paragraph number, or in any other manner identify what law or constitutional provision it is contended is violated by the ordinance attacked is entirely too vague and general to raise any question as to the constitutionality of the ordinance insofar as it might contravene the due process clauses of the state and federal Constitutions. Smith v. City of Albany, 97 Ga. App. 731, 104 S.E.2d 488 (1958).

Failure to sever was not a denial of due process.

- Defendant's motion to sever defendant's trial was properly denied since: (1) three defendants were not so numerous that the jury would be likely to confuse the facts and law applicable to each; (2) the relevant evidence against each co-defendant was unambiguous; (3) the applicable law was straightforward, and there was no evidence of any spillover effect from one co-defendant to another; (4) defendant made no showing of prejudice and a consequent denial of due process; and (5) even though the evidence was not as strong against defendant as that against the co-defendants that fact did not warrant severance. Parnell v. State, 260 Ga. App. 213, 581 S.E.2d 263 (2003).

Prosecutor's reference to defendant's silence.

- Prosecutor's repeated and deliberate references throughout the trial to defendant's post-Miranda silence and request for counsel violated due process. Hill v. Turpin, 135 F.3d 1411 (11th Cir. 1998).

Litigant's right to fair trial where there are contested issues of fact.

- When there are contested issues of fact no litigant has any constitutional right to have a verdict in the litigant's favor; the litigant has only the right to a fair trial under which the jury returns a verdict for that party, plaintiff or defendant, whom it believes entitled thereto. That is due process. YMCA v. Bailey, 112 Ga. App. 684, 146 S.E.2d 324 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131, 17 L. Ed. 2d 95 (1966).

Pretrial publicity not prejudicial.

- Even though there had been a significant amount of media coverage as a result of corporation's patent infringement litigation against other members of the office furniture industry, this pretrial publicity in no way was sufficiently prejudicial and inflammatory as to saturate the community in such a way as to prevent prospective jurors from impartially adjudicating this dispute since the vast majority of the publicity in question was factual in nature, rather than sensational or prejudicial, and had been spread over a long span of time. Haworth, Inc. v. Herman Miller, Inc., 821 F. Supp. 1476 (N.D. Ga. 1992).

Disinterested jurors.

- Evidence was insufficient to show that the jury pool of 1.8 million people was insufficient from which to draw a disinterested jury in a patent infringement case involving systems office furniture even though the office furniture industry was a major component of the region's business community and the parties to the case were respected members of their communities. Haworth, Inc. v. Herman Miller, Inc., 821 F. Supp. 1476 (N.D. Ga. 1992).

Legislative fiat may not replace factual determination.

- Mere legislative fiat may not take place of fact in determination of issues involving life, liberty, or property as it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime. Manley v. Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575 (1929).

Pretrial discovery in termination of parental rights.

- U.S. Const., amend. 14 does not mandate pretrial discovery in proceedings to terminate parental rights. In re L.L.W., 141 Ga. App. 32, 232 S.E.2d 378 (1977); Ray v. Department of Human Resources, 155 Ga. App. 81, 270 S.E.2d 303 (1980).

Burden on government employee to prove exercise of constitutionally protected speech was substantial factor in discharge.

- A government employee has the burden of proving that the employee's speech was constitutionally protected and that its exercise was a substantial factor in the employee's discharge. Courts v. Economic Opportunity Auth. For Savannah - Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978).

Application of "doctrine of binding precedent".

- The "doctrine of binding precedent" was violative of due process as applied to situation where defendant was granted summary judgment in a driver's claim for damages resulting from a collision after the passenger's case was tried before a jury and resulted in a verdict for defendant. Stanley v. Booz, 179 Ga. App. 257, 346 S.E.2d 1 (1986).

Duty of court to adopt construction sustaining constitutionality of statute when two constructions possible.

- Where a statute or an ordinance is capable of two constructions, constitutional under one construction and unconstitutional under the other, it is the duty of the court to adopt that construction which will sustain its constitutionality. City of Newnan v. Atlanta Laundries, Inc., 174 Ga. 99, 162 S.E. 497, appeal dismissed, 286 U.S. 526, 52 S. Ct. 495, 76 L. Ed. 1269 (1932).

Construction under state and federal due process provisions may differ.

- The fact that the United States Supreme Court may construe U.S. Const., amend. 14 as not imposing a particular limitation would not prevent this court from giving a different construction to the Georgia due process clause and holding that under this clause the limitation does exist. National Mtg. Corp. v. Suttles, 194 Ga. 768, 22 S.E.2d 386 (1942).

"Gross negligence" or "deliberate indifference" is not the proper test for adjudging a federal civil rights due process claim against a municipality. Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir. 1984), aff'd in part, rev'd in part and vacated in part, 774 F.2d 1495 (11th Cir. 1985), cert. denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. Ed. 2d 654, , 476 U.S. 1124, 106 S. Ct. 1993, 90 L. Ed. 2d 673, , 493 U.S. 817, 110 S. Ct. 70, 107 L. Ed. 2d 37 (1989).

Excessive force claim by pretrial detainee.

- Civil rights action by a pretrial detainee against a prison guard, alleging that the guard assaulted the detainee and used excessive force, was properly brought under the Fourteenth Amendment, not the eighth amendment. Telfair v. Gilberg, 868 F. Supp. 1396 (S.D. Ga. 1994), aff'd, 87 F.3d 1330 (11th Cir. 1996).

When jury charge stating law as to presumption accords with due process.

- A jury charge that is a statement of the law as to a presumption arising from proof of certain facts accords with due process if the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt, as well as the more-likely-than-not-standard. Davis v. State, 140 Ga. App. 890, 232 S.E.2d 164 (1977).

Ability to make opening and closing statements when presenting antagonistic defenses.

- Existence of antagonistic defenses or the loss of the right to make opening and closing statements to the jury does not constitute a showing of prejudice amounting to a denial of due process. Parnell v. State, 260 Ga. App. 213, 581 S.E.2d 263 (2003).

State cannot be deemed guilty of violation of due process simply because of court error.

- A state cannot be deemed guilty of a violation of the due process clause of its Constitution, or of the due process clause of the federal Constitution, simply because one of its courts while acting within its jurisdiction has made erroneous rulings or decisions. In such a case a party is left to the appropriate remedies for the correction of errors in judicial proceedings. Norman v. State, 171 Ga. 527, 156 S.E. 203 (1930); King v. State, 174 Ga. 432, 163 S.E. 168 (1932).

When parties have been fully heard in regular course of judicial proceedings, an erroneous decision of a state court does not deprive the unsuccessful party of that party's property without due process of law. Gilmore v. Mutual Benefit Life Ins. Co., 179 Ga. 267, 175 S.E. 681 (1934).

State's violation of child's right to due process.

- Where the state treats a juvenile proceeding as "civil," thereby denying the child certain important rights which would be available in a criminal proceeding, and proceeds on the premise that the state is acting as parens patriae in order to provide measures of guidance and rehabilitation for the child and protection of society, and not fix criminal responsibility, guilt and punishment, committing the child for rehabilitative treatment which the state knows to be inadequate constitutes a violation of the child's right to due process. Long v. Powell, 388 F. Supp. 422 (N.D. Ga.), vacated on other grounds, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).

Due process cannot be assumed to be same in military setting as it is in a civil setting due in part to the understanding on all sides that the peculiar nature of the military function makes quite difficult the adherence to a well-defined line of demarcation between the strictly disciplinary and the judicial functions in the military services. Bisson v. Howard, 224 F.2d 586 (5th Cir.), cert. denied, 350 U.S. 916, 76 S. Ct. 201, 100 L. Ed. 803 (1955).

Federal court jurisdiction.

- Purely local dispute cannot be brought within federal court jurisdiction by mere invocation of the concepts of liberty and property protected by U.S. Const., amend. 14. Gordon Junior College Chapter of Am. Ass'n of Univ. Professors v. Board of Regents, 484 F. Supp. 614 (N.D. Ga. 1980).

Statutes creating presumption violate due process.

- Statute creating presumption that is arbitrary or that operates to deny fair opportunity to repel it violates due process clause of this section. Manley v. Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575 (1929).

Statutory presumption that contraband found in house belongs to husband violates due process.

- Permissive, or rebuttable, presumption that contraband found in a house belongs to husband by virtue of his statutory status as head of household cannot withstand due process scrutiny. Knighton v. State, 248 Ga. 199, 282 S.E.2d 102 (1981).

Former Code 1933, § 38-118 (see O.C.G.A. § 24-4-21), relating to rebuttable presumptions, is not violative of the due process and equal protection guarantees of U.S. Const., amend. 14. Evans v. State, 159 Ga. App. 776, 285 S.E.2d 235 (1981).

Statute purporting to determine conclusive evidence void as unauthorized invasion of court function.

- Insofar as former Civil Code 1910, § 1790 purported to make an official analysis of fertilizers by the state chemist conclusive evidence, it was an unauthorized invasion of the functions of the courts, and is void as violative of this section, because it is an unauthorized attempt to legislate the truth of facts upon which the rights of parties are made to depend in judicial investigations. Southern Cotton Oil Co. v. Raines, 171 Ga. 154, 155 S.E. 484 (1930).

Legislation that certain factual proof constitutes prima facie evidence valid if rational connection between proof and inference.

- State legislation declaring that proof of one fact or a group of facts shall constitute prima facie evidence of the main or ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred; thus, if the presumption is not unreasonable and is not made conclusive of the rights of the person against whom raised, it does not constitute a denial of due process of law. Manley v. Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575 (1929); Johnson v. State, 203 Ga. 147, 45 S.E.2d 616 (1947); Reid v. Perkerson, 207 Ga. 27, 60 S.E.2d 151 (1950).

Sheriff can be held liable on bond for acts of deputies outside presence and without knowledge.

- To hold sheriff liable on the sheriff's bond for the acts of the sheriff's deputies committed outside of the sheriff's presence and without the sheriff's knowledge is not a violation of the due process clauses of the state and federal Constitutions, notwithstanding the fact that the sheriff does not have unlimited power in discharging or removing deputies. Standard Sur. & Cas. Co. v. Johnson, 74 Ga. App. 823, 41 S.E.2d 576 (1947).

Statutory liability for failure to report what is not known violates due process.

- Section providing that a section foreman shall be liable for double the value of the stock killed by the railroad upon the foreman's failure to post the required notice, not only makes him liable for the failure to report that of which the foreman has knowledge, but goes beyond this to subject the foreman to a liability for failing to report the killing of stock of which the foreman has no knowledge. This is a clear violation of the due process clause regardless of the fact that the penalty shall be recovered in the manner provided by law for the collection of other claims. Buchanan v. Heath, 210 Ga. 410, 80 S.E.2d 393 (1954).

Offense of defrauding or obtaining property from state, county, or public officer not violative of due process.

- It is an indictable offense in this state for any person to cheat and defraud the state of any of its money or other property by using any deceitful means or artful practice. It is a felony for any officer, servant or other person in any public department, station or office of government of this state to embezzle, steal, secrete or fraudulently take and carry away any money or other property or effects belonging to the state. Hence, to defraud or obtain property from the state, county or a public officer is clearly a substantive penal offense in this state, which does not offend the due process clause of the Constitution of the United States or the due process provision of Georgia's Constitution. Rollins v. State, 215 Ga. 437, 111 S.E.2d 63 (1959).

Appellate review of excessive punitive damage awards.

- The law requires state and federal appellate courts to review de novo claims that punitive damages awards are grossly excessive in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. Time Warner Entm't Co. v. Six Flags Over Ga., L.L.C., 254 Ga. App. 598, 563 S.E.2d 178 (2002), cert. denied, 538 U.S. 977, 123 S. Ct. 1783, 155 L. Ed. 2d 665 (2003).

Excessive damages.

- In an action against a truck manufacturer, a punitive damages award of $2 million was not so excessive as to violate the due process clauses of the Georgia and United States Constitutions, the eighth amendment of the United States Constitution, and the excessive fines clause of the Ga. Const. 1983, Art. I, Sec. I, Para. XVII. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).

Statute holding automobile owner liable for operator's negligence violates due process.

- Ga. L. 1955, p. 454 clearly violates the due process clause of both the federal and state Constitutions, for the reason that it makes the owner of a motor vehicle liable if the vehicle is being used in the prosecution of the business of or for the benefit of the owner, even though operated without notice to her or without her knowledge and without her consent, express or implied. To hold this statute constitutional, would be to hold a party liable for the negligent conduct of another, even though a trespasser were operating the vehicle against the express orders of the owner, and irrespective of how careful or free from negligence the owner was, the only condition being that it be operated for the benefit of the owner. Frankel v. Cone, 214 Ga. 733, 107 S.E.2d 819 (1959), overruled on other grounds, Lott Investment Corp. v. Gerbing, 242 Ga. 90, 249 S.E.2d 561 (1978).

State regulation of no-fault insurer's subrogation rights.

- There is no constitutional impediment to state's making subrogation rights of no-fault automobile insurer dependent upon weight of vehicles involved in the accident, either under the equal protection or due process clauses. Bituminous Cas. Corp. v. Prudential Property & Cas. Ins. Co., 247 Ga. 481, 277 S.E.2d 23 (1981).

Effect of state remedies redressing deprivation of procedural due process.

- A school employee who was improperly dismissed did not have a claim for damages under 42 U.S.C. § 1983 when the employee was reinstated in the employee's job with back pay as the result of state remedies that redressed any procedural due process deprivation that the employee suffered. Atlanta City Sch. Dist. v. Dowling, 266 Ga. 217, 466 S.E.2d 588 (1996), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 21 (1996).

Even though the board of education failed to provide a school employee with pretermination notice, the employee could not maintain a claim for damages for procedural due process deprivation under 42 U.S.C. § 1983, since the employee could have sued the board in state court to enforce that right. Merritt v. Brantley, 936 F. Supp. 988 (S.D. Ga. 1996).

Process for commitment to state mental institution.

- Former Code 1933, § 27-1503 (see O.C.G.A. § 17-7-131) affords a person due process of the laws prior to a final order committing that person to a state mental institution whether or not that person is committed temporarily to a state mental institution for evaluation. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979).

Release from state mental institution.

- The provisions of former Code 1933, § 27-1503 (see O.C.G.A. § 17-7-131) disallowing the filing of another application for release until one year has elapsed from the denial of the last preceding application and allowing release only upon court order to do not offend current concepts of due process or equal protection of the laws. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979).

The state's policy of not discharging a voluntary patient with a legal guardian from a state mental hospital or affording the patient an involuntary commitment hearing without the consent of the guardian deprived the patient of the patient's right to challenge the patient's confinement and violated due process. Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992), aff'd, 995 F.2d 237 (11th Cir.), cert. denied, 510 U.S. 947, 114 S. Ct. 389, 126 L. Ed. 2d 338 (1993).

Determination of divorcing parties' rights by judge or jury.

- Former Code 1933, § 30-122 (see O.C.G.A. § 19-5-17), providing for determination of rights and disabilities of the parties by the jury or the judge, as the case may be when a divorce is granted is not violative of the due process and equal protection clauses of the state and federal Constitutions. Gary v. Johnson, 210 Ga. 686, 82 S.E.2d 651 (1954) (decided under former Code 1933, § 30-122, prior to amendment by Ga. L. 1960, p. 1024, § 1 and Ga. L. 1979, p. 466, § 5).

Statute defining alimony comports with due process.

- Because the legislative intent is clear and the statute provides "fair notice" of its meaning, former Code 1933, § 30-201 (see O.C.G.A. § 19-6-1), which defines and determines alimony, does not violate the due process clause of the state or federal Constitution. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

Authority of security personnel to control access to state buildings and property.

- Former Code 1933, §§ 91-134 (see O.C.G.A. § 50-16-14) and 91-9908 (see O.C.G.A. § 50-16-16), which authorize security personnel to deny entrance of persons to and to remove persons from state buildings and property, are not violative of due process or equal protection guarantees. State v. Boone, 243 Ga. 416, 254 S.E.2d 367, cert. denied, 444 U.S. 898, 100 S. Ct. 206, 62 L. Ed. 2d 133 (1979).

No denial of due process or equal protection in operation of MARTA Board's fare determining function.

- Since the properly constituted Metropolitan Atlanta Rapid Transit Authority Board has the sole authority to determine transit fares, and since the MARTA Act (Ga. L. 1965, 2243) establishes very definite parameters for the necessary and desirable fare rates, the appellants demonstrated no denial of due process or equal protection in the operation of the MARTA Board with respect to the fare determining function. Fulton County v. Metropolitan Atlanta Rapid Transit Auth., 247 Ga. 420, 276 S.E.2d 583 (1981).

Tort remedies for liberty deprivation satisfy due process.

- The tort remedies that the State of Georgia provides as a means of redress for liberty deprivations i.e., O.C.G.A. § 51-1-13 (physical injury), O.C.G.A. § 51-1-14 (violent injury or attempt to commit injury) satisfied the due process clause of the Fourteenth Amendment, and the plaintiff 's constitutional claim against police officers was denied. Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir. 1984), aff'd in part, rev'd in part and vacated in part, 774 F.2d 1495 (11th Cir. 1985), cert. denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. Ed. 2d 654, 476 U.S. 1124, 106 S. Ct. 1993, 90 L. Ed. 2d 673 (1986), 493 U.S. 817, 110 S. Ct. 70, 107 L. Ed. 2d 37 (1989).

Consequential damage from water meter leakage.

- The plaintiff in a federal civil rights action had an adequate state law tort remedy. Consequently the plaintiff was not deprived of the plaintiff's rights without due process of law when a water meter leaked, the county did not repair the meter, water flowed onto a nearby road and froze, and the plaintiff's car skidded on the ice and collided with another car, causing extensive injuries, notwithstanding the fact that the county and its officers were immune from suit for negligence. Rittenhouse v. DeKalb County, 764 F.2d 1451 (11th Cir. 1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Failure to comply with federal cleanup act.

- Failure to comply with the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., did not create a due process violation since any allegations concerning such failure should be raised in the separate CERCLA recovery action. Amtreco, Inc. v. O.H. Materials, Inc., 802 F. Supp. 440 (M.D. Ga. 1992).

Motorcycle helmet law.

- The motorcycle helmet law, O.C.G.A. § 40-6-315, does not require that the Georgia Board of Public Safety issue a list approving specific types of headgear and, therefore, the failure of the board to publish a list of approved headgear and eye-protective devices did not violate the plaintiff's rights under the first, fifth, and Fourteenth Amendments to the United States Constitution. ABATE of Ga., Inc. v. Georgia, 264 F.3d 1315 (11th Cir. 2001), cert. denied, 536 U.S. 924, 122 S. Ct. 2592, 153 L. Ed. 2d 781 (2002).

Process due before classification as sexually dangerous predator.

- Because the liberty interest affected by classification as a sexually dangerous predator were substantial and the danger of erroneous classification substantially more significant in the absence of a hearing, due process under the Fourteenth Amendment required an evidentiary hearing be afforded the defendant upon request due to the defendant's classification as a sexually dangerous predator. Gregory v. Sexual Offender Registration Review Bd., 298 Ga. 675, 784 S.E.2d 392 (2016).

2. Necessity for Notice and Hearing

Fundamental idea in "due process of law" is that of "notice" and "hearing." City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934); Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56 (1971); Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973).

Fundamental requirement of due process in proceeding to be accorded finality is notice reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Hamilton v. Edwards, 245 Ga. 810, 267 S.E.2d 246 (1980).

Hearing must be granted before citizen is condemned.

- "Due process of law" means that citizen must be afforded hearing before being condemned, and judgment can be rendered only after trial. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

Reasonable notice and opportunity to defend.

- There is no violation of due process or the underlying principles of traditional fairness and substantial justice when reasonable notice and opportunity to defend are present. Bosworth v. Cooney, 156 Ga. App. 274, 274 S.E.2d 604 (1980), appeal dismissed, 452 U.S. 956, 101 S. Ct. 3101, 69 L. Ed. 2d 966 (1981).

Notice of civil action being brought against oneself is the very bedrock of due process. Lester v. Crooms, Inc., 157 Ga. App. 377, 277 S.E.2d 751 (1981).

Strict construction of service of process requirements.

- Courts strictly construe service of process requirements, as notice is bedrock of due process. McGowan v. W.S. Badcock Corp., 144 Ga. App. 255, 240 S.E.2d 779 (1977).

Notice and hearing as a matter of right where one's property rights involved.

- Due process of law as guaranteed by the federal and state Constitutions includes notice and hearing as a matter of right where one's property rights are involved. Dansby v. Dansby, 222 Ga. 118, 149 S.E.2d 252 (1966); Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56 (1971); Hamilton v. Edwards, 245 Ga. 810, 267 S.E.2d 246 (1980).

There must be some form of hearing before deprivation of constitutionally protected property interest. Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980).

Because the trustees for the property at issue, a parcel of property used for religious purposes, never received notice of a tax sale concerning the property, their due process rights were violated, making the sale of that property void. Marathon Inv. Corp. v. Spinkston, 281 Ga. 888, 644 S.E.2d 133 (2007).

Execution of statutory notice provisions necessary.

- Statutory provisions for notice in absence of someone to execute them amount to no requirement of notice. Ray v. Mayor of Athens, 221 Ga. 73, 143 S.E.2d 386 (1965).

When required notice allows or requires act or response within certain time.

- When notice is required by law to be given to a party who has the right or is required to in some way act or respond to the notice within a prescribed period of time, the date of the notice must run from the date of its receipt unless there is express statutory provision to the contrary. Hamilton v. Edwards, 245 Ga. 810, 267 S.E.2d 246 (1980).

Insufficient service by mail.

- Substituted service upon a nonresident defendant by certified mail was insufficient due to the acts of the plaintiffs where the address given in the complaint was known by the plaintiffs not to be the current address of the defendants and the defendants showed that they were separate from the party responsible. Bethco, Inc. v. Cinema 'N' Drafthouse Int'l, Inc., 204 Ga. App. 143, 418 S.E.2d 467 (1992).

Notice of process reasonably certain to inform excused when persons missing or unknown.

- As examples of conditions which would not permit notice of process reasonably certain to inform and which would therefore excuse the use of a form of service falling below this standard, the United States Supreme Court cited "the case of persons missing or unknown." Benton v. Modern Fin. & Inv. Co., 244 Ga. 533, 261 S.E.2d 359 (1979).

Privilege may not be conditioned upon renunciation of right to due process.

- State cannot condition granting of even privilege upon renunciation of constitutional right to procedural due process. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is deemed essential to due process of law. Davis v. Weir, 328 F. Supp. 317 (N.D. Ga. 1971).

Emergency allows termination of fundamental interest without notice and hearing.

- Except in cases of emergency, due process requires that when a state seeks to terminate a fundamental interest such as liberty or property rights, it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective. Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Morgan v. Wofford, 472 F.2d 822 (5th Cir. 1973); Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Temporary deprivation of property requires judicial supervision.

- Judicial supervision over proposed temporary deprivation of property, and notice and opportunity for early preliminary hearing after deprivation are necessary to guard against mistaken and illegal deprivations of property. This is true even when the victim of the deprivation is an alleged judgment debtor. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699, 240 S.E.2d 171 (1977).

Statutory provision for notice and hearings as matter of right may be express or necessarily implied.

- A statute complies with constitutional provisions as to due process where it provides for notice and hearing as a matter of right, either in express terms, or by necessary implication. Robitzsch v. State, 189 Ga. 637, 7 S.E.2d 387 (1940); Wallace v. State, 224 Ga. 255, 161 S.E.2d 288 (1968), cert. denied, 393 U.S. 1123, 89 S. Ct. 995, 22 L. Ed. 2d 130 (1969).

Where notice and hearing implied.

- Act providing for removal of commissioners of roads and revenues of a named county, by the judge of the superior court or the ordinary (now probate court), after investigation of charges preferred by 25 qualified voters, or by the judge of the superior court after such investigation where charges are made by the grand jury, did not violate the due process clause of either the state or the federal Constitution for lack of requirement as to notice and hearing, in view of the provision that the judge or the ordinary to whom the complaint was presented should cause an investigation to be made of such charges, "at which investigation the accused shall have the benefit of counsel, if desired," since the provision quoted implied such requirement as to notice and hearing. Robitzsch v. State, 189 Ga. 637, 7 S.E.2d 387 (1940).

No notice and hearing required before supplemental proceedings to satisfy judgment.

- Due process does not require that a defendant who has been granted an opportunity to be heard and has had the defendant's day in court, should, after a judgment has been rendered against the defendant, have further notice and a hearing before supplemental proceedings are taken to reach the defendant's property in satisfaction of the judgment. Halpern v. Austin, 385 F. Supp. 1009 (N.D. Ga. 1974).

Required notice summons party to appear and speak.

- Notice required by "due process" is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to the party to appear and speak, if the party has anything to say, why the judgment sought should not be rendered. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

Notice required in any particular situation is that reasonably calculated to inform interested parties of the action to be taken and of their opportunity to present objections. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Newspaper notice inadequate unless defendants show they could not give plaintiff personal service.

- Absent a showing that defendants could not give plaintiff personal notice, newspaper notice would not be reasonably calculated to reach plaintiff. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973).

Adequacy of notice by publication.

- Notice by publication is sufficient only if the party bringing the action cannot by due diligence ascertain either the names or whereabouts of those likely to oppose the action. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Service by publication.

- There is no provision in the Nonresident Motorists' Act, the long arm statute, or in the statutes relative to torts for service on a nonresident defendant by publication; and by its own terms the provision in former Code 1933, § 81A-104(e)(1) (see O.C.G.A. § 9-11-4(e)(1)) for service by publication is limited in former Code 1933, § 81A-104(i) (see near the beginning of the second sentence. O.C.G.A. § 9-11-4(j)) by the qualification that the provisions shall apply only in actions or proceedings in which service by publication now or hereafter may be authorized by law. National Sur. Corp. v. Hernandez, 120 Ga. App. 307, 170 S.E.2d 318 (1969).

Publication service required remand.

- In the absence of a showing that a spouse had received, or waived receipt of actual notice of a lawsuit, or that reasonable diligence had been exercised in attempting to find the spouse, judgment was vacated and case remanded to the trial court for a determination whether service by publication met due process constitutional guarantees. McDade v. McDade, 263 Ga. 456, 435 S.E.2d 24 (1993).

Other forms of service inadequate where personal service possible.

- Service by publication and by mail does not provide due process when personal service could have been made. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978).

Test of adequacy of substituted service.

- Adequacy of substituted service so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give actual notice of the proceedings and an opportunity to be heard. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978).

Constitutional validity of any chosen method of service may be defended on the ground that it is in itself reasonably certain to inform those affected or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Benton v. Modern Fin. & Inv. Co., 244 Ga. 533, 261 S.E.2d 359 (1979).

When service by publication allowed in suit for divorce or suit to set aside decree.

- A suit for divorce is a proceeding in rem, and a suit to set aside a decree therein is also a proceeding in rem, unless upon the petition and the prayers thereof property rights are to be established; and service may be by publication, and the statute providing for service on nonresidents, is not in violation of the Constitution of the State of Georgia or U.S. Const., amend. 14. Axtell v. Axtell, 181 Ga. 24, 181 S.E. 295 (1935).

Notice by publication in conservator's petition for settlement.

- Constructive notice by publication of a conservator's petition for final settlement and discharge from the conservatorship under O.C.G.A. §§ 29-5-80(a) and29-5-81(b) did not violate the due process rights of a child of the ward who stood to benefit from the ward's will; the child did not have a legally protected interest in the discharge proceedings. Ray v. Stewart, 287 Ga. 789, 700 S.E.2d 367 (2010).

Process due must fit facts and circumstances.

- Hearing required by due process clause must be "meaningful" and "appropriate to the nature of the case." Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).

In cases involving the due process clause of U.S. Const., amend. 14, what "process" is due must be tailored to fit the facts and circumstances involved. Davis v. Weir, 359 F. Supp. 1023 (N.D. Ga. 1973), aff'd in part and modified in part on other grounds, 497 F.2d 139 (5th Cir. 1974).

Form of hearing required by due process clause may vary according to nature of case. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973).

Whether or not one is deprived of fundamental right to fair hearing depends upon facts of each case. Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359 (1975).

Form of procedural due process hearing judged according to nature of interest.

- In general, the form of a procedural due process hearing is judged by a flexible standard which expands and contracts according to the nature of the interest in question. Shaw v. Hospital Auth., 614 F.2d 946 (5th Cir.), cert. denied, 449 U.S. 955, 101 S. Ct. 362, 66 L. Ed. 2d 220 (1980).

Determination of whether particular procedure required in given situation.

- Whether due process requires a particular procedure in a given situation must be determined by balancing the individual's interest in avoiding the loss that lack of the procedure inflicts upon the individual against the interests that the government seeks to advance by denying it. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S. Ct. 2660, 49 L. Ed. 2d 393 (1976).

Statute upheld if persons accorded notice and hearing applicable to cases of similar nature.

- A statute does not violate due process of law if all persons to whom the statute applies are accorded notice and a hearing applicable to all cases of a similar nature. Southern Ry. v. Overnite Transp. Co., 223 Ga. 825, 158 S.E.2d 387 (1967).

Trial satisfies due process if procedure is same as similar cases.

- When a citizen is accorded a trial according to modes of procedure applicable to cases of similar kind, it cannot be said that the citizen has been denied "due process of law." Ford v. State, 202 Ga. 599, 44 S.E.2d 263 (1947); Chatterton v. Dutton, 223 Ga. 243, 154 S.E.2d 213, cert. denied, 389 U.S. 914, 88 S. Ct. 247, 19 L. Ed. 2d 266 (1967).

No control over form of state court procedures.

- Due process clause of U.S. Const., amend. 14 does not control mere forms of procedure in state courts or regulate practice therein. All its requirements are complied with, provided the person condemned has had sufficient notice and adequate opportunity to defend. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

When the essential elements of jurisdiction of a court in which an opportunity for a hearing is afforded are present, the power of a state over its methods of procedure is substantially unrestricted by the due process clause of the Constitution. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Rules for small claims courts need not be provided by state.

- State need not provide same elaborate rules for small claims courts as for those of general jurisdiction. Sellers v. Home Furnishing Co., 235 Ga. 831, 222 S.E.2d 34 (1976).

Denial of oral hearing not due process violation.

- Court's not holding oral hearing on reconsideration of defendant's motion for summary judgment does not deny due process. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

When pretermination evidentiary hearing not required.

- Where a reduction or termination of public assistance payments is not grounded on particular facts relating to an individual recipient or assistance group, there is no need for a pretermination evidentiary hearing. Merriweather v. Burson, 325 F. Supp. 709 (N.D. Ga. 1970), aff'd in part and remanded in part, 439 F.2d 1092 (5th Cir. 1971).

When judgment conclusive, res judicata and not subject to collateral attack.

- Where the record reveals that the personal jurisdiction issue was raised by a defendant and decided adversely to him by a court of otherwise competent jurisdiction, the judgment of that court is conclusive, is res judicata and may not be collaterally attacked. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816, 219 S.E.2d 39 (1975).

Res judicata.

- Where defendant made a special appearance to contest personal jurisdiction, was fully heard, was overruled as to this objection and took no further part in the case or sought review of the adverse ruling, the judgment entered against the party on the merits is res judicata with regard to the jurisdictional issue and not subject to collateral attack on that ground when sued upon in another state. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816, 219 S.E.2d 39 (1975).

When judgment entitled to full faith and credit.

- A judgment is entitled to full faith and credit - even as to question of jurisdiction - when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816, 219 S.E.2d 39 (1975).

When party appears and defends, judgment of court, regular upon its face, may not be attacked in the courts of this state. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816, 219 S.E.2d 39 (1975).

Right to support allegations by argument and proof implied.

- The hearing required by due process in its essence implies that one who is entitled to it shall have the right to support the party's allegations by argument and proof. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

Advance notice of filing of lis pendens is not required. Aiken v. Citizens & S. Bank, 249 Ga. 481, 291 S.E.2d 717, cert. denied, 459 U.S. 973, 103 S. Ct. 307, 74 L. Ed. 2d 287 (1982).

Federal court diversity jurisdiction.

- In diversity case it is appropriate for federal court to exercise jurisdiction over foreign corporation if state court may do so in compliance with state law and the due process requirements of the United States Constitution. Bankhead Enters., Inc. v. Norfolk & W. Ry., 642 F.2d 802 (5th Cir. 1981).

Claims against municipalities.

- Since right to sue municipality is statutory, the legislature may attach notice-of-claim requirement as precondition to maintenance of such suit. Shoemaker v. Aldmor Mgt., Inc., 249 Ga. 430, 291 S.E.2d 549 (1982).

Six-month time limit for presenting claims against a municipal corporation is not unreasonable. Shoemaker v. Aldmor Mgt., Inc., 249 Ga. 430, 291 S.E.2d 549 (1982).

Hearing granted by administrative body must be fair and impartial.

- In order to comply with the requirements of due process, the hearing granted by an administrative body must be a full and fair one, before an impartial officer, board, or body free of bias, hostility, and prejudgment. Clary v. Mathews, 224 Ga. 82, 160 S.E.2d 338 (1968).

Procedural defect by agency not violative of due process unless defect prejudicial.

- When an agency neglects to follow a procedural rule but its failure inflicts no significant injury on the party entitled to observance of the rule, the error does not prevent further administrative or judicial action. For a procedural defect to violate due process, the defect must be shown to be prejudicial. Lentz v. State Personnel Bd., 146 Ga. App. 366, 247 S.E.2d 145 (1978).

Rights applicable in workers' compensation proceedings.

- The constitutional guaranty of due process grants every party to a lawsuit the opportunity to be heard and to present the party's claim or defense, i.e., to have the party's day in court. These rights are granted to all parties and are applicable in workers' compensation proceedings. Scott v. Tremco, Inc., 199 Ga. App. 606, 405 S.E.2d 347, cert. denied, 199 Ga. App. 907, 405 S.E.2d 347 (1991).

Administrative agency as both accuser and judge.

- Fact that administrative agency is both accuser and judge does not deprive accused of due process of law, especially where an appeal from the determination of the agency may be had to the courts. Clary v. Mathews, 224 Ga. 82, 160 S.E.2d 338 (1968).

Irregularity or error in administrative hearing.

- Mere irregularity or error in administrative hearing cannot be basis of claim of denial of due process, and a person cannot complain of a defect in an administrative hearing as a denial of constitutional rights as long as that person obtains a full hearing before a court on the question in issue. Clary v. Mathews, 224 Ga. 82, 160 S.E.2d 338 (1968).

Appeal from suspension of driver's license.

- Although defendant elected to first pursue an administrative appeal of a driver's license suspension to the Department of Public Safety, and was unsuccessful in that effort, the defendant was still entitled to file an appeal in the superior court under O.C.G.A. § 40-4-66, at which the defendant could receive a meaningful hearing upon request and, accordingly, the defendant was not denied the right to procedural due process. Miles v. Shaw, 272 Ga. 475, 532 S.E.2d 373 (2000).

Agreement waiving due process right of notice and hearing enforceable if voluntarily and knowingly made.

- An agreement which waives due process right of notice and hearing is not constitutionally infirm per se; and if such an agreement was voluntarily, intelligently, and knowingly made, which may be a question of fact in some circumstances, then such an agreement for divestment is constitutionally enforceable. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973).

Waiver of question of jurisdiction by terms of contract.

- Parties waive the question pertaining to jurisdiction as related to performance of a contract if the contract provides that all rights of the parties based upon any alleged nonperformance by either party shall be submitted to arbitration in New York, and if the contract provides that notice of further proceedings in the courts of New York may be served by registered mail. Pacolet Mfg. Co. v. Crescent Textiles, Inc., 219 Ga. 268, 133 S.E.2d 96 (1963).

Only private associations have right to obtain waiver of notice and hearing before depriving member of valuable right. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Due process requirement for subjecting defendant to judgment in personam.

- In personam jurisdiction is proper in a state court if the defendant has "certain minimum contacts with the forum state such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Griffin v. Air S., Inc., 324 F. Supp. 1284 (N.D. Ga. 1971); Interstate Paper Corp. v. Air-O-Flex Equip. Co., 426 F. Supp. 1323 (S.D. Ga. 1977).

Due process requires only that in order to subject a defendant to a judgment in personam, if the defendant be not present within the territory of the forum, the defendant have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Humphrey v. Langford, 246 Ga. 732, 273 S.E.2d 22 (1980); Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240, 276 S.E.2d 845 (1981).

Test for determining whether due process permits assertion of jurisdiction is twofold: the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice"; and the defendant must purposefully avail itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375 (5th Cir. 1980).

Limits on exercise of jurisdiction are not "mechanical or quantitative" but are to be found only in the requirement that the provisions made for this purpose must be fair and reasonable in the circumstances, and must give to the defendant adequate notice of the claim against the defendant, and an adequate and realistic opportunity to appear and be heard in the defendant's defense. Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399 (1973).

Jurisdiction based solely on temporary presence.

- Allowing jurisdiction to be based solely on temporary presence is not inconsistent with due process clause of U.S. Const., amend. 14. Humphrey v. Langford, 246 Ga. 732, 273 S.E.2d 22 (1980).

Three broad rules by which to judge power of forum state to exercise jurisdiction over nonresident: (1) the nonresident must purposefully avail oneself of the privilege of doing some act or consummating some transaction with or in the forum; (2) the plaintiff must have a legal cause of action against the nonresident, which arises out of, or results from, the activity or activities of the defendant nonresident within the forum; and (3) if the requirements of rules (1) and (2) are met, there must also exist a "minimum contact" between the nonresident and the forum. Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240, 276 S.E.2d 845 (1981).

With sufficient connection between defendant and forum state and reasonable notice to defendant.

- The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought and a sufficient connection between the defendant and the forum state as to make it fair to require defense of the action in the forum. Hollingsworth v. Cunard Line, 152 Ga. App. 509, 263 S.E.2d 190 (1979).

Due process limitations on judgments in personam where defendant has no contacts with state.

- Due process prevents a binding judgment being rendered in personam against an individual or corporate defendant with which the state has no contacts, ties or relations. Riordan v. W.J. Bremer, Inc., 466 F. Supp. 411 (S.D. Ga. 1979).

The due process clause of U.S. Const., amend. 14 limits the power of a court to render a valid personal judgment against an individual or corporate defendant with which the forum state has no contacts, ties, or relations. Bankhead Enters., Inc. v. Norfolk & W. Ry., 642 F.2d 802 (5th Cir. 1981).

Limitation on power of state court to enter judgments against persons not served with process within state.

- The due process clause of U.S. Const., amend. 14 most assuredly limits the power of the state courts to enter judgments against persons not served with process while within their respective boundaries. Allied Fin. Co. v. Prosser, 103 Ga. App. 538, 119 S.E.2d 813 (1961).

Personal service in foreign state.

- When a party is personally served that party is subject to in personam jurisdiction of the courts of foreign state and cannot collaterally attack a judgment of such court. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816, 219 S.E.2d 39 (1975).

Personal service on persons outside state's territorial limits by service officer of state where person is served complies with procedural due process requirements. Whitaker v. Whitaker, 237 Ga. 895, 230 S.E.2d 486 (1976).

Out of state ex parte proceeding not given effect.

- Where the putative father of an illegitimate child sought and obtained a decree of a Tennessee court declaring him to be the father of such child and creating the relationship of parent and child between the petitioner and the child, the decree showing on its face that it was an ex parte proceeding, it will not be given effect in this state as against the mother, where she was not made a party in the proceeding, was not served, did not appear and plead, or otherwise waive service or consent to such decree or have notice thereof, as it is violative of the due process clauses of the state and federal Constitutions. Day v. Hatton, 210 Ga. 749, 83 S.E.2d 6 (1954).

"Minimum contacts" of the defendant with the forum state must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Bankhead Enters., Inc. v. Norfolk & W. Ry., 642 F.2d 802 (5th Cir. 1981).

When a nonresident engages in some activity with or in the forum, even a significant single transaction, whether the nonresident physically present there or not, and as a result business is transacted, a jurisdictional "contact" exists between that nonresident and the forum. Bankhead Enters., Inc. v. Norfolk & W. Ry., 642 F.2d 802 (5th Cir. 1981).

Minimal contacts prerequisite.

- Defendant may not be called on to defend action in foreign tribunal unless the defendant has had "minimal contacts" with the state that are a prerequisite to its exercise of power over the defendant. Riordan v. W.J. Bremer, Inc., 466 F. Supp. 411 (S.D. Ga. 1979).

Grounds for exercise of personal jurisdiction over nonresident transacting business within state where minimum contacts.

- Where jurisdiction over a nonresident is posted under former code 1933, § 24-113.1(a) (see O.C.G.A. § 9-10-91(1)), due process must be satisfied by the existence of "minimum contacts" of the nonresident in the state in which the nonresident is sued. Newman v. Fleming, 331 F. Supp. 973 (S.D. Ga. 1971).

With showing of nonresident's "minimum contact" with forum state.

- In order to satisfy the constitutional requirement of procedural due process, it must be shown that the nonresident defendant has some "minimum contact" with the forum state so as to make that state's exercise of jurisdiction over the defendant reasonable. Hollingsworth v. Cunard Line, 152 Ga. App. 509, 263 S.E.2d 190 (1979); Bosworth v. Cooney, 156 Ga. App. 274, 274 S.E.2d 604 (1980), appeal dismissed, 452 U.S. 956, 101 S. Ct. 3101, 69 L. Ed. 2d 966 (1981).

Minimum contacts concept of in personam jurisdiction particularly suited to resolution of domestic relations litigation.

- In a country comprising 50 state judicial systems plus the District of Columbia's system, in an age of great mobility of persons and families, and in an era of vastly increasing domestic relations litigation, the minimum contacts concept of in personam jurisdiction is particularly suited, as a matter of practicality, to the resolution of issues raised in domestic relations litigation. Whitaker v. Whitaker, 237 Ga. 895, 230 S.E.2d 486 (1976).

Residence within territorial limits of state while married is sufficient contact to confer jurisdiction in domestic relations case even though one of the parties sought to be bound in the action moved outside the boundaries of the state prior to the commencement of the domestic relations action. Whitaker v. Whitaker, 237 Ga. 895, 230 S.E.2d 486 (1976).

Ex parte judgment granting divorce entitled to full faith and credit if one spouse domiciled in forum.

- An ex parte judgment that only grants a divorce is entitled to full faith and credit in other states if one of the spouses was domiciled in the forum that granted the divorce judgment. Whitaker v. Whitaker, 237 Ga. 895, 230 S.E.2d 486 (1976).

Application of long arm statute to limits of due process.

- Within the bounds of fairness and substantial justice to the defendant, the long arm statute will be applied to the limits of due process so that those who invoke the protection or benefits of the laws of Georgia, or who injure citizens or property in Georgia, will be made to answer therefore in the Georgia courts. Value Eng'r Co. v. Gisell, 140 Ga. App. 44, 230 S.E.2d 29 (1976).

Nonresident motorist statutes and long arm statutes in tort and contract areas properly confer in personam jurisdiction provided the nonresident party sought to be bound had sufficient contact or public policy association with the forum state; and provided, of course, adequate notice and service of the pending action was accorded to the nonresident so as not to violate the due process rule of fundamental procedural fairness. Whitaker v. Whitaker, 237 Ga. 895, 230 S.E.2d 486 (1976).

Scope of Georgia long arm statute.

- Generally in long arm cases, the court must decide if the activities in question fall within the scope of the state statute, and, if so, whether the due process clause of U.S. Const., amend. 14 is satisfied by an inclusive construction. Marival, Inc. v. Planes, Inc., 302 F. Supp. 201 (N.D. Ga. 1969).

The Georgia Supreme Court has held that former Code 1933, § 24-113.1 (see O.C.G.A. § 9-10-91) (Georgia long arm statute) extends personal jurisdiction to the maximum extent allowed by due process. National Egg Co. v. Bank Leumi le-Israel, 514 F. Supp. 1125 (N.D. Ga. 1981).

Jurisdiction over nonresident under long arm statute.

- Under the long arm statute jurisdiction over a nonresident exists on the basis of transacting business in this state if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice. Bailey v. London Marina, Inc., 151 Ga. App. 73, 258 S.E.2d 738 (1979); Hollingsworth v. Cunard Line, 152 Ga. App. 509, 263 S.E.2d 190 (1979).

Long Arm Statute allows exercise of jurisdiction over nonresident parties to maximum extent permitted by procedural due process. Hollingsworth v. Cunard Line, 152 Ga. App. 509, 263 S.E.2d 190 (1979); Bankhead Enters., Inc. v. Norfolk & W. Ry., 642 F.2d 802 (5th Cir. 1981).

Georgia long arm statute is coterminous with due process clause.

- The broad language of the Georgia statute, expanding notions of jurisdiction, and the experience in other jurisdictions with similar statutes indicate that an expansive reading should be given to this section. Marival, Inc. v. Planes, Inc., 302 F. Supp. 201 (N.D. Ga. 1969); Griffin v. Air S., Inc., 324 F. Supp. 1284 (N.D. Ga. 1971).

Georgia long arm statute is coterminous with due process clause of U.S. Const., amend. 14 and the policy of the courts of this state is to exercise jurisdiction thereunder to the maximum extent permitted by procedural due process. Interstate Paper Corp. v. Air-O-Flex Equip, Co., 426 F. Supp. 1323 (S.D. Ga. 1977).

Bare existence of conspiracy not enough to support long arm jurisdiction.

- Bare existence of conspiracy is not enough to support long arm jurisdiction, without showing "contact" with the forum jurisdiction. A mere connection with the resident is not enough. Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240, 276 S.E.2d 845 (1981).

Whether foreign corporation subject to in personam jurisdiction under long arm statute.

- Where the plaintiff's theory of liability is predicated on contractual breach and there is no claim of any tortious act or omission by the defendant foreign corporation occurring either in or outside Georgia, inquiry in determining whether the foreign corporation is subject to in personam jurisdiction under the Georgia long arm statute is limited to whether the corporation was transacting business within Georgia and, if so, whether it had sufficient contacts to satisfy the constitutional requirements of due process. Interstate Paper Corp. v. Air-O-Flex Equip. Co., 426 F. Supp. 1323 (S.D. Ga. 1977).

Service on business corporations.

- The method of service properly authorized under former Code 1933, § 22-403(b) (see O.C.G.A. § 14-2-504), which concerns business corporations, is not subject to constitutional attack because it is in itself reasonably certain to inform those affected and is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Frazier v. HMZ Property Mgt., Inc., 161 Ga. App. 195, 291 S.E.2d 4 (1982).

Sufficient contact if suit is based on contract with substantial connection with state.

- It is sufficient for purposes of due process that a suit is based on a contract which has substantial connection with that state. Hollingsworth v. Cunard Line, 152 Ga. App. 509, 263 S.E.2d 190 (1979); Bosworth v. Cooney, 156 Ga. App. 274, 274 S.E.2d 604 (1980), appeal dismissed, 452 U.S. 956, 101 S. Ct. 3101, 69 L. Ed. 2d 966 (1981).

To the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state; the exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. Hollingsworth v. Cunard Line, 152 Ga. App. 509, 263 S.E.2d 190 (1979).

Defendant's trips from Florida to Georgia to negotiate contract of sale and escrow contract, and execution of the escrow contract in Georgia provided sufficient "minimum contact" within the meaning and intent of the long arm statute. Bosworth v. Cooney, 156 Ga. App. 274, 274 S.E.2d 604 (1980), appeal dismissed, 452 U.S. 956, 101 S. Ct. 3101, 69 L. Ed. 2d 966 (1981).

Phrase "doing business" within corporate tax provisions not violative of due process.

- The phrase "doing business" within former Code 1933, § 92-2401 (see O.C.G.A. § 48-13-72) (corporate net worth tax) and former Code 1933, § 92-3113 (see O.C.G.A. § 48-7-31) (corporate income tax), which means any activity or transactions for the purpose of financial profit or gain does not violate the due process requirement of either Ga. Const. 1983, Art. I, Sec. I, Para. I or U.S. Const., amend. 14. Chattanooga Glass Co. v. Strickland, 244 Ga. 603, 261 S.E.2d 599 (1979).

Corporation conducting activities within forum state with clear notice subject to suit.

- When a corporation purposefully avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there. Bankhead Enters., Inc. v. Norfolk & W. Ry., 642 F.2d 802 (5th Cir. 1981).

Corporation putting products into stream of commerce with expectation of purchase by state consumers subject to personal jurisdiction.

- The forum state does not exceed its powers under the due process clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. National Egg Co. v. Bank Leumi le-Israel B.M., 504 F. Supp. 305 (N.D. Ga. 1980).

Foreseeability that product will cause injury in given state is not sufficient reason to hold the seller of the product subject to the jurisdiction of that state. National Egg Co. v. Bank Leumi le-Israel B.M., 504 F. Supp. 305 (N.D. Ga. 1980).

Parties to employment contract not subject to Georgia law unless contract made or actual work done in state.

- Under former Code 1933, § 114-110 (see O.C.G.A. § 34-9-7) the state acquires jurisdiction only by the act of the parties in coming within the state to execute a contract of employment. In the absence of the making of a contract within the state, where no work thereunder in the state is required, the parties thereto could not be subjected to the terms of the Georgia law, for to do so would be to deny to them due process of law, as guaranteed by the state and federal Constitutions. Cramer v. American Mut. Liab. Ins. Co., 77 Ga. App. 236, 47 S.E.2d 925 (1948).

Where minimum contacts not satisfied.

- Where officials of a defendant foreign corporation enter Georgia to investigate the possibility of entering into a contract with a Georgia plaintiff to design and manufacture machinery to be installed at defendant's plant in South Carolina, inspect two similar plants and look over plaintiff's operation in Georgia, visit plaintiff's headquarters in order to observe the manufacture of the machinery, and undertake part of the negotiations in Georgia, such activities taken either in isolation or in totality do not constitute "minimum contacts" that satisfy the constitutional test for exercise of jurisdiction. Fulghum Indus., Inc. v. Walterboro Forest Prods., Inc., 345 F. Supp. 296 (S.D. Ga. 1972), aff'd, 477 F.2d 910 (5th Cir. 1973).

Opportunity for hearing required prior to deprivation of property.

- Opportunity for hearing required by due process must be given before deprivation of property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event. Burnley v. Thompson, 524 F.2d 1233 (5th Cir. 1975).

"Pre-seizure" hearing not required with contraband condemnation.

- Procedural due process of law does not require "pre-seizure" hearing in cases of contraband condemnation. Tant v. State, 247 Ga. 264, 275 S.E.2d 312 (1981).

"Post-seizure" cases require notice and hearing.

- All that procedural due process of law requires in "post-seizure" cases is notice and hearing at which the owner or other party having an interest to be protected can appear and present a claim to the property being condemned. Any stipulated period of time as notice is not constitutionally required. All that is required by due process of law is that the affected party have reasonable notice and a reasonably fair opportunity for a hearing before the vehicle or other property is forfeited for a violation of the law. Tant v. State, 247 Ga. 264, 275 S.E.2d 312 (1981).

Delay in judicial determination of property rights.

- Delay in judicial determination of property rights is not uncommon where essential that governmental needs be immediately satisfied. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1944).

Postponement of judicial enquiry.

- Where only property rights are involved, mere postponement of judicial enquiry is not denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1944).

Statutes concerning proceeding before special master in condemnation procedure comport with due process.

- Due process requirements are satisfied by former Code 1933, ch. 36-6A (see O.C.G.A. Art. 2, Ch. 2, T. 22), in that it gives the condemnee notice as well as an opportunity for a hearing. Sweat v. Georgia Power Co., 235 Ga. 281, 219 S.E.2d 384 (1975).

Persons with property subject to forfeiture afforded adequate notice and hearing.

- Former Code 1933, § 79A-828 (see O.C.G.A. § 16-13-49) affords adequate notice and adequate hearing so as to comport with due process of law as required by the federal Constitution and the Georgia Constitution. Tant v. State, 247 Ga. 264, 275 S.E.2d 312 (1981).

Notice to nonresident owners of property to be condemned violative of due process.

- The portion of former Code 1933, § 36-610a (see O.C.G.A. § 22-2-107) that purports to provide for posting, publishing and mailing notices to known nonresident owners of property to be condemned, offends Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 14 in that it denies due process by not naming anyone to post, publish, or mail the notice therein referred to. Ray v. Mayor of Athens, 221 Ga. 73, 143 S.E.2d 386 (1965) (decided prior to amendment by Ga. L. 1966, p. 388, § 1, which designated the sheriff or the sheriff's deputy as responsible for posting and publishing the notice).

During tax assessment process taxpayer must have opportunity to be heard.

- Hearing required by "due process" gives to taxpayer opportunity to submit evidence to support the taxpayer's objections to assessment which the taxpayer desires to contest and to show that the same is excessive. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

The assessment of a tax is action judicial in its nature, requiring for the legal exertion of the power such opportunity to appear and be heard as the circumstances of the case require. Somewhere during the process of the assessment the taxpayer must have an opportunity to be heard, and this notice must be provided as an essential part of the statutory provisions, and not awarded as a mere matter of favor or grace. A denial of this right is a failure to afford due process of law within the intention of the federal and state Constitutions. Pullman Co. v. Suttles, 187 Ga. 217, 199 S.E. 821 (1938).

Due process entitles taxpayer to be heard on property assessment before final decision is made as to value. This requirement of a hearing is satisfied by former Code 1933, § 92-6912 (see O.C.G.A. § 48-5-311). Ward v. Landrum, 140 Ga. App. 497, 231 S.E.2d 347 (1976).

Taxpayer must have notice in time to contest proceeding before tax becomes absolute lien or liability.

- It has been shown that there are differences between proceedings for the levy and collection of taxes and judicial proceedings. As to what constitutes notice and opportunity to be heard, in compliance with this requirement of due process, no general rule can be laid down which will cover all cases. The general rule, which may be laid down as applicable to all cases, is that the taxpayer must have the notice in time to contest the proceeding before the tax becomes an absolute lien on the taxpayer's property or before it becomes the taxpayer's absolute personal liability. Simmons v. Newton, 178 Ga. 806, 174 S.E. 703 (1934).

Notice and opportunity to be heard before property tax assessment final comported with due process.

- Ga. L. 1918, p. 232, providing for assessment for taxation of unreturned or grossly undervalued property, or property assessed at a figure grossly below its true value, is not unconstitutional as violating the due process and equal protection clauses of the state and federal Constitutions for the reason that it fails to provide for a hearing before assessment by the tax-receiver, since it does provide for notice to the claimed delinquent, with opportunity to be heard by a suit in equity both as to excessiveness and taxability, before the assessment shall become final. Hardin v. Reynolds, 189 Ga. 534, 6 S.E.2d 328 (1939).

Due process not violated by government seizure of property for taxes before notice and hearing.

- The failure to give one notice and an opportunity to be heard prior to issuance of the tax fi. fa. and a subsequent levy on back accounts does not violate the due process clause of U.S. Const., amend. 14, because the seizure of property by the government for the collection of taxes constitutes one of those extraordinary situations justifying postponement of notice and hearing until after the property has been seized. Fowler v. Strickland, 243 Ga. 30, 252 S.E.2d 459, cert. denied, 444 U.S. 827, 100 S. Ct. 53, 62 L. Ed. 2d 35 (1979).

Farmer could not be deprived of property interest in business without pre-ejectment hearing.

- Plaintiff as a Georgia farmer has a property interest in his business, i.e., selling merchandise at a public market, and could not be deprived of that interest without a due process pre-ejectment hearing even in absence of state statute providing for such hearing. Wilder v. Irvin, 423 F. Supp. 639 (N.D. Ga. 1976).

Procedural formalities not required at temporary injunction hearings.

- Mere temporary injunction hearings to determine whether a temporary injunction should be issued restraining the showing of a film need not to be surrounded with the formalities of procedure that must attend hearings finally determining rights. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557 (1971).

Determination on granting continuance of temporary injunction hearing within judicial discretion.

- The question of whether the trial judge will grant a continuance on a hearing to determine whether a temporary injunction should be issued restraining the showing of a film is within the judge's sound legal discretion, and in the absence of a clear showing that the judge abused the judge's discretion in this regard it will not be controlled. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557 (1971).

Termination of employment.

- Procedural due process does not entitle public employee to full evidentiary hearing prior to discharge. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Adequate pretermination procedures for public employees need not include full, evidentiary hearing, provided an employee is protected by a timely and effective post-discharge hearing procedure. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Due process does not require hearing prior to discharge, and procedural defects prior to a fair hearing may be cured by that subsequent hearing. Lentz v. State Personnel Bd., 146 Ga. App. 366, 247 S.E.2d 145 (1978).

Procedure to meet minimum due process requirements in cases of termination of employee includes, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons, which means giving the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision. Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980).

Trial type hearing before adverse personnel action against state employee not required.

- Procedural due process under U.S. Const., amend. 14 is not violated by the failure to grant a trial type hearing before rather than after an adverse personnel action taken against a state employee. Aycock v. Police Comm., 133 Ga. App. 883, 212 S.E.2d 456 (1975).

Pretermination hearing required when stated reason for public employee's discharge is reputation damaging.

- A pretermination hearing is required only when the stated reason for a public employee's discharge is an allegation that the employee is guilty of immoral or dishonest conduct or other behavior that might tend to stigmatize the employee or to lower the employee's standing in the eyes of the community. This is because an employee who is discharged because of allegedly dishonest conduct has an interest in the employee's reputation as well as the employee's employment. Sheppard v. DeKalb County Merit Council, 144 Ga. App. 115, 240 S.E.2d 316 (1977).

County's post-termination procedures cured pre-termination procedural deficiencies.

- Available post-termination procedures cured public employer's failure to have a pre-termination hearing prior to termination of county employee. Jones v. Chatham County, 223 Ga. App. 455, 477 S.E.2d 889 (1996).

Post termination evidentiary hearing.

- Evidentiary hearing subsequent to discharge of county employee, meets requirements of due process of law. Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359 (1975).

Pretextually terminated employees.

- Only procedural due process claims are available to pretextually terminated employees, and not substantive due process claims. Shaw v. Oconee County, 863 F. Supp. 1578 (M.D. Ga. 1994).

Due process met in suspension of public university professor.

- A hearing provided a public university biology professor with the requisite due process - i.e., notice and an opportunity to be heard, because the professor was represented by counsel and was given the opportunity to present documentary evidence and witnesses, testify in his own behalf, and cross-examine the university's witnesses. The hearing satisfied the professor's right to procedural due process both with respect to his post-tenure reviews and the decision to suspend him from employment. Edmonds v. Bd. of Regents, 302 Ga. App. 1, 689 S.E.2d 352 (2009), cert. denied, No. S10C0824, 2010 Ga. LEXIS 437 (Ga. 2010); overruled on other grounds by Wolfe v. Regents of the Univ. Sys. of Ga., 300 Ga. 223, 794 S.E.2d 85 (Ga. 2016).

Suspension of police officer.

- City police officer was denied due process when the officer was suspended without pay for 148 days without a hearing. Byrd v. City of Atlanta, 709 F. Supp. 1148 (N.D. Ga. 1989).

Police officer charged with using excessive force.

- Where internal affairs investigators concluded that the officer charged with using excessive force had violated departmental policy in the apprehension of the suspect, and where the officer was informed of violating the departmental policy proscribing the use of excessive force but was not given notice concerning improprieties regarding the officer's filing of reports, the officer's high speed chase, or the use of firearms, summary judgment for defendants was not proper. Further, once the plaintiff elected to have a pretermination hearing, the meeting did not constitute a proceeding in which the plaintiff received adequate notice and a hearing sufficient to deny benefits. Bass v. City of Albany, 968 F.2d 1067 (11th Cir. 1992).

Where municipal police officer was not granted hearing prior to initial discharge, but was granted a trial type hearing on the officer's appeal before the personnel review board where the officer was confronted by the witnesses and afforded the opportunity to cross-examine the witnesses and to offer evidence in the officer's own behalf, that due process was not violated. In re Wiggins, 144 Ga. App. 707, 242 S.E.2d 290 (1978).

Termination of workers' compensation benefits.

- O.C.G.A. § 34-9-221(i) and Board of Workers' Compensation Rule 221(i), which set out the conditions and methods by which an employer or insurer may terminate an employee's workers' compensation benefits without a prior hearing, are constitutionally sufficient to satisfy the requirements of due process. Cryder v. Oxendine, 24 F.3d 175 (11th Cir. 1994).

Finding attorney in contempt.

- Before an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, the attorney should have reasonable notice of the specific charges and opportunity to be heard in the attorney's own behalf. Maples v. Seeliger, 165 Ga. App. 201, 299 S.E.2d 906 (1983).

Contempt proceedings.

- Where there was no necessity to act summarily for the purpose of maintaining order in the courtroom, due process required that the attorney against whom the trial court ordered summary punishment be given notice of the charges against the attorney and that another judge hear the charges against the attorney. In re Siemon, 264 Ga. 641, 449 S.E.2d 832 (1994).

Adequate notice and opportunity for hearing required before termination or reduction of public assistance based on eligibility.

- Public officials may not terminate or reduce the aid of any public assistance recipient prior to granting the recipient reasonable and adequate notice and opportunity for a hearing that satisfies the standards of due process of law where the proposed termination is based upon factual determinations relating to the eligibility of the particular recipient for those benefits. Merriweather v. Burson, 325 F. Supp. 709 (N.D. Ga. 1970), aff'd in part and remanded in part, 439 F.2d 1092 (5th Cir. 1971).

Notice of possible liability for Aid to Families with Dependent Children benefits.

- No due process deprivation occurred because the custodial parent was proceeded against for recovery of AFDC payments although the custodial parent was never directly and explicitly notified when the custodial parent applied for benefits that the custodial parent, rather than absent non-custodial parent alone, might be held liable for their repayment. Cox v. Department of Human Resources, 174 Ga. App. 377, 330 S.E.2d 120, rev'd on other grounds, 255 Ga. 6, 334 S.E.2d 683 (1985).

Garnishment of wages.

- Garnishment of wages absent notice and prior hearing, violates fundamental principles of due process since it amounts to a "taking" of property. Aaron v. Clark, 342 F. Supp. 898 (N.D. Ga. 1972).

Trial court deprives garnisher of due process in failing to afford it hearing on setting aside of default and propriety of modifying amount of judgment. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699, 240 S.E.2d 171 (1977).

Statutory procedure for garnishments comports with due process.

- Procedural due process does not require opportunity for hearing before state-authorized garnishment of wages based upon prior judgment establishing the applicant's entitlement to alimony. Halpern v. Austin, 385 F. Supp. 1009 (N.D. Ga. 1974).

Constitutional due process requirements are adequately met by the judicial supervision and notice to the defendant mandated by the statutory procedure for garnishments. Garnishment of wages to satisfy alimony orders or judgments meets the demands of due process. Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980).

Garnishment of wages for alimony.

- Spouse whose assets are subject to garnishment under alimony judgment is accorded procedural due process by the fact that the affidavit for garnishment was approved by a judge before the summons of garnishment issued, under former Code 1933, § 46-102 (see O.C.G.A. § 18-4-61), and by the fact that the spouse received timely notice on the garnishment, under former Code 1933, § 46-105 (see O.C.G.A. § 18-4-64), as well as an early hearing on his traverse, in accordance with former Code 1933, § 46-401 (see O.C.G.A. § 18-4-93). Antico v. Antico, 241 Ga. 294, 244 S.E.2d 820 (1978).

Delay in issuing order on child visitation/support issue.

- Eight-month delay between the trial of a child support and visitation question and entry of the final order did not deny a father his right to procedural due process under the Fourteenth Amendment of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. I, in part, because the father filed a post-trial, pre-judgment motion requiring the trial court's time and attention. Coppedge v. Coppedge, 298 Ga. 494, 783 S.E.2d 94 (2016).

Self-executing incarceration order in event of nonpayment of alimony not denial of due process.

- Trial court's self-executing incarceration order which ordered incarceration of a parent at later time unless alimony payment, adjudicated as being owed, had been made, without providing for a further hearing, did not deny the parent due process of law. Floyd v. Floyd, 247 Ga. 551, 277 S.E.2d 658 (1981).

Post-judgment garnishment procedure inadequate in judicial supervision and notice.

- The post-judgment garnishment procedure in former Code 1933, §§ 46-102 (see O.C.G.A. § 18-4-61) and 46-103 (see O.C.G.A. § 18-4-62) fails to meet the requirements of judicial supervision and notice to the defendant and is therefore constitutionally inadequate. City Fin. Co. v. Winston, 238 Ga. 10, 231 S.E.2d 45 (1976) (decided prior to amendment by Ga. L. 1977, p. 159, § 1).

Post-judgment garnishment law (see O.C.G.A. Art. 4, Ch. 4, T. 18) is not unconstitutional for lack of due process. Morgan v. Morgan, 156 Ga. App. 726, 275 S.E.2d 673 (1980).

Adversary judicial hearing required before state seizure of film.

- Before the state may seize any motion picture film, prior adversary judicial hearing designed to focus searchingly on the question of obscenity must be held. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969); Central Agency, Inc. v. Brown, 306 F. Supp. 502 (N.D. Ga. 1969).

Lest the nonobscene and constitutionally protected be suppressed.

- The requirement that there be a prior adversary judicial hearing on the question of obscenity before a seizure does not mean that courts, either federal or state, desire to protect obscenity. It does mean that the Supreme Court of the United States has decided that lest the nonobscene and the constitutionally protected be suppressed it is better that some judicial officer judicially determine, after hearing competent evidence, that the challenged matter is obscene before its seizure. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

Where allegedly obscene materials seized, federal court will not interfere while case pending in state courts.

- Where allegedly obscene films and projectors are seized as evidence of a violation of former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80), and the case is pending in the state courts, federal courts will not interfere with the pending case by requiring release of the contraband as an unconstitutional seizure. G & E Bus. Servs., Inc. v. McAuliffe, 480 F. Supp. 239 (N.D. Ga. 1979).

Due process in juvenile court proceedings.

- There must be scrupulous adherence to due process requirements in juvenile court proceedings. C.L.T. v. State, 157 Ga. App. 180, 276 S.E.2d 862 (1981).

No separate hearing or jury trial required when child found not amenable to treatment in juvenile court system.

- Due process does not require that a separate hearing or jury trial be held when the judge makes a finding of fact that a child is not amenable to treatment or rehabilitation in the system of the juvenile court. Long v. Powell, 388 F. Supp. 422 (N.D. Ga.), vacated on other grounds, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).

Juvenile judge's refusal without hearing to accept petition alleging delinquency not violative of due process.

- A juvenile judge's refusal without a hearing to accept a petition alleging delinquency and thereby accept jurisdiction of a case does not deprive a party of due process of law. Lane v. Jones, 626 F.2d 1296 (5th Cir. 1980), cert. denied, 450 U.S. 928, 101 S. Ct. 1384, 67 L. Ed. 2d 359 (1981).

Juvenile's right to evidentiary hearing when faced with possible transfer of case from juvenile court.

- When former Code 1933, §§ 24A-2002 (see O.C.G.A. § 15-11-31(a)) and 24A-2502 (see O.C.G.A. § 15-11-39(a)(1)) are read together, a juvenile faced with the possible transfer of his case from juvenile court to "the appropriate court having jurisdiction of the offense" has the right to an evidentiary hearing at which the juvenile must be given "the opportunity to introduce evidence and otherwise be heard in the juvenile's own behalf and to cross-examine adverse witnesses." R.S. v. State, 156 Ga. App. 460, 274 S.E.2d 810 (1980).

Measuring up to essentials of due process and fair treatment.

- Transfer hearings are critically important proceeding affecting important rights of the juvenile. While the hearing need not conform with all of the requirements of a criminal trial or even of the usual administrative hearing, the hearing must measure up to the essentials of due process and fair treatment. R.S. v. State, 156 Ga. App. 460, 274 S.E.2d 810 (1980).

Requirements for petition in juvenile proceedings to comport with due process.

- In order to withstand attack based upon the denial of due process, the petition in juvenile proceedings must pass two tests: (1) it must contain sufficient factual details to inform the juvenile of the nature of the offense; and (2) it must provide data adequate to enable the accused to prepare a defense. C.L.T. v. State, 157 Ga. App. 180, 276 S.E.2d 862 (1981).

Statutory method of determining lunacy and appointing guardian comports with due process.

- In view of the express requirement as to formal examination by inspection of a person alleged to be a lunatic, the statute prescribing the method of determining an issue of lunacy, and providing for the appointment of a guardian of one adjudged to be a lunatic, does not violate the due process clause of the state Constitution or the federal Constitution, in that it fails to provide for any notice to the person alleged to be insane. Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4, 177 S.E. 803 (1934).

Notice to and hearing of valid license holder required before revocation of license.

- The holder of a valid license that has been properly issued may enjoin its revocation and the interference with the holder's lawful business thereunder in the absence of notice and a hearing. Rose v. Grow, 210 Ga. 664, 82 S.E.2d 222 (1954).

Revocation of liquor license involving state action requires procedural due process.

- The revocation of a liquor license which involves state action that adjudicates the vital interest of the licensee to engage in a livelihood may not take place without the procedural due process required by U.S. Const., amend. 14. Atlanta Attractions, Inc. v. Massell, 330 F. Supp. 865 (N.D. Ga. 1971), aff'd, 463 F.2d 449 (5th Cir. 1972).

Liquor licenses may not be revoked during period of their effectiveness without some rudimentary due process protections. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).

Liquor license revocation procedures which provide for a hearing, preceded by advance notice setting forth the charge forming the basis for the revocation, are sufficient to comport adequately with due process mandates. Page v. Jackson, 398 F. Supp. 263 (N.D. Ga. 1975).

Notice by certified mail of driver's license revocation comports with due process.

- The provision for notice by certified mail in former Code 1933, § 68B-308 (see O.C.G.A. § 40-5-58) affords due process in the administrative function of giving notice that a driver's license is revoked as a habitual violator. Weaver v. State, 242 Ga. 8, 247 S.E.2d 749 (1978).

Summary suspension of driver's license prior to hearing.

- No prior hearing is necessary for suspension of driver's license, under due process requirements. Roberts v. Burson, 322 F. Supp. 380 (N.D. Ga. 1969).

Summary suspension of driver's license prior to hearing with no provision for automatic stay pending appeal is not violative of due process clauses of the United States Constitution and the Georgia Constitution. Williams v. Cofer, 246 Ga. 344, 271 S.E.2d 486 (1980).

Suspension of driver's license for refusal to take breath test.

- As to due process rights applicable to hearing on suspension of driver's license for refusal to submit to breath analysis test, see Hardison v. Fayssoux, 168 Ga. App. 398, 309 S.E.2d 397 (1983).

Notice of driver's license revocation.

- A notice of a driver's license revocation must include: 1) An indication of the time, place and nature of the hearing; 2) a statement of the legal authority and jurisdiction under which the hearing is to be held; 3) a reference to the particular section of the statutes and rules involved; and 4) a statement of the matters asserted and the right of any party to subpoena witnesses and documentary evidence. Smith v. Commissioner of Ga. Dep't of Pub. Safety, 673 F. Supp. 446 (M.D. Ga. 1987).

A driver's license revocation hearing must: 1) protect a licensee's interest in driving on public roads and in not being unfairly labeled as having certain mental or physical disabilities; and 2) give a licensee an opportunity to confront and cross-examine evidence and witnesses. A hearing violates due process where the evidence is in the form of hearsay statements. Smith v. Commissioner of Ga. Dep't of Pub. Safety, 673 F. Supp. 446 (M.D. Ga. 1987).

A driver's license may be revoked for medical reasons prior to a hearing if an appropriate official of the department of public safety finds that a genuine emergency exists so that the general public is in imminent danger of being harmed if the licensee continues to drive; however, the licensee would be entitled to an immediate postrevocation hearing. Smith v. Commissioner of Ga. Dep't of Pub. Safety, 673 F. Supp. 446 (M.D. Ga. 1987).

The right to appeal to the state court system under O.C.G.A. § 40-5-66 from a driver's license revocation does not rectify the procedural due process flaws inherent in the revocation hearing procedures because O.C.G.A. § 40-5-66 does not afford a prerevocation hearing. Smith v. Commissioner of Ga. Dep't of Pub. Safety, 673 F. Supp. 446 (M.D. Ga. 1987).

Administrative decision disqualifying a driver from driving a commercial motor vehicle for life based on the refusal to submit to state-administered chemical testing and a prior conviction for driving under the influence was upheld, as the arresting officer informed the driver that the driver could lose that driver's license to drive upon refusing to submit to chemical testing, and the requirements of due process did not require the arresting officer to inform the driver of all the consequences of refusing to submit to chemical testing. Moreover, the driver requested and received a hearing under O.C.G.A. § 40-5-67.1(g)(1). Chancellor v. Dozier, 283 Ga. 259, 658 S.E.2d 592 (2008).

Abandoned motor vehicle provisions violative of due process.

- Due process of law includes notice and hearing as a matter of right where one's property rights are involved; the Abandoned Motor Vehicles Act (see O.C.G.A. § 40-11-1 et seq.) requires notice prior to sale of abandoned motor vehicle, but makes no provision for a judicial hearing as a matter of right on issues in controversy either prior to or following the sale of the vehicle. Due process does not permit such procedure. Gore v. Davis, 243 Ga. 634, 256 S.E.2d 329 (1979) (decided prior to amendment by Ga. L. 1980, p. 995, § 5).

Abandoned Motor Vehicle Act violative of due process because no hearing as matter of right.

- Insofar as the Abandoned Motor Vehicles Act (see O.C.G.A. § 40-11-1 et seq.) requires notice prior to a sale, but makes no provision for a judicial hearing as a matter of right on issues in controversy either prior to or following the sale of the vehicle, due process is violated. One such "issue in controversy" is the matter of security interests. Mapp v. First Ga. Bank, 156 Ga. App. 380, 274 S.E.2d 765 (1980) (decided prior to amendment by Ga. L. 1981, p. 469).

Statutory provision for removal of elected county officer without provision for notice or hearing unconstitutional.

- A statute declaring that a county officer, elected for a fixed term, "shall be removable" from office "by the judge of the superior court of the county, on the address of two-thirds of the grand jury, for inefficiency, incapacity, general neglect of duty, or malfeasance or corruption in office," but which makes no provision for any notice to the officer, or for a hearing of the charge or charges against the officer, with opportunity to make a defense, is unconstitutional; and an order of removal based upon such a statute is a mere nullity. Walton v. Davis, 188 Ga. 56, 2 S.E.2d 603 (1939).

City-run utility's collection procedure denies due process where benefit terminated without notice to recipient of benefit.

- Where the effect of a city-run utility's collection procedure is to terminate the important benefit provided by the utility at cost to the customer without notice to the person who is the actual recipient of that benefit and who is the person who will suffer a serious loss with that benefit, the procedure is an unacceptable denial of due process to the customer. Davis v. Weir, 328 F. Supp. 317 (N.D. Ga. 1971).

Due process demands pretermination notice to actual user of public utility service. Davis v. Weir, 497 F.2d 139 (5th Cir. 1974).

Before public utility service cut off, consumer to be given opportunity to be heard.

- In Georgia it is entirely constitutional to provide for cutting off water for failure to pay at stated times the rates therefor, provided only that a consumer cannot be deprived of an opportunity to, in good faith, present any reason why the consumer ought not to be required to pay and have the consumer's claim adjudicated, providing the consumer insures the city or other party furnishing water against loss; this applies equally to charges for sewer services. Liner v. City of Rossville, 213 Ga. 756, 101 S.E.2d 753 (1958).

Due process protection for students.

- Students facing temporary suspension have interests qualifying for protection of due process clause; and due process requires, in connection with a suspension of ten days or less, that the student be given oral or written notice of the charges against and, if the student denies them, an explanation of the evidence the authorities have and an opportunity to present the student's side of the story. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).

Student cannot be suspended without hearing complying with due process, regardless of purported waiver in school board's regulations. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Extradition proceedings not violation of due process.

- Summary nature of extradition proceeding does not deny petitioner due process. Smith v. Bell, 246 Ga. 577, 272 S.E.2d 309 (1980).

Revocation of the bond of a person charged with stalking lies within the discretion of the trial judge; however, because a bond revocation involves the deprivation of one's liberty the decision must comport with at least minimal state and federal due process requirements. Hood v. Carsten, 267 Ga. 579, 481 S.E.2d 525 (1997).

Courts generally deny review when the serviceman claims due process rights were violated by arbitrary official action. NeSmith v. Fulton, 615 F.2d 196 (5th Cir. 1980).

Forfeiture provision of Controlled Substances Act satisfies due process requirements.

- Forfeiture provision of Art. 2 of Ch. 13 of T. 16, (Controlled Substances Act) provides for post-seizure notice and hearing and thereby satisfies requirements of due process. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

Existence of state judicial procedure to set aside judgments obtained by fraud (O.C.G.A. § 9-11-60(d)) sufficient to redress the plaintiff in a federal civil rights action for the deprivation that the plaintiff alleged occurred in the plaintiff's prior divorce proceeding through the alleged conspiracy of the divorce participants to take advantage of the judge's debilitated condition to procure rulings favoring the plaintiff 's spouse. There was no violation of procedural due process and because of this, the plaintiff could not state a claim for the denial of substantive due process. Collins v. Walden, 613 F. Supp. 1306 (N.D. Ga. 1985), aff'd, 784 F.2d 402 (11th Cir. 1986).

No guarantee perjured testimony not used in civil trial.

- The plaintiff in a federal civil rights action did not show that the plaintiff was denied procedural due process in the hearing on the plaintiff's motion to recuse the judge in the plaintiff's prior divorce proceeding. The plaintiff had notice and a meaningful opportunity to present the plaintiff's arguments to a neutral decision maker as to the alleged conspiracy of the participants in the divorce proceeding to submit false and misleading affidavits in the recusal hearing. Procedural due process does not guarantee that perjured evidence will not be used in a civil trial. Collins v. Walden, 613 F. Supp. 1306 (N.D. Ga. 1985), aff'd, 784 F.2d 402 (11th Cir. 1986).

Notice of issues to be decided on appeal.

- Where the trial court entered summary judgment on the basis of immunity against an inmate who brought a negligence action against correctional officials, but did not rule on the issue of the work detail supervisor's negligence, the appellate court's holding that the supervisor was negligent, without having provided notice to the supervisor that it might consider the merits of the supervisor's alleged negligence, was tantamount to granting summary judgment on the negligence issue without notice and constituted a denial of due process. Coweta County v. Simmons, 269 Ga. 694, 507 S.E.2d 440 (1998).

Grant of mistrial not constitutional deprivation.

- While a party suffered inconvenience and delay in resolving the party's claims, the trial court's grant of a mistrial did not deprive that party of the right to relitigate the matter, although the party chose to settle the matter instead. LaBarre v. Payne, 174 Ga. App. 32, 329 S.E.2d 533 (1985).

Landowners not entitled to hearing to contest their neighbors' license to build a private dock.

- General Assembly had determined that challenges to proposed construction of private docks were not within the Coastal Marshland Protection Act's framework for formal administrative challenges; this legislative determination provided landowners, who contested their neighbors' license to build a private dock, all the process the landowners were due. Hitch v. Vasarhelyi, 302 Ga. App. 381, 691 S.E.2d 286 (2010).

3. Statutory Notice of Proscribed Conduct

Statute must be definite and certain in its provisions to be valid, and when it is so vague and indefinite that persons of common intelligence must necessarily guess at its meaning and differ as to its application, it violates the first essential of due process of law. City of Atlanta v. Southern Ry., 213 Ga. 736, 101 S.E.2d 707 (1958); DeKalb Real Estate Bd., Inc. v. Chairman & Bd. of Comm'rs of Rds. & Revenues, 372 F. Supp. 748 (N.D. Ga. 1973).

The void-for-vagueness doctrine as interpreted by the United States Supreme Court requires that a penal state statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983).

Doctrine of vagueness is anchored in due process clauses of fifth and fourteenth amendments. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).

Constitution does not require impossible standards of statutory clarity, and does not require more than that the language convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. If a statute is so designed that persons of ordinary intelligence who would be law abiding can tell what conduct must be to conform to its requirements and it is susceptible of uniform interpretation and application by those charged with the responsibility of enforcing it, it is invulnerable to an attack for vagueness. Watts v. State, 224 Ga. 596, 163 S.E.2d 695 (1968).

Certain amount of vagueness must be tolerated in law-making due to inherent imprecision in language; all that due process requires is that the law give sufficient warning to enable a person to conform his or her conduct in accordance with the law and to guard against discriminatory enforcement. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).

Statutes not involving freedoms of U.S. Const., amend. 1 examined in light of facts of case.

- Vagueness challenges to statutes which do not involve freedoms of U.S. Const., amend. 1 must be examined in light of the facts of the case at hand. Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980); State v. Hudson, 247 Ga. 36, 273 S.E.2d 616 (1981).

Statute must convey sufficiently definite warning as to proscribed conduct when measured by common understanding and practices. Jones v. State, 219 Ga. 848, 136 S.E.2d 358, cert. denied, 379 U.S. 935, 85 S. Ct. 330, 13 L. Ed. 2d 345 (1964); Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975); Constantino v. State, 243 Ga. 595, 255 S.E.2d 710 (1979); Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980).

All the due process clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden. In re Suggs, 249 Ga. 365, 291 S.E.2d 233 (1982).

Language of criminal defamation statute requiring a communication which "tends to provoke a breach of the peace" is vague and overbroad under U.S. Const., amends. 1 and 14. Williamson v. State, 249 Ga. 851, 295 S.E.2d 305 (1982).

Absent some qualification on "bias or prejudice," O.C.G.A. § 17-10-17 is left so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application and, thus, O.C.G.A. § 17-10-17 is too vague to justify the imposition of enhanced criminal punishment for its violation; also, O.C.G.A. § 17-10-17 may not be upheld because it impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications and therefore, the sentence enhancement that defendants selected their victims because of racial bias and prejudice violated defendants' due process rights under U.S. Const., amends. 1, 5, 8, and 14 and the corresponding state constitutional provisions. Botts v. State, 278 Ga. 538, 604 S.E.2d 512 (2004).

Appellant juvenile was not entitled to dismissal of two counts of street gang activity based on the juvenile's assertion that O.C.G.A. § 16-15-3(1)(I) was unconstitutionally vague; the language in the statute provided notice to ordinary citizens that crimes committed in violation of the laws of the United States or foreign jurisdictions were considered criminal gang activity if the crimes fell within one of the categories of criminal gang activity enumerated in § 16-15-3(1)(A)-(H), (J). In re K.R.S., 284 Ga. 853, 672 S.E.2d 622 (2009).

Defendant's conviction for misdemeanor reckless conduct under O.C.G.A. § 16-5-60(b) was affirmed as the statute was not unconstitutionally vague under the Fourteenth Amendment since it gave a person of ordinary intelligence fair notice that it prohibited a person from leaving one's children, one an infant and the other a toddler, unsupervised on the upper floor of a two-story home that was not equipped with any device to keep the children from falling down a nearby flight of stairs. Baker v. State, 280 Ga. 822, 633 S.E.2d 541 (2006).

O.C.G.A. § 16-13-41(h) was not unconstitutionally vague as applied to a defendant, a physician, who was charged with violating O.C.G.A. § 16-13-42(a)(1) by improperly providing 33 signed prescription forms in blank to the defendant's nurse practitioner in violation of § 16-13-41(h) as that provision broadly included possession of a document by any person other than the one whose signature appeared thereon; thus, a physician's staff member could not be excluded. Raber v. State, 285 Ga. 251, 674 S.E.2d 884 (2009).

Purpose of striking down statutes which are "vague" is to prevent the arbitrary enforcement of laws that fail to give officials or the public any notice of what is prohibited. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

Laws should be clear to persons of ordinary intelligence.

- Law must give person of ordinary intelligence reasonable opportunity to know what is prohibited, so that the person may act accordingly. Vague laws may trap the innocent by not providing fair warning. Ridley v. State, 232 Ga. 646, 208 S.E.2d 466 (1974).

Criterion for judging statute is fair notice, not precise definition.

- Precise definition is not the proper criterion for adjudging whether a statute is so vague and indefinite as to be unenforceable. It is, rather, the practical criterion of fair notice to those to whom the statute is directed. Southern Ry. v. Brooks, 112 Ga. App. 324, 145 S.E.2d 76 (1965).

New statute punishing novel offense susceptible to challenge.

- New statute punishing novel offense that has no established bounds is particularly susceptible to void for vagueness challenge. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).

Ordinary civil statute withstanding vagueness challenge.

- Ordinary civil statute that can reasonably be interpreted and limited by judicial construction will withstand vagueness challenge. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir. 1981), 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).

Ordinary civil statute is void for vagueness only where it exacts obedience to a rule that is so vague and indefinite as really to be no rule or standard at all. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir. 1981), 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).

Where uncertainty in statute amounts to denial of due process.

- The uncertainty in a statute which will amount to a denial of due process of law is not the difficulty of ascertaining whether close cases fall within or without the prohibition of the statute, but whether the standard established by the statute is so uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved. Mixon v. State, 226 Ga. 869, 178 S.E.2d 189 (1970).

A statute, to violate due process, must be so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. In re Suggs, 249 Ga. 365, 291 S.E.2d 233 (1982).

Implying by court of missing mens rea element in statute.

- Court may imply missing mens rea element in statute to give statute constitutional viability. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).

Application not as strict with respect to civil statutes.

- The application of due process with respect to vagueness and uncertainty is not applied as strictly to civil statutes as to those penal in nature. The rule is that a statute may be too vague and uncertain to be capable of enforcement as a penal statute and yet may be sufficiently certain to set forth a rule of civil conduct. Willis v. Jackson, 148 Ga. App. 432, 251 S.E.2d 341 (1978).

Sufficient definiteness of criminal statute.

- A criminal statute that defines a crime with sufficient definiteness to enable one familiar with the acts made criminal to determine when the statute is being violated is not void as offending U.S. Const., amend. 14 or Ga. Const. 1983, Art. I, Sec. I, Para. I. Farrar v. State, 187 Ga. 401, 200 S.E. 803 (1939); Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975).

A criminal statute is sufficiently definite if its terms furnish a test based on normal criteria that persons of common intelligence who come in contact with the statute may use with reasonable safety in determining its command. Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973); Wilson v. State, 245 Ga. 49, 262 S.E.2d 810 (1980).

The conspiracy statute, O.C.G.A. § 16-4-8, is not unconstitutionally vague because its term "overt act" unambiguously refers to a specific type of open or manifest act made in furtherance of a conspiracy to commit a crime. Bradford v. State, 285 Ga. 1, 673 S.E.2d 201 (2009).

Appellant, a juvenile, was not entitled to the dismissal of two counts of street gang activity based on the juvenile's assertion that O.C.G.A. § 16-15-4(a) failed to inform ordinary citizens of what associations with a criminal street gang were prohibited under the statute; the statute required that a defendant's association with a group be active and include the commission of an enumerated offense under O.C.G.A. § 16-15-13(1), and that provided a sufficiently definite warning to persons of ordinary intelligence of the prohibited conduct. In re K.R.S., 284 Ga. 853, 672 S.E.2d 622 (2009).

Address registration requirement of O.C.G.A. § 42-1-12 is unconstitutional under the due process clause of the United States and Georgia constitutions on vagueness grounds as applied to homeless sex offenders who possess no street or route address for their residence. Santos v. State, 284 Ga. 514, 668 S.E.2d 676 (2008).

Fundamental requirement of criminal statute is to give "fair warning" of what conduct is criminal. King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980).

Criminal statute must make improbable misconstruing of statutory meaning by ordinary persons of equal intelligence.

- A criminal statute must not be so vague, uncertain or ambiguous as to make it improbable that ordinary people of equal intelligence could misconstrue its meaning. King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980).

Criminal statutes must give notice of prohibited offense.

- Conviction under criminal enactment not giving adequate notice that conduct charged is prohibited is violative of due process. Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L. Ed. 2d 349 (1963).

Criminal statute must be written in such definite terms to give notice of prohibited offense to those who would be prosecuted under it, or it is unconstitutional. United States ex rel. Huguley v. Martin, 325 F. Supp. 489 (N.D. Ga. 1971).

Willful violators of constitutional requirements which have been defined are in no position to say that they had no adequate advance notice that they would be visited with punishment. Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).

Extent of unconstitutional vagueness of generally worded statute.

- A generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute. Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L. Ed. 2d 349 (1963).

Statute does not run afoul of ex post facto clause unless it makes an action done before the passing of the law, and which was innocent when done, criminal and punishes such action, or aggravates a crime, or makes it greater than it was when committed. Federal Election Comm'n v. Lance, 617 F.2d 365 (5th Cir. 1980), appeal dismissed, 453 U.S. 917, 101 S. Ct. 3151, 69 L. Ed. 2d 999 (1981).

Statutory crime of reckless conduct sufficiently definite.

- Section16-5-60 is sufficiently definite to give a person of ordinary intelligence fair notice that such conduct is forbidden by the statute. Horowitz v. State, 243 Ga. 441, 254 S.E.2d 828 (1979).

Statutes providing for jury recommendation of mercy in capital cases not vague and uncertain.

- Statutes authorizing capital punishment and providing that juries in capital cases may recommend mercy, which has the effect of reducing punishment to life imprisonment in the discretion of the jury, are not vague and uncertain although they fix no standards for recommending mercy. Miller v. State, 224 Ga. 627, 163 S.E.2d 730 (1968).

Statute allowing death penalty where aggravating circumstance not unconstitutionally vague.

- The aggravating circumstance of former Code 1933, § 27-2534.1 (see O.C.G.A. § 17-10-30) that the offense of murder, rape, armed robbery, or kidnapping was outrageously and wantonly vile, horrible, and inhuman in that it involved torture and depravity of the mind, or an aggravated battery to the victim is not unconstitutionally vague; and therefore, the death penalty may be imposed if the factfinder finds it to have been present, especially since the Supreme Court of Georgia will only approve such a sentence for those cases that lie at its core. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977).

Statutory prohibition of harassing phone calls comports with due process.

- Former Code 1933, §§ 26-2610 (see O.C.G.A. § 16-11-39.1) and 104-9901 (see O.C.G.A. § 46-5-21), which prohibit telephone calls for the purpose of harassing, are clear and can be readily understood by people of ordinary intelligence seeking to avoid their violation, and therefore these sections are not unconstitutionally vague or broad and do not violate due process. Constantino v. State, 243 Ga. 595, 255 S.E.2d 710, cert. denied, 444 U.S. 940, 100 S. Ct. 293, 62 L. Ed. 2d 306 (1979).

Notice in statute making driving while intoxicated a crime adequate.

- Notice given in former Code 1933, § 68A-902 (see O.C.G.A. § 40-6-391) that driving under influence of alcohol is crime is adequate. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).

Statute making vote buying or selling felony not void for vagueness.

- Former Code 1933, § 34-1933 (see O.C.G.A. § 21-2-570), providing that any person who buys or sells or offers to buy or sell, or knowingly participates in the buying or selling of votes at any primary or election shall be guilty of a felony, is not void for vagueness or overbreadth. King v. State, 244 Ga. 536, 261 S.E.2d 333 (1979).

Statutory language of potential liability for employment security contributions and taxes meets standard of due process.

- The language of former Code 1933, § 54-650.2 (see O.C.G.A. § 34-8-150) is sufficient to place the particular officer or employee of an employer who has the responsibility for filing the returns and paying the taxes for his employer on notice of his potential liability, and thus meets the standard of due process. Brumby v. Brooks, 234 Ga. 376, 216 S.E.2d 288 (1975), later appeal, 140 Ga. App. 210, 230 S.E.2d 359 (1976).

Bribery statute (O.C.G.A. § 16-10-2) is not unconstitutionally vague. King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980).

Teacher's oath unconstitutional.

- Language of an oath to refrain from directly or indirectly subscribing to or teaching any theory of government or economics or social relations which is inconsistent with the fundamental principles of patriotism and high ideals of Americanism provides no ascertainable standard of conduct. It is vague and uncertain in that there is no definition of fundamental principles or patriotism or high ideas of Americanism and one would necessarily teach at one's peril in the areas of government, economics or social relations. This language is thus unconstitutional and void under the U.S. Const., amends. 1 and 14. It constitutes a denial of due process under U.S. Const., amend. 14 in light of the penal provision, and a prohibited inhibition on the U.S. Const., amend. 1, right to freedom of speech which is protected from state invasion by U.S. Const., amend. 14. Georgia Conference of Am. Ass'n of Univ. Professors v. Board of Regents, 246 F. Supp. 553 (N.D. Ga. 1965).

Standard for lawyer not unconstitutionally vague or overbroad.

- The standard providing that a lawyer shall not without just cause to the detriment of the lawyer's client willfully abandon or willfully disregard a legal matter entrusted to the lawyer, or so continuously neglect a legal matter as to be tantamount or equivalent to willfullness is not unconstitutionally vague or overbroad. In re Sliz, 246 Ga. 797, 273 S.E.2d 177 (1980).

Words "place of amusement" sufficiently definite for basis of criminal prosecution.

- The words "place of amusement" in former act forbidding establishment of certain businesses outside municipal limits without obtaining a license from municipal authorities were not so vague and indefinite that they could not be made the basis of a criminal prosecution. Ingram v. State, 193 Ga. 565, 19 S.E.2d 493 (1942).

Adult entertainment ordinance of sufficient notice.

- Adult entertainment ordinance restricting establishments offering nude dancing and alcohol, while excluding certain mainstream performance houses with less than 20% of gross annual income from the sale of alcohol, was not void for vagueness as it was sufficiently specific in its terms to permit defendants to conduct themselves so as to avoid that which was forbidden. S.J.T., Inc. v. Richmond County, 263 Ga. 267, 430 S.E.2d 726 (1993).

Term "employing unit" within employment security law certain enough for purposes of due process.

- Ga. L. 1937, pp. 806, 841 (see O.C.G.A. § 34-8-39) (employing unit) is not so vague and indefinite as not to be enforceable consistently with due process, in that it provides no basis for imposing the tax or contribution other than the unbridled discretion of the administrator. Jeffreys-McElrath Mfg. Co. v. Huiet, 196 Ga. 710, 27 S.E.2d 385 (1943).

Terms "nuisance" and "offensive."

- Term "nuisance" itself had a definite and determined meaning in the law, and was not indefinite, vague, or uncertain; furthermore, the term "offensive" did not render a nuisance standard unconstitutionally vague; thus, Glynn County, Ga., Ordinance § 2-16-237 was not unconstitutionally vague. Stanfield v. Glynn County, 280 Ga. 785, 631 S.E.2d 374 (2006).

Statute resulting in contractor possibly contributing twice upon each employee's wages constitutional.

- Ga. L. 1937, pp. 806, 841 (see O.C.G.A. § 34-8-39) is not lacking in due process, because its enforcement could result in compelling the contractor, upon whom the burden ultimately falls, to contribute twice upon the wages of each employee, if perchance he should devote a portion of a day to the performance of one contract, and the remainder to the performance of another. Jeffreys-McElrath Mfg. Co. v. Huiet, 196 Ga. 710, 27 S.E.2d 385 (1943).

Statute constitutional even though employing unit without control of amount of wages and without first-hand knowledge.

- The fact that the employing unit has no control over the amount of the wages and may have no first-hand knowledge of the amount does not render the statute invalid as violating the principle of due process, as to such party. Jeffreys-McElrath Mfg. Co. v. Huiet, 196 Ga. 710, 27 S.E.2d 385 (1943).

Ordinance revoking liquor license for any state law violation overbroad.

- City ordinance that liquor license can be revoked for violation of any state law is patently overbroad and is unconstitutional. Atlanta Attractions, Inc. v. Massell, 330 F. Supp. 865 (N.D. Ga. 1971), aff'd, 463 F.2d 449 (5th Cir. 1972).

Ordinance forbidding disorderly conduct too vague and indefinite.

- An ordinance forbidding "anyone to engage in or do anything that is disorderly, either by words or unbecomingly conduct at any place on any street, alley, park, or any place where such disorderly conduct may be seen or heard by any person in any said city," is too vague and indefinite to be the basis for the infliction of corporal punishment, such as service on a city chain gang, or the imposition of a fine as an alternative. Griffin v. Smith, 184 Ga. 871, 193 S.E. 777 (1937).

Municipal ordinance regarding licensing plumbers discriminatory and too vague where discretionary with mayor and council.

- Municipal ordinance providing for the licensing of plumbers, which left the grant or refusal of a license entirely a matter of discretion with the mayor and general council of the city, was too general, vague, and indefinite to be enforced, and clearly discriminatory, because it was not based upon any qualification of the alleged plumber, but was dependent entirely upon the willingness or unwillingness of the mayor and general council to enforce, or not to enforce, other portions of the ordinance which required an examination as a prerequisite to the grant of a license. DeWell v. Quarles, 180 Ga. 864, 181 S.E. 159 (1935).

Ordinances adopted pursuant to purported charter amendment void for vagueness also unenforceable.

- Ga. L. 1951, p. 3074, which purported to amend city's charter, was too vague, indefinite and uncertain in meaning to be enforced by the courts and was therefore void; and being so, the paving and curbing ordinances which the city adopted pursuant thereto were unsupported by charter authority and were therefore unenforceable. City of Atlanta v. Southern Ry., 213 Ga. 736, 101 S.E.2d 707 (1958).

Trial court did not err in granting a city summary judgment in a lessee's declaratory judgment action seeking an order declaring that City of Forest Park, Ga., Ordinance § 9-8-45 was unconstitutional because the ordinance was sufficiently definite so that a person of ordinary intelligence need not guess at its meaning; although the lessee contended that the phrase "without limitation of the generality of the foregoing" opened the definition of "public sidewalk" to include any space that the city later wished to assert fell under the ordinance, the specification of parking spaces and other areas intended for public travel did not permit the interpretation the lessee contended. Braley v. City of Forest Park, 286 Ga. 760, 692 S.E.2d 595 (2010).

Legislation may require judiciary to provide definitions.

- One of the traditional functions of courts is to interpret and construe legislative enactments. There is no due process prohibition on the enactment of legislation which requires definitions to be provided by the judiciary. Bell v. Barrett, 241 Ga. 103, 243 S.E.2d 40 (1978).

O.C.G.A. § 15-11-2(8), which provides a definition of "deprived child" for juvenile proceedings, provides adequate standards by which a person of common intelligence can regulate one's conduct and responsibilities in order to conform to it. In re Suggs, 249 Ga. 365, 291 S.E.2d 233 (1982).

Statute proscribing inducement to parents to part with children.

- The terms of O.C.G.A. § 19-8-24 making it unlawful to directly or indirectly hold out an inducement to parents to part with children were sufficiently clear to apprise the defendant that offering an automobile to a parent in exchange for physical custody or control of the child was proscribed. Douglas v. State, 263 Ga. 748, 438 S.E.2d 361 (1994).

Prohibited child care not adequately described.

- Because the reckless conduct statute failed to provide the defendant with fair notice that the defendant could be held criminally responsible for leaving children in the care of an older child, the statute failed to clearly define its prohibitions, rendering it unconstitutionally vague as applied. Hall v. State, 268 Ga. 89, 485 S.E.2d 755 (1997).

Public drunkenness statute constitutional.

- The public drunkenness statute, as presently drafted and construed by the courts of this state, contains clear standards for determining whether the conduct of an accused is violative of its terms. It describes with sufficient particularity the acts prohibited, and neither on its face nor in its application does it furnish police a tool for arbitrary encroachment upon constitutionally protected conduct. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983).

O.C.G.A. § 27-3-9, prohibiting the baiting of hunting land and prohibiting hunting "around or near" baited land, gives sufficient notice of the acts it prohibits so as to comply with the requirements of due process. Price v. State, 253 Ga. 250, 319 S.E.2d 849 (1984).

O.C.G.A. § 16-13-30(j)(1), prohibiting possession of marijuana with intent to distribute, is not vague and uncertain, and does not violate due process. Walker v. State, 261 Ga. 739, 410 S.E.2d 422 (1991).

Georgia's Terroristic Threats statute, O.C.G.A. § 16-11-37(a), did not violate the due process clause and was not unconstitutionally vague as a person of ordinary intelligence could clearly understand the meaning of threatening to commit any crime of violence; and both Georgia and federal law plainly defined recklessness as the proper criminal mens rea requirement. Major v. State, 301 Ga. 147, 800 S.E.2d 348 (2017).

Statute inadequately defining "exotic fish."

- In deciding to prosecute a hatchery owner for violating the Fish and Game Code, based on a definition of "exotic fish" different than its generally accepted definition and not then codified or set forth in any regulation, Department of Natural Resource officials violated due process, acted outside their discretionary authority, and were not entitled to qualified immunity. Blue Ridge Mt. Fisheries, Inc. v. Department of Natural Resources, 217 Ga. App. 89, 456 S.E.2d 651 (1995).

4. Business

Granting, denial, or revocation of business licenses.

- Granting, denial, or revocation of business licenses involves rights subject to protection of due process clause. Housworth v. Glisson, 485 F. Supp. 29 (N.D. Ga. 1978).

Imposition of fines and penalties on members of an association of taxicab owners in the form of suspension or revocation of their certificates of public necessity and convenience for infractions of taxicab regulations by their drivers did not violate substantive due process because the civil sanctions were a valid exercise of the police power; the city was authorized to find that in the legitimate interest of promoting and protecting the public safety, subjecting the members to civil sanctions for infractions committed by their drivers was a reasonably necessary and less onerous alternative than the imposition of vicarious criminal liability. Atlanta Taxicab Co. Owners Ass'n v. City of Atlanta, 281 Ga. 342, 638 S.E.2d 307 (2006).

Governing body issuing licenses required to establish ascertainable standards for license application.

- Constitutional standards of due process do require that a governing body issuing licenses establish ascertainable standards by which an applicant can intelligently seek to qualify. Levendis v. Cobb County, 242 Ga. 592, 250 S.E.2d 460 (1978).

Legislative power to regulate professions.

- Portion of act regulating the practice of dentistry which defines the making or repairing of appliances usable on teeth or as teeth, unless ordered by a licensed dentist, as part of the practice of dentistry, did not violate this provision. Holcomb v. Johnston, 213 Ga. 249, 98 S.E.2d 561 (1957).

Contract bids.

- Bidding insurer's summary judgment motion was properly granted as to its substantive due process claim against a county as the county's decision to throw out the entire bidding process was rational in light of the taint caused by a consultant's lack of an insurance counselor's license under O.C.G.A. §§ 33-23-1.1 and33-23-4. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).

Right to practice law is privilege or franchise.

- A lawyer does not have a vested interest in the lawyer's status as a member of the State Bar of Georgia. The right to practice law is not a natural or constitutional right, nor an absolute right or a right de jure, but is a privilege or franchise. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970).

It has never been the law of this state that a lawyer holds an irrevocable license to practice law. The State Bar Act does not deprive an attorney of the lawyer's freedom of contract, conscience, speech, and liberty, or deprive the lawyer of the lawyer's property without due process of law. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970).

State has legitimate and substantial interest in excluding from practice of law those not meeting standards of minimal competence and the Georgia examination, as presently constituted, tests skills and knowledge which have a logical, apparent relationship to those necessary to the practice of law. Davidson v. Georgia, 622 F.2d 895 (5th Cir. 1980).

Qualifications for admission to bar must have rational connection with applicant's fitness to practice law.

- A state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Webster v. Wofford, 321 F. Supp. 1259 (N.D. Ga. 1970).

Residency requirement prior to lawyer's taking bar examination valid to extent necessary to protect state interests.

- A reasonable period of residency prior to taking the bar examination for the purpose of permitting personal interviews and investigation with respect to an applicant's background, moral character and qualifications, since the state clearly has a legitimate interest in this area, may be imposed, but only to the extent necessary to protect legitimate state interests. Webster v. Wofford, 321 F. Supp. 1259 (N.D. Ga. 1970).

Twelve-month residency requirement unconstitutional.

- Ga. L. 1963, p. 458, § 1, which requires an applicant for admission to the practice of law to be a bona fide resident of the State of Georgia for 12 consecutive months immediately preceding the date of such admission, is unconstitutional as violating the due process and equal protection clauses of U.S. Const., amend. 14. Webster v. Wofford, 321 F. Supp. 1259 (N.D. Ga. 1970).

City government has wide discretion and broad powers in control of liquor traffic, which are subject only to minimal demands of due process and equal protection. Barnes v. Merritt, 428 F.2d 284 (5th Cir. 1970).

Arbitrary denial of liquor license violates due process and equal protection.

- Where county government delegated authority to citizens residing within 300 feet of store to deny liquor license to store owner, the denial of a license on such arbitrary grounds constitutes a violation of equal protection and due process of law. Bozik v. Cobb County, 240 Ga. 537, 242 S.E.2d 48 (1978).

Arbitrary or unreasonable licensing procedures in liquor sale regulation unconstitutional.

- United States Const., amend. 21 confers upon the states broad regulatory power over the liquor traffic within their territories; however, even in the regulation of the sales of liquor, arbitrary or unreasonable licensing procedures are in violation of the due process and equal protection clauses of U.S. Const., amend. 14. Parks v. Allen, 409 F.2d 210 (5th Cir. 1969), later appeal, 426 F.2d 610 (5th Cir. 1970).

Regulation of alcoholic beverages where nudity may exist.

- The wording of the ballot on the constitutional amendment, Ga. Const. 1983, Art. III, Sec. VI, Para. VII, giving the state authority to regulate alcoholic beverages and to delegate authority to counties and municipalities to regulate the exhibition of nudity in connection with the sale or consumption of alcoholic beverages, did not violate due process. Goldrush II v. City of Marietta, 267 Ga. 683, 482 S.E.2d 347 (1997), cert. denied, 522 U.S. 818, 118 S. Ct. 70, 139 L. Ed. 2d 31 (1997).

Standards for location of liquor stores to be grounded on ordinance.

- A city may not establish standards exclusively limiting the location of liquor stores to certain areas by mere custom or practice or by official declarations not grounded upon an ordinance duly adopted and accordingly binding upon the city government as well as upon the general public. Barnes v. Merritt, 428 F.2d 284 (5th Cir. 1970).

County ordinance using voting districts and property lines to determine the number and location of licensed stores was reasonably related to the county's goal of regulating the retail sale of beer and wine and did not violate due process. Bradshaw v. Dayton, 270 Ga. 884, 514 S.E.2d 831 (1999).

Legislature empowered to regulate personal contracts in insurance industry.

- The business of insurance is so far affected with a public interest as to justify legislative regulation. It is within the power of the legislature to regulate the personal contracts involved in such business. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1, 187 S.E. 648 (1936), rev'd on other grounds, 301 U.S. 459, 57 S. Ct. 838, 81 L. Ed. 1223 (1937).

Empowering county authorities to control and regulate establishment of businesses not violative of due process.

- Ga. L. 1937, p. 624 providing that no person should establish a public dance hall, boxing or wrestling arena, or amusement place, tourist camps, and barbecue stands, for money or profit, outside the limits of incorporated towns or cities of a certain minimum population without first obtaining the permission of the commissioners or other authority in charge of such counties, and conferring authority on them to grant or refuse such permission for such time or under such regulations as they might deem proper for the public good, to levy a license or occupational tax on the same and to provide punishment for a violation of the act was not violative of the due process and equal protection clauses of the state and federal Constitutions. Ingram v. State, 193 Ga. 565, 19 S.E.2d 493 (1942).

Restricting hospital staff's privileges.

- Hospital Authority may restrict staff member's privileges by reasonable and nondiscriminatory rules and regulations. Yeargin v. Hamilton Mem. Hosp., 229 Ga. 870, 195 S.E.2d 8 (1972).

Power to make decisions affecting physician's hospital privileges may be vested in peers in absence of showing of prejudice, and the existence of personal differences does not preclude an individual's participation. Robbins v. Ong, 452 F. Supp. 110 (S.D. Ga. 1978).

Ordinance prohibiting pinball machine business not violative of due process.

- Ordinance prohibiting the owning, maintaining or operating of pinball machines and the like, authorized under the general welfare clause of the charter of the municipality enacted in pursuance of the police power of the state, is not violative of the due process of law clauses of the federal and state constitutions, for any reason assigned, or void on the ground of unreasonableness, merely because the effect of the ordinance is to destroy and confiscate the business and property of the petitioner, (distributing and leasing novelty machines used for pleasure and skill only) whereas other articles of pleasure and skill are not included in the ordinance. Woodward v. City of Lithonia, 191 Ga. 234, 11 S.E.2d 476 (1940).

Act prohibiting operation of public dance halls without license and permission to operate is not unconstitutional as denying "due process of law" or "equal protection of laws." Poss v. Norris, 197 Ga. 513, 29 S.E.2d 705 (1944).

Prohibition on scalping tickets comports with due process.

- By prohibiting the practice of "scalping" tickets, former Code 1933, § 96-602 (see former O.C.G.A. § 10-1-310) was reasonably related to a proper legislative objective and consequently did not violate the due process clause of either the state or federal Constitution. Former Code 1933, § 96-602 (see former O.C.G.A. § 10-1-310) put all sports fans on an equal footing in the race to the ticket window. State v. Major, 243 Ga. 255, 253 S.E.2d 724 (1979).

Arbitrary declaration that home solicitors constitute nuisance and are subject to punishment violates due process.

- To arbitrarily declare, without qualification, that every solicitor who goes to a private home to try to conduct an otherwise perfectly legal business is a nuisance and subject to fine or imprisonment is an unreasonable interference with a solicitor's normal legal rights, and is without due process of law. De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

Ordinance can vary utility service rates according to territory.

- An ordinance, which provides that rates for water service shall be higher in territory outside the corporate limits, is not unconstitutional and void as denying "due process" and "equal protection" under the federal and state Constitutions. Barr v. City Council, 206 Ga. 753, 58 S.E.2d 823 (1950).

Court interference with valid order of Public Service Commission.

- Courts should not interfere with valid order of Public Service Commission unless clearly shown to be unreasonable, arbitrary, or confiscatory. If the evidence clearly showed that the requirement of the commission was unreasonable, capricious, or confiscatory, the court would be bound to set such finding aside as unlawful in the taking of property without due process of law. Otherwise the court has no such authority. Statesboro Tel. Co. v. Georgia Pub. Serv. Comm'n, 235 Ga. 179, 219 S.E.2d 127 (1975).

Protection from county's use of power to withhold services to coerce payment from those not liable.

- The due process and equal protection clauses of U.S. Const., amend. 14 protect both tenants and property owners from a county's use of its power to withhold water and sewer services to coerce applicants for such services to pay water bills for which they are not liable. Union Circulation Co. v. Russell, 463 F. Supp. 884 (N.D. Ga. 1978).

County can refuse services to owner of property subject to liens.

- If there are valid liens on a property for unpaid water bills, then it is not unconstitutional for a county to refuse services to the owner of any property subject to such liens. Union Circulation Co. v. Russell, 463 F. Supp. 884 (N.D. Ga. 1978).

Failure of Act granting power to license to provide for review does not make it unconstitutional.

- Even though an Act granting power to license occupations may not make provision for an appeal, this will not prevent a citizen who has been wronged by an arbitrary or capricious exercise of the power from seeking aid from the courts to protect him from oppression, and the failure of the Act to provide for a review does not make it unconstitutional. Jenkins v. Manry, 216 Ga. 538, 118 S.E.2d 91 (1961).

State may impose license fee upon occupation without abridging constitutional rights and privileges of others carrying on business in the state, or depriving them of the equal protection of the laws, or taking their property without due process of law. Camp v. State, 171 Ga. 25, 154 S.E. 436 (1930).

Liability for city license fees where business income almost entirely from intrastate business.

- Where radio station's income is derived almost entirely from intrastate business, the claim that some of its messages may go beyond state lines would not relieve it from liability from city license fees under the interstate commerce clause. City of Atlanta v. Oglethorpe Univ., 178 Ga. 379, 173 S.E. 110 (1934).

Ordinance requiring laundry license applicant to give bond not unreasonable.

- An ordinance which requires the applicant for a laundry license to give a bond where articles are taken from a city for the purpose of laundering is not arbitrary and unreasonable, and is not in conflict with the due process clause of the state Constitution or U.S. Const., amend. 14. City of Newnan v. Atlanta Laundries, Inc., 174 Ga. 99, 162 S.E. 497, appeal dismissed, 286 U.S. 526, 52 S. Ct. 495, 76 L. Ed. 1269 (1932).

Due process clause not used to strike down regulatory state laws because unwise or not of particular view.

- The day is gone when this court uses the due process clause of U.S. Const., amend. 14 to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. Wall v. American Optometric Ass'n, 379 F. Supp. 175 (N.D. Ga.), aff'd, 419 U.S. 888, 95 S. Ct. 166, 42 L. Ed. 2d 134 (1974).

Ex parte revocation of license to equip and operate an abattoir was void, and the owner did not need to pay any attention to it unless the owner's continued operation of the business would subject the owner to penal action, in which case the owner would have remedy by injunction to keep the defendant from interfering with the owner's proper use of the property. Davis v. Johnson, 92 Ga. App. 858, 90 S.E.2d 426 (1955).

Hearing and determination required before revocation of business license for exhibiting obscene film.

- Just as there can be no massive seizure of allegedly obscene materials for destruction without a prior adversary type hearing and determination of obscenity, there can be no valid revocation of a business license for having exhibited an obscene film without such prior hearing and determination. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

Operation of service at reduced price and for educational institution not taking without due process.

- Operation of the laundry and dry-cleaning service at reduced prices in an educational institution for the benefit of students and persons connected with the school, by the Board of Regents of the University System, did not constitute the taking, by the defendants for the state, of private property of the petitioners without due process of law, in violation of Ga. Const. 1983, Art. I, Sec. I, Para. I, and U.S. Const., amend. 5. Villyard v. Regents of Univ. Sys., 204 Ga. 517, 50 S.E.2d 313 (1948).

Laws impairing vested rights violate due process but first in field gets no monopoly protection.

- The due process clauses of the state and federal Constitutions prohibit the enactment of a law which would impair vested rights, but do not inure to a person, first in the field, a monopoly in any line of business. Villyard v. Regents of Univ. Sys., 204 Ga. 517, 50 S.E.2d 313 (1948).

Remedy of mandamus against city officials to require enforcement of ordinance.

- If the officials of a city are refusing to enforce the provisions of a valid ordinance by selectively permitting some businesses to pay a lesser business license than required by such an ordinance, the proper procedure for the plaintiffs to follow would be to seek mandamus against such officials to require collection in accordance with the terms of such ordinance and not an injunction to prevent the collection of any taxes from them on the theory that equal protection and due process were denied. Atlanta Motor Sales, Inc. v. City of Brunswick, 231 Ga. 374, 202 S.E.2d 68 (1973).

Consent order that imposed fines for challenge.

- Where defendant signed a consent order whereby it agreed to remedy the presence of benzene in the ground near defendant's underground storage tanks and eliminate the contamination, where during this time span, defendant was represented by counsel and employed its own environmental engineer to investigate the source of the contamination, and other factors as well showed defendant's consent to the order, defendant's due process rights were not violated despite defendant's argument that it lacked the ability to challenge the validity of the consent order without the threat of enormous monetary fines. United States v. Ownbey Enters., Inc., 789 F. Supp. 1145 (N.D. Ga. 1992).

Search of commercial premises.

- Night club and owner's U.S. Const., amends. IV, XIV and Ga. Const. 1983, Art. I, Sec. I, Para. XIII claims against two police officers survived summary judgment where the club and the owners alleged that the officers entered the club without a warrant, probable cause, or exigent circumstances, ordered the lights turned on and the music stopped, frisked the club's patrons and handcuffed some of them without making any arrests, and acted in an intimidating manner. Illusions of the South, Inc. v. City of Valdosta, F. Supp. 2d (M.D. Ga. Mar. 30, 2009).

5. Taking Property for Public Use

Sovereign's taking citizen's property must be for public purpose with just and adequate compensation.

- The right of the sovereign in the property of the citizen is hedged by two fundamental safeguards - the taking must be for a public purpose, and it must be attended by just and adequate compensation. This includes every species of property in which the individual has a right of ownership, whether real or personal, corporeal or incorporeal. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).

Owner not entitled to hearing on necessity or expediency of taking.

- The necessity or expediency of taking property for public use is a legislative question upon which the owner is not entitled to a hearing under the due process clause of U.S. Const., amend. 14 and the same clause of the Constitution of this state. Miles v. Brown, 223 Ga. 557, 156 S.E.2d 898 (1967).

No authority to take private property without notice to owner of hearing before condemnation.

- Neither the General Assembly of this state, nor any municipality thereof, has authority to suspend the "due process" clauses of the federal and state Constitutions and to provide for the destruction of private property without notice to the owner of the time and place of hearing, prior to any judgment of condemnation. City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744 (1949).

Only government action inhibited.

- The Fourteenth Amendment proscription against deprivations of property without due process of law reaches only government action and does not inhibit the conduct of purely private persons in their ordinary activities. Jeffries v. Georgia Residential Fin. Auth., 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

Taking without due process where state or municipality takes without compensation unless under police or sovereign power.

- For the state or a municipal corporation to take private property without compensation, except where it does so under a valid exercise of the police or other sovereign power, constitutes a deprivation of property without due process of law within the meaning of U.S. Const., amend. 14. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Claims concerning reasonable certainty of continuing nuisance amounting to unlawful taking of property to be heard.

- Where it is alleged, inter alia, that the construction, maintenance and operation of an airport in a residential area and the flights of airplanes in connection therewith will constitute a continuing nuisance, will cause the residents irreparable and constantly recurring damages, and will amount to an unlawful taking of their properties without due process of law in violation of the state and federal Constitutions, a motion by the defendants to dismiss the complaint on the basis that it fails to state a claim and that it is anticipatory of future conditions is properly overruled by the trial court. Camp v. Warrington, 227 Ga. 674, 182 S.E.2d 419 (1971).

City commissioners authorized to abolish city roadways provided city liable for damages.

- Neither charter amendment providing that city commissioners should have authority in their discretion to close up and abolish any city street, road or alley, or part thereof provided that city should be liable for damages to any property right of any person occasioned by the exercise of such powers, nor ordinance adopted pursuant thereto, was violative of the due process clauses of the state and federal Constitutions. Jones v. City of Decatur, 189 Ga. 732, 7 S.E.2d 730 (1940).

County decision to acquire land with no effect on abutting landowners' rights.

- A mere decision by the governing body of a county to acquire land for an authorized public purpose, without more, in no way affects the constitutionally protected property rights of abutting landowners, and does not trigger due process considerations of personal notice because there was no deprivation of property in any cognizable sense. Lindsey v. Guhl, 237 Ga. 567, 229 S.E.2d 354 (1976).

When other land uses cannot be considered in condemnation case.

- It is error in a condemnation case to charge that the jury might, in estimating the value of the land taken, consider other uses to which the land might be devoted when there is no evidence authorizing the jury to find that it was suitable for any use other than that to which it was devoted at the time of the taking or from which a reasonable inference of suitability for other uses might be drawn. State Hwy. Dep't v. Howard, 110 Ga. App. 373, 138 S.E.2d 597 (1964).

Contention that due process violated does not make constitutional construction case.

- The contention in a damage case that the alleged taking of private property for public purposes is in violation of the due process clause of the state and federal Constitutions does not make it one that involves the construction of the state and federal Constitutions. City of Atlanta v. Donald, 220 Ga. 98, 137 S.E.2d 294 (1964).

Slum clearance project not taking of private property in violation of due process.

- The slum clearance project inaugurated by virtue of the housing authorities law (see O.C.G.A. Art. 1, Ch. 3, T. 8) and the housing cooperative law (see O.C.G.A. Art. 2, Ch. 3, T. 8), does not involve the taking of private property in violation of the due process clause of the state Constitution, or of U.S. Const., amend. 14. Williamson v. Housing Auth., 186 Ga. 673, 199 S.E. 43 (1938).

Propriety of inverse condemnation suit to challenge taking.

- See Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038 (11th Cir. 1982); Fountain v. Metropolitan Atlanta Rapid Transit Auth., 849 F.2d 1412 (11th Cir. 1988).

Finality of action required for pursuing takings claim.

- Landowner's just compensation claims based upon adverse zoning and land use decisions made by county officials were not ripe for review where landowners failed to show that a decision to implement challenged conduct was final, i.e., unless the official in charge of implementation had fully applied a regulation, the court could not ascertain whether its application exceeded constitutional limitations. James Emory, Inc. v. Twiggs County, 883 F. Supp. 1546 (M.D. Ga. 1995).

Finality of action required for arbitrary and capricious claims.

- Landowner's due process claims contesting county officials' actions in zoning and land use matters as arbitrary and capricious exercises of the police power were not ripe for review where landowners failed to show that particular decisions being challenged had been finally applied to the property at issue. James Emory, Inc. v. Twiggs County, 883 F. Supp. 1546 (M.D. Ga. 1995).

Evidence that property was of sentimental significance to condemnees clearly would have supported a charge on uniqueness. DOT v. Metts, 208 Ga. App. 401, 430 S.E.2d 622 (1993).

Punitive damages law.

- Paragraph (e)(2) of O.C.G.A. § 51-12-5.1, requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury does not constitute a "taking" under the fifth and Fourteenth Amendments to the United States Constitution. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993); State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994).

6. Taxation

Due process requires definite link between state and person, property or transaction it seeks to tax. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316, 116 S.E.2d 293 (1960); Independent Publishing Co. v. Hawes, 119 Ga. App. 858, 168 S.E.2d 904 (1969).

State taxing power can be exerted only to effect public purpose and does not embrace the raising of revenue for private purposes under U.S. Const., amend. 14. Smith v. State, 222 Ga. 552, 150 S.E.2d 868 (1966).

Sole constitutional test is whether state has given anything for which it can ask return.

- A state is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of a tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society. The sole constitutional test is whether the state has given anything for which it can ask return. Independent Publishing Co. v. Hawes, 119 Ga. App. 858, 168 S.E.2d 904 (1969).

Corporate income subject to state tax unless derived from property owned or business done outside of state.

- Before any part of income received by corporations having property or doing business in the state can lawfully escape the Georgia tax law, it must appear that such income was derived from property owned or business done outside of the state. Income derived by the corporation from unsolicited orders received by it from outside the state cannot, under U.S. Const., amend. 14 and the commerce clause of the United States Constitution, be taxed elsewhere than in the state. State v. Coca-Cola Bottling Co., 214 Ga. 316, 104 S.E.2d 574 (1958).

For state to tax property over which it has no territorial jurisdiction is violation of due process clauses of the federal and state Constitutions. It would be a taking of property without due process of law. Davis v. Penn Mut. Life Ins. Co., 198 Ga. 550, 32 S.E.2d 180, 160 A.L.R. 778 (1944), later appeal, 201 Ga. 821, 41 S.E.2d 406, cert. denied, 331 U.S. 829, 67 S. Ct. 1353, 91 L. Ed. 1844 (1947); Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495, 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84, 38 S.E.2d 786 (1946).

Taxes imposed comport with due process where levied only on portion of net income arising from in-state activities.

- The taxes imposed by Georgia's income tax statute are levied only on that portion of the taxpayer's net income which arises from its activities within the taxing state. These activities form a sufficient nexus between such a tax and transactions with a state for which the tax is an exaction so that the due process clause is not violated. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316, 116 S.E.2d 293 (1960).

Taxation of corporate income.

- Where a domesticated corporation maintains its only office and place of business in the state, owns and manufactures all its goods therein, and receives all the proceeds from its sales made within and without the state, all from its state-owned plants and products manufactured in the state, and all from its state-owned property and state-managed business and office, from which it merely sends out samples and operates a subordinate sale office with office equipment and salesmen out of the state under the control of its state office and an executive living within the state, its entire net income from these sales would be subject to the tax imposed on net income from property owned in the state as well as from business done in the state, whether it is deemed a resident corporation, or a nonresident corporation, since neither the imposition by the statute nor the collection of such a tax would contravene U.S. Const., amend. 14. Montag Bros. v. State Revenue Comm'n, 50 Ga. App. 660, 179 S.E. 563 (1935), aff'd, 182 Ga. 568, 186 S.E. 558 (1936).

Graduated business tax based on reasonable classification comports with due process.

- Provisions of a city ordinance imposing a graduated tax on those persons using vehicles on the streets for business purposes, in addition to the business tax required of them, and also levying a graduated tax for doing business on the streets upon carriers for hire, was not violative of Ga. Const. 1983, Art. I, Sec. I, Para. I, or this section. The city ordinance did not make unreasonable and arbitrary classifications. Solomons v. Mayor of Savannah, 183 Ga. 631, 189 S.E. 230 (1936).

Legislature can grant municipality power to make improvements and assess cost against abutting land.

- An act of the Legislature granting charter power to a municipality to make public improvements such as sidewalks and street paving, and to collect the cost by special assessment and execution against the abutting land does not deprive the owner of due process of law when the act also permits the owner of such land to file an affidavit of illegality and thereby contest the reasonableness or the lawfulness of the assessment before payment is finally required. Lockridge-Rogers Lumber Co. v. City of E. Point, 214 Ga. 255, 104 S.E.2d 228 (1958).

Section of city charter which empowers it to assess the actual cost of laying or constructing a sewer line along one of its streets against the abutting property on each side of the street and which also permits the owner of such land to file an affidavit of illegality contesting the assessment, does not offend the due process clauses of the state and federal Constitutions, even though it permits the city to assess the cost without prior notice to the owner of such land and without first affording such owner an opportunity to be heard respecting the reasonableness or lawfulness of the assessment. Lockridge-Rogers Lumber Co. v. City of E. Point, 214 Ga. 255, 104 S.E.2d 228 (1958).

City's legislative authority to pave street and to assess company using street within taxing and police power.

- The city of Decatur, under the Constitution and general law of Georgia, and under its charter and the amendments thereof, had legislative authority within the taxing and the police power reserved in the state to pave its streets and to assess a portion of the costs of such improvement against the street railway company occupying and using, with the consent of the city, the paved street regardless of benefit to the company. Georgia Power Co. v. City of Decatur, 181 Ga. 187, 182 S.E. 32 (1935), aff'd sub nom. Georgia Ry. & Elec. Co. v. City of Decatur, 297 U.S. 620, 56 S. Ct. 606, 80 L. Ed. 925 (1936).

Due process argument untimely when no legal action instituted to prevent paving.

- Where a city, in conformity to legislative authority and its ordinances, paved and incurred the expense of paving a street occupied by a street railway company, and where the company, with knowledge that the city intended, in conformity to its charter and ordinances, to charge the company with a part of the expense of such paving, stood by and saw the paving done and the expense incurred, without instituting any legal action to prevent the same, it was thereafter too late for the company to avoid payment on the ground that enforcement of the assessment would deprive the company of its property, in violation of the due process clauses of the state and federal Constitutions. Georgia Power Co. v. City of Decatur, 181 Ga. 187, 182 S.E. 32 (1935), aff'd sub nom. Georgia Ry. & Elec. Co. v. City of Decatur, 297 U.S. 620, 56 S. Ct. 606, 80 L. Ed. 925 (1936).

Property assessment out of all proportion to benefit to property owner violative of due process.

- Where railroad company's property which was not appreciably benefited by street paving was assessed equally with property on the other side of each paved street which received practically all of the benefits resulting from the paving, the assessment was out of all proportion to the benefit received by the railroad as an abutting property owner and violated the due process clause of this section and was not saved by adherence to the generally accepted front foot rule for assessing the cost of improvements. City of Commerce v. Southern Ry., 35 F.2d 331 (5th Cir. 1929).

Municipal charter provision for property tax valuation violative of due process.

- Where municipal charter provision failed to provide for notice to the taxpayer and afford as matter of right a hearing before tax assessors on the question as to valuation of the property, and where the hearing provided for by the ordinance was mere matter of grace, the charter provision is repugnant to the due process clauses of the state and federal Constitutions. Swinson v. City of Dublin, 178 Ga. 323, 173 S.E. 93 (1934).

Due process not violated because property owners subjected to taxation by act extending municipal boundaries.

- An act extending municipal boundaries does not violate the constitutional guarantee of due process of the law because it subjects property owners in the area annexed to taxation by the municipality and does not deny such property owners equal protection of the law within the meaning of U.S. Const., amend. 14. Lee v. City of Jesup, 222 Ga. 530, 150 S.E.2d 836 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307, 18 L. Ed. 2d 337 (1967).

Review of ordinances imposing occupation taxes.

- The constitutionality and legality of an occupation tax is to be judged by its effect upon dealers generally, and is not to be construed as unreasonable because it is prohibitive upon certain financially weak persons; only those laws imposing occupation taxes that are confiscatory and oppressive in general operation are to be declared unconstitutional. Solomons v. Mayor of Savannah, 183 Ga. 631, 189 S.E. 230 (1936).

Ordinance imposing occupational tax on linen rental service was not violative of state or federal due process clause. National Linen Serv. Corp. v. City of Gainesville, 181 Ga. 397, 182 S.E. 610 (1935).

Taxation of intangibles.

- While tangible property is taxable in the state where it is located, and intangibles are generally taxable in the state where the owner resides, there is an exception to the general rule regarding intangibles. The debt of a citizen of Georgia owned by a nonresident and held at the nonresident's domicile outside of the state is taxable in the state if it accrues out of or is an incident to property owned or a business conducted by the nonresident or the nonresident's agent in the state. To tax intangibles contrary to the tax situs rule stated above would constitute a denial of due process and would offend U.S. Const., amend. 14. Suttles v. Owens-Illinois Glass Co., 206 Ga. 849, 59 S.E.2d 392 (1950).

Nonresident's intangible property taxable where integral part of local business.

- Intangible property of a nonresident may be taxed in this state, consistently with U.S. Const., amend. 14 and the similar or due process clause of the Constitution of Georgia, if it is so used as to become an integral part of some local business conducted by him or his agent. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495, 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84, 38 S.E.2d 786 (1946).

Credits or accounts receivable of nonresident corporation engaged in business in Georgia taxable.

- When a nonresident corporation engaged in business in this state becomes the owner of accounts receivable arising out of the business conducted in this state, such credits or accounts receivable have a tax situs in the county wherein such business is conducted, notwithstanding the orders taken for merchandise sold in this state are filled, the shipments made, the credit of the customers passed upon, and the books of account kept, at a point without the State of Georgia. Colgate-Palmolive-Peet Co. v. Davis, 196 Ga. 681, 27 S.E.2d 326 (1943).

Tax enforceable on nonresident corporation's accounts receivable with situs in municipality where business conducted.

- Where a nonresident corporation became the owner of accounts receivable arising out of business conducted in a municipality in this state, such credits had a tax situs in the municipality where such business was conducted, so that the enforcement of a tax upon the credits would not be contrary to the guaranty of the due process or equal protection of the law in the state and federal Constitutions. Parke, Davis & Co. v. City of Atlanta, 200 Ga. 296, 36 S.E.2d 773 (1946).

Nonresident corporation conducting loan business in Georgia within its taxing power.

- Where a nonresident life insurance company employed a loan agent in Georgia on a salary basis to solicit and submit applications for loans and make reports concerning applicants and the proffered security in a fixed office or place of business in the state, leased in the agent's own name, with the rent paid by the company through reimbursement to the agent on expense account, and in all negotiations in reference to loans the company dealt with applicants by communications passing through the agent as the company's agent, with the notes and security deeds prepared in the home office and sent to the agent for execution by applicants in Georgia, and, after their return to and approval in the home office, checks were mailed to the agent for delivery to applicants in Georgia, so that all loan contracts were thus finally executed in Georgia, and where as many as 19 long-term loans were so made during continuous existence of such agency, the company in making such loans was conducting a loan business in Georgia, and thus came within its taxing power, as to property derived from or used in such business. Hence the credits arising from such loans had a situs for ad valorem taxation in Georgia, where the loan business was conducted, so that to tax them would not violate the due process clause of either the state or the federal Constitution. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495, 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84, 38 S.E.2d 786 (1946).

Loans with situs for ad valorem taxation in county where loan business conducted.

- In a suit by a nonresident insurance company against county taxing officials seeking to enjoin enforcement of assessments and executions for state and county taxes, the assessments being based on credits existing in the company's favor as a result of loans made by it on county real estate before the taxable period, but remaining unpaid during the period of taxation, the evidence shows without dispute that the loans have a situs for ad valorem taxation in the county in question where the loan business was conducted, so that to tax them in such county will not violate the due process clause of either the state or federal Constitution. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84, 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490, 91 L. Ed. 685 (1947).

Taxation of domesticated foreign corporation's intangibles that acquired business situs outside state, and on which the corporation had paid franchise taxes out of state, did not violate due process clauses of state and federal Constitutions. National Linen Serv. Corp. v. Thompson, 103 Ga. App. 786, 120 S.E.2d 779 (1961).

Court order requiring county to pay school taxes to city.

- Court order requiring county to pay county school taxes to city for education of children from its district does not deny due process or equal protection of the law to citizens and taxpayers of the county. Walton County Bd. of Educ. v. Academy of Social Circle, 229 Ga. 114, 189 S.E.2d 690 (1972).

Excise tax on wines and malt beverages.

- Act imposing excise tax on wines and malt beverages was within the state's authority to determine conditions upon which liquor can come into its territory and what will be done with it after it gets there, and other alleged discriminatory provisions of the act were outside the pale of protection of the due process and equal protection clauses of U.S. Const., amend. 14 and the commerce clause of the federal Constitution by reason of the U.S. Const., amend. 21, thereof. Capitol Distrib. Co. v. Redwine, 206 Ga. 477, 57 S.E.2d 578 (1950).

Provision for taxpayer's affidavit of illegality to tax execution and hearing comports with due process.

- Former Code 1933, § 92-7301 (see O.C.G.A. § 48-3-1), which provides that a taxpayer may tender an affidavit of illegality when any writ of execution for payment of taxes is issued and provides for a hearing in order to determine whether the tax is legally due, is not violative of the due process clause of the state Constitution or of the Constitution of the United States. Hicks v. Stewart Oil Co., 182 Ga. 654, 186 S.E. 802 (1936).

The state could not hold out what plainly appeared to be a "clear and certain" postdeprivation remedy and then declare, only after the disputed taxes had been paid, that no such remedy existed. Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547, 130 L. Ed. 2d 454 (1994).

Apportionment of property tax.

- Since the bus company submitted evidence that some of its buses had acquired a tax situs in a state other than Georgia, the due process clause of the Fourteenth Amendment to the United States Constitution required that Georgia's ad valorem tax on property engaged in interstate commerce, such as the bus company's buses, be apportioned; accordingly, the bus company was entitled to have the ad valorem tax assessed on its bus fleet apportioned. Fulton County Bd. of Tax Assessors v. Harmon Bros. Charter Serv., 261 Ga. App. 534, 583 S.E.2d 179 (2003).

7. Zoning

Local government zoning power exercisable through different ordinances at different times affecting different areas.

- Municipalities and counties which have had conferred upon them the power to zone property cannot always at one and the same time enact such a comprehensive scheme of zoning and planning as will particularly describe and embrace every piece of property by metes and bounds in the entire area of the county or municipality; but when reasonably and fairly done, such power may be exercised by the enactment of different ordinances affecting different areas at different times. Taylor v. Shetzen, 212 Ga. 101, 90 S.E.2d 572 (1955).

Zoning is subject to constitutional prohibition against taking private property without just compensation. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).

Zoning statute is not per se unconstitutional because it deprives owner of property.

- Zoning statute is not per se unconstitutional and void because it deprives owner of property without due process of law because the Legislature is constitutionally invested with authority to empower cities to pass zoning laws. Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974).

Unlawful confiscation.

- For unlawful confiscation to occur, requiring that the zoning be voided, it is not necessary that the property be totally useless for the purposes classified. Where the damage to the owner is significant and is not justified by the benefit to the public, the zoning must be voided. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).

If the zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner, the regulation is confiscatory and void. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).

Application of zoning ordinance unreasonable where change of circumstances since passage.

- Evidence as to change of condition and circumstances since passage in 1939 of ordinance zoning defendants' property for residential and agricultural purposes because of uses of the property adjacent to or near the defendants' property, was sufficient to warrant conclusion that to apply the provisions of the ordinance of 1939 to the property of the defendants would render such ordinance arbitrary and unreasonable. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Determining validity of city zoning ordinance.

- Validity of city zoning ordinance depends upon facts existing at the time validity is questioned, and confiscatory character of the ordinance can be proven by conditions then existing. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Claim not ripe for adjudication.

- Where plaintiffs brought an action against defendants in order to have a zoning ordinance struck as being a violation of plaintiffs' substantive due process rights and a violation of the taking clause of the fifth and Fourteenth Amendments, but the plaintiffs failed to pursue their remedy under state law for a claim of inverse condemnation, their claim for taking without just compensation was not ripe for adjudication. Bernstein v. Holland, 657 F. Supp. 233 (M.D. Ga. 1987).

A zoning board's decision is not ripe for review under a 42 U.S.C. § 1983 analysis until plaintiffs can demonstrate that they have exhausted their state remedies, and where it appears that any procedural requirements that were not followed by the commission are reviewable in state court, before a federal court can hold that a deprivation of procedural due process has occurred, plaintiffs must demonstrate that the procedural safeguards set up by the zoning regulations themselves are futile or inadequate as a matter of law. East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb Planning & Zoning Comm'n, 662 F. Supp. 1465 (M.D. Ga. 1987), aff'd, 896 F.2d 1264 (11th Cir.), but see, 896 F.2d 1267 (11th Cir. 1989).

Burden of proof on property owner.

- Where it is claimed that a zoning ordinance is unreasonable as to a particular tract of property, or that a change of condition has rendered the ordinance unreasonable when applied to the particular property, the burden is on the owner of such property to produce sufficient evidence from which the court can make findings of fact and law such as would justify a holding as a matter of law that the ordinance is arbitrary and unreasonable; there must be a showing of an abuse of discretion on the part of the zoning authority, and that there has been an unreasonable and unwarranted exercise of the police power. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Court of equity justified in restraining enforcement because of particular unreasonable application.

- A zoning ordinance may in its general aspects be valid, and yet, as to a particular state of facts involving a particular parcel of real estate, be so clearly arbitrary and unreasonable as to result in confiscation, thereby justifying the interposition of a court of equity to restrain its enforcement. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Exhaustion of state remedies as prerequisite to federal civil rights action.

- So long as the state provides an adequate procedure for obtaining just compensation, the aggrieved landowner may not claim a denial of just compensation until he/she has exhausted the state procedures for compensation. The nature of the constitutional right, therefore, requires that a property owner first utilize procedures under state law for obtaining compensation before he/she can bring a 42 U.S.C. § 1983 action. East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb Planning & Zoning Comm'n, 662 F. Supp. 1465 (M.D. Ga. 1987), aff'd, 896 F.2d 1264 (11th Cir. 1989).

Where application completely deprives owner of beneficial use of property, attack on validity of regulation sustained.

- A zoning ordinance must not infringe the constitutional guaranties of national or state Constitutions by invading personal or property rights unnecessarily or unreasonably; and if the application of a zoning ordinance has the effect of completely depriving an owner of the beneficial use of the property by precluding all uses, or the only use to which it is reasonably adapted, an attack upon the validity of the regulation, as applied to the particular property involved, will be sustained. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Failure to scrutinize rezoning application.

- Failure to scrutinize rezoning application in light of the character of the land in question and the impact of the zoning decision upon the property owner's rights amounts to a denial of due process. Sellars v. Cherokee County, 254 Ga. 496, 330 S.E.2d 882 (1985).

Circumstances under which zoning ordinances held invalid.

- Circumstances under which zoning ordinances have been held invalid, as applied to certain specific property, fall into three general classes: (1) where a small parcel of property is zoned for residential purposes, when it is entirely surrounded by commercial or business enterprises; (2) where property zoned for residential use is entirely unsuited for residential purposes; or (3) where the purpose of the ordinance is not to protect the public health, safety, morals, or general welfare. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).

Single-family residential zoning held unconstitutional.

- Evidence authorized superior court to rule that single-family residential zoning on certain property was unconstitutional. The location and the irregular size and shape of lots in light of set back and minimum yard requirements of the city code rendered construction of residential dwellings on the property unfeasible. City of Rome v. Pilgrim, 246 Ga. 281, 271 S.E.2d 189 (1980).

Churches subject to reasonable regulations.

- Generally any zoning ordinance that absolutely excludes churches from a residential area is invalid under constitutional guarantees. Churches are, however, subject to reasonable regulation both referring to property in the zone generally and to churches specifically, provided the regulations are reasonable and contain some standards. Rogers v. Mayor of Atlanta, 110 Ga. App. 114, 137 S.E.2d 668 (1964).

County officials prohibited from denying building permit to public housing project meeting requirements.

- Where a site is legitimately zoned for the construction of apartments, U.S. Const., amend. 14 prohibits county officials from denying a building permit to a public housing project meeting zoning requirements, since the county is prohibited from placing restrictions on the class of persons to be housed at a particular site. Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff'd, 457 F.2d 788 (5th Cir. 1972).

When denial of building permit not deprivation of owner's property.

- The denial of a permit to the owner of a residence lot to erect thereon a filling station, when the lot is located in a district zoned by ordinance exclusively for residences, apartments, churches, hospitals, schools, and hotels, is not a deprivation of the owner's property within the meaning of the due process clauses of the Constitution of this state and of U.S. Const., amend. 14, especially when a lot has been improved and used for residential purposes long before the passage of such ordinance. Howden v. Mayor of Savannah, 172 Ga. 833, 159 S.E. 401 (1931).

Basis for review of zoning classifications.

- The only basis for judicial review of zoning classifications is where classification is arbitrary and unreasonable. Classification by zoning ordinance does not violate due process when it does not appear that all permitted uses are impossible. Riddle v. Waller, 127 Ga. App. 399, 193 S.E.2d 895 (1972).

Requirements of publication of notice of hearings not violative of due process.

- Due process as required by the Constitution was not denied by the terms of Ga. L. 1952, p. 2731, a zoning statute requiring that notice of hearings be published in the county where the land affected lies and in newspapers wherein sheriff's sales are advertised instead of in the official organ of the municipality. Orr v. Hapeville Realty Co., 212 Ga. 649, 94 S.E.2d 682 (1956).

Notice of hearing required on rezoning matter before county governing authority.

- A party must have due and legal notice of the hearing on the matter of rezoning before the county governing authority, the body which can rezone land and thereby deprive a party of that party's property rights. F.P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141, cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

County's refusal to rezone property from residential to commercial use.

- County board's refusal to rezone property from residential to commercial use did not violate substantive due process, where the board's action was rationally related to legitimate state concerns and was not arbitrary and capricious. Habersham at Northridge v. Fulton County, 632 F. Supp. 815 (N.D. Ga. 1985), aff'd, 791 F.2d 170 (11th Cir.), cert. dismissed, 478 U.S. 1044, 107 S. Ct. 17, 92 L. Ed. 2d 783 (1986).

Notice by publication proper and adequate.

- Notice by publication of a rezoning hearing to be held by a governing authority of a county is proper and adequate insofar as the requirements of procedural due process and equal protection are concerned. F.P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141, cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973); DeKalb County v. Pine Hill Civic Club, 254 Ga. 20, 326 S.E.2d 214, appeal dismissed, 474 U.S. 892, 106 S. Ct. 214, 88 L. Ed. 2d 215 (1985).

Notice not required for preliminary hearing before planning commission.

- Defective notice or lack of notice of the preliminary hearing before the planning commission, which cannot rezone property so as to deprive a party of that party's property rights, is not violative of procedural due process or equal protection. F.P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141, cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

Inverse condemnation claim for money damages.

- The recent Supreme Court case of First Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), requires that the state recognize an inverse condemnation claim for money damages where a zoning regulation amounts to a taking. East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb Planning & Zoning Comm'n, 662 F. Supp. 1465 (M.D. Ga. 1987), aff'd, 896 F.2d 1264 (11th Cir. 1989).

Money damages for racially motivated conspiracy affecting property rights.

- Where plaintiffs are not seeking just compensation for the zoning board's decision, nor are they seeking to have their procedural or substantive due process claims vindicated, but they seek money damages for defendants' interference with their property rights through an illegal conspiracy motivated by race, plaintiffs cannot be required to seek redress under the zoning regulations of this state because they are not attacking the propriety of these regulations. East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb Planning & Zoning Comm'n, 662 F. Supp. 1465 (M.D. Ga. 1987), aff'd, 888 F.2d 1573 (11th Cir.), but see, 896 F.2d 1267 (11th Cir. 1989).

Limitation on number of animals per tract.

- Where a zoning ordinance is applicable to residential districts containing large tracts, it is unconstitutionally unreasonable and irrational in limiting the number of animals per tract without taking into consideration the size of the tract. Avant v. Douglas County, 253 Ga. 225, 319 S.E.2d 442 (1984).

Ordinance requiring land lots at least one acre in size for the keeping of a Vietnamese pot-bellied pig as a domestic pet did not violate pig owner's substantive due process rights. City of Lilburn v. Sanchez, 268 Ga. 520, 491 S.E.2d 353 (1997).

Ordinance banning permit applications if two or more violations existed.

- In a declaratory judgment action brought by a developer against a county seeking to invalidate an ordinance which required denial of the developer's land disturbance permit based on two soil-related ordinance violations existing, the judgment in favor of the developer was upheld on appeal with regard to the developer's claim for damages under 42 U.S.C. § 1983, for alleged violations of the developer's equal protection rights in the county's enforcement of the ordinance. The trial court properly determined that the developer was not required to prove a valid property right with regard to the developer's equal protection challenge; the trial court properly awarded attorney fees to the developer under O.C.G.A. § 13-6-11 as the jury was authorized to award the attorney fees as an element of the damages it awarded on the developer's federal equal protection claim, regardless of whether the developer could prevail on any state law claim for damages; but the trial court erred by failing to address the merits of the developer's petition for a declaratory judgment since the overall enforceability of the ordinance, which was still the law, was not rendered moot by the withdrawal notice. Fulton County v. Legacy Inv. Group, LLC, 296 Ga. App. 822, 676 S.E.2d 388 (2009).

8. Pretrial Criminal Proceedings

All seizures of person governed by the fourteenth amendment.

- U.S. Const., amend. 4 and U.S. Const., amend. 14's prohibition of searches and seizures not supported by objective justification governs all seizures of person, including seizures that involve only a brief detention short of traditional arrest. Reid v. Georgia, 448 U.S. 438, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980).

An arrest and search, legal under federal law, is legal under state laws. State v. Wilson, 179 Ga. App. 334, 346 S.E.2d 111 (1986).

Discovery.

- The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. does not violate due process as it imposes reciprocal discovery upon the state; any difference in the scope of mitigating evidence and the scope of non-statutory aggravating evidence is too minimal to be of constitutional significance on the question of reciprocity of discovery. Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007).

Investigating police officer may make reasonable inquiries for safety.

- Police officer investigating unusual behavior can make reasonable inquiries to dispel reasonable fears for safety of the officer and others. Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975), overruled on other grounds, State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).

Noncustodial defendant and field sobriety test.

- Upon seeing the car in distress in a through-lane of traffic, a police officer was authorized to approach the car and make inquiry and, when the defendant admitted the defendant had been drinking and driving, the officer was authorized to conduct the field sobriety tests without giving Miranda warnings. Coates v. State, 216 Ga. App. 93, 453 S.E.2d 35 (1994).

Permissible police interrogation.

- Single threshold inquiry of officer as to what is happening is not impermissible interrogation. Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975), overruled on other grounds, State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).

Remedy for questionable police interrogation techniques.

- Where the constitutional violation alleged is questionable police interrogation techniques, and the injury suffered is the possible inducement of potentially unreliable coerced or involuntary statements from witnesses subjected to these techniques, the appropriate remedy is the defendant's right to fully cross-examine any witnesses called at trial concerning their interrogations. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 246 (1987).

Presenting defendant with choice of cooperation or prosecution.

- Course of conduct employed by the federal government, which presented the defendant with the alternatives of cooperating with an investigation of local government officials or facing charges on which the defendant was plainly subject to prosecution, did not violate the due process clause of the Fourteenth Amendment. United States v. Wingo, 723 F. Supp. 798 (N.D. Ga. 1989).

When momentary detention and questioning permissible.

- Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. State v. Misuraca, 157 Ga. App. 361, 276 S.E.2d 679, cert. denied, 454 U.S. 846, 102 S. Ct. 163, 70 L. Ed. 2d 133 (1981).

Curtailment of person's liberty by police requires at least reasonable, articulable suspicion of criminal activity.

- While in some circumstances a person may be detained briefly, without probable cause to arrest that person, any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980).

Defendant's mental condition not determinative of voluntariness of statements.

- A defendant's mental condition, by itself and apart from its relation to official coercion, should never dispose of an inquiry into constitutional voluntariness of statements made to law enforcement officers. Wilson v. State, 257 Ga. 444, 359 S.E.2d 891 (1987).

Noncustodial, voluntary statement by defendant to officer making investigation at scene when not suspected is admissible.

- A noncustodial, voluntary statement by the defendant to an officer simply making an on-the-scene investigation to find out what has happened, when the officer has no suspects, is always admissible against the maker without the maker's having been advised of the maker's rights against self-incrimination. Davis v. State, 135 Ga. App. 584, 218 S.E.2d 297 (1975).

Investigatory stop by armed officer.

- Investigatory stop is not automatically arrest simply because officer is armed with shotgun. Franklin v. State, 143 Ga. App. 3, 237 S.E.2d 425 (1977), cert. denied, 435 U.S. 950, 98 S. Ct. 1575, 55 L. Ed. 2d 799 (1978).

Electronic surveillance of suspect not in custody.

- Rights to remain silent and to have assistance of counsel do not apply to electronic surveillance of suspect not in custody. Granese v. State, 232 Ga. 193, 206 S.E.2d 26 (1974); Christian v. State, 190 Ga. App. 667, 379 S.E.2d 807 (1989).

Delay in "investigative" stage.

- Where delay occurs in "investigative" stage, before either arrest or indictment, due process standards apply, not U.S. Const., amend. 6 standards. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980).

No U.S. Const., amend. 4 violation absent state action in search context.

- Because U.S. Const., amend. 14, through which U.S. Const., amend. 4 applies to the state, requires state action, absent some state action in a search context there can be no U.S. Const., amend. 4 violation. State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S. Ct. 576, 46 L. Ed. 2d 413 (1975).

Consent by subject of search not in custody.

- When the subject of a search is not in custody and the state attempts to justify a search on the basis of his consent, U.S. Const., amend. 4 and U.S. Const., amend. 14 require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Brand v. State, 129 Ga. App. 747, 201 S.E.2d 180 (1973).

Determination of voluntariness of consent to search.

- Voluntariness of consent to search by police officer is question of fact to be determined from all circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Brand v. State, 129 Ga. App. 747, 201 S.E.2d 180 (1973).

Evidence voluntarily produced from body cavity.

- Because a small piece of plastic containing cocaine residue was produced by the defendant from a body cavity in acquiescence to a search warrant for her person while she was in lawful detention, the evidence was admissible. Scott v. State, 216 Ga. App. 692, 455 S.E.2d 609 (1995).

Chemical blood testing.

- Georgia Supreme Court has held that O.C.G.A. § 40-5-55(a) is unconstitutional to the extent it requires chemical testing of the driver of a vehicle involved in a traffic accident resulting in serious injuries or death as it violates the fourth and Fourteenth Amendments of the Constitution of the United States because it authorizes a search and seizure without probable cause; thus, where testing is conducted based upon the seriousness of injuries in an accident, rather than upon probable cause that the person has violated O.C.G.A. § 40-6-391, the results are inadmissible. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).

Trial judge to determine reasonableness of search.

- In first instance reasonableness of search is question for trial judge to determine. Croker v. State, 114 Ga. App. 43, 150 S.E.2d 294 (1966).

To show probable cause for search and seizure it is not necessary that the arresting officer should have had before the officer legal evidence of the suspected illegal act. Croker v. State, 114 Ga. App. 43, 150 S.E.2d 294 (1966).

Legal search may be incident to lawful arrest or by consent of owner of premises or property. Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967).

Seizure of instrumentalities used in commission of crime.

- Instrumentalities used in commission of crime may be seized at time of arrest without search warrant. Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967).

Objects that may be seized depends on nature of offense.

- Nature of offense for which accused is arrested has important bearing upon what objects may be seized as incidental to the arrest. Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967).

Police justified, in exigent circumstances, to enter premises and conduct reasonable search.

- In exigent circumstances, police officers are authorized, pursuant to a lawful arrest, to enter upon the premises and conduct a reasonable search of the suspect's person and immediate presence, including a search under a piece of furniture where the suspect is observed reaching for or disposing of an unknown object, which might reasonably be thought to be either a weapon or evidence. Dennis v. State, 166 Ga. App. 715, 305 S.E.2d 443 (1983).

In order to qualify as "person aggrieved by unlawful search and seizure" one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Wood v. State, 224 Ga. 121, 160 S.E.2d 368 (1968).

Mere visitor without standing to object to search.

- A person has no standing to object to a search of the premises, and particularly a limited one, where the person is a mere visitor (although a frequent one) since the person has no expectation of privacy in the premises of another, where the person has neither a proprietary nor a possessory interest. Dennis v. State, 166 Ga. App. 715, 305 S.E.2d 443 (1983).

Temporary detention of visitors.

- It was reasonable under the fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who just departed the premises to see if one of them was a person named in the warrant. Fritzius v. State, 225 Ga. App. 642, 484 S.E.2d 743 (1997).

Object seen lying in "plain view" admissible.

- If a police officer has a right to be in the position from which an object is seen lying in "plain view," the object is admissible as evidence. Dennis v. State, 166 Ga. App. 715, 305 S.E.2d 443 (1983).

Seizure of gun located inside the passenger compartment of car in which appellant had been a passenger just before being arrested was not violative of fourth and Fourteenth Amendment rights. State v. Hopkins, 163 Ga. App. 141, 293 S.E.2d 529 (1982).

Abandoned property.

- The constitutional protection of the fourth and Fourteenth Amendments does not apply to property which has been abandoned. Ramsey v. State, 183 Ga. App. 48, 357 S.E.2d 869, cert. denied, 183 Ga. App. 906, 357 S.E.2d 869 (1987).

Greater safeguards required for constructive seizure of presumptively protected material.

- When dealing with presumptively protected material greater procedural safeguards must be afforded before "constructive seizure." This usually involves the requirement of a judicial determination of some type by a neutral, detached magistrate either before or immediately after the seizure of allegedly obscene material. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980).

Retailer or distributor of presumptively protected material must be afforded greater procedural safeguards before seizure or "constructive seizure" may take place. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980).

Judicial determination of probable cause.

- The Constitution at a minimum apparently requires the imposition of a neutral, detached magistrate in the procedure to make an independent judicial determination of probable cause prior to issuing an arrest warrant or some other warrant authorizing the seizure of allegedly obscene material to be used as evidence. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980).

Prior restraint presumed unconstitutional.

- There is strong presumption against constitutional validity of system of prior restraint. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980).

Standard for obtaining search warrant same as under U.S. Const., amend. 4. - Proscriptions of U.S. Const., amend. 4 are enforced against the states through U.S. Const., amend. 14, and the standard for obtaining a search warrant is the same under the two amendments. Carson v. State ex rel. Price, 221 Ga. 299, 144 S.E.2d 384 (1965).

Warrant issued by justice with pecuniary interest in issuing warrant.

- Issuance of search warrant by justice of the peace with pecuniary interest in issuing warrant effects violation of the protections afforded by U.S. Const., amend. 4 and U.S. Const., amend. 14. Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977).

Issuance of search warrant by justice of peace effected violation of protections afforded by U.S. Const., amend. 14. State v. Patterson, 143 Ga. App. 225, 237 S.E.2d 707 (1977).

Warrant issued by court clerk or deputy as violating due process.

- Seizure of defendant pursuant to warrant issued by court clerk or deputy is flagrant violation of due process. Roberts v. Macaulay, 232 Ga. 660, 208 S.E.2d 478 (1974).

Sufficiency of hearsay tip of reliable informer as basis of warrant, search, or seizure.

- If the hearsay tip of a reliable informer on which a warrant is based does not sufficiently state the underlying circumstances from which the informant had concluded the defendants were violating the law, or does not sufficiently detail the informer's activities, but is relying on mere casual rumor or general reputation, a warrant, search or seizure based thereon is illegal. Register v. State, 124 Ga. App. 136, 183 S.E.2d 68 (1971), cert. denied, 405 U.S. 919, 92 S. Ct. 947, 30 L. Ed. 2d 790 (1972).

Under "fruit of the poisoned tree" doctrine, search must fall if original arrest invalid. Marshall v. State, 130 Ga. App. 572, 203 S.E.2d 885 (1974).

Seizure of person by policeman.

- Whenever police officer accosts an individual and restrains that individual's freedom to walk away, the officer has "seized" that person. Franklin v. State, 143 Ga. App. 3, 237 S.E.2d 425 (1977), cert. denied, 435 U.S. 950, 98 S. Ct. 1575, 55 L. Ed. 2d 799 (1978).

Seizure is not unreasonable simply because police have taken precaution to arm themselves in light of unknown danger. Franklin v. State, 143 Ga. App. 3, 237 S.E.2d 425 (1977), cert. denied, 435 U.S. 950, 98 S. Ct. 1575, 55 L. Ed. 2d 799 (1978).

Causal connection between illegal arrest and confession must be attenuated, or statements unusable.

- There is no per se rule that Miranda warnings in and of themselves suffice to cure a fourth amendment violation involved in obtaining inculpatory statements during custodial interrogation following a formal arrest on less than probable cause. In order to use such statements, the prosecution must show not only that the statements meet fifth amendment requirements (voluntariness), but also that the causal connection between the statements and the illegal arrest is sufficiently attenuated so as to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the fourth amendment. Robinson v. State, 166 Ga. App. 741, 305 S.E.2d 381 (1983).

Where suspect interrogated from time of illegal arrest until confession, confession inadmissible.

- Where the causal connection between an illegal arrest and a confession is not broken by any intervening events, but a suspect is interrogated from the time of the suspect's arrival until the suspect confesses a short time later, the trial court errs by admitting the confession into evidence, and a conviction based solely on the confession cannot stand. Robinson v. State, 166 Ga. App. 741, 305 S.E.2d 381 (1983).

Confession after break in custody upheld.

- Where there was a 21-month break in custody between the initial interrogation of defendant, at which time the defendant expressed the defendant's desire to speak only through counsel, and the final interrogation, at which time the defendant confessed, there was no violation of the defendant's fifth and Fourteenth Amendment rights. State v. Bymes, 258 Ga. 813, 375 S.E.2d 41 (1989).

Preseizure notice and hearing not required.

- Preseizure notice and hearing is not required when seizure serves significant governmental purpose in asserting in rem jurisdiction over property to prevent its continued illicit possession and to enforce criminal sanctions. Blackmon v. Brotherhood Protective Order of Elks, Toccoa Lodge No. 1820, 232 Ga. 671, 208 S.E.2d 483 (1974).

Adversary hearing not required with sale of pornography.

- No adversary hearing prior to institution of criminal action is necessary where sale of alleged pornography. Gornto v. McDougall, 336 F. Supp. 1372 (S.D. Ga. 1972), appeal dismissed, 482 F.2d 361 (5th Cir. 1973).

Constitutional protection not applicable to abandoned property.

- Constitutional protection under U.S. Const., amend. 4 and U.S. Const., amend. 14 does not apply to property which has been abandoned. The issue of abandonment vel non of the property is a factual issue to be resolved by the trier of fact. Vines v. State, 142 Ga. App. 616, 237 S.E.2d 17 (1977).

Defendant not on trial during grand jury proceedings.

- The court does not err in refusing to allow defendant or his counsel to appear before the grand jury to present evidence and to cross-examine witnesses. The defendant is not on trial at this stage of the proceedings and therefore this refusal denies the defendant neither the right of confrontation, nor equal protection of the laws. Jackson v. State, 225 Ga. 790, 171 S.E.2d 501 (1969), rev'd on other grounds, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, vacated in part on other grounds, 229 Ga. 731, 194 S.E.2d 410 (1972).

State not required to use grand jury to bring actions.

- U.S. Const., amend. 14 does not require state to use grand jury to bring criminal charges against persons. Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964).

Purpose of committal hearing.

- Purpose of committal hearing is simply to determine whether there is probable cause to believe the accused guilty of the crime charged, and if so, to bind him over for indictment by the grand jury. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

Determination of probable cause does not rest upon technical framework but on factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Daye v. City of Albany, 496 F. Supp. 1227 (M.D. Ga. 1980).

Once indictment has been returned, necessity for committal hearing has been eliminated. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

Holding of commitment hearing is not requisite to trial for commission of felony. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

A preliminary hearing is not a required step in a felony prosecution and once an indictment is obtained there is no judicial oversight or review of the decision to prosecute because of any failure to hold a commitment hearing. Williams v. State, 157 Ga. App. 168, 276 S.E.2d 852 (1981).

Failure to hold commitment hearings.

- Although the commitment hearing is a "critical stage" of criminal procedure entitling a defendant to counsel, failure to hold such a hearing does not constitute a deprivation of a defendant's constitutional rights. State v. Godfrey, 204 Ga. App. 58, 418 S.E.2d 383, cert. denied, 204 Ga. App. 922, 418 S.E.2d 383 (1992).

Alleged loss of discovery occasioned by failure to conduct commitment hearing is not legally recognizable basis for reversal. Williams v. State, 157 Ga. App. 168, 276 S.E.2d 852 (1981).

Defendant's absence from a pretrial conference did not thwart a fair and just hearing where there was acquiescence in the court's ruling and the hearing involved only questions of law. Riley v. State, 180 Ga. App. 409, 349 S.E.2d 274 (1986).

When omission of hearing harmless.

- Since the purpose of the commitment hearing is to determine whether there is probable cause to hold the accused for trial the subsequent indictment, trial and conviction of the accused render the omission of the hearing harmless. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

Where a post-arrest preindictment delay occurs in an investigative stage before arrest or indictment, due process standards apply, not U.S. Const., amend. 6 standards. Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979).

Delay of arrest following investigation.

- Where investigating officer delays arrest following investigation because lacking sufficient information, no due process violation appears. Glenn v. State, 144 Ga. App. 557, 241 S.E.2d 447 (1978).

Delay of five years between when defendant was first identified as the possible third occupant of a murder victim's car, at which time a previously unmatched print was lifted from the victim's car, and when defendant was indicted and arrested did not violate due process; defendant had shown at most that the delay was the result of the state's decision to conduct further investigation and to obtain additional evidence, and a delay occasioned by the ongoing investigation of a case did not rise to the level of a due process violation. Roebuck v. State, 277 Ga. 200, 586 S.E.2d 651 (2003).

Police may not delay arrest of suspect as subterfuge to coerce suspect into self incrimination. Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975), overruled on other grounds, State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).

When due process requires dismissal for prearrest or preindictment delay.

- Dismissal is required for prearrest or preindictment delay under due process clause when it is shown that the delay caused actual substantial prejudice to defendant's right to a fair trial and, that it was an intentional device to gain a tactical advantage. Hammond v. State, 157 Ga. App. 647, 278 S.E.2d 188 (1981).

Delay in arrest insufficient to warrant dismissal.

- Where error was asserted because the trial court refused to grant the defendant's motion to dismiss the defendant's indictment made on the grounds of a violation of due process because there was a fifty-five day delay between the commission of the offense and the defendant's arrest, and it was argued that because of the delay the defendant could not remember the date of the alleged offense for which the defendant might have been able to provide an alibi defense, this was held not enough in itself to justify dismissing the indictment. Croom v. State, 165 Ga. App. 676, 302 S.E.2d 598 (1983).

Defendant, who was arrested and indicted in 2005 for a murder that occurred in 1987, had not shown that the delay between the time of the crime and the time of the defendant's arrest violated due process; in a murder case, any prejudice resulting merely from the passage of time could not create the requisite prejudice, and the defendant had not shown that the state acted deliberately to gain a tactical advantage. Manley v. State, 281 Ga. 466, 640 S.E.2d 9 (2007).

Defendant alleged a four-year delay between a murder and the defendant's indictment for the delay was due to the state's intent to await the defendant's convictions for other robberies and use them as "other crimes" evidence in the murder case. As the defendant relied exclusively on a hearsay document to substantiate this charge, and could not claim prejudice from an inability to call witnesses whose testimony would be inadmissible, the defendant failed to show that the defendant's due process rights under the Fourteenth Amendment were violated. Jones v. State, 284 Ga. 320, 667 S.E.2d 49 (2008).

Delaying medical treatment of pre-trial detainee not violation of rights.

- Jail officers did not violate the rights of a pre-trial detainee by delaying medical treatment for the detainee's bleeding cut for two and a half hours, or by failing to give the detainee the icepacks and aspirin prescribed by the doctor for pain upon the detainee's return to the jail. Aldridge v. Montgomery, 753 F.2d 970 (11th Cir. 1985).

Where defendant not deprived of constitutional right though date crime occurred different from date charged in indictment.

- The defendant was not deprived of any constitutional right by reason of the fact that the indictment charged one date, whereas the crime actually occurred shortly before midnight on the day before, since no alibi evidence was offered, nor was any continuance requested on the ground of surprise that the evidence showed the commission of the crime on a date different from that shown in the indictment, and that additional time would be needed to procure alibi testimony to account for the appellant's whereabouts on that date. Carmichael v. State, 228 Ga. 834, 188 S.E.2d 495 (1972).

The substitution of accusation for indictment.

- The substitution of accusation for specific felonies enumerated in O.C.G.A. § 17-7-70.1 does not violate due process since statutory procedures exist to safeguard against criminal prosecution without probable cause, and to further protect all defendants equally, whether indicted or formally accused. Lamberson v. State, 265 Ga. 764, 462 S.E.2d 706 (1995).

Where without arrest warrant, law enforcement officer may not arrest unless probable cause.

- Where an arrest warrant has not been issued, a law enforcement officer may not arrest a person unless he has probable cause to believe the person had committed or was committing a crime. Daye v. City of Albany, 496 F. Supp. 1227 (M.D. Ga. 1980).

Warrantless arrest justified where reasonable information that accused charged with serious crime.

- O.C.G.A. § 17-13-34, which authorizes a warrantless arrest by officers in this state upon reasonable information that an accused is charged in the courts of a state with a crime punishable by death or imprisonment for more than a year, is justified under the fourth, fifth, and Fourteenth Amendments, in that it is based upon a standard which comports with the constitutional standard of probable cause as set forth in Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). Ledesma v. State, 251 Ga. 487, 306 S.E.2d 629, aff'd, 251 Ga. 885, 311 S.E.2d 427 (1983), cert. denied, 464 U.S. 1069, 104 S. Ct. 975, 79 L. Ed. 2d 213 (1984).

Probable cause for warrantless arrest of drug suspect at airport.

- Because the defendant exhibited suspicious "leg bulges" when the defendant exited the plane from Miami, a known source city for the distribution of drugs, which "leg bulges" attracted the immediate attention of two agents of the Federal Drug Enforcement Administration, appellant was placed under surveillance by both agents and was subsequently confronted, questioned, arrested, and searched by one of them, the defendant's false response to the inquiry about the objects in the defendant's boots, coupled with the agents' observation and experience, provided the probable cause required for the defendant's warrantless arrest. Accordingly, the search incident to that arrest was not violative of the fourth and Fourteenth Amendments, and the fruits of that search were properly considered by the trial court in convicting the defendant of trafficking in cocaine. Miller v. State, 183 Ga. App. 702, 359 S.E.2d 683 (1987).

Probable cause exists if the facts and circumstances within the enforcement officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the person had committed or was committing an offense. Daye v. City of Albany, 496 F. Supp. 1227 (M.D. Ga. 1980).

No right to discover state evidence before trial.

- A defendant does not, as a matter of right, have the right to discover from a district attorney or other prosecuting officer of the state evidence, documentary or otherwise, for use by the defendant or defense counsel before trial. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

Absent showing evidence requested is materially favorable to accused, pretrial discovery not required.

- Pretrial discovery in favor of defendants is not required by considerations of due process in the absence of a showing that the evidence denied disclosure of by the prosecution upon request was materially favorable to the accused either as direct or impeaching evidence. Quaid v. State, 132 Ga. App. 478, 208 S.E.2d 336 (1974); Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

There is no general constitutional right to discovery in a criminal case, nor is there any Georgia statute or rule of practice which requires the state to open its files to a defendant's attorney; it is only when the omitted evidence creates a reasonable doubt that did not otherwise exist, that constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. Houston v. State, 187 Ga. App. 335, 370 S.E.2d 178 (1988).

Failure to produce information not in prosecutor's file not unconstitutional.

- Defendant in criminal prosecution for delivery of cocaine was not denied due process of law because the state failed to produce the name and address of an individual identified in the records who defendant claimed was a third party in scheme to set defendant up, where prosecution's file did not contain information pertaining to such person and the record did not support defendant's factual assertions. Upshaw v. State, 172 Ga. App. 671, 324 S.E.2d 529 (1984).

Prosecution's suppression of favorable material evidence violates due process.

- The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilty or to punishment, irrespective of the good faith or bad faith of the prosecution. Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975).

Because the state's suppression of exculpatory statements in violation of Brady was more than sufficient to place the outcome of an inmate's trial in doubt, amounting to a denial of the inmate's Fourteenth Amendment due process rights, and the state's failure to produce the inmate's own statement provided the state with the opportunity to argue strenuously and virtually without contradiction that the inmate did not tell police about any alibi witness, but simply fabricated the defense prior to trial, the violation made the state's case much stronger than the full facts would have suggested, and based on such suppression, the trial did not produce a verdict worthy of confidence; hence, the inmate was properly granted habeas relief. Walker v. Johnson, 282 Ga. 168, 646 S.E.2d 44 (2007).

Prosecutorial duty to disclose information.

- In a prosecution for aggravated assault, failure of the prosecution to disclose the victim's pre-trial oral unrecorded statement which, at best, admitted indirectly of the bare possibility that the victim was shot earlier than the victim testified by someone other than the actor identified by the victim under oath, was not a violation of Brady v. Maryland. Belins v. State, 210 Ga. App. 259, 435 S.E.2d 675 (1993).

Detectives had no affirmative duty to make the district attorney aware of an exculpatory lab report, where there was no evidence two of the detectives ever saw the report, or had a clearly established duty to ferret it out, and where the third detective did receive the report, but it was not clearly established that the detective was required to turn over exculpatory evidence to a prosecutor since the detective had reason to believe that the prosecutor already had the evidence. Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994).

Prosecutorial duty to disclose exculpatory evidence to defense may not be discharged by dumping voluminous mass of files, tapes and documentary evidence on a trial judge. The prosecutor retains the constitutional obligation of initially screening the materials before him and handing over to the defense those items to which the defense is unquestionably entitled. Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975).

Discovery of computer hard drive evidence in child pornography case.

- Defendant who was charged with child pornography did not suffer a due process violation due to the U.S. Attorney's office not responding to letters seeking assurance that defendant's expert would not be prosecuted under federal pornography laws for examining defendant's computer hard drive; the trial court ordered that the expert be provided with a copy of defendant's computer hard drive, and the trial court's order requiring written assurances from United States Attorneys of nonprosecution of the expert for any potential violations of federal child pornography statutes exceeded the trial court's authority. The trial court's finding that O.C.G.A. § 17-16-4(a)(3)(B) was unconstitutional as applied to the defendant because it deprived the defendant of due process rights was not challenged by the state on appeal. Morris v. State, 324 Ga. App. 756, 751 S.E.2d 551 (2013).

Failure of officer to preserve evidence.

- Defendant's due process rights were not violated by the failure of the investigating officer to preserve the physical evidence of a child molestation as defendant failed to show that the officer's failure to preserve the evidence was in bad faith. Ingram v. State, 262 Ga. App. 304, 585 S.E.2d 211 (2003).

Medical expert investigator's notes from homicide scene were not a "written scientific report" within the purview of § 17-7-211 and did not have to be furnished to defendant upon the latter's request. Pierce v. State, 209 Ga. App. 366, 433 S.E.2d 641 (1993).

Failure to take arrestee before magistrate not constitutional issue.

- Though former Code 1933, § 27-210 (see O.C.G.A. § 17-4-26) requires that an officer arresting under a warrant bring the person arrested before a committing officer within 72 hours after arrest, failure to take an arrestee before a magistrate is not a federal constitutional issue. Stephenson v. Gaskins, 539 F.2d 1066 (5th Cir. 1976).

Violation of due process of law in conducting confrontation depends on totality of surrounding circumstances. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622 (1971).

Identification procedure requires state action for application of fourteenth amendment.

- For Fourteenth Amendment to come into play in identification procedure, state action must be involved. Lyons v. State, 247 Ga. 465, 277 S.E.2d 244 (1981).

In order for U.S. Const., amend. 14 to come into play in an identification procedure, state action must be involved. Duck v. State, 250 Ga. 592, 300 S.E.2d 121 (1983).

Lineups required to be fundamentally fair, not overly suggestive.

- Without regard to the right to counsel, lineups must meet due process standards of fundamental fairness. Specifically, lineups must not be arranged in such a manner as to be overly suggestive as to the person actually pointed out by the witness or victim. Lumpkin v. Smith, 309 F. Supp. 1325 (N.D. Ga. 1970), rev'd on other grounds, 439 F.2d 1084 (5th Cir. 1971).

In determining whether lineup was impermissibly suggestive, decisive question is whether identifications were reliable under totality of circumstances. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (1977).

Lineup not impermissibly suggestive.

- Where the record showed that, as to both lineups, the other participants were all of approximately the same height, size, race, and age of the defendant, the fact that the defendant was one of only two men over six feet tall in one lineup and one of only three men over six feet tall in the other lineup did not make the lineups impermissibly suggestive. Bennett v. State, 186 Ga. App. 832, 368 S.E.2d 789 (1988).

Because an armed robbery victim viewed 11 photographs of males of the same race, and appearances similar to defendant, the victim did not know the defendant's name and did not turn the photographs over, and the victim identified the defendant as the perpetrator after looking at the photographs for about five minutes, it cannot be said that the photographic lineup was impermissibly suggestive. Wright v. State, 187 Ga. App. 311, 370 S.E.2d 160, cert. denied, 187 Ga. App. 909, S.E.2d (1988).

A photographic lineup where the defendant was the only person wearing a hooded sweatshirt was not impermissibly suggestive because there was no evidence that the perpetrator had been wearing a hooded sweatshirt. Cooper v. State, 281 Ga. 760, 642 S.E.2d 817 (2007).

Test of validity of identification is whether the identification confrontation staged by the law enforcement authorities, judged by the totality of the circumstances surrounding it, is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law. Moye v. State, 122 Ga. App. 14, 176 S.E.2d 180 (1970).

Test of photographic array procedure for witnesses to try to identify the criminal suspect is whether the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. A photographic array can be suggestive when used close in time to a lineup. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (1977).

Photo array not impermissibly suggestive.

- Photographic lineup was not impermissibly suggestive even though the defendant was the only suspect who was thin and had red hair as three of the six photographs were of suspects with red hair, the officer did not suggest to the witnesses that the defendant was the perpetrator, but simply read the standard form to them and asked them to look at the pictures, all of the suspects pictured were approximately the same age, the witnesses identified the defendant immediately when shown the lineup, and the witnesses both identified the defendant at trial. Standfill v. State, 267 Ga. App. 612, 600 S.E.2d 695 (2004).

Photographic lineup was not impermissibly suggestive because the defendant was the only one pictured with an open mouth, revealing gold teeth, and the victim had identified the perpetrator as having bottom gold teeth. It was not readily apparent that the defendant's top teeth, the only ones visible, were gold, and apart from the defendant's mouth being open slightly, the lineup depicted people with similar skin color, hair, and overall appearance. Varner v. State, 297 Ga. App. 799, 678 S.E.2d 515 (2009).

Where photographic identification procedure impermissibly suggestive.

- Where the suspect is already in custody for other reasons, and only three pictures are used for the witness to choose from, two of which depict the suspect, and one which has been altered in a manner which might suggest that it depicted the suspect, the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622 (1971).

"One on one" confrontation between eyewitness and suspect was not violation of due process. Davis v. State, 233 Ga. 847, 213 S.E.2d 695 (1975).

In-court identification outweighing other identification procedures.

- It was not necessary to decide whether the identification procedure was impermissibly suggestive, since the witness's in-court identification was based on the witness's opportunity to observe the defendant at the time of the murder, rather than on the photographic display. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987).

Even if pretrial identification is tainted, in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. A witness's identification of the defendant had such an independent origin where he observed defendant at the scene, evidenced by the fact that the witness's composite sketch, made only three hours after the offense was committed, was almost identical to the defendant's photograph, shown to witness a week later. Selbo v. State, 186 Ga. App. 779, 368 S.E.2d 548 (1988).

Factors as to reliability of in-court identification.

- Where suggestive pretrial confrontations may have created a substantial likelihood of irreparable misidentification at trial, the core question is whether, under the totality of the circumstances, the in-court identification was reliable. The factors to be weighed in arriving at the ultimate conclusion are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Jones v. Newsome, 846 F.2d 62 (11th Cir.), cert. denied, 488 U.S. 911, 109 S. Ct. 265, 102 L. Ed. 2d 253 (1988).

Mere fact that police officer handed photographs to victim for identification did not render the photographic identification procedure impermissibly suggestive. Whitfield v. State, 176 Ga. App. 476, 336 S.E.2d 356 (1985).

Due process not denied if pretrial confrontation accidental and not arranged toward inevitable identification.

- If a pretrial confrontation is accidental and not so arranged by the authorities as to make a resulting identification virtually inevitable, there is no denial of due process, particularly where no identification is made to the authorities at the time of the confrontation. Moye v. State, 122 Ga. App. 14, 176 S.E.2d 180 (1970).

Provision against self-incrimination not applicable where defendant voluntarily submits for others identifying the defendant.

- The essential element in the provision against self-incrimination is that no one shall be compelled to give evidence tending to incriminate oneself. The provision is not applicable where the defendant voluntarily submits oneself for the purpose of others identifying the defendant. Whippler v. State, 218 Ga. 198, 126 S.E.2d 744 (1962), cert. denied, 375 U.S. 960, 84 S. Ct. 446, 11 L. Ed. 2d 318 (1963).

Privilege against self-incrimination not violated by requiring suspect to verbalize specific words.

- Requiring a suspect to verbalize specified words for identification purposes, whether or not the words used are the same as those allegedly used during the commission of the offense, does not violate the privilege against self-incrimination accorded the accused by the United States Constitution and the state's statutes and Constitution. Clark v. State, 166 Ga. App. 366, 304 S.E.2d 494 (1983).

Conviction based upon in-court identification following pretrial identification will be set aside on that ground only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Moye v. State, 122 Ga. App. 14, 176 S.E.2d 180 (1970).

Constitutional privileges against self-incrimination are applicable to post-arrest, pretrial police interrogation. Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976).

Where the defendant claims as error the refusal to grant a severance, the defendant must make a clear showing of prejudice and a consequent denial of due process; it is insufficient to show a mere possibility that a separate trial would give the defendant a better chance of acquittal. Love v. State, 173 Ga. App. 85, 325 S.E.2d 449 (1984), aff'd, 254 Ga. 697, 334 S.E.2d 173 (1985).

Court's comments during voir dire.

- Where, in ruling on a voir dire question, the trial court stated that "The defendant is the one that's injected race into the case. The state hasn't," and the defendant argued that the comment put a chill on the voir dire process, denying the defendant an opportunity to get a racially unbiased jury in denial of the defendant's due process rights, it was held that the record did not show either that the court's comment somehow abridged the scope or effectiveness of the defendant's voir dire questions or that the court's comment prejudiced the minds of the jurors against the defendant. Walker v. State, 258 Ga. 443, 370 S.E.2d 149 (1988).

Ill defendant during voir dire and subsequent waiver of rights.

- Trial court did not abuse the court's discretion by denying a defendant's motion for a new trial based on the defendant vomiting in front of the jury during voir dire when the trial was commenced after a two day delay that was granted to the defendant after indicating an illness prevented the defendant's presence at trial. The trial court properly found that the alleged ill defendant waived the right to be present by repeatedly delaying the start of trial with the malingering conduct and by failing to object when defense counsel, in the defendant's presence, specifically requested that the trial court remove the defendant from the courtroom before bringing the jury panel back. Smith v. State, 284 Ga. 599, 669 S.E.2d 98 (2008).

Reserve police officers as jurors.

- Trial court did not err in overruling challenges to two prospective jurors who were challenged because they were reserve police officers. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 73 L. Ed. 2d 174 (1983).

Asking of leading questions.

- A mature individual of normal intelligence, after being fully advised of the individual's constitutional rights and consenting to be interviewed without counsel, may, during short periods of questioning when not otherwise imposed upon, be asked leading questions. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).

Rights to assistance of counsel and to remain silent during in-custody police interrogation waivable.

- Any suspect of a crime is guaranteed the rights to assistance of counsel and to remain silent during in-custody police interrogation, and any statement obtained in derogation of those rights is inadmissible in a subsequent criminal prosecution. The suspect may, however, waive these rights provided the waiver is knowingly and intelligently made. Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972).

Giving of Miranda warnings prior to defendant's incriminating remarks sufficient legal warning.

- Where prior to making incriminating remarks, the defendant was given the Miranda warnings, further warning that the defendant should have present with the defendant at the time of making such dangerous statements, an attorney or, at least, a "disinterested person," was not legally required. Durham v. State, 243 Ga. 408, 254 S.E.2d 359 (1979).

Considerations in determining whether waiver of constitutional rights.

- Mental deficiency, age, and lack of familiarity with the criminal process are important factors to be considered in determining whether there has been a waiver of constitutional rights. Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972).

No increased charges in circumstances suggesting retaliation for defendant's assertion of rights without explanation.

- Once a prosecutor exercises the discretion to bring certain charges against a defendant, neither the prosecutor nor the prosecutor's successor may, without explanation, increase the number of or severity of those charges in circumstances which suggest that the increase is retaliation for the defendant's assertion of statutory or constitutional rights. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).

Cases in which pretrial publicity held not prejudicial to due process. See Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S. Ct. 908, 21 L. Ed. 2d 799 (1969), later appeal, 431 F.2d 70 (5th Cir. 1970), vacated on other grounds, 408 U.S. 938, 92 S. Ct. 2867, 33 L. Ed. 2d 758 (1972).

Due process requires that a pretrial detainee not be punished; therefore, where punishment is imposed without adjudication, the pertinent constitutional guarantee is the due process clause, not the eighth amendment. McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983), appeal dismissed, 724 F.2d 881 (11th Cir. 1984).

Forfeiture of seized controlled substances.

- O.C.G.A. § 16-13-49(c), which requires prompt institution of forfeiture proceedings in cases involving the seizure of controlled substances does not violate the equal protection and due process clauses. Porter v. State, 196 Ga. App. 31, 395 S.E.2d 360 (1990).

Incompetent defendant, forced to stand trial, denied due process.

- There was insufficient reason for the jury to disregard the unanimous opinions of psychiatric experts that the defendant, who suffered from schizophrenia, was incompetent to stand trial. The defendant was therefore denied due process of law when tried. Wallace v. Kemp, 757 F.2d 1102 (11th Cir. 1985).

Hearing on mental competency.

- State trial court which possessed substantial and convincing evidence of defendant's possible mental incompetency was required to sua sponte hold a competency hearing to establish the defendant's competency to plead guilty, and the court's failure to hold such a hearing violated the defendant's procedural due process rights. Tiller v. Esposito, 911 F.2d 575 (11th Cir. 1990).

Communications between parishioner and clergy admissible without assistance of counsel.

- Because defendant requested the future assistance of an attorney, not immediate assistance, and because the defendant knew that the defendant's confession would be handed over to law enforcement, the clergy- parishioner privilege in former O.C.G.A. §§ 24-3-51 and24-9-22 (see now O.C.G.A. §§ 24-8-825 and24-5-502) were inapplicable; therefore, defendant's confession to the crimes was voluntary. Willis v. State, 287 Ga. 703, 699 S.E.2d 1 (2010).

9. Right to Counsel

Denial of assistance of counsel in criminal case violates due process clause of U.S. Const., amend. 14. Walker v. State, 194 Ga. 727, 22 S.E.2d 462 (1942); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973).

United States Const., amend. 6 guarantee of assistance of counsel was incorporated into U.S. Const., amend. 14 by Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978).

Denial of counsel within meaning of Constitution renders judgment of conviction void. Morris v. Peacock, 202 Ga. 524, 43 S.E.2d 531 (1947).

Protection of accused from conviction due to ignorance of rights.

- The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from the accused's own ignorance of the accused's legal and constitutional rights, and the guaranty would be nullified by a determination that an accused's ignorant failure to claim the accused's rights removes the protection of the Constitution. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).

Due process requires that criminal defendant have right to counsel at critical stages.

- The mandate of U.S. Const., amend. 6 that every accused in a criminal prosecution has the right to the assistance of counsel for his defense at every critical stage of the case as an essential component of due process in a trial in a state court compels every agency of government concerned with the operation of the courts to acknowledge the necessity for and implement the means by which this necessary public purpose must be accomplished. The provisions of Georgia's Constitution make the same demand. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).

Benefit of counsel at critical stages of case.

- Accused's right to counsel includes benefit of counsel at critical stages of case and sufficiently prior to trial for adequate preparation. Rose v. State, 128 Ga. App. 370, 196 S.E.2d 683 (1973).

Right to counsel versus right to testify.

- Where a federal district court presented the defendant with a choice: either to proceed with counsel with the caveat that the defendant could be kept off the witness stand, if the defendant's attorney so desired, or to proceed pro se, the defendant was impermissibly forced to choose between two constitutional rights: the right to testify and the right to counsel. United States v. Scott, 909 F.2d 488 (11th Cir. 1990).

Judge's refusal of request for postponement depriving defendant of opportunity to procure counsel violates amendment.

- A judge's refusal of the request of a defendant for postponement, which in effect deprives the defendant of opportunity to use normal facilities and resources to procure counsel of the defendant's own choice, violates U.S. Const., amend. 14. Walker v. State, 194 Ga. 727, 22 S.E.2d 462 (1942).

Court duty to assign counsel not discharged if time or circumstances precludes giving of effective aid.

- It is the duty of the court to assign counsel for the applicant as a necessary requisite of due process of law, and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. Mosley v. Dutton, 367 F.2d 913 (5th Cir. 1966), cert. denied, 387 U.S. 942, 87 S. Ct. 2074, 18 L. Ed. 2d 1328 (1967), later appeal, Mosley v. Smith, 404 F.2d 346 (5th Cir. 1968).

Mere appointment of counsel insufficient to comply with due process.

- The duty of appointing counsel to represent the defendant is not discharged by an appointment that precluded effective assistance; the mere appointment of counsel is insufficient in and of itself to comply with the due process clause. Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973).

Procedure used by county in appointing attorneys for indigent did not violate due process where, in the event the public defender's office was unavailable, attorneys were appointed from alphabetical list in an equitable manner and special considerations were given in death penalty cases. Lewis v. State, 255 Ga. 101, 335 S.E.2d 560 (1985).

When due notice or waiver of irregularity assumed.

- Where the defendant was present at the hearing and was represented by counsel, and no objection was made at that time to the effect that the notice was insufficient either as to length of time or in any other respect, to allow counsel to prepare the defense, and no continuance was requested for this purpose, it must be assumed that "due notice" was in fact received by the defendant or that, in any event, the general appearance of the defendant by defense counsel constituted a waiver of any irregularity therein. Rainwater v. State, 127 Ga. App. 406, 193 S.E.2d 889 (1972).

Necessity of counsel is vital and imperative, and the failure of the trial court to make an effective appointment of counsel is likewise a denial of due process within the meaning of U.S. Const., amends. 5 and 14. Bridwell v. Aderhold, 13 F. Supp. 253 (N.D. Ga. 1935), aff'd sub nom. Johnson v. Zerbst, 92 F.2d 748 (5th Cir. 1937), rev'd on other grounds, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938), overruled on other grounds, Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998).

Defendant cannot neglect procuring counsel.

- A defendant must be afforded benefit of counsel, and this includes time sufficient for counsel to prepare for trial, but where the defendant was apprised of the charge against the defendant at a previous term of court and the defendant fails or neglects to procure counsel or ask the court to do so for the defendant there is no error in refusing a request for additional time on the ground that the counsel has had insufficient time to prepare the defense. Bradshaw v. State, 132 Ga. App. 363, 208 S.E.2d 173 (1974).

Defendant's diligence in obtaining counsel.

- Where the trial of the defendant had been continued in order to accommodate the defendant's request to obtain different counsel and the defendant had been told when the case would be tried and warned of the dangers of proceeding without counsel and the defendant appeared without counsel on the date set, before proceeding to trial the court should have made inquiry as to whether the defendant's failure to obtain counsel was attributable to the defendant's own lack of diligence. Hasty v. State, 210 Ga. App. 722, 437 S.E.2d 638 (1993).

Indigent defendant must be afforded counsel if requested.

- Impoverished defendant unable to employ or arrange for counsel must be afforded a attorney when the defendant requests it in order to meet the constitutional guaranty and to afford due process. Perry v. State, 120 Ga. App. 304, 170 S.E.2d 350 (1969).

Right to counsel includes right to appointed counsel where defendant indigent.

- Right of indigent defendant in criminal trial to have assistance of counsel is fundamental right essential to a fair trial. Broome v. Matthews, 223 Ga. 92, 153 S.E.2d 721 (1967).

Indigent defendant's rights are violated if the defendant is denied appointed counsel at a preliminary hearing and suffers prejudice on trial as result. Dismuke v. State, 127 Ga. App. 835, 195 S.E.2d 259 (1973).

Indigents must be furnished counsel at every critical stage of criminal proceedings, including first appeal, under U.S. Const., amends. 6 and 14. Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974).

The right to counsel, guaranteed by U.S. Const., amend. 6 and applicable to the states by virtue of U.S. Const., amend. 14, includes the right to appointed counsel where the defendant is indigent. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Where competent counsel was provided by the court for a defendant who was financially unable to employ an attorney, the defendant was not denied effective assistance of counsel. Willingham v. State, 134 Ga. App. 144, 213 S.E.2d 516 (1975).

Absent showing that indigent was aware of right to appointed counsel, no intentional abandonment or waiver of right.

- In the absence of any showing that a petitioner was aware of the right to appointed counsel, if the petitioner was in fact indigent, it cannot be said that the petitioner intentionally abandoned or waived that right. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Due process requirement as to representation by counsel for indigent.

- Where the law of the state requires the appointment of counsel for indigent persons, as in a capital case, where the defendant is unable to engage a lawyer and is incapacitated by ignorance, illiteracy, physical disability, or the like, to adequately make the defendant's own defense, due process of law requires that the court assign counsel for the defendant's, competent to serve, who shall give more than casual or perfunctory service to the prisoner. Lip service only will not do. Also, the Constitution requires that a fair opportunity shall be afforded such counsel to consult the client and to prepare a defense against the charge. Coates v. Lawrence, 46 F. Supp. 414 (S.D. Ga. 1942), aff'd, 131 F.2d 110 (5th Cir. 1942), cert. denied, 318 U.S. 759, 63 S. Ct. 532, 87 L. Ed. 1132 (1943).

Right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and a trial and conviction without the assistance of counsel violates the Fourteenth Amendment. No showing of prejudice is required of a defendant who has been denied assistance of counsel because when one pleads to a criminal charge without benefit of counsel, a reviewing court does not stop to determine whether prejudice resulted. Heath v. State, 268 Ga. App. 235, 601 S.E.2d 758 (2004).

Indigent accused entitled to be as fully defended as one able to employ counsel.

- An accused who is unable by reason of poverty to employ counsel is entitled to be defended in all the accused's rights as fully and to the same extent as is an accused who is able to employ one's own counsel. Downer v. Dunaway, 53 F.2d 586 (5th Cir. 1931).

Though compensation for attorney's representation of indigent not constitutionally required.

- A request by a judge of a trial court that an attorney represent an indigent defendant in a criminal case is tantamount to a demand with which the attorney must necessarily comply, but the attorney's professional services, work product and necessary out-of-pocket expenses in providing competent representation are not required by the Constitution to be compensated. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).

Preference for expert.

- An indigent defendant does not have a constitutional right to the expert the defendant prefers. McNeal v. State, 263 Ga. 397, 435 S.E.2d 47 (1993).

Prior convictions in violation of indigent defendant's right to appointed counsel cannot be introduced for collateral use in subsequent trials. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Consideration of a person's prior uncounseled convictions for driving under the influence in determining an appropriate sentence for a subsequent conviction does not violate any constitutional right to counsel because the driving under the influence statute (O.C.G.A. § 40-6-391) is not an enhanced penalty statute since it neither increases the maximum confinement authorized nor converts a misdemeanor offense into a felony. Moore v. State, 181 Ga. App. 548, 352 S.E.2d 821, cert. denied, 484 U.S. 904, 108 S. Ct. 247, 98 L. Ed. 2d 204 (1987).

Imposing of recidivist sentence.

- Prior convictions obtained in violation of a defendant's right to appointed counsel where the defendant is indigent cannot be used for the purpose of imposing a recidivist sentence. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Gideon v. Wainwright has retroactive effect where the records of prior convictions obtained in violation of its standards are introduced for collateral use in subsequent trials. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

When defendant not denied counsel.

- Where it does not appear that a defendant was unable to employ counsel, or that he desired or made any request for counsel, or that the court declined to appoint counsel to represent the defendant, the defendant was not denied counsel. Balkcom v. Shores, 219 Ga. 429, 134 S.E.2d 3 (1963).

Due process does not require forcing counsel upon defendant. Balkcom v. Shores, 219 Ga. 429, 134 S.E.2d 3 (1963).

Guarantee of benefit of counsel in criminal proceeding waivable.

- The constitutional guarantees of the benefit of counsel to a defendant in the trial of a criminal proceeding both federal and state may be waived by the defendant. Williams v. Gooding, 226 Ga. 549, 176 S.E.2d 64 (1970).

Waiver of right to counsel.

- The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver of the right to counsel. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Valid waiver of right to counsel exists only if defendant intentionally relinquishes or abandons known right or privilege. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Valid waiver of appointed counsel requires broad understanding of situation.

- To be valid a waiver of appointed counsel must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishment thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664 (1973).

Burden of valid waiver of right to counsel upon prosecution.

- Burden is upon prosecution to affirmatively establish valid waiver of right to counsel, and waiver may not be presumed from a silent record. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Presumption is against waiver of benefit of counsel, which must be done voluntarily, knowingly and intelligently. Rose v. State, 128 Ga. App. 370, 196 S.E.2d 683 (1973).

Affirmative showing that court furnished accused with information to make knowing decision about right to counsel required.

- It must be affirmatively shown that the court furnished the accused with the necessary information upon which the accused could make a voluntary, knowing and intelligent decision regarding his right to counsel. Rose v. State, 128 Ga. App. 370, 196 S.E.2d 683 (1973).

Trial judge's responsibility to determine if proper waiver of appointed counsel.

- It is the responsibility of the trial judge, when the accused is without counsel, to clearly determine whether there has been a proper waiver of appointed counsel. A judge must investigate as long and as thoroughly as the circumstances of the case before the judge demand. Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664 (1973).

Requiring penetrating and comprehensive examination of circumstances.

- A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664 (1973).

Right to counsel attaches only at or after time that adversary judicial proceedings have been initiated against him. West v. State, 229 Ga. 427, 192 S.E.2d 163 (1972).

Waiver of right to counsel at plea hearing.

- A judge must be present before a defendant may waive his or her constitutional right to be represented by counsel at a plea hearing. Penney v. Vaughn, 870 F. Supp. 1093 (M.D. Ga. 1994).

Use of jailhouse informants to obtain incriminating information.

- In order to establish a prisoner's claim that the state violated the prisoner's right to counsel by using jailhouse informants deliberately to elicit incriminating information from the prisoner in the absence of counsel, the prisoner must show (1) that a fellow inmate was a government agent; and (2) that the inmate deliberately elicited incriminating statements from the prisoner. Depree v. Thomas, 946 F.2d 784 (11th Cir. 1991).

Admission of incriminating statements given by defendant to fellow inmate was proper where the inmate's activity in eliciting defendant's statements was not so coercive as to violate due process. Wilson v. State, 264 Ga. 287, 444 S.E.2d 306, cert. denied, 513 U.S. 988, 115 S. Ct. 486, 130 L. Ed. 2d 398 (1994).

Generally, preindictment lineup does not trigger right to counsel. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (1977).

In Georgia preliminary commitment hearing is not inherently critical stage of criminal proceedings. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

When due process not denied by failure to make counsel available to defendant at preliminary commitment hearing.

- The failure to make counsel available to the defendant at a preliminary commitment hearing, where the defendant entered a plea of guilty that was not introduced in evidence at the defendant's trial, was not a denial of due process of law under U.S. Const., amend. 14. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

Refusal to appoint counsel for defendant at commitment hearing did not violate due process. Molignaro v. Balkcom, 221 Ga. 150, 143 S.E.2d 748 (1965).

Denial of counsel at commitment hearing does not deny accused due process where rights not prejudiced by lack of counsel at that time. Smith v. Fuller, 223 Ga. 673, 157 S.E.2d 447 (1967).

Arraignment is critical stage in criminal case. The absence or lack of counsel at such time is a violation of the right of the accused to due process. In such cases courts "do not stop to determine whether prejudice resulted." Phillips v. Smith, 300 F. Supp. 130 (S.D. Ga. 1969).

It is unconstitutional to try a person on state felony charge unless that person has assistance of counsel or has validly waived it. Wren v. United States Bd. of Parole, 389 F. Supp. 938 (N.D. Ga. 1975).

Persons charged with serious criminal offenses have right to counsel.

- Persons charged with serious criminal offenses have right under U.S. Const., amends. 6 and 14 to assistance of counsel in their defense. Shepherd v. Jordan, 425 F.2d 1174 (5th Cir. 1970).

Where offense classified as serious, counsel must be furnished.

- The length of the maximum sentence authorized by a statute proscribing criminal conduct determines the classification of an offense as petty or serious. All charges against an accused must be cumulated in measuring the possible sentence which could be imposed for the purpose of calculating whether the offense is petty or serious, and where an offense is classified as serious, counsel must be furnished. Shepherd v. Jordan, 425 F.2d 1174 (5th Cir. 1970).

Presumption that right to counsel not denied if no affirmative showing of denial in record.

- Where the record of the trial does not affirmatively show in a felony case that the accused person of mature age was denied the benefit of counsel, it must be presumed that the trial judge did the judge's duty and that the accused was not denied the right to counsel. White v. Grimes, 216 Ga. 335, 116 S.E.2d 561 (1960).

Person charged with felony in state court has unconditional and absolute constitutional right to lawyer. This right attaches at the pleading stage of the criminal process, and may be waived only by voluntary and knowing action. Boyd v. Dutton, 405 U.S. 1, 92 S. Ct. 759, 30 L. Ed. 2d 755 (1972).

Trial court did not abuse its discretion in requiring appointed counsel to proceed with the trial of the case where appointed counsel was the only counsel recognized by the court as representing the defendant, and there was no direct evidence that any other counsel was privately employed to represent the defendant in the case. Arnold v. State, 156 Ga. App. 248, 274 S.E.2d 640 (1980).

Trial court's permitting appointed counsel to leave courtroom during state's argument not deprivation of right to counsel.

- Under no theory can it be maintained that the trial court committed any error permitting the appellant's appointed counsel to leave the courtroom during the state's argument thereby depriving the appellant of the right of counsel under U.S. Const., amends. 6 and 14. Bryant v. State, 229 Ga. 60, 189 S.E.2d 435 (1972).

Appointment of additional counsel to assist regularly employed counsel.

- It is not denial of due process for trial court to appoint and tender to defendant additional counsel to assist regularly employed counsel of defendant's own selection. Andrews v. Robertson, 145 F.2d 101 (5th Cir. 1944), cert. denied, 324 U.S. 874, 65 S. Ct. 1013, 89 L. Ed. 1427 (1945).

Where representation by counsel comports with due process.

- As to the requirement under U.S. Const., amend. 14, the services of counsel meet the requirement of the due process clause when he is a member in good standing at the bar, gives the client complete loyalty, serves in good faith to the best of counsel's ability, and counsel's service is of such character as to preserve the essential integrity of the proceedings at a trial in a court of justice. Counsel is not required to be infallible. Counsel's client is entitled to a fair trial, not a perfect one. Jones v. Balkcom, 210 Ga. 262, 79 S.E.2d 1 (1953), cert. denied, 347 U.S. 956, 74 S. Ct. 682, 98 L. Ed. 1101 (1954).

Where counsel, representing a defendant in a criminal case, is a member of the bar in good standing, and, in representing the client in the trial of the case, gives complete loyalty to the client, serves the client in good faith to the best of counsel's ability, and counsel's service is of such a character as to preserve the essential integrity of the proceedings in a court of justice, the requirements of due process within U.S. Const., amend. 14 and Ga. Const. 1983, Art. I, Sec. I, Para. I, are met. Bolick v. State, 127 Ga. App. 542, 194 S.E.2d 302 (1972).

Broad latitude of advice, direction, and policy in interest of client is essentially vested in counsel in the conduct of a trial. Counsel often waive apparently important points in the bona fide belief that, on the whole, greater advantage will be gained indirectly than might have been gained directly by insisting on them, and such a waiver either express or implied would ordinarily not tend to show incompetency. No lawyer is infallible, and the constitutional guaranties of the benefit of counsel, and of due process, do not contemplate such infallibility. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).

Because the defendant's attorneys did not move for a continuance and obtain a longer time to prepare the case, because they allowed irrelevant or otherwise illegal evidence to be admitted without objection, because they relied solely on the statement of the defendant to the jury without introducing testimony, and because they themselves did not actively pursue the motion for new trial are not matters which would constitute a denial of the right to due process, but at most would amount to alleged negligence or errors of judgment. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).

Defendant is entitled to effective assistance of counsel in determining how to plead and in making plea and can attack the conviction collaterally if the defendant is not given this right. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Advice of counsel to defendant entering guilty plea must be within range of competence demanded of attorneys in criminal cases. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Defendant's lawyer's duty to ascertain whether plea of guilty is entered voluntarily and knowingly. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Counsel inducing defendant to plead guilty on patently erroneous advice.

- Where counsel induced defendant to plead guilty on patently erroneous advice, defendant has been denied effective assistance of counsel, as well as due process. Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973).

Defendant's due process rights were violated where throughout the state and federal habeas proceeding the defendant was induced to plead guilty by defendant's counsel's erroneous advice that the plea bargain would enable defendant to serve the federal and state sentences concurrently. Thus, the attorney provided ineffective assistance to defendant as the guilty plea was not knowing, intelligent and voluntary. Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995).

After an inmate's counsel affirmatively misinformed the inmate that if the inmate entered a plea of guilty to a first offender offense of violating the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., that such would not impair the inmate's ability to become a lawyer, nor would it impact the inmate's immigration status, the trial court erred in denying the inmate's petition for a writ of habeas corpus pursuant to O.C.G.A. § 9-14-5 because under the Strickland analysis, the inmate's counsel was ineffective, as the inmate had graduated law school and passed the Bar, but the inmate's admission was held up due to the conviction, and deportation proceedings had been commenced against the inmate. Thus, since the inmate relied upon a lawyer's misinformation about collateral consequences stemming from a guilty plea, the inmate had grounds to argue that counsel provided ineffective representation pursuant to U.S. Const., amend. 6, and such claims are to be analyzed under the two-part Strickland test. Rollins v. State, 277 Ga. 488, 591 S.E.2d 796 (2004).

Counsel's conceding client's guilt rendered assistance ineffective.

- Given the petitioner's plea of not guilty, the petitioner's denial of involvement in the crime, and the insubstantiality of the petitioner's insanity defense, counsel's conceding the client's guilt was irrational and rendered the assistance at trial ineffective. Francis v. Spraggins, 720 F.2d 1190 (11th Cir. 1983), cert. denied, 470 U.S. 1059, 105 S. Ct. 1776, 84 L. Ed. 2d 835 (1985).

Counsel to ascertain whether voluntary, knowing plea and assist in decision whether to plead guilty.

- Counsel must ascertain whether a plea is entered voluntarily and knowingly and must actually and substantially assist the defendant in deciding whether to plead guilty by providing an understanding of the law in relation to the facts. Counsel's advice need not be perfect, but it must be reasonably competent so as to permit the accused to make an informed and conscious choice. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979); Austin v. Carter, 248 Ga. 775, 285 S.E.2d 542 (1982).

Effective assistance of counsel does not require errorless counsel, or counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979); Rosser v. State, 156 Ga. App. 463, 274 S.E.2d 812 (1980), aff'd, 247 Ga. 724, 279 S.E.2d 217 (1981); Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982), supplemented by 564 F. Supp. 780 (S.D. Ga. 1983), aff'd in part, rev'd in part sub nom. Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985), aff'd in part sub nom. Mitchell v. Kemp, 762 F.2d 886 (11th Cir.), rev'd in part sub nom. Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986), cert. denied, 487 U.S. 1026, 107 S. Ct. 3248, 97 L. Ed. 2d 774 (1987), 500 U.S. 960, 111 S. Ct. 2276, 114 L. Ed. 2d 727 (1991); Galloway v. State, 165 Ga. App. 536, 301 S.E.2d 894 (1983).

Whenever actions of retained counsel operate to deprive trial of fundamental fairness, due process violated, notwithstanding any kind of specific involvement by a particular state official. If, however, retained counsel's actions in representing the defendant do not violate fundamental fairness, but are challenged as less than reasonably effective in violation of the U.S. Const., amend. 6, state involvement through actual or constructive awareness of the error by the judge, prosecutor, or other responsible official who could have corrected it, must be shown. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Counsel's significant misleading statements can rise to denial of due process.

- While the good faith errors of appointed counsel are normally insufficient to justify granting a motion to vacate sentence, significant misleading statements of counsel can rise to a level of denial of due process of law and result in a vitiation of the judicial proceeding because of ineffective assistance of counsel. Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973).

Where accused virtually unrepresented or substantially without aid of counsel.

- If appointed attorneys are so ignorant, negligent, or unfaithful that the accused was virtually unrepresented, or if the accused did not in any real or substantial sense have the aid of counsel, the accused would be deprived of a fundamental constitutional right and, if convicted, might successfully complain that the accused had been denied due process of law. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).

If counsel for the defendant in a criminal case of the character of which the present defendant stands convicted, whether appointed by the court or of the defendant's selection, was so negligent or unfaithful in the trial of the case that the defendant was virtually unrepresented, or if the defendant did not in any real or substantial sense have the aid of counsel, this amounts to deprivation of a fundamental constitutional right, and the defendant under such circumstances may complain that the defendant has been denied due process of law. Jones v. Balkcom, 210 Ga. 262, 79 S.E.2d 1 (1953), cert. denied, 347 U.S. 956, 74 S. Ct. 682, 98 L. Ed. 1101 (1954).

Where due process and adequate representation by counsel lacking.

- Where defense counsel did not adequately investigate the matter of an insanity defense, did not adequately inform and advise the client as to the advisability of utilizing such a defense, and did not raise and press the issue of disqualification of the judge, due process and adequate representation by counsel were lacking. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Where conflict of interest is objected to before trial, prejudice need not be shown.

- Whenever a defendant establishes the defense lawyer's unconstitutional multiple representation, that is, where an actual conflict of interest is objected to before or during trial, prejudice need not be demonstrated; however, in order to establish a violation of the sixth amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected the lawyer's performance. Dean v. State, 247 Ga. 724, 279 S.E.2d 217 (1981).

Ineffective representation due to conflict of interest renders trial fundamentally unfair.

- Ineffective representation by a lawyer laboring under a conflict of interest renders trial fundamentally unfair whether judge knew of conflict or not. Unlike most Fourteenth Amendment due process cases, no state action in the form of a state official's knowledge of the wrongdoing need be shown. A deprivation of due process results when judgment reached in such a trial is enforced. Johnson v. Hopper, 639 F.2d 236 (5th Cir.), rehearing denied, 644 F.2d 36 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412 (1981).

Counsel not absolutely necessary for fair trial.

- U.S. Const., amend. 14 prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, U.S. Const., amend. 14 does not embody an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel. Gann v. Gough, 79 F. Supp. 912 (N.D. Ga.), rev'd on other grounds, Hiatt v. Gann, 170 F.2d 473 (5th Cir. 1948), cert. denied, 337 U.S. 920, 69 S. Ct. 1148, 93 L. Ed. 1729 (1949).

Denial of benefit of counsel constitutes ground for issuance of writ of habeas corpus. The deprivation of counsel is such a fundamental and radical error that it operates to render the trial illegal and void. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).

Where allegations of denial of benefit of counsel in habeas corpus petition insufficient.

- In a habeas corpus petition, allegations to the effect that the defendant had entered a plea of guilty to an indictment for a felony offense "without the advice of counsel" were insufficient to charge that the defendant was denied the constitutional right of the privilege and benefit of counsel, since the petition failed to allege that the defendant was unable to employ counsel or that the defendant desired or made any request for counsel or that the court declined to appoint counsel to represent the defendant. White v. Grimes, 216 Ga. 335, 116 S.E.2d 561 (1960).

Where defendant is represented by retained counsel at trial prerequisites in showing denial of counsel for appeal: (1) it must be known to the court that the criminal defendant is indigent; and (2) it must be known to the court that the defendant wishes to appeal. Goforth v. Dutton, 409 F.2d 651 (5th Cir. 1969).

Effective assistance of counsel as to appeal.

- An attorney renders effective assistance of counsel with regard to the decision whether to appeal when the attorney advises the client of the client's appellate rights and does not preempt the client's decision to appeal. Murphy v. Balkcom, 245 Ga. 13, 262 S.E.2d 784 (1980).

Appointed counsel must fully inform client of appellate rights.

- Representation is inadequate and right of appeal denied where appointed counsel fails to fully inform client of appellate rights. Gregory v. United States, 446 F.2d 498 (5th Cir. 1971); Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974).

Where appointed counsel can determine no basis for appeal exists.

- Where the defendant's appointed counsel made an affirmative determination, as was counsel's right to do in conducting the defense, that no basis for an appeal existed, it does not appear that the appellant was denied the right to counsel on appeal or due process of law. Blackmon v. Smith, 226 Ga. 849, 178 S.E.2d 176 (1970).

Appointed lawyer may not forego direct appeal without client consent.

- Right to appeal is violated when appointed lawyer deliberately foregoes direct appeal without client's consent. Gregory v. United States, 446 F.2d 498 (5th Cir. 1971); Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974).

Defendant is deprived of adequate representation of counsel on appeal in violation of U.S. Const., amend. 14 unless these requirements are complied with: (1) counsel must make a conscientious examination of the case; (2) if counsel finds that an appeal would be wholly frivolous, counsel must notify the court and request permission to withdraw; (3) that request must be accompanied by a brief presenting any issue which might arguably be raised on appeal; (4) petitioner should be furnished a copy of the brief and allowed an opportunity to raise any additional issues; (5) the court should examine the case to determine whether it is frivolous; (6) if the court finds the appeal frivolous, it may grant the request to withdraw and dismiss the appeal; and (7) if the court finds any of the issues arguable on their merits, it must then furnish counsel to argue the appeal. Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969).

Appointed counsel must notify court of frivolous criminal appeal.

- When appointed counsel considers criminal appeal frivolous, he must notify appellate court and request permission to withdraw, and the court must then examine the case to determine whether it is frivolous. Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974).

Indigent defendant is entitled to appointment of counsel to assist the defendant on first appeal, and that appointed counsel must function in the active role of an advocate. Goforth v. Dutton, 409 F.2d 651 (5th Cir. 1969).

The failure to grant an indigent defendant seeking initial review of the conviction the services of an advocate violates petitioner's rights to fair procedure and equality under U.S. Const., amend. 14. Chenoweth v. Smith, 225 Ga. 572, 170 S.E.2d 235 (1969).

Provision for counsel for indigent defendants seeking discretionary appeals to Supreme Court not required.

- Neither the due process clause nor the equal protection clause of U.S. Const., amend. 14 requires that counsel be provided for indigent defendants seeking discretionary appeals to the state Supreme Court or to the United States Supreme Court. Wooten v. State, 245 Ga. 724, 266 S.E.2d 927 (1980).

Denial of assistance of counsel at state habeas hearing does not constitute denial of due process. Burston v. Caldwell, 477 F.2d 996 (5th Cir. 1973), cert. denied, 421 U.S. 990, 95 S. Ct. 1995, 44 L. Ed. 2d 480 (1975).

Appointment of counsel on habeas corpus proceedings in state court is not required by due process clause of U.S. Const., amend. 14. NLRB v. Brady Aviation Corp., 224 F.2d 23 (5th Cir. 1955).

Constitutional infirmities found in multiple representation of codefendants may violate due process clause or the sixth amendment, and for that reason relief can be granted. Dean v. State, 247 Ga. 724, 279 S.E.2d 217 (1981).

Ineffective counsel established.

- Where a defendant, charged with murder, rape and burglary, among other crimes, was represented at trial by two attorneys, each of whom actively participated in the defense, and each attorney espoused a defense at odds with that of the other, causing a discernible split within the ranks of the defense team which prevented counsel from, among other things, effective performance of the duty to assist petitioner in the decision whether to testify in the defendant's own defense, the defendant did not receive the effective assistance of counsel guaranteed by the Constitution. Ross v. Kemp, 260 Ga. 312, 393 S.E.2d 244 (1990).

Ineffective assistance not shown.

- Where evidence showed that the defendant's counsel discussed with the defendant the right to testify and advised against it, and the defendant never affirmatively asked to testify, defendant failed to demonstrate that counsel erroneously deprived the defendant of the choice to testify and that counsel's deficiency in this regard deprived the defendant of a fair trial. Mobley v. State, 264 Ga. 854, 452 S.E.2d 500 (1995); Barron v. State, 264 Ga. 865, 452 S.E.2d 504 (1995).

Federal abstention.

- The Court of Appeals abstained from exercising its equitable jurisdiction to hear a class action claim that Georgia's indigent defense system was inherently incapable of providing constitutionally adequate services and that the system therefore violated the sixth, eighth, and Fourteenth Amendments to the United States Constitution. Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992).

10. Criminal Trials

Applicability of U.S. Const., Amend 5, protections in civil and criminal actions.

- The protections of U.S. Const., amend. 5 may be invoked in civil as well as criminal actions and applied fully to state proceedings through U.S. Const., amend. 14. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977).

Criminal defendant is not entitled to perfect trial under U.S. Const., amend. 14. Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

State's responsibility for fair trial.

- State, through the judge or prosecutor, has a responsibility to see that the defendant receives a fair trial under U.S. Const., amend. 14. Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136 (1980).

Right to fair trial denied.

- The evidence below supported the habeas court's findings that (1) in failing to seek a continuance the defendant's counsel rendered ineffective assistance at the defendant's trial; and (2) counsel's ineffectiveness so prejudiced the defendant's case that the defendant was effectively denied the defendant's right to a fair trial as guaranteed by the sixth and Fourteenth Amendments to the United States Constitution. Turpin v. Bennett, 272 Ga. 57, 525 S.E.2d 354 (2000).

Heinous offense defendants entitled to fair trial.

- Even those guilty of most heinous offenses are entitled to fair trial. Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).

Justice involves delicate judgment based on circumstances of each case.

- To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. State v. Madden, 242 Ga. 637, 250 S.E.2d 484 (1978).

Rights to be tried in court of law and not to be treated with unreasonable, unnecessary or unprovoked force while in custody.

- The constitutional right to due process of law includes not only the right to be tried in a court of law for alleged offenses against the state, but also a right not to be treated with unreasonable, unnecessary or unprovoked force by those charged by the state with the duty of keeping accused and convicted offenders in custody. United States v. Stokes, 506 F.2d 771 (5th Cir. 1975).

Trial by jury not required.

- Due process clause does not require trial by jury. Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964).

Jury trial in all state nonpetty criminal cases.

- U.S. Const., amend. 14 guarantees the right of trial by jury in all state nonpetty criminal cases. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978); Haygood v. State, 221 Ga. App. 477, 471 S.E.2d 552 (1996).

Impartial tribunal required by due process.

- Due process requires competent and impartial tribunal in administrative hearings and in trials to judge. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Bifurcated proceedings.

- Defendant's conviction was affirmed as trying the issues of guilt and sentence before the same jury in bifurcated proceedings was not unconstitutional. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Due process limitations on composition of jury.

- If a state chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Due process clause protects defendant from jurors actually incapable of rendering impartial verdict, based on the evidence and the law. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Defendant cannot complain that two prospective jurors were not stricken for cause where defendant did not challenge the prospective jurors for cause and the prospective jurors did not serve on the jury that tried the case. Thomas v. State, 264 Ga. App. 389, 590 S.E.2d 778 (2003).

Exclusion of jurors opposed to death penalty.

- Questioning of jurors and exclusion of those opposed to the death penalty does not violate the due process clause of U.S. Const., amend. 14. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).

States have wide leeway in dividing responsibility between judge and jury in criminal cases. If a state concludes that jury sentencing is preferable, nothing in the due process clause of U.S. Const., amend. 14 intrudes upon that choice. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973).

Conviction upon charge not made or upon charge not tried constitutes denial of due process. DeFrancis v. Manning, 246 Ga. 307, 271 S.E.2d 209 (1980).

Conviction upon a charge not made would be sheer denial of due process. Rowe v. State, 166 Ga. App. 836, 305 S.E.2d 624 (1983), aff'd, 181 Ga. App. 492, 352 S.E.2d 813 (1987).

Defense that act defendant is charged with violating is unconstitutional.

- Due process of law demands that a party not be penalized for exercising that party's right to raise the defense that the act which the party is being charged with violating is unconstitutional. United States v. Northside Realty Assocs., 474 F.2d 1164 (5th Cir. 1973), cert. denied, 424 U.S. 977, 96 S. Ct. 1483, 47 L. Ed. 2d 747 (1976).

Defense of selective prosecution.

- Though selective prosecution, if based on improper motives, can violate constitutional guarantees of equal protection, selective enforcement in and of itself is not a constitutional violation; therefore, to support a defense of selective prosecution, one must establish that others similarly situated have not generally been prosecuted and that the government's discriminatory selection of defendant is invidious, or in bad faith - that is, based on constitutionally impermissible considerations, such as race or religion. United States v. Lichenstein, 610 F.2d 1272 (5th Cir.), cert. denied, 447 U.S. 907, 100 S. Ct. 2991, 64 L. Ed. 2d 856 (1980).

Harmless error.

- Before constitutional error can be held harmless, court must believe it harmless beyond reasonable doubt. Good v. State, 127 Ga. App. 775, 195 S.E.2d 264 (1972).

Conflicting evidence did not support showing that state knowingly presented false testimony.

- Although the defendant pointed to inconsistencies between a recorded statement to police from the second victim that the second victim had not seen the shooting, an officer's testimony at trial that the second victim told the officer that the second victim had seen the shooting, and the defendant's claims that it would have made it impossible for the second victim to have seen the shooting, the defendant's right to due process was not violated because the presentation of conflicting evidence alone did not support a showing that the officer was necessarily being dishonest or that the state knowingly presented false testimony; the defendant thoroughly explored the inconsistencies; and the inconsistencies were for the jury to resolve. Greene v. State, 303 Ga. 184, 811 S.E.2d 333 (2018).

Constitutionality of law cannot be raised for first time in motion for new trial and the fact that the laws were declared unconstitutional pending appeal does not require a different result. Konscol v. Konscol, 151 Ga. App. 696, 261 S.E.2d 438 (1979), cert. denied, 449 U.S. 875, 101 S. Ct. 218, 66 L. Ed. 2d 97 (1980).

Cross-examination.

- Even if the state violated the defendant's due process rights in asking whether the victim's death was accidental on cross-examination, any error was harmless, based on the overwhelming evidence that the victim's injuries were not accidental. Thomas v. State, 281 Ga. 550, 640 S.E.2d 255 (2007).

Presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by the defendant's absence, and to that extent only. Bishop v. State, 179 Ga. App. 606, 347 S.E.2d 350 (1986).

Defendant has the privilege under U.S. Const., amend. 14 to be present personally whenever the defendant's presence has a relation, reasonably substantial, to the fullness of the defendant's opportunity to defend against the charge. Bishop v. State, 179 Ga. App. 606, 347 S.E.2d 350 (1986).

Due process requires that the defendant be personally present to the extent that a fair and just hearing would be thwarted by the defendant's absence, and to that extent only. Finney v. Zant, 709 F.2d 643 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Due process error must deny fundamental fairness to warrant reversal.

- In evaluating whether an admission of evidence constituted a due process violation, a court reviews the record only to determine whether any error it finds is of such magnitude as to deny fundamental fairness to the criminal trial. To show a denial of fundamental fairness, any error must be material in the sense of a crucial, critical, highly significant factor. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984).

Governmental misconduct.

- When considering the appropriate remedy for an alleged constitutional violation involving governmental misconduct, the remedy should be tailored to the injury suffered from the violation alleged and should not result in the dismissal of an indictment, or in the granting of a directed verdict, when the case may proceed with full recognition of the defendant's right to a fair trial. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 246 (1987).

State did not violate a defendant's due process rights or suborn perjury by having a shooting victim testify at defendant's aggravated assault trial that defendant had shot the victim, even though the victim had previously testified in another proceeding that another person had shot the victim, because there was no showing that the victim's trial testimony was untrue or that the state knew the victim's testimony was untrue. Arnold v. State, 301 Ga. App. 714, 688 S.E.2d 656 (2009).

Where representation by counsel comports with due process.

- Ineffective assistance of counsel claims regarding the defendant's initial post-trial counsel's performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel's failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, and comprehended the proceedings, despite being under the influence of prescribed anti-depressants, and was capable of aiding the defense. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698 (2007).

Vicarious liability unconstitutional.

- Vicarious criminal liability in misdemeanor cases which involve as punishment a fine and not imprisonment violates due process. Davis v. City of Peachtree City, 251 Ga. 219, 304 S.E.2d 701 (1983).

Indictment failing to specify exact cause of death.

- Where the defendant argued that the defendant was denied due process since the indictment did not allege the cause of the defendant's spouse's death and, therefore, denied the defendant the opportunity to prepare a defense, it was held that an indictment failing to specify the cause of death is sufficient when the circumstances of the case will not admit of greater certainty in stating the means of death, and the available evidence at the time of the indictment was that the victim's body was discovered in a decomposed condition near a trash dump. The medical examiner ruled out several possible causes of death but could not ascertain the actual cause of death due to the condition of the body. Phillips v. State, 258 Ga. 228, 368 S.E.2d 91 (1988).

Intent to commit criminal act will sustain conviction and the state may fix the punishment based on the result of that criminal act. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).

Defendant taking the stand.

- Criminal defendant may not be compelled to take the stand at all, thus in effect being allowed to invoke U.S. Const., amend. 5 against any and all questions. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977).

Silence of accused.

- Although the use of a defendant's silence, after the defendant has received Miranda warnings, to impeach the defendant violates due process, where a defendant is not silent but makes a statement, the state can impeach the defendant's trial testimony with inconsistencies or omissions in the defendant's pre-trial statement. Pye v. State, 269 Ga. 779, 505 S.E.2d 4 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1767, 143 L. Ed. 2d 797 (1999).

Constitutional right against self-incrimination is incorporated in former Code 1933, § 38-415 (see O.C.G.A. § 24-9-20). Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), sentence vacated, 243 Ga. 244, 253 S.E.2d 707 (1979).

Double jeopardy.

- Double jeopardy prohibition of U.S. Const., amend. 5 is enforceable against states through U.S. Const., amend. 14. Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970); Staggers v. Stynchcombe, 319 F. Supp. 1305 (N.D. Ga. 1970), aff'd, 436 F.2d 585 (5th Cir. 1971).

It was error to grant the defendants' plea in bar based on double jeopardy after granting the defendants' motion for a mistrial when the prosecutor told the defense that a rifle could not be located; even if the conduct of the prosecutor's staff in not telling the prosecutor that the rifle was missing could be imputed to the prosecutor, there was no evidence that those persons intended to goad the defendants into moving for a mistrial. State v. Traylor, 281 Ga. 730, 642 S.E.2d 700 (2007).

Applicability of doctrine of collateral estoppel.

- The doctrine of collateral estoppel is a part of the guarantee of U.S. Const., amend. 5 against double jeopardy and is applicable against the states through U.S. Const., amend. 14. Clark v. State, 144 Ga. App. 69, 240 S.E.2d 270 (1977).

Person may not be convicted by both state and municipality for same crime. The test for determining if there is a fatal identity between the crime and the ordinance is whether the ordinance contains an ingredient or element, essential to the city's peace but not essential to the state offense, or if the offense created by the ordinance lacks some element essential to the state crime. Barrett v. State, 123 Ga. App. 210, 180 S.E.2d 271 (1971).

Defense counsel cannot later prosecute accused for same offense against which counsel had previously defended accused. Burkett v. State, 131 Ga. App. 662, 206 S.E.2d 848 (1974).

Delay in filing trial transcript.

- Unless it clearly appears that the delay in filing a trial transcript prevented the presentation of an adequate appeal or impaired a defense which would otherwise be available to an appellant where a new trial is ordered due to trial error, an appellant has not suffered the prejudice which turns a transcript delay into a violation of due process of law. Graham v. State, 171 Ga. App. 242, 319 S.E.2d 484 (1984).

Delay in investigative stage before arrest of indictment.

- Where delay in bringing defendant to trial occurs in investigative stage before either arrest or indictment, due process, not sixth amendment, standards apply. Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985).

Standard of review for due process claims based upon preindictment or prearrest delay. See Madden v. State, 242 Ga. 637, 250 S.E.2d 484 (1978).

Dismissal for prearrest or preindictment delay required when substantial prejudice caused by intentional delay.

- Dismissal is required for prearrest or preindictment delay under the due process clause when it is shown that delay caused actual, substantial prejudice to defendant's right to a fair trial and that the delay was an intentional device to gain a tactical advantage over defendant. Armour v. State, 140 Ga. App. 196, 230 S.E.2d 346 (1976).

Although there is no constitutional right to a speedy indictment or arrest, the due process clause requires dismissal of an indictment if it is shown at trial that preindictment delay caused substantial prejudice to defendant's rights with respect to the events occurring prior to indictment. State v. Madden, 242 Ga. 637, 250 S.E.2d 484 (1978).

To support a due process claim of unlawful preindictment delay, the defendant must show actual prejudice resulting from the preindictment delay and that the delay was purposefully designed to gain a tactical advantage or to harass the defendant. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980).

Speedy trial is fundamental constitutional right, not privilege. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423 (1966).

Purposes of right to speedy trial.

- The right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. The guaranty has been held to serve a threefold purpose: it protects the accused, if held in jail to await trial, against prolonged imprisonment; it relieves the accused of the anxiety and public suspicion attendant upon an untried accusation of crime; and, like statutes of limitation, it prevents the accused from being exposed to the hazard of a trial after the lapse of so great a time that the means of proving one's innocence may have been lost. It also applies to a person who is at large on bail, since, in addition to protecting an accused against prolonged incarceration, the right also serves other purposes which are applicable whether the defendant is on bail or not. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423 (1966).

Unexcused denial of right to speedy trial by state is generally prejudice per se upon defendant's bona fide assertion of it. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Denial of speedy trial not prejudice per se.

- Denial of right to speedy trial is constitutional deprivation which can work to accused's advantage; thus, failure to provide a speedy trial does not per se prejudice the accused's ability to defend oneself. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Assertion or failure to assert the right to speedy trial is a factor to be considered in an inquiry into the deprivation of the right though the accused has no responsibility to assert the right to speedy trial. The accused's assertion of that right would be entitled to strong evidentiary weight in determining whether the accused has been deprived of the right. The accused's failure to assert the right to a speedy trial would make it difficult to prove that the accused was denied that right. Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560 (1977).

Factors to be assessed in determining whether accused has been deprived of right to speedy trial are: length of delay, the reason for the delay, the accused's assertion of the accused's right, and prejudice to the accused. Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560 (1977).

In determining whether the right to speedy trial has been violated, a court is required to consider four factors: length of the delay, the reasons for the delay, the accused's assertion of the right and prejudice to the accused. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Courts should assess four factors in determining whether a particular defendant has been deprived of the right to speedy trial: length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. This balancing test is a delicate, sensitive process, and each case must rely upon its own circumstances. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Each case involving right to speedy trial must be analyzed on ad hoc basis, upon its own particular facts and circumstances. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Defendant is held to have some responsibility to assert speedy trial claim even though it is the state's duty to bring the defendant to trial; and unlike other constitutional rights, both society and the individual criminal defendant have a potential interest in either having a speedy trial or delaying any trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Defendant is required to show more than mere claim of prejudice in right to speedy trial. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Defendant must show actual substantial prejudice because of delay in trial.

- Since mere delay, even if unexcused, does not alone prejudice the defendant's ability to defend oneself, and since the defendant may be only too delighted to have the trial delayed, before the defendant is held deprived of the right to a speedy trial and there ensues the unsatisfactorily severe remedy of dismissal of the indictment with the serious consequence that a defendant who may be guilty of a serious crime will go free, without having been tried, the defendant must show some actual substantial prejudice to the defendant. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Although the state was negligent in failing to bring the defendant to trial in a timely fashion, that consideration was outweighed by the facts that the defendant suffered little actual prejudice from the delay and no unduly oppressive pretrial incarceration, and waited a significant amount of time before asserting a speedy trial right; hence, the defendant's constitutional rights to a speedy trial were not violated. Christian v. State, 281 Ga. 474, 640 S.E.2d 21 (2007).

More than mere passage of time needed to constitute denial.

- To constitute a denial of due process in the right to a speedy trial there must be more than the mere passage of time. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Where overcrowded docket.

- While a deliberate attempt by the prosecution to delay the trial in order to hamper the defense is weighed heavily against the government, an overcrowded docket is considered to be a more neutral reason although it cannot be overlooked. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Delay solely by state authorities.

- The fifth, sixth, and Fourteenth Amendments did not bar a federal prosecution in which any arguably improper or unconstitutional delay in the prosecution was occasioned solely by Georgia authorities; there was no basis for imputing Georgia's dilatory conduct to the United States or to the federal prosecution. United States v. Boone, 959 F.2d 1550 (11th Cir. 1992).

Motion to dismiss or quash indictment for denial of speedy trial, not requesting immediate trial, is not demand for trial and is not an assertion of the right to speedy trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Where trial court erred as matter of law in right to speedy trial case.

- Although the determination is in every case a matter of judicial discretion, the trial court erred as a matter of law in holding that the defendant had asserted the right to speedy trial by merely moving to dismiss the indictment; and in holding that the defendant suffered actual prejudice by the death of an alibi witness whose testimony was merely cumulative; and in granting an overwhelming weight of legal burden to the duty of the state to provide a speedy trial, as against the failure of the defendant to assert the right to speedy trial in five and one-half years and the minimal prejudice caused by the delay. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

During the second trial of a convicted murderer to determine whether the death penalty should be imposed, (see O.C.G.A. § 17-10-2) refusal to admit testimony, as being hearsay (see O.C.G.A. § 24-3-1), to the effect that the accused did not commit the murder may constitute a violation of the due process clause of U.S. Const., amend. 14. Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738, on remand, 244 Ga. 27, 257 S.E.2d 543 (1979).

No due process if trial dominated by mob so jury intimidated, judge yields, and state executes judgment.

- If a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of that term. If the state supplies no corrective process and carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the state deprives the accused of life or liberty without due process of law. Downer v. Dunaway, 53 F.2d 586 (5th Cir. 1931).

Likelihood or appearance of bias.

- Due process is denied by circumstances creating likelihood or appearance of bias even if there is no showing of actual bias. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Knowing and intelligent waiver of constitutional rights necessary.

- Waiver of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Federal court can abide by state imposed waiver of federal constitutional right when waiver is a part of the trial and direct appeal of a state criminal case. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

Defendant need not personally waive right to jury trial.

- It is not necessary for preservation of due process that defendant personally waive right to jury trial. Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971).

Waiver of right to jury trial.

- Where record indicated that valid waiver of right to jury trial may have occurred but did not reflect whether defendant personally, knowingly, voluntarily, and intelligently participated in such waiver, case was remanded to trial court for hearing on that issue. Wooten v. State, 162 Ga. App. 719, 293 S.E.2d 11 (1982).

Waiver of defendant's presence at trial.

- Defendant has right to be present at trial, but may waive that right, even in a death-penalty case. Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988), cert. denied, 488 U.S. 1019, 109 S. Ct. 818, 102 L. Ed. 2d 808 (1989).

No bias shown by remedial restraint on defendant during trial.

- Trial court's utilization on defendant of an electronic restraint device as a security measure during trial was not error where the device was shielded from the jury's view and defendant failed to show that defendant was harmed by its use. Lovelace v. State, 262 Ga. App. 690, 586 S.E.2d 386 (2003).

Presumption of innocence.

- Defendant enters into trial with presumption of innocence. Byrd v. Hopper, 402 F. Supp. 787 (N.D. Ga. 1975).

Presumption of innocence and burden of proof are fundamental rights.

- Presumption of innocence and burden of proof placed on state in criminal prosecutions are fundamental rights protected by the Constitution, and are far too important and fundamental to be classified as less than constitutionally protected. Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

State always bears burden of proof in criminal trial, and any shift of burden of essential element of the crime renders the trial fundamentally unfair. Johnson v. Wright, 509 F.2d 828 (5th Cir.), cert. denied, 423 U.S. 1014, 96 S. Ct. 445, 46 L. Ed. 2d 384 (1975).

State required to prove guilt beyond reasonable doubt.

- Due process clause of U.S. Const., amend. 14 requires the state to prove guilt beyond a reasonable doubt in a criminal prosecution. Byrd v. Hopper, 402 F. Supp. 787 (N.D. Ga. 1975).

Due process requires proof beyond reasonable doubt of every fact necessary to constitute crime. Johnson v. Wright, 509 F.2d 828 (5th Cir.), cert. denied, 423 U.S. 1014, 96 S. Ct. 445, 46 L. Ed. 2d 384 (1975); Burdett v. State, 159 Ga. App. 394, 283 S.E.2d 622 (1981); Mason v. Balkcom, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 75 L. Ed. 2d 487 (1983).

Due process requires state to prove beyond reasonable doubt every essential element of crime charged. Avery v. State, 138 Ga. App. 65, 225 S.E.2d 454, rev'd on other grounds, 237 Ga. 865, 230 S.E.2d 301 (1976).

Proof beyond a reasonable doubt constitutes decisive difference between criminal culpability and civil liability. Littles v. DeFrancis, 517 F. Supp. 1137 (M.D. Ga. 1981).

Fourteenth Amendment requires that state prove every element of a crime beyond a reasonable doubt. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), cert. denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152 (1988), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993).

The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the accused is charged. Jury instructions that relieve the prosecution of this burden or that shift to the accused the burden of persuasion on one or more elements of the crime are unconstitutional. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984), rev'd on other grounds sub nom. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), cert. denied, 501 U.S. 1282, 112 S. Ct. 38, 115 L. Ed. 2d 1118 (1991).

The trial court's instruction on reasonable doubt did not infringe upon the defendant's constitutionally-guaranteed due process rights by erroneously diminishing the state's burden of proof when it stated that a "doubt of the law" authorizing acquittal of the defendant exists if the jurors' "minds are wavering or unsettled or unsatisfied." Rucker v. State, 270 Ga. 431, 510 S.E.2d 816 (1999).

Proof beyond reasonable doubt required in criminal-contempt prosecution.

- It is a denial of a defendant's right of due process of law under the federal and state constitutions and O.C.G.A. § 24-4-5 to fail to require proof beyond a reasonable doubt in a criminal-contempt prosecution, because the result of such a conviction is to deny the contemner of liberty and the levy of a penal fine. In re Crane, 253 Ga. 667, 324 S.E.2d 443 (1985).

Sanity not element which prosecution has to prove beyond a reasonable doubt.

- Sanity has not been treated as critical essential element of offense which prosecution is required to prove beyond a reasonable doubt. Grace v. Hopper, 234 Ga. 669, 217 S.E.2d 267 (1975), cert. denied, 423 U.S. 1066, 96 S. Ct. 806, 46 L. Ed. 2d 657 (1976); State v. Avery, 237 Ga. 865, 230 S.E.2d 301 (1976).

Burden of proof on state in criminal cases.

- The burden of proof, as opposed to the burden of the evidence, is properly on the state in criminal cases; and at the outset of a criminal trial, the state has both burdens upon it. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Burden on government to produce evidence and convince fact finder of guilt.

- Due process commands that no person shall lose one's liberty unless the government has borne the burden of producing the evidence and convincing the fact finder of that person's guilt. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Prosecution required to prove elements of crime beyond reasonable doubt.

- Prosecution must carry burden of proving all critical essential elements of crime charged against a defendant in order to comport with due process. Grace v. Hopper, 234 Ga. 669, 217 S.E.2d 267 (1975), cert. denied, 423 U.S. 1066, 96 S. Ct. 806, 46 L. Ed. 2d 657 (1976).

The due process clause of U.S. Const., amend. 14 requires that the prosecution prove each and every element of the crime beyond a reasonable doubt; a state, however, may place the burden of proof of an affirmative defense on the defendant. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).

Burden on defendant to disprove elements of crime violates due process.

- When the burden of proof or of persuasion is shifted to the defendant to disprove essential elements of a crime, then the due process clause of U.S. Const., amend. 14 has been violated. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Shift in burden of proof of essential element of crime to defendant renders trial fundamentally unfair. Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Shifting of burden of persuasion regarding fact state deems so important it must be proved or presumed is impermissible under the due process clause. Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977).

State with burden of proof and accused with presumption of innocence.

- The principle that the state has the burden of proof in all criminal cases and that the accused is clothed with the presumption of innocence are an integral part of the concept of due process. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Burden of persuasion on element of intent.

- Where an instruction on rebuttal is incorporated into a charge on the consequences presumed to be intended by a person of sound mind, the burden of persuasion on the element of intent is not shifted to the accused in violation of the Fourteenth Amendment's due process requirement that the state prove every element of a crime beyond a reasonable doubt. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

Burden of proof instruction constitutional.

- Jury instruction stating that "no person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty" did not lessen the burden of proof required for conviction in violation of the due process clause. Starr v. State, 201 Ga. App. 73, 410 S.E.2d 180 (1991); Bradford v. State, 261 Ga. 833, 412 S.E.2d 534 (1992).

Presumption-of-intent instruction unconstitutional.

- In criminal prosecution in which intent was an element of the crime charged and the only contested issue at trial, jury instructions that included the sentences "The acts of a person of sound mind and discretion are presumed to be the product of a person's will, but the presumption may be rebutted" and "A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted" violated U.S. Const., amend. 14's requirement that the state prove every element of a criminal offense beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).

In a prosecution for malice murder, of which intent was an essential element, and in which the defendant claimed the shooting of the victim had been an accident, the jury instruction on intent, which contained the following language, was unconstitutional: "The acts of a person of sound mind and discretion are presumed to be the product of the person's will. A person of sound mind and discretion is presumed to intent [sic] the natural and probable consequences of his act. But, these presumptions may be rebutted." Carter v. Montgomery, 769 F.2d 1537 (11th Cir. 1985).

The following charge to the jury unconstitutionally shifted the burden of persuasion on intent: "The acts of a person of sound mind and discretion are presumed to be the product of the person's will, and such person is presumed to intend the natural and probable consequences of his acts, but either of these presumptions may be rebutted." Because the defendant's intent to kill was at issue in the trial and was supported by evidence sufficient to create a reasonable doubt concerning intent, the instruction was not harmless error. Lakes v. Ford, 779 F.2d 1578 (11th Cir. 1986).

An instruction that shifts the burden of proof from the government to the defendant on the issue of intent (a Sandstrom error) cannot be ordinarily harmless error where the insanity defense has been raised, even though the jury has rejected this defense, since such rejection by a jury does not mean it finds the defendant was totally free of mental infirmity or that the defendant's capacity to formulate a specific intent was the same as that of a normal or average person. The prosecution must still prove beyond a reasonable doubt that the defendant formed the intent necessary to commit murder. Bowen v. Kemp, 832 F.2d 546 (11th Cir. 1987), cert. denied, 485 U.S. 940, 108 S. Ct. 1120, 99 L. Ed. 2d 281 (1988), cert. denied, 485 U.S. 970, 108 S. Ct. 1247, 99 L. Ed. 2d 445 (1988).

The trial judge's error in a trial for murder in compelling the jury to find intent rather than allowing the jury to infer intent in violation of Sandstrom v. Montana was not harmless beyond a reasonable doubt. Brooks v. Kemp, 809 F.2d 700 (11th Cir.), cert. denied, 483 U.S. 1010, 107 S. Ct. 3240, 97 L. Ed. 2d 744 (1987), cert. denied, 494 U.S. 1018, 110 S. Ct. 1322, 108 L. Ed. 2d 498 (1990).

Identification testimony.

- Jury charge that provided that a witness's level of certainty could be considered in assessing the reliability of identification testimony was harmless error as: (1) the identification witness was not the victim, viewed the crimes in daylight, already knew the defendant, recognized the defendant's gold teeth, and identified the defendant in a photographic lineup by the defendant's street name; (2) there was significant corroborating evidence, including a first witness's testimony that the defendant intended to kill the victim and the testimony of two other witnesses; and (3) the jury was accurately instructed as to the state's burden of proving the defendant's identity and the possibility of mistaken identification. Woodruff v. State, 281 Ga. 235, 637 S.E.2d 391 (2006).

Jury charge on intent or criminal negligence.

- Where the court charged: "I charge you that intent or criminal negligence to commit the crime charged in the indictment are essential elements the state must prove beyond a reasonable doubt. . . . A person will not be presumed to act with criminal intention, but the tryor [sic] of facts; that is, the jury, may find such intention upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted . . . ," the charge given was not unconstitutionally burden shifting. Veit v. State, 182 Ga. App. 753, 357 S.E.2d 113 (1987).

Jury charge on intent unconstitutionally relieved the state of its burden of persuasion on the intent element of each of the crimes with which the defendant was charged where the charge instructed the jury to presume that the defendant intended "the natural and necessary consequences of" the defendant's actions. Gaddis v. Kemp, 638 F. Supp. 819 (S.D. Ga. 1986).

Jury charge inferring intent to kill.

- Although the defendant presented the defense that due to the defendant's mental condition the defendant could not have formed the criminal intent to kill the defendant's brother, an essential element of murder, the trial court's charge, inferring the intent to kill from the use of a deadly weapon, did not unconstitutionally shift to the defendant the burden of proving lack of intent and negate the defendant's defense, because the jury was told that the decision whether or not to draw an inference was entirely up to them. Pace v. State, 258 Ga. 225, 367 S.E.2d 827 (1988).

Instruction on intent held harmless error.

- Where the state presented overwhelming evidence of an intentional killing and where the defendant raised a defense of nonparticipation in the crime, effectively conceding the issue of intent, the unconstitutional burden-shifting instruction on intent was harmless beyond a reasonable doubt. Aldridge v. Montgomery, 753 F.2d 970 (11th Cir. 1985).

A jury charge which created an unconstitutional burden-shifting presumption with respect to the element of intent was harmless error, where defendant's defense was alibi and misidentification, and in the alternative, insanity, and such defenses did not put into issue criminal intent. Williams v. State, 180 Ga. App. 893, 350 S.E.2d 768 (1986).

Instruction that jury "may find" criminal intent upon a consideration of such circumstances as words, conduct, demeanor, or motive, is in no way unconstitutionally burden-shifting. Ford v. State, 256 Ga. 375, 349 S.E.2d 361 (1986).

Instruction that acts of person of sound mind are products of his will.

- Instruction that told the jury, at the defendant's trial for felony-murder based upon the commission of armed robbery, that the acts of a person of sound mind and discretion are presumed to be the product of the person's will was reversible error, because it removed the presumption of innocence and relieved the state of the burden of proving beyond a reasonable doubt that the defendant intentionally committed the felony of armed robbery because the jury was instructed to presume that the defendant intended to perform the defendant's actions. Hall v. Kelso, 892 F.2d 1541 (11th Cir. 1990).

Instruction as to presumption that actions are a person's will.

- Instructions charging that the acts of a person of sound mind and discretion are presumed to be a product of a person's will, but such presumption may be rebutted, and that a person of sound mind and discretion is presumed to intend the natural and probable consequences of that person's acts, but the presumption may be rebutted, create an unconstitutional burden-shifting presumption with respect to the element of intent. Boswell v. State, 176 Ga. App. 855, 338 S.E.2d 62 (1985).

Improper instruction on presumption of innocence.

- Habeas corpus relief was properly granted to an inmate from a malice murder conviction because the inmate's trial counsel provided ineffective assistance by failing to reserve the right to make additional objections to the jury instructions or to object specifically to an instruction that the presumption of innocence was for the protection of the innocent and was not intended to be a cloak behind which guilty persons might hide; trial counsel's failure fell below an objective standard of reasonableness and constituted deficient performance because the instruction interfered with the right to a fair trial under the Fourteenth Amendment by permitting the jury to determine guilt from factors other than the proof adduced at trial, and a reasonable probability existed that, if not for trial counsel's deficient performance, the outcome of the trial would have been different. Tillman v. Massey, 281 Ga. 291, 637 S.E.2d 720 (2006).

Preprinted verdict form was erroneous because the form would mislead jurors of a reasonable understanding as to the presumption of innocence and the proper burden of proof; the verdict form constituted plain error under O.C.G.A. § 17-8-58(b) because the form affected the defendant's substantial rights by actively removing the presumption of innocence from the trial. Cheddersingh v. State, 290 Ga. 680, 724 S.E.2d 366 (2012).

Instruction that defendant may rebut presumption concerning consequences of actions disapproved.

- A charge that "the acts of a person of sound mind and discretion may be inferred to be the product of that person's will, and it may be inferred that a person of sound mind and discretion intends the natural and probable consequences of their [sic] acts, but, of course, both of these inferences may be rebutted, and in any event the burden never shifts to the defendant," is not an unconstitutionally burden-shifting instruction, but has potential to confuse the jury as to how much evidence the defendant must produce to rebut the inference if the jury chooses to draw it, and such rebuttal language should not be used. Noggle v. State, 256 Ga. 383, 349 S.E.2d 175 (1986).

Jury instruction to conform to indictment.

- Giving instruction on an entire Code section that defined a crime in two ways, when the indictment alleged that defendant committed the crime in only one way, was misleading and violated due process without a limiting instruction directing the jury to consider only whether defendant committed the crime as charged in the indictment. Dukes v. State, 265 Ga. 422, 457 S.E.2d 556 (1995).

Statutory presumptions of intoxication not unconstitutional.

- A charge on driving under the influence of alcohol does not impermissibly direct the return of a verdict of guilty on the basis of the statutory presumptions of intoxication where the jury is instructed that the statutory presumptions are rebuttable. Clark v. State, 169 Ga. App. 535, 313 S.E.2d 748 (1984).

No due process violation because hard choices on intoxication testing.

- State's failure to immediately inform a defendant of the results of the state-administered test does not create a situation where the defendant is left with no, or so little information, that he or she is denied any meaningful choice in violation of due process; driving under the influence defendants must determine, often under difficult and stressful circumstances, whether to request an independent test, and that the choice may be difficult does not render it fundamentally unfair and this fact alone does not support a due process claim. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012).

Charge that burden was on the defendant to show the defendant's authority to possess heroin did not deny the defendant due process and equal protection because the state established a prima-facie case and the defendant presented no evidence. Montford v. State, 168 Ga. App. 394, 309 S.E.2d 650 (1983).

Charge on inference of guilt from possession of recently stolen property constitutional.

- Instructing the jury that they might infer the defendant committed the crime upon proof that the defendant was in possession of the stolen goods in question recently after the commission of the crime, "unless . . . the defendant should make an explanation of the defendant's possession of the stolen property consistent with the defendant's pleas of innocence" does not unconstitutionally shift the burden of persuasion to the defendant. Clark v. State, 166 Ga. App. 366, 304 S.E.2d 494 (1983).

Trial court's instruction to the jury on the inference which may arise from proof of possession of goods recently stolen in a burglary was not burden-shifting. Myles v. State, 186 Ga. App. 817, 368 S.E.2d 574 (1988).

Burden of proving defendant's presence is on state throughout trial, and evidence of his absence tends merely to weaken or disprove the testimony of the state's witnesses on this point. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

State must prove defendant's presence at commission of offense beyond a reasonable doubt since it is an essential element of the crime. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Burden to contradict state's evidence of the defendant's presence cannot require quantum of proof.

- Where the state presents evidence of the defendant's presence, the burden of going forward with evidence to contradict the state's evidence may shift to the defendant but it must not carry with it the requirement that the defendant establish the defendant's evidence by any quantum of proof. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

It is impermissible to require defendant to prove nonpresence by definite quantum of proof. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Charge shifting burden of persuasion to defendant on issue of self-defense unconstitutional and not harmless error.

- The trial court's charge in a homicide case shifted the burden of persuasion to the defendant on the issue of self-defense in violation of the due process clause of U.S. Const., amend. 14, and this unconstitutional shift was not harmless error. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).

If a state includes unlawfulness within its murder and manslaughter laws as an element of those crimes, while at the same time state courts require the defendant to prove lawfulness by virtue of self-defense, that construction makes the statutes' operation run contrary to the Constitution in violation of due process. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).

No denial of due process where defendant allowed to admit some essential criminal elements to put justification of self-defense into issue. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1983).

Party seeking to prove unconstitutionally discriminatory enforcement of law has burden of presenting sufficient evidence to establish the existence of intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classifications. State v. Causey, 246 Ga. 735, 273 S.E.2d 6 (1980), cert. denied, 451 U.S. 1019, 101 S. Ct. 3009, 69 L. Ed. 2d 391 (1981).

Shifting burden of proof of alibi to accused is violation of U.S. Const., amend. 14. Trimble v. Stynchcombe, 481 F.2d 1175 (5th Cir. 1973).

Placing burden of proof or persuasion on defendant is unconstitutionally impermissible in cases involving alibi defense regardless of quantum of proof required. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Burden of proving alibi on defendant violates due process.

- Due process is violated by charge that burden is upon defendant to prove alibi by preponderance of the evidence. Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969).

The phrase, "Alibi as a defense must be established to the reasonable satisfaction of the jury," where included in jury charges, places the burden of proving the defendant's alibi on the defendant, and thus violates the due process clause of U.S. Const., amend. 14. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Charge to jury that alibi must be established by defendant to reasonable satisfaction of jury is error for the reason that it shatters the presumption of innocence, creates confusion in the minds of the jury, shifts the burden of persuasion to the defendant on the issue of the defendant's presence at the crime and requires the defendant to establish the defendant's innocence, is inconsistent with the principle that the state must prove the defendant's guilt beyond a reasonable doubt, and thereby violates fundamental rights incorporated in the due process clause of U.S. Const., amend. 14 of the United States Constitution. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972); Patterson v. State, 233 Ga. 724, 213 S.E.2d 612 (1975).

Charge to jury that "alibi . . . must be established to reasonable satisfaction of jury . . ." violates due process guarantees since it removes the state's burden of proving the accused's presence at the scene of the crime beyond a reasonable doubt and imposes the burden of proving the accused's absence on the accused when the accused offers evidence to that effect. Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Charge shifting burden of proving alibi to defendant to "reasonable satisfaction of the jury" is violative of due process. Ward v. State, 234 Ga. 882, 218 S.E.2d 591 (1975).

State's characterization of its laws not to functionally operate to place burden of persuasion on defendant.

- In determining whether a state has met demands of procedural due process, federal courts must satisfy themselves that a state's characterization of its laws does not functionally operate to place the burden of persuasion of an essential element upon the defendant. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).

Despite a state's characterization of an issue as being an "affirmative defense," the state may not place the burden of persuasion on that issue upon the defendant if the truth of the "defense" would necessarily negate an essential element of the crime charged. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).

Where absence of self-defense is an essential element of the crime of voluntary manslaughter, and the trial court's charge operated to place the burden of persuasion on defendant on this issue, the defendant's conviction violated the defendant's due process rights under the United States Constitution. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).

Where evidence overwhelming, shifting burden of proof harmless.

- Where the evidence of guilt is overwhelming, a jury instruction which shifts the burden of proof constitutes harmless error. Brooks v. Francis, 716 F.2d 780 (11th Cir. 1983), cert. denied, 478 U.S. 1022, 106 S. Ct. 3337, 92 L. Ed. 2d 742 (1986), , Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985), , 478 U.S. 1016, 106 S. Ct. 3325, 92 L. Ed. 2d 732 (1986), judgment vacated, remanded for further consideration in light of Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).

Where in a murder trial the jury was instructed as follows, "A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted . . . ," the trial court's instruction was harmless beyond a reasonable doubt because the evidence of defendant's guilt was overwhelming. This evidence overwhelmingly indicated that whoever killed victim intended to do so. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 103 L. Ed. 2d 931 (1989).

Where codefendant presents no defense, no prejudice.

- Where a defendant, to obtain a new trial for the denial of severance, must show prejudice and a denial of due process, but where the defendant argues that the defendant was prejudiced in that the defendant's defense was inconsistent with that of the codefendant, the codefendant's defense cannot be inconsistent with the defendant's where the codefendant presents no evidence. Rampley v. State, 166 Ga. App. 521, 304 S.E.2d 574 (1983).

Error harmless where self-defense claim rejected.

- In a trial for murder, the charge that, "The law presumes that a person intends to accomplish the natural and probable consequences of his acts. If a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily employed to produce death and thereby causes the death of a human being, the law presumes the intent to kill," must be held to have impermissibly shifted the burden of proof on the essential element of intent to kill, but the error was harmless beyond a reasonable doubt as the jury could not have entertained a reasonable doubt concerning the defendant's intent to kill, given its rejection of the defendant's claim of self-defense. Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988).

Where presumptions of malice and intent in homicide prosecution not violative of due process.

- Charges in homicide prosecution that malice is presumed from an intentional killing and that intent is presumed from use of a deadly weapon did not violate due process because there is a rational connection between the facts proved and the facts presumed. Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977).

Charges in homicide prosecution that malice is presumed from an intentional killing and that intent is presumed from use of a deadly weapon were not unconstitutionally burden-shifting because they did not shift any burden of proof or persuasion to defendant. Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977).

Where jury was charged on both malice murder and felony murder and returned a general "guilty" verdict, the conviction required reversal where the indictment did not allege facts that would put the defendant on notice that the defendant would be required to defend against the felony-murder charge at trial. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989).

If a case has been submitted to the jury on several alternative theories, one of which is unconstitutional, a general verdict of guilty which does not indicate it was based upon one of the constitutional theories must be set aside. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989).

"Malice aforethought" not self-explanatory.

- The defendant, who was illiterate and possessed minimal mental capacity, was inadequately informed of the elements of malice murder before he pled guilty. The prosecutor's note reading of the indictment did not suffice, as the term "malice aforethought," as it appeared in the indictment, was not self-explanatory and was incomprehensible to a layman, particularly one of limited mental capacity, without further explanation. Gaddy v. Linahan, 780 F.2d 935 (11th Cir. 1986).

Supreme Court of Georgia disapproves the use of the phrase "the law presumes" in a deadly weapon charge, and has approved instead a charge authorizing the jury to "infer the intent to kill" from the intentional and unjustified use of a deadly weapon. Wilson v. Jones, 251 Ga. 23, 302 S.E.2d 546 (1983).

Use of "the law presumes" not reversible error.

- Where the trial court gave the following charge: ". . . where one shoots another with a pistol and hits them [sic] the law presumes prima facie that he did it with malice, and that this presumption is not rebutted by proof that the parties had been good friends or that the defendant immediately after the shooting regrets the act," the charge when considered with other instructions did not suggest to a reasonable juror that the defendant was required to disprove criminal intent, nor did it remove from the state its burden of proving criminal intent beyond a reasonable doubt. Wilson v. Jones, 251 Ga. 23, 302 S.E.2d 546 (1983).

Due process requires that guilty plea must be knowingly, intelligently and voluntarily made and that the court make a determination to this effect before accepting the plea. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Prosecutor's disclosure of nolle prosequi agreement with defendant satisfied due process.

- Where the jury was made aware of a nolle prosequi agreement between defendant and the prosecutor by the prosecutor's disclosure of the agreement, the requirements of due process were satisfied. Williams v. State, 151 Ga. App. 683, 261 S.E.2d 430 (1979).

When confessions can be introduced in evidence against defendant.

- Where evidence shows that confessions were voluntarily made and were not induced by another by hope of award or fear of punishment, or where it is an issue of fact as to whether the confessions were properly obtained, defendant is not denied due process of law, as guaranteed by the state and federal Constitutions, by their introduction in evidence against him. Claybourn v. State, 190 Ga. 861, 11 S.E.2d 23 (1940).

Admission of confession in state criminal proceedings forbidden only when involuntary.

- The United States Constitution forbids the admission of a confession in state criminal proceedings only when the confession is involuntary, and the legality, duration and conditions of detention is one factor relevant to the question whether the confession is voluntary. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

Determination of voluntariness of confession.

- Defendant's constitutional rights are violated when challenged confession introduced without determination by trial judge of voluntariness after an adequate hearing. Clark v. Smith, 224 Ga. 766, 164 S.E.2d 790 (1968), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2279, 29 L. Ed. 2d 859 (1971).

Where: (1) the defendant in a criminal case contends that a confession sought to be introduced in evidence by the state was obtained as a result of coercion; (2) the testimony on the point is in conflict; and (3) the judge leaves the question of voluntariness or coercion to the jury without making a preliminary finding that the confession was in fact voluntary, the defendant's rights under U.S. Const., amend. 14 have been violated. Schneider v. State, 130 Ga. App. 3, 202 S.E.2d 238 (1973).

Defendant is entitled to a fair hearing and a reliable determination on the issue of the voluntariness of statements made by defendant; although a judge need not make formal findings of fact or write an opinion, the judge's conclusion that a confession is voluntary must appear from the record with unmistakable clarity. When a Jackson-Denno hearing is held and defendant is offered the opportunity to present evidence contradictory to the state's prima facie case of voluntariness, the trial court must rule the confession either in or out of evidence; but if the opportunity is offered and no evidence attacking the veracity of the confession is produced, it is properly admitted. Defendant's claim that the trial court made no finding that defendant's custodial statement was voluntary lacked merit even though the trial court stated that the jury would decide the issue of voluntariness because the trial court held a Jackson-Denno hearing in which defendant was given an opportunity to present evidence that the confession was not voluntary, defendant made no claim that the confession was not in fact voluntary, and the trial court's subsequent ruling that the statement was admissible under such circumstances amounted "with unmistakable clarity" to a showing that the trial court had concluded that the confession was voluntary. Thomas v. State, 264 Ga. App. 389, 590 S.E.2d 778 (2003).

Determination of voluntariness of statement by public employee.

- Because the U.S. Supreme Court in Garrity v. N.J., 385 U.S. 493 (1967) employed the totality-of-the-circumstances test for evaluating whether a defendant's statement was coerced, and because Georgia courts have vast experience applying this test, the Supreme Court of Georgia adopts that test for determining whether the statements that a public employee makes during an investigation into the employee's activities are voluntary; factors a court may consider include whether the state actor made an overt threat to the defendant of the loss of the defendant's job if the defendant did not speak with investigators or whether a statute, rule, or ordinance of which the defendant was aware provided that the defendant would be terminated for failing to answer questions. State v. Aiken, 282 Ga. 132, 646 S.E.2d 222 (2007).

Statement by public employee defendant not voluntary.

- Statements made by a defendant, a probation officer, as part of a criminal investigation into the defendant's conduct were not voluntary and thus could not be used at trial against the defendant; the defendant had subjective belief that the defendant could be fired if the defendant did not answer an investigator's questions, and considering a directive from the defendant's supervisors that the defendant meet with the investigator, combined with a form that the investigator had the defendant sign providing that the defendant could be fired if the defendant interfered with the investigation in any manner, the defendant's belief was objectively reasonable. State v. Aiken, 282 Ga. 132, 646 S.E.2d 222 (2007).

Where prima facie as to voluntariness of confession made.

- Although the facts in evidence will be examined to determine whether or not they show a conviction by use of a coerced confession in violation of the due process clause of U.S. Const., amend. 14 or the provision in the state Constitution against self-incrimination, when such a question has been properly raised and presented, yet, where a prima facie case as to the voluntary character of the confession has been made, it is not within the power of this court to usurp the function of the jury in passing upon an issue, and to override their verdict supported by legal evidence and upheld by the judge in refusing a new trial, or to reverse a ruling admitting the confession in evidence, unless the evidence requires but one rational inference, that the confession was unlawfully obtained. Under this and the preceding rulings, the judge did not err in refusing to exclude from evidence the alleged illegal confessions and incriminatory statements of the defendant. Bryant v. State, 191 Ga. 686, 13 S.E.2d 820 (1941).

Holding hearing in presence of jury to determine voluntariness of confession violates due process clause; such a hearing outside of jury's presence is not per se reversible error. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).

Admission of interlocking confessions with proper limiting instructions conforms to requirements of U.S. Const., Amends. 6 and 14. Tatum v. State, 249 Ga. 422, 291 S.E.2d 701 (1982).

Showing that confessor may have suffered from mental disability not sufficient to exclude statement.

- A mere showing that one who confessed to a crime may have suffered from some mental disability is not a sufficient basis upon which to exclude his statement. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).

One who suffers some mental or emotional impairment can give valid confession. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).

There is no per se rule holding inadmissible confessions given by individuals suffering severe psychotic conditions. A confession, however, is inadmissible if it would not have been obtained but for the effects of the confessor's psychosis. Gibbs v. Warden of Ga. State Penitentiary, 450 F. Supp. 242 (M.D. Ga. 1978), aff'd, 589 F.2d 1113 (5th Cir. 1979).

Admissions of psychotic individual may be used where giving of admissions not substantially related to effects of psychosis. Gibbs v. Warden of Ga. State Penitentiary, 450 F. Supp. 242 (M.D. Ga. 1978), aff'd, 589 F.2d 1113 (5th Cir. 1979).

Confession inadmissible where affected by accused's psychosis.

- A confession is inadmissible if it appears that the accused's psychosis rendered the accused incapable of understanding the meaning and effect of the accused's confession or caused the accused to be indifferent to protecting the accused or left the accused with little determination so that the accused's will might be easily overborne by questions and suggestions. Gibbs v. Warden of Ga. State Penitentiary, 450 F. Supp. 242 (M.D. Ga. 1978), aff'd, 589 F.2d 1113 (5th Cir. 1979).

Where accused is substantially subnormal mentally.

- Mental ability and unfamiliarity with criminal process weigh heavily against voluntariness of confession. Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972).

That an accused possesses a substantially subnormal mentality is a fact indicating, but not establishing, that his confession was involuntary. Gibbs v. Warden of Ga. State Penitentiary, 450 F. Supp. 242 (M.D. Ga. 1978), aff'd, 589 F.2d 1113 (5th Cir. 1979).

Confession is inadmissible where probably not obtained but for confessor's insanity or mental incompetence despite proper police behavior and the apparent trustworthiness of the resulting confession. Gibbs v. Warden of Ga. State Penitentiary, 450 F. Supp. 242 (M.D. Ga. 1978), aff'd, 589 F.2d 1113 (5th Cir. 1979).

Confessions given under influence of drugs or alcohol.

- No per se rule that all confessions given while under influence of drugs or alcohol are inadmissible. Gibbs v. Warden of Ga. State Penitentiary, 450 F. Supp. 242 (M.D. Ga. 1978), aff'd, 589 F.2d 1113 (5th Cir. 1979).

Use of threats or promises to coerce criminal defendant to make statement is contrary to state and federal constitutional law. Young v. State, 243 Ga. 546, 255 S.E.2d 20 (1979).

Detective's promise to a witness to "speak a word" in the witness's behalf in the witness's own case did not constitute a promise of favorable treatment required to be disclosed by the prosecution. Depree v. Thomas, 946 F.2d 784 (11th Cir. 1991).

Investigator's services properly denied.

- Where the defendant did not show that due to lack of an investigator the defendant was deprived of interviewing witnesses, trial court's motion denial did not deny the defendant federally guaranteed due process of law. Jones v. State, 207 Ga. App. 46, 427 S.E.2d 40 (1993).

Confessions are not generally rendered inadmissible merely because obtained by fraud, deception, or trickery practiced upon the accused, provided the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).

When giving suspect false information insufficient to render confession inadmissible.

- In questioning a mature criminal suspect of normal intelligence, who has been fully advised of the suspect's constitutional rights, falsely advising the suspect that the murder weapon has been found is insufficient in and of itself to render the suspect's otherwise free and voluntary confession inadmissible. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).

The fact that state police falsely told the defendant, a mature individual of normal intelligence, during questioning of short duration that the defendant's associate had confessed, while relevant, was insufficient to make an otherwise voluntary confession inadmissible. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).

Voluntary confession obtained during unlawful detention.

- Admissibility of voluntary confession obtained during unlawful detention in state judicial proceedings remains matter for state determination. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

Confession admissible where defendant waived right to counsel and showed no lack of understanding of rights.

- Where due process and fair trial standards are otherwise met, admission of the confession of a 16-year-old defendant to various felony offenses in evidence is not cause for new trial where the defendant both orally and in writing waived the right to counsel during interrogation, never attempted to withdraw the waiver, and made no showing that the refusal of counsel at certain pretrial investigative interrogations was due to any lack of understanding on the defendant's part of the defendant's rights or of the issues involved. Jones v. State, 119 Ga. App. 105, 166 S.E.2d 617 (1969).

Proof of venue is essential element in proving guilt in criminal case. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

Venue in conspiracy prosecution is properly laid either in the jurisdiction where the conspiracy was formed or in any jurisdiction wherein a conspirator committed an overt act in furtherance of the conspiracy. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

It is essential in conspiracy prosecution that jury be properly instructed as to venue where overt acts are alleged to have been committed in more than one jurisdiction. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

Right under U.S. Const., amend. 6, of an accused to confront witnesses against the accused is fundamental right made obligatory on states by U.S. Const., amend. 14. Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 (1975); Park v. Huff, 506 F.2d 849 (5th Cir.), cert. denied, 423 U.S. 824, 96 S. Ct. 38, 46 L. Ed. 2d 40 (1975).

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).

Adequate accommodation for defendant's hearing loss.

- Defendant's claim of a due process violation because the defendant's hearing impairment prevented the defendant from comprehending the witnesses' testimony was properly rejected. The trial court accommodated the defendant by moving the defendant closer to the witness stand and obtaining a hearing device for the defendant to use, and the defendant's conduct during the trial and statements to defense counsel indicated that the defendant was able to understand the testimony. Neugent v. State, 294 Ga. App. 284, 668 S.E.2d 888 (2008).

Witnesses' statements provided to counsel prior to testimony.

- Where the defendant enumerated as error the state's failing to provide the defendant with copies of statements of witnesses, prior to trial, in which the driver of the car departing the burglary site was described as having "sandy-blonde" hair, whereas one witness described the defendant's hair color as "light brown," but the statements were provided to the defendant's counsel prior to the beginning of the testimony, but after the jury had been impaneled and counsel was offered the opportunity to examine the witnesses before they testified and accepted, the defendant's motion for mistrial was properly denied. Masters v. State, 186 Ga. App. 795, 368 S.E.2d 557 (1988).

Standard for evaluation of evidence in state criminal trial that of sufficiency of evidence.

- The standard by which the court must evaluate the evidence in a state criminal trial to determine whether the petitioner has been accorded constitutional due process was recently reformulated by the Supreme Court of the United States; instead of determining whether or not there is "any evidence" to support petitioner's conviction, the court must now go further and satisfy itself that the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt; the question therefore is not a question of the presence of evidence in the record but of the sufficiency of that evidence. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v Montgomery, 811 F.2d 55 (11th Cir. 1987).

Defendant not prohibited from challenging state's evidence.

- Defendant's claim that the defendant was denied due process because the state used "false evidence" to convict the defendant failed, because the defendant was not prevented in any way from challenging the State's evidence the defendant contended was incorrect, evidence regarding the use of cell phone records to show location, and the defendant chose not to challenge the evidence. Davis v. State, 292 Ga. 90, 734 S.E.2d 401 (2012).

One on one confrontations between witness and suspect.

- As general rule "one on one" confrontations between eyewitness and suspect have been condemned. Sell v. State, 156 Ga. App. 333, 274 S.E.2d 723 (1980).

Claimed violation of due process of law in conduct of confrontation depends on totality of circumstances. Sell v. State, 156 Ga. App. 333, 274 S.E.2d 723 (1980).

Lineup identification, or identification from group of photographs, is not prerequisite to every in-court identification. Moye v. State, 122 Ga. App. 14, 176 S.E.2d 180 (1970); Clark v. State, 156 Ga. App. 326, 274 S.E.2d 718 (1980).

A line-up identification, or identification from group of photographs, is not a prerequisite to every in-court identification. The test is whether identification confrontation staged by the law enforcement authorities, judged by the "totality of the circumstances surrounding it," is "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to constitute a denial of due process of law. Clark v. State, 156 Ga. App. 326, 274 S.E.2d 718 (1980).

Defendant's motion to suppress two photographic identifications was properly denied as the defendant did not make a sufficient showing as to how the differences in the defendant's photos would have rendered the lineups or procedures suggestive. Waters v. State, 281 Ga. 119, 636 S.E.2d 538 (2006).

Admission of evidence derived from suggestive identification procedures falls within scope of the due process protection of U.S. Const., amend. 14 to the United States Constitution as U.S. Const., amend. 14 is a prohibition against deprivation of rights by state action, and not by the individual or personal acts of a private citizen. Riden v. State, 151 Ga. App. 654, 261 S.E.2d 409 (1979).

Under totality of circumstances, identification may be reliable even though confrontation procedure was suggestive. When the particular factors pointing to suggestiveness are considered, if the identifications were not all but inevitable under the circumstances, they will not violate due process. Barron v. State, 157 Ga. App. 186, 276 S.E.2d 868 (1981).

It is likelihood of misidentification which offends due process. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Hill v. State, 144 Ga. App. 259, 241 S.E.2d 44 (1977).

In-court identification is not constitutionally inadmissible if it has independent origin even if pretrial identification is tainted. Moye v. State, 122 Ga. App. 14, 176 S.E.2d 180 (1970); Perkins v. State, 216 Ga. App. 118, 453 S.E.2d 135 (1995).

When conviction based on in-court identification following pretrial identification set aside.

- In-court identification of a defendant is tainted by earlier photographic identification procedure only if it can be shown that the procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." United States v. Ervin, 436 F.2d 1331 (5th Cir. 1971); United States v. Elliott, 437 F.2d 1253 (5th Cir. 1971).

Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Redd v. State, 154 Ga. App. 373, 268 S.E.2d 423 (1980).

No state action violative of defendant's rights where victim not shown photograph of defendant by police.

- Where the victim was shown a single photograph of the defendant, not provided by a police officer nor by an individual established as acting in concert or at the request of the police, there was insufficient nexus to establish "state action" in violation of the defendant's constitutional rights. Riden v. State, 151 Ga. App. 654, 261 S.E.2d 409 (1979).

An impermissibly suggestive identification procedure conducted by the police (the state) will taint an in-court identification procedure which is not independent of the tainted procedure. Riden v. State, 151 Ga. App. 654, 261 S.E.2d 409 (1979).

When in-court identification by witness viewing line-up excluded from evidence where accused denied counsel at line-up.

- If the accused has been denied counsel at the line-up, the result is only that an in-court identification by a witness viewing the line-up will be excluded from evidence, if the court should find that the state has not shown that the in-court identification was based upon observations of the suspect other than the line-up identification. Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414 (1972).

Admission of a booking photograph was not irrelevant or so impermissibly suggestive that there was a substantial likelihood of mistaken identification in violation of the due process clause of U.S. Const., amend. 14 or Ga. Const. 1983, Art. I, Sec. I since the witness testified that the witness could not identify the defendant in court as the defendant had grown a beard, grown a long ponytail, and was heavier than at the time of the incident, but the witness was able to identify the person in the booking photograph; thus, the photograph was relevant to identify the defendant, and to show how the defendant appeared at the time of the crime. Horner v. State, 257 Ga. App. 12, 570 S.E.2d 94 (2002).

Hearing on motion to suppress identification testimony need not always be outside jury's presence.

- Due process clause does not require state trial court to conduct hearing outside jury's presence on motion to suppress identification testimony in every case. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).

Factors weighed as to revealing informer's identity.

- When an informer's identity is sought to be revealed by the defendant, the trial court must weigh the materiality of the informer's identity to the defense against the state's privilege not to disclose his name. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (1977).

When absolute privilege against informer's identity impermissible.

- Absolute privilege against disclosure in every case involving informer is impermissible where Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1962) motion is made. Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807 (1980).

An absolute privilege against disclosure of the identity of every informer who supplies the information upon which an arrest is based is impermissible where a motion is made to disclose information favorable to the defendant. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (1977).

Error to refuse to consider appellants' motion for disclosure of informer's identity on its merits.

- The trial judge erred in refusing to consider appellants' Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1962), motion for disclosure of the identity of the informer on its merits and in denying the motion solely on the theory that the identity was absolutely privileged. This error, however, can be cured by a post-trial hearing before the judge in the trial court. Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807 (1980).

Where informer is tipster, identity immaterial because evidence is inadmissible hearsay.

- If the state proves to the court's satisfaction that an informer is a pure tipster, who has neither participated in nor witnessed the offense, any evidence he might offer would be hearsay and inadmissible. Thus the tipster's identity could not be material to the guilt or innocence of the defendant or be relevant and helpful to the defense. The public policy of the state toward nondisclosure would not be overcome and the state may rely on its privilege. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (1977).

Trial court's comment on jurors' notes did not affect an inmate's right to an impartial jury.

- Trial court did not express an opinion in violation of O.C.G.A. § 17-8-57 or of an inmate's rights to confrontation or a fair and impartial jury when it explained to those in the courtroom during jury deliberations in the inmate's trial on drug and weapons offenses that it had received two notes from the jury describing a communication received by a juror that offered the juror a bribe in exchange for changing the juror's vote to not guilty; the trial court's comment did not suggest that the inmate had directed the bribery attempt because it merely reviewed the jurors' notes and did not go beyond them, and it added nothing to that which the jurors already knew. Greer v. Thompson, 281 Ga. 419, 637 S.E.2d 698 (2006).

When alleged accomplice's statement admissible.

- Even though an alleged accomplice does not appear at the defendant's trial, his statement can be placed before the jury under former Code 1933, § 38-306 (see O.C.G.A. § 24-3-5) without violating the due process or confrontation clauses, if the statement meets certain indicia of reliability, including the fact that it was offered spontaneously and was against the accomplice's penal interest. Spivey v. State, 138 Ga. App. 298, 226 S.E.2d 104, cert. denied, 429 U.S. 921, 97 S. Ct. 317, 50 L. Ed. 2d 288 (1976).

Due process violated by state's suppression of evidence favorable to accused.

- Suppression by prosecution of evidence favorable to accused when requested violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution; but there must be evidence that such information existed and was actually withheld. Eades v. State, 232 Ga. 735, 208 S.E.2d 791 (1974); Clark v. State, 144 Ga. App. 69, 240 S.E.2d 270 (1977).

Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Lundy v. State, 139 Ga. App. 536, 228 S.E.2d 717 (1976).

Due process requires there be no suppression by state of evidence in its files favorable to accused, though there is no statutory method of discovery in criminal cases in Georgia. Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976); Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. The evidence is material if it is of sufficient significance to result in the denial of the defendant's right to a fair trial if not disclosed. Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807 (1980).

Withholding or suppression by prosecution of evidence material to guilt or punishment is violative of due process. United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, D'Antignac v. United States, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981).

Prosecution's suppression of favorable material evidence requested is reversible error.

- The prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment, is reversible error. Rini v. State, 235 Ga. 60, 218 S.E.2d 811 (1975), cert. denied, 429 U.S. 924, 97 S. Ct. 326, 50 L. Ed. 2d 293 (1976).

Affirmative duty on prosecution to produce evidence favorable to accused. Brady vs. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, (1963), imposes an affirmative duty on the prosecution to produce at the appropriate time requested evidence which is favorable to the accused either as direct or impeaching evidence. The accused need not show that the evidence demanded is favorable to the defense Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S. Ct. 908, 21 L. Ed. 2d 799 (1969), later appeal, 431 F.2d 70 (5th Cir. 1970), vacated on other grounds, 408 U.S. 938, 92 S. Ct. 2867, 33 L. Ed. 2d 758 (1972).

Duty is on state to disclose evidence exculpatory or material noncumulative and favorable to defense, even in the absence of request. Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976).

Constitutional requirement of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), is that the state produce exculpatory evidence in its files, not that the state affirmatively seek out exculpatory evidence, even though that evidence may be more accessible to the state than the defense Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980).

Prosecutor may not suppress material evidence favorable to the accused, whether or not a request for such information is made or an in-camera inspection conducted. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

Assistance to criminal defendant to procure reasonably obtainable evidence for defense.

- It is not inconceivable that the idea embodied in the Constitutions, that every defendant shall stand equal before the law, might be held to require, and would certainly permit, that a criminal defendant be furnished assistance to procure evidence reasonably obtainable for the defense, including, when needed, an examination by a competent and disinterested expert qualified to give testimony. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).

No burden on state to open its file for general inspection by the defendant; an in camera inspection of the prosecution file by the judge is sufficient, and the defendant has the burden of showing how the case has been materially prejudiced. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

Exculpatory evidence delayed.

- Defendant's fifth amendment rights were not violated when the defendant did not receive a copy of an exculpatory witness's statement until after indictment and following the defendant's second attorney's discovery motion. Defendant failed to prove how the outcome of the case would have been any different if defendant had been supplied the exculpatory statement at an earlier date. Rock v. Lowe, 893 F. Supp. 1573 (S.D. Ga. 1995), aff'd without op., 79 F.3d 1161 (11th Cir. 1996).

Only material which creates a reasonable doubt as to guilt must be disclosed under a general request for anything exculpatory. Radford v. State, 251 Ga. 50, 302 S.E.2d 555 (1983).

Not every nondisclosure of exculpatory information is error; rather, where the omitted evidence was not specifically requested, nondisclosure is error only if the omitted evidence creates a reasonable doubt that did not otherwise exist. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

Where the state fails to disclose substantive evidence favorable to a defendant for which there was no specific request, the failure to disclose violates due process only if the omitted evidence creates a reasonable doubt that did not otherwise exist. Maddox v. Montgomery, 718 F.2d 1033 (11th Cir. 1983).

Where none of materials sought for inspection were exculpatory in nature, trial court does not err in refusing to compel discovery pursuant to defendant's notices to produce and subpoenas. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

Defendant's failure to identify exculpatory evidence.

- Defendant was not denied defendant's constitutional right to due process by the state's failure to secure exculpatory evidence where defendant failed to identify any potential evidence that was not investigated or developed by the state; mere speculation that there may be exculpatory evidence was insufficient to show a due process violation. Cameron v. State, 262 Ga. App. 296, 585 S.E.2d 209 (2003).

Trial judge must conduct hearing on merits of Brady v. Maryland motion and if the judge finds the evidence material under Brady weigh it against the state's privilege under Roviaro v. United States, 3 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1956). Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807 (1980).

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), is not violated when the Brady material is available to defendants during trial. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

Defendant did not establish Brady violation.

- Under Brady, a defendant did not show that the state agreed to any sort of deal with an accomplice witness in exchange for the witness's testimony. To the extent that the witness or the witness's counsel hoped that the witness's testimony would later benefit the witness, their subjective hopes were not evidence that a deal existed; there was no evidence that the prosecutor encouraged the witness or the witness's lawyer to believe that the witness would benefit from testifying against the defendant; and the fact that the state ultimately cooperated with counsel's efforts to reduce the witness's sentence did not prove that the state and the witness had a deal prior to the defendant's trial. Varner v. State, 297 Ga. App. 799, 678 S.E.2d 515 (2009).

Brady question raised on appeal.

- When a question concerning compliance with the mandate of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) is raised on appeal, the appellant has the burden of showing how the case has been materially prejudiced. If the evidence not furnished the defendant has been ruled cumulative, the defendant has not shown any prejudice the defendant has suffered. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

Defendant was not denied due process rights because the trial court instructed an interpreter to translate only a witness's testimony for the benefit of the jury, and not to otherwise interpret peripheral proceedings for the witness that were unrelated to the content of the witness's testimony; the defendant failed to show how the defendant was denied the right to participate in a meaningful way in the proceedings. Puga-Cerantes v. State, 281 Ga. 78, 635 S.E.2d 118 (2006).

Defendant failed to prove the prejudice prong of the defendant's Brady claim as the defendant merely speculated that an expert might have been able to show that the defendant was not traveling at 60-70 miles per hour in a stolen vehicle; such speculation did not establish a reasonable probability that the outcome of the trial would have been different if the defendant had been provided with a copy of a videotape of a police officer's high-speed chase of the stolen vehicle before trial. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006).

Defendant must show favorable information improperly withheld by state, denying the defendant a fair trial.

- In a criminal case, in order to establish a due process violation based on denial of a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) motion for discovery of exculpatory material, the defendant has the burden of showing that any of the information allegedly withheld improperly was favorable to the defendant, and that the withholding in any way denied the defendant a fair trial. Lewis v. State, 166 Ga. App. 428, 304 S.E.2d 531 (1983).

After hearing, defendants must show materiality and favorable nature of evidence.

- Witness statements have never been subject to a notice to produce, although exculpatory witness statements are subject to disclosure, where requested, under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), but where in compliance with Brady supra and its progeny, the trial court has made an in-camera inspection of the requested statements and found no exculpatory information, the defendant then has the burden of showing both the materiality and the favorable nature of the evidence sought. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983).

Victim's failure to identify codefendant not exculpatory evidence requiring disclosure.

- Since the failure of the victim to identify another party to the assault does not create a reasonable doubt as to the guilt of defendant, whom the victim positively identified in a photographic lineup and again at trial, the district attorney did not violate Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) in failing to disclose that the victim was unable to identify the other party. Radford v. State, 251 Ga. 50, 302 S.E.2d 555 (1983).

Information provided by witness for the first time at trial.

- Where a witness stated for the first time during trial that, after the murder, the defendant asked another to burn the defendant's trousers, there was no violation of the constitutional duty to disclose, for the simple reason that the statement was not suppressed. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

Failure to provide copy of signature not harmful.

- Where a defendant filed a general Brady motion with the state, the mere failure of the state to provide the defense with a copy of the signature of the defendant given to police officers, which was not used as a basis for any expert testimony and could have had relevance only to the authenticity of the signature on a pawn ticket, could have neither harmed nor prejudiced the defendant, who admitted under oath that the defendant signed the defendant's name to the pawn ticket. Barton v. State, 181 Ga. App. 457, 352 S.E.2d 637 (1987).

Delay in delivering officer's sketches of crime scene.

- Where a police identification technician made rough sketches of the crime scene during investigation of the murder, shortly thereafter this technician was sent to the police academy and took the rough sketches with the technician, and one day prior to trial the technician prepared a "final" drawing from the sketches that was immediately given to the defendant, and the defendant moved for a mistrial on the ground that the final sketch should have been both prepared and delivered to the defendant more promptly pursuant to the defendant's motion under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), it was held that the evidence was not suppressed, the defendant had not shown that the final sketch was in any way exculpatory, and the trial court did not abuse its discretion in denying the defendant's motion for mistrial. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987).

Defendant entitled to have substance related to charge independently analyzed.

- A defendant charged with possession or sale of a prohibited substance has a general right to have an expert of the defendant's own choosing analyze it independently. If the defendant's conviction or acquittal is dependent upon the identification of the substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, cert. denied, 431 U.S. 970, 98 S. Ct. 248, 53 L. Ed. 2d 1067 (1977).

Dismissal of drug possession charges against defendant after the state intentionally destroyed defendant's urine sample was proper where the crime lab's positive test results on the sample were the only evidence of defendant's guilt; the sample had initially tested negative for drugs in a field test; and there was an existing court order allowing defendant to independently test the sample. State v. Blackwell, 245 Ga. App. 135, 537 S.E.2d 457 (2000).

Destruction of blood sample before defendant could independently test it.

- The defendant was not denied the right to due process when the state destroyed defendant's blood sample before defendant had an opportunity to independently test it for alcohol since the evidence was destroyed at the time that crime lab guidelines indicated that it should be destroyed, and the defendant produced no evidence that the crime lab or anyone acting for the state intentionally destroyed the evidence or had the evidence destroyed as a result of improper motive, such as keeping exculpatory evidence from the defendant. Swanson v. State, 248 Ga. App. 551, 545 S.E.2d 713 (2001).

No suppression of exculpatory evidence.

- Where defendant argued that the trial court erred in denying the defendant's motion to dismiss the indictment due to the state's "failure" to prevent the victim's child from selling the trailer in which the murder took place, maintaining the state's inaction was tantamount to suppressing evidence, as the trailer was obviously critical exculpatory evidence, but the defendant had access to numerous crime scene photographs taken by the police and the defendant made no showing either that exculpatory evidence had been suppressed under Brady v. Maryland, or that the police were under a duty to prevent the victim's child from disposing of the trailer, there was no error. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987).

Where a defendant asserted error in the state's "deliberate and willful" suppression of exculpatory evidence, the glass-louvered door through which victim's home was entered unlawfully, but it is clear from such evidence that the state did not willfully and deliberately suppress evidence of the door since it was never in the state's possession, as the missing door had been replaced by the victim with a new door the same day the burglary occurred, there was no showing that defendant was prejudiced by the "loss," and since the door and missing louver were not exculpatory evidence, the court did not err by refusing to dismiss the charge on this ground. Burson v. State, 183 Ga. App. 647, 359 S.E.2d 731 (1987), cert. denied, 183 Ga. App. 905, 359 S.E.2d 731 (1987).

No requirement that card from which Miranda rights are read by officers to defendant be introduced in evidence by the state. James v. State, 230 Ga. 29, 195 S.E.2d 448 (1973).

Evidence of commission of crime other than one charged is generally not admissible. Bixby v. State, 234 Ga. 812, 218 S.E.2d 609 (1975).

Procedure upon defendant's challenge to voluntariness of statement.

- Once a defendant raises the issue of voluntariness of a statement the state wishes to use for impeachment purposes, she is entitled to a determination of the issue by the trial court before the statement can be used, although not to a separate "Jackson v. Dennis" hearing. Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197 (1983).

Fact that defendant exposes the existence of a statement does not render the substance of the statement immune from the requirement for admissibility that the statement was given voluntarily. Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197 (1983).

Use of defendant's involuntary statement prohibited for all purposes.

- It is a denial of due process of law for the state to use an involuntary statement against a defendant at trial for any purpose. Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197 (1983).

Use of involuntary statements of nondefendants.

- The due process reasons for excluding the use of a defendant's involuntary statement do not apply with equal force to the use of involuntary statements from nondefendant witnesses. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 246 (1987).

Where a witness was on the witness stand and available to be questioned concerning an allegedly coerced and involuntary statement to the police and because one of the due process principles for excluding involuntary confessions (the defendant's position in the system of justice) does not apply to nondefendant witnesses who take the stand at trial, no due process rights of the defendant were violated by allowing the state to use the witness' prior statement for impeachment purposes. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 246 (1987).

Statement obtained in violation of Miranda admissible for impeachment.

- A prior inconsistent statement of a criminal defendant is admissible for the limited purpose of impeaching trial testimony of the defendant even though the prior inconsistent statement would otherwise be inadmissible due to Miranda violations in defendant's trial. Hicks v. State, 256 Ga. 266, 347 S.E.2d 589 (1986).

Answers to general questions admissible though no Miranda warnings given.

- Miranda warnings do not have to be given in advance to general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process for answers to those questions to be admissible as evidence. Brown v. State, 140 Ga. App. 160, 230 S.E.2d 128 (1976), cert. denied, 434 U.S. 819, 98 S. Ct. 58, 54 L. Ed. 2d 75 (1977).

When testimony as to what defendant said to police agent while not in custodial interrogation is admissible.

- If a defendant is not under arrest when the defendant's interview with police agent begins and if the facts disclose no "custodial interrogation," testimony elicited by the state upon direct examination in response to a question posed by a district attorney as to what the defendant said to police agent concerning incriminating evidence was not a violation of the defendant's rights under U.S. Const., amend. 14 if the district attorney does not stress the defendant's silence in an attempt to imply guilt and the jury is never told that the defendant's silence can be used for impeachment purposes, much less evidence of guilt. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978).

Post-arrest silence.

- In the absence of the sort of affirmative assurances embodied in the Miranda warnings, it does not violate due process of law for a state to permit cross-examination as to postarrest silence if a defendant chooses to take the stand; a state is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony. Hollis v. State, 174 Ga. App. 627, 330 S.E.2d 817 (1985).

It is fundamentally unfair and a violation of due process of law for the State to permit cross-examination of a defendant as to post-arrest silence if the defendant has been informed of the defendant's Miranda rights. Chapman v. State, 263 Ga. 393, 435 S.E.2d 202 (1993).

No rule that reference to accused's silence at arrest requires grant of new trial.

- There is not an ironclad rule that any reference (even unwitting or harmless) to an accused's silence at time of arrest requires the grant of a new trial. Smith v. State, 140 Ga. App. 385, 231 S.E.2d 83 (1976).

State's use of defendant's post-arrest silence after Miranda warnings for impeachment purposes violates due process.

- A state's use, for impeachment purposes, of a defendant's post-arrest silence after the defendant had received the Miranda warnings violates the due process clause of U.S. Const., amend. 14. Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976); Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976); United States v. Allston, 613 F.2d 609 (5th Cir. 1980).

Evidence as to silence on the defendant's part at arrest should be excluded when objected to, for the defendant is then entitled to remain silent, and the prosecution may not use against the defendant the fact that the defendant stood mute or claimed the privilege. Smith v. State, 140 Ga. App. 385, 231 S.E.2d 83 (1976).

Use for impeachment purposes at trial of the defendant's post-arrest silence after Miranda warnings violates due process clause of U.S. Const., amend. 14. The rule, however, requires a case-by-case application and permits a finding of harmless error. United States v. Davis, 546 F.2d 583 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977).

Harmless error in admitting statement.

- Erroneous admission of a statement obtained in violation of the Miranda rule was harmless error, where there were no coercive police tactics inherently offensive to due process and no reasonable chance that the error contributed to the verdict. Metheny v. State, 197 Ga. App. 882, 400 S.E.2d 25 (1990).

It was not error to allow the defendant to be cross-examined concerning post-arrest silence where the record disclosed that, before the questioned cross-examination, the defendant was examined by defense counsel and testified that the defendant had made no statement to the police. Having addressed this matter by the defendant's own testimony on direct examination, it was not error to allow cross-examination as to that same subject matter. Jackson v. State, 258 Ga. 322, 368 S.E.2d 771 (1988).

Evidence of alibi should come into case like any other evidence and should be submitted to the jury for consideration of whether the evidence as a whole proves defendant's guilt beyond a reasonable doubt. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Testimony as to circumstances connected with arrest is admissible. Bixby v. State, 234 Ga. 812, 218 S.E.2d 609 (1975).

Fruits of illegal arrest are not admissible in evidence against a defendant, and a conviction which is based upon evidence thus illegally admitted must be reversed and set aside. Traylor v. State, 127 Ga. App. 409, 193 S.E.2d 876 (1972).

Outrageous conduct by police not established.

- Even if the state was required to destroy an illegal substance seized as contraband, the state's conduct in failing to meet this obligation and in using the illegal substance in a common reverse-sting operation did not rise to the level of outrageous conduct that violated fundamental notions of due process and that prejudiced the defendants. Gober v. State, 249 Ga. App. 168, 547 S.E.2d 656 (2001), aff'd, 275 Ga. 356, 566 S.E.2d 317 (2002).

Evidence obtained by illegal search and seizure of defendant inadmissible.

- Evidence obtained by illegal seizure and search of the defendant's person, by which the defendant is compelled to criminate the defendant, is inadmissible against a defendant accused of a crime, and the burden devolves upon the state to show that evidence obtained by the search was procured after a legal arrest. Marshall v. State, 130 Ga. App. 572, 203 S.E.2d 885 (1974).

No fourteenth amendment protection for abandoned property against illegal search and seizure.

- The constitutional protection of the fourth and Fourteenth Amendments does not apply to property that has been abandoned. Thus, if a defendant has abandoned the defendant's property, the defendant is not entitled to protection of that property by the fourth or Fourteenth Amendments from an illegal search or seizure. Gresham v. State, 204 Ga. App. 540, 420 S.E.2d 71 (1992).

When retroactive application of exclusionary rule not required.

- If law enforcement officers reasonably believe in good faith that evidence seized is admissible at trial, judicial integrity is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that matter, and when this is shown retroactive application of the new rule is not required. Lawson v. State, 143 Ga. App. 776, 240 S.E.2d 188 (1977).

Person aggrieved by search.

- If the evidence that the defendant seeks to suppress was obtained during the execution of a search warrant authorizing the search of the defendant's person and automobile, the defendant would be a "person aggrieved" by the search, if it should be held to be unlawful. Wood v. State, 224 Ga. 121, 160 S.E.2d 368 (1968).

Admission of evidence gathered from the defendant and automobile without search warrant after defendant's involvement in shooting upheld.

- Admission of evidence gathered from the defendant and the defendant's automobile by state officers without a search warrant after the defendant had been involved in a shooting in a trial for violation of statute regulating pawnbrokers would not violate the due process clauses of the state and federal Constitutions, or of the civil rights statute, 42 U.S.C. §§ 1981, 1983. Atterberry v. State, 212 Ga. 778, 95 S.E.2d 787 (1956).

Due process denied where conviction procured by testimony known by prosecutor to be perjured.

- Where it is shown and not denied that a conviction was procured by perjured testimony, which the state's prosecuting attorney knew to be perjured at the time it was introduced, due process as guaranteed by U.S. Const., amend. 14 is denied, and such testimony is not merely impeaching in character but has probative force. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).

Ineffective assistance of counsel claims regarding the defendant's initial post-trial counsel's performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel's failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, comprehended the proceedings, despite being under the influence of prescribed anti-depressants, and was capable of aiding the defense. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698 (2007).

Judgment procured by perjured testimony set aside.

- U.S. Const., amend. 14 not only requires the setting aside of a judgment procured by perjured testimony, but prescribes the evidence by which the fact of perjury may be proved, thus affording due process. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).

Knowing use of perjured testimony.

- Conviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement on the accused's fifth and Fourteenth Amendment rights to due process of law. Kitchens v. State, 160 Ga. App. 492, 287 S.E.2d 316 (1981).

It is sufficient to show that police officers acting in behalf of the state in connection with the prosecution had knowledge of the perjured character of the testimony given by a witness for the state. Kitchens v. State, 160 Ga. App. 492, 287 S.E.2d 316 (1981).

Use of perjured testimony not grounds for reversal.

- Conviction did not need to be reversed for use of perjured testimony as inconsistencies and discrepancies were disclosed at trial and available as a basis for attacking the credibility of the state's witnesses. Cammon v. State, 269 Ga. 470, 500 S.E.2d 329 (1998).

Opportunity to be heard required where act of criminal contempt not in court's presence.

- Where a criminal contempt act is not in the court's immediate presence, due process requires that the accused be given an opportunity to be heard. Martin v. Waters, 151 Ga. App. 149, 259 S.E.2d 153 (1979).

Opportunity to be heard not required where contempt committed in presence of court.

- Where a direct contempt is committed in the presence of the court, the offender is not entitled as a matter of right to a hearing before the court; the court may act on its own knowledge of the facts and proceed to impose punishment for the contempt, or the court may in its discretion allow a hearing. The refusal to allow a hearing does not deprive the defendant of the due process of law guaranteed by the state and federal Constitutions. Martin v. Waters, 151 Ga. App. 149, 259 S.E.2d 153 (1979).

Due process not offended by trial judge's being accuser and judge in state court contempt proceedings.

- In state court contempt proceedings, due process is not offended where the trial judge in the court in which the offense allegedly occurred serves as the accuser as well as the trial judge, hearing the charges preferred by him. Friedman v. Harbold, 150 Ga. App. 482, 258 S.E.2d 154 (1979), cert. denied, 445 U.S. 950, 100 S. Ct. 1598, 63 L. Ed. 2d 785 (1979).

Contempt hearing before another judge.

- Where an announcement of punishment for contempt is delayed until the conclusion of the trial, and where the allegedly contumacious conduct of an attorney in failing to stand and respond to the court was directed toward the judge and thereafter the judge became involved in this controversy with the attorney, due process requires that the contempt hearing be conducted by another judge. Dowdy v. Palmour, 251 Ga. 135, 304 S.E.2d 52 (1983).

Witness cannot claim U.S. Const., amend. 5 privilege if previously tried and convicted for participation in same crime. Cates v. State, 245 Ga. 30, 262 S.E.2d 796 (1980).

Prosecution witness' communications during hypnotic treatment subject to disclosure.

- Communications made during a hypnotic "age regression" treatment of a prosecution witness were not privileged under former Code 1933, § 84-3118 (see O.C.G.A. § 43-39-16) and were subject to disclosure, since the psychologist conducting the treatment sessions was acting at the behest of, and as a member of, the prosecution, and the treatment was conducted not for any therapeutic reasons, but in order to bolster the prosecution's case. Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975).

Waiver of right to test constitutionality of statute making spouse incompetent witness for the other spouse.

- Where, in the trial of a criminal case, the defendant offers the defendant's spouse (who was present at the difficulty) as a witness in the defendant's behalf, and on objection by the state the spouse's testimony is rejected on the ground that the spouse is not competent or compellable to testify for or against the defendant; and where thereafter the objection is withdrawn by the state, and the defendant allowed to introduce the defendant's spouse, and the defendant refuses to do so, the defendant will be considered as having waived the right to test the constitutionality of the statute making the defendant's spouse an incompetent witness for the defendant, on the ground that the defendant waived that right by the refusal to use the defendant's spouse as a witness in the defendant's behalf when the defendant was given an opportunity to do so. Williams v. State, 69 Ga. App. 863, 27 S.E.2d 54 (1943).

Defendant's right to fair trial violated where witness prevented from testifying for defense by threats or coercion.

- Where witness is prevented from testifying for defense by threats and coercion, or where it appears probable that failure to testify is result of such treatment, defendant's right to a fair trial has been violated. Simmons v. State, 155 Ga. App. 716, 272 S.E.2d 506 (1980).

Prohibiting cross-examination of key prosecution witness.

- Trial court errs in granting motion to prohibit cross-examination of key prosecution witnesses on their motives in testifying. Owens v. State, 251 Ga. 313, 305 S.E.2d 102 (1983).

Alford plea.

- Although defendant's motion to withdraw defendant's Alford plea to two counts of child molestation was timely because it was filed during the term in which the trial court imposed its sentence, the trial court's judgment denying the motion was upheld because the record did not support defendant's claims that defendant did not understand the nature of an Alford plea, that defendant's plea was not entered voluntarily and intelligently, and that defendant did not receive effective assistance of counsel. Whitesides v. State, 266 Ga. App. 181, 596 S.E.2d 706 (2004).

Due process denied where accused denied right to adjudication as to sanity.

- The denial to an accused person of the right to an adjudication as to whether the accused was insane at the time of the commission of an offense, or is insane at the time of the trial, is the denial of due process of law under U.S. Const., amend. 14. Clark v. Smith, 224 Ga. 766, 164 S.E.2d 790 (1968), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2279, 29 L. Ed. 2d 859 (1971).

Where evidence raises doubt as to the defendant's competence to stand trial, the judge must impanel jury and conduct sanity hearing on the judge's own motion. Jackson v. Caldwell, 461 F.2d 682 (5th Cir.), cert. denied, 409 U.S. 991, 93 S. Ct. 334, 34 L. Ed. 2d 257 (1972).

Absent special plea of insanity there is no mandatory duty on trial judge to impanel special jury to determine the issue of mental incompetency or insanity under former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130); however, failure to observe procedures adequate to protect an accused's right not to be tried or convicted while incompetent to stand trial deprives the accused of the due process right to a fair trial. Ricks v. State, 240 Ga. 853, 242 S.E.2d 604 (1978).

Insanity is affirmative defense that accused must prove by preponderance of evidence. The Georgia rule suffers from no constitutional infirmity. Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139, 58 L. Ed. 2d 144 (1978).

Harmless error if court required state to prove defendant's sanity.

- If the court does charge that the state must prove the defendant's sanity beyond a reasonable doubt, it would be harmless error as such a charge would be beneficial to the defendant. State v. Avery, 237 Ga. 865, 230 S.E.2d 301 (1976).

Appointment of psychiatrist to assist in defense.

- When a criminal defendant makes an ex parte showing that the defendant's sanity is likely to be a significant factor in the defense, the defendant must be provided with a psychiatrist to assist in the defendant's defense. Lindsey v. State, 254 Ga. 444, 330 S.E.2d 563 (1985).

Indigent's right to psychiatrist.

- The United States Supreme Court has not required that the state provide an independent psychiatrist for an indigent defendant, only that it provide a competent psychiatrist if the defendant demonstrates that the defendant's sanity at the time of the offense is to be a significant factor at trial. Tucker v. Kemp, 660 F. Supp. 832 (M.D. Ga. 1987).

Where in a death penalty case the circumstances presented to the trial court did not establish that insanity would be a significant issue at trial, the court did not abuse its discretion by refusing to provide funds for psychiatric assistance. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Privilege of evaluation made by court-funded psychiatrist.

- For interpretation of Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) regarding procedure to be followed in providing psychiatric assistance to criminal defendants, see Lindsey v. State, 254 Ga. 444, 330 S.E.2d 563 (1985).

Criminal defendant who requested funds for hiring a psychiatrist was not denied due process where the court granted funds but reserved ruling on the question of whether the evaluation would be privileged, prompting the defendant to hire a psychiatrist out of the defendant's own funds to assure privilege, since the defendant abandoned the matter by not presenting authority supporting the privilege and by failing to evoke a ruling of law from the court. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989).

Expert witness appointed by court for sanity examination of defendant is witness for court.

- An expert witness appointed by the court for a sanity examination of a defendant may not be regarded as a prosecution witness, but is instead a witness for the court; and the denial of a defendant's request to furnish a psychiatrist at public expense to assist the defense, when the court-appointed doctor has reported the defendant is sane, has been held not to constitute a denial of due process. Jackson v. State, 225 Ga. 790, 171 S.E.2d 501 (1969), rev'd on other grounds, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, vacated in part on other grounds, 229 Ga. 731, 194 S.E.2d 410 (1972).

Trial court may refuse psychiatric evaluation where the defendant fails to raise a bona fide doubt as to the defendant's competency to stand trial by offering either evidence of past behavior, prior medical opinion or by the defendant's behavior before the trial judge. Bowden v. Francis, 733 F.2d 740 (11th Cir. 1984).

Where the record discloses no evidence that the defendant's sanity at the time of the offenses charged would be a significant factor at trial nor even that the defendant's mental condition was seriously in question, there was no abuse of discretion in the trial court's denial of the defendant's "motion for psychiatric assistance," and the defendant also suffered no deprivation of effective assistance of counsel resulting from the trial court's denial of the defendant's motion. Davidson v. State, 183 Ga. App. 557, 359 S.E.2d 372, cert. denied, 183 Ga. App. 905, 359 S.E.2d 372 (1987).

Where the court ordered a psychiatric examination of the accused and the report found the accused was competent to assist in the accused's defense, that the accused knew the difference between right and wrong, that he was able to understand the legal proceedings the accused faced, that the accused's intellectual capacities were well preserved, and that the accused was aware of the nature and the seriousness of the charges against the accused, although the psychiatrist did note the accused's past history of alcohol abuse and recommended treatment, but found no evidence of a mental disorder which would have aggravated the accused's ability to distinguish right from wrong, and no evidence of a delusional compulsion, but the psychiatrist went on to find a stress factor following loss of the accused's job, which precipitated a drinking episode after a long period of abstinence, during which the crimes were committed, in the absence of a finding of any type of insanity which would have been a significant factor in the defendant's defense, the trial court did not err in denying the motion for leave to retain a psychiatrist to aid in the defendant's defense, as the defendant was required to make a showing that the defendant's sanity was likely to be a significant factor at trial. Robinson v. State, 186 Ga. App. 767, 368 S.E.2d 533 (1988).

Trial court's refusal to provide accused selected psychiatrist upheld, as hearing on insanity of civil nature.

- A hearing upon a special plea of insanity is a proceeding of a civil nature, in which the burden rests on the defendant to produce evidence of insanity. Thus, the refusal of a trial court to provide for examination by and assistance to the accused by a "competent" psychiatrist selected by the accused discloses no violation of due process or error for any other reason. May v. State, 146 Ga. App. 416, 246 S.E.2d 432 (1978).

Where no special insanity plea entered, not error for court to deny defendant's motion for psychiatric examination at county expense.

- It is not error for a trial court to deny the defendant's motion requesting that the defendant be examined by a psychiatrist at county expense because the defendant had not entered a special plea of insanity at the time of trial. Huguley v. State, 120 Ga. App. 332, 170 S.E.2d 450 (1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 66 (1970).

Court not required to appoint state-paid psychiatrist even where special insanity plea filed.

- Trial court is under no constitutional or statutory duty to appoint state-paid psychiatrist to evaluate defendant even though special plea of insanity has been filed. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993).

Charge to jury putting burden of establishing insanity defense on defendant upheld.

- Charge to jury in a murder trial requiring the defendant to produce evidence in support of an insanity defense and to establish it to "the reasonable satisfaction of the jury" does not violate defendant's right to due process. Grace v. Hopper, 234 Ga. 669, 217 S.E.2d 267 (1975), cert. denied, 423 U.S. 1066, 96 S. Ct. 806, 46 L. Ed. 2d 657 (1976).

Due process not denied where jury not instructed specifically, absent request, as to burden of proof regarding sanity.

- Where the charge of the court includes instruction as to insanity but places the burden of proof as to each essential element of the crime, including intent, upon the state beyond a reasonable doubt, it is not a denial of due process of law for the court not to instruct the jury specifically, absent a request, as to any burden of proof regarding sanity. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), sentence vacated, 243 Ga. 244, 253 S.E.2d 707 (1979).

Guilty-but-mentally-ill verdict not unconstitutional.

- The defendant who pleads insanity has placed his mental health in issue and inasmuch as he has presumably introduced evidence of mental illness for the court to charge the jury that it may consider a verdict of guilty but mentally ill does not constitute burden shifting. Also, while the definition of "mentally ill" in O.C.G.A. § 17-7-131 is not a model of specificity, the definition is sufficient to inform the jury of the meaning of a verdict of guilty but mentally ill and is not so vague as to violate due process. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).

Since the defendant made no showing that sanity at the time of the offense would be a significant factor at trial and no request for a psychiatrist to aid in the presentation of mitigating evidence at sentencing, the court's failure to provide psychiatric assistance in developing an insanity defense or in presenting mitigating evidence was not a denial of due process. Bowden v. Kemp, 767 F.2d 761 (11th Cir. 1985).

Failure to order third examination as to competency.

- The trial court's failure to order a third examination including an assessment as to defendant's competency at the time of the murder greatly hindered defendant's delusional compulsion defense in violation of due process. Ford v. Gaither, 953 F.2d 1296 (11th Cir. 1992).

Subjecting a defendant to trial before a judge with a direct, personal, pecuniary interest in convicting the defendant effects a denial of due process in violation of U.S. Const., amend. 14. Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977).

Failure by a judge to disqualify oneself when it serves to deprive a defendant of an unbiased trier of fact is a denial of due process. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

Trial judge's failure to determine nonparticipating alternate's belief against capital punishment not unconstitutional.

- A trial judge's failure, during voir dire, to determine whether a prospective juror harbors not only an abstract belief against capital punishment, but also beliefs which would preclude the defendant from voting the death penalty under any circumstances does not violate U.S. Const., amend. 6 or U.S. Const., amend. 14 where the juror is an alternate who never participates in any phase of the trial. Smith v. Whisman, 431 F.2d 1051 (5th Cir. 1970).

Replacement of trial judge after jury charged.

- A defendant failed to show that due process was violated when, because of an emergency, the trial judge who had heard the case and charged the jury was replaced by a different judge, who accepted the verdict. Cooper v. State, 281 Ga. 760, 642 S.E.2d 817 (2007).

Statement of witness that arrest was made under warrant is not proof arrest legal. Marshall v. State, 130 Ga. App. 572, 203 S.E.2d 885 (1974).

When reliability of witness may be determinative, nondisclosure affecting credibility violates due process.

- When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility violates due process guarantees. Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975).

Admission of child witness' testimony.

- Statute allowing a child who did not understand the meaning of an oath to testify in a child molestation case did not violate due process and equal protection principles, where the defendant had the opportunity to cross-examine the child witness and the statute applied equally to all those accused of child molestation. Sims v. State, 260 Ga. 782, 399 S.E.2d 924 (1991).

Juries in criminal cases are free to render verdicts that are inconsistent or even result of mistake or compromise. Any apparent inconsistency between verdicts on the two counts of an indictment does not undermine convictions on the count on which defendants were found guilty. Each count is separately considered and, if it is supported by the evidence, may stand. United States v. Lichenstein, 610 F.2d 1272 (5th Cir.), cert. denied, 447 U.S. 907, 100 S. Ct. 2991, 64 L. Ed. 2d 856 (1980).

Instruction about inference of guilt from possession of unaccounted for property not comment on defendant's failure to testify.

- An instruction stating that guilt of the defendant can be inferred from possession of recently stolen property unaccounted for by him cannot properly be construed as a comment on the defendant's failure to testify. Horton v. State, 228 Ga. 690, 187 S.E.2d 677 (1972).

Evidence of an understanding or agreement as to the future prosecution of an accomplice on whose testimony the case almost entirely depends is relevant to credibility. The jury is entitled to know of it, the prosecutor has a duty to disclose it, and the failure to make this disclosure violates due process. Henderson v. State, 161 Ga. App. 211, 288 S.E.2d 284 (1982).

Jury entitled to know understanding or agreement as to future prosecution of accomplice testifying for state.

- Evidence of any understanding or agreement as to future prosecution of an accomplice on whose testimony the state's case almost entirely depends is relevant to the accomplice's credibility. The jury is entitled to know of it, the prosecutor has a duty to disclose it, and the failure to make this disclosure violates due process and requires the reversal of the conviction and a remand for a new trial. Allen v. State, 128 Ga. App. 361, 196 S.E.2d 660 (1973); Dudley v. State, 148 Ga. App. 560, 251 S.E.2d 815 (1978).

As the prosecutor has a duty to disclose any understanding concerning the testimony of an accomplice because it is relevant to the accomplice's credibility, failure to do so is a violation of due process. Adams v. State, 173 Ga. App. 877, 328 S.E.2d 767 (1985).

Jury must be informed of agreement between prosecutor and alleged accomplice whose testimony is crucial.

- Due process mandates that the jury be informed of any understanding or agreement reached between the prosecutor and an alleged accomplice, on whose testimony the state's case depends. Williams v. State, 151 Ga. App. 683, 261 S.E.2d 430 (1979).

Defendant has no right to be present while jury in seclusion or deliberation.

- Although the presence of the defendant at trial is a condition of due process to the extent that a fair and just hearing would be thwarted by the defendant's absence, where the defendant was absent from the court at the time the jury agreed upon a verdict there was no violation of the defendant's rights if there was no interference with the jury's deliberations, since the defendant had no right to be present while the jury was in seclusion or deliberation. Fowler v. Grimes, 198 Ga. 84, 31 S.E.2d 174, cert. denied, 323 U.S. 784, 65 S. Ct. 266, 89 L. Ed. 626 (1944).

Defendant not deprived of due process because involuntarily absent during jury deliberation and reaching of verdict.

- The verdict and sentence in a murder case was not void upon the ground that the accused was involuntarily absent from the court during deliberations of the jury, and at the time the jury reached their verdict, since the accused was present in the courtroom at the time the verdict was published. Fowler v. Grimes, 198 Ga. 84, 31 S.E.2d 174, cert. denied, 323 U.S. 784, 65 S. Ct. 266, 89 L. Ed. 626 (1944).

Attempted introduction of testimony not reversible error where aggravating circumstance not dependent on premeditation.

- In a rape-murder trial where the jury imposed the death penalty under former Code 1933, § 27-2534.1(b)(2) (see O.C.G.A. § 17-10-30(b)(2)) on the ground that the murder was committed while the offender was engaged in the commission of another capital felony, rape, the jury's finding of this statutory aggravating circumstance did not depend on any showing of premeditation or deliberation prior to the defendant's arriving at the scene of the crimes; therefore, it can be said beyond a reasonable doubt that the attempted introduction of testimony, regarding premeditation in the context of the entire trial and considering the curative instructions given by the trial judge, does not constitute reversible error. Gibson v. Ricketts, 244 Ga. 482, 260 S.E.2d 877 (1979), cert. denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980).

Improper use of evidence of prior criminal conduct.

- Defendant's conviction for robbery was reversed, and a new trial ordered, in case where the defendant was charged and convicted of robbery and possession of firearm by a convicted felon, and evidence of prior felony convictions of aggravated assault and armed robbery were admitted, over objection, to establish that the defendant was a convicted felon because there were no limiting instructions to relate the prior convictions only to the possession charge, there was no corroborating testimony to back up the victim's testimony that the defendant committed the crime of robbery, and it could not be said with a certainty that the defendant's conviction for robbery was not unduly influenced by evidence of the defendant's prior criminal record. Head v. State, 253 Ga. 429, 322 S.E.2d 228 (1984), overruled in part by Ross v. State, 279 Ga. 365, 614 S.E.2d 31 (2005).

Defendant is not denied fair trial by impartial jury by listing previous criminal convictions in indictment. Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787 (1969).

Evidence as to parole.

- Fact that the defendant was an habitual violator and thus upon conviction would have to serve 20 years without parole did not relate to the defendant's character, his prior record, or circumstances of the defendant's offense; thus policy forbidding argument regarding one's ability or inability to make parole did not run afoul of either U.S. Const., amend. 8 or 14 and trial court did not err in refusing to allow such argument. Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).

Admission of decedent's statement.

- U.S. Const., amend. 14 does not require the admission of testimony about an out-of-court statement if the out-of-court statement lacks strong indicia of reliability and the declarant is deceased. Davis v. State, 194 Ga. App. 482, 391 S.E.2d 124 (1990).

Refusal by state to provide original tape recordings.

- Because the defendant claimed that the trial was rendered fundamentally unfair by the state's refusal to provide the defendant with the originals of certain pre-arrest surveillance tape recordings and a post-arrest tape recording for independent scientific examination by an expert of the defendant's choosing, but the defendant did not contend, nor did the record reflect, that the defendant had ever proffered a statement the defendant made or a comment made by the sheriff during the post-arrest interview which was not recorded and thereby made a part of the post-arrest tape, and the record established that the defendant not only had the opportunity to present the defendant's version of the pre-arrest recorded conversations, but in fact testified as to what the defendant meant by certain critical statements the defendant made during those recorded conversations, it was held that a claim of deprivation of due process associated with the denial of expert assistance cannot be predicated upon little more than undeveloped assertions that the requested assistance would be beneficial. Hardin v. Black, 845 F.2d 953 (11th Cir. 1988).

Where a defendant was charged with possession of cocaine, and allegedly gave consent to a search of the defendant's vehicle, the failure by the police to produce a tape of the defendant's oral consent did not violate the Fourteenth Amendment. Phelps v. State, 195 Ga. App. 370, 393 S.E.2d 501 (1990).

Relating contents of lost tape to jury.

- Allowing an arresting officer to relate to the jury the contents of an electronically monitored conversation which transpired between the defendant and an undercover agent without producing the lost tape recording does not violate due process. Mitchell v. State, 184 Ga. App. 181, 361 S.E.2d 51 (1987).

Denial by trial judge of use of recording device.

- For the trial judge to arbitrarily deny use by counsel or a party of a microphonic recording device as a work product for their personal use in a possible retrial or appeal of the case is a denial of due process. Davey v. City of Atlanta, 130 Ga. App. 687, 204 S.E.2d 322 (1974).

Use of an electronic device is subject to the supervision of the trial judge who may take reasonable measures to assure that the use of the device does not interfere with the dignity, order, and decorum of the court. Davey v. City of Atlanta, 130 Ga. App. 687, 204 S.E.2d 322 (1974).

No statutory or constitutional violation where police lose scientific reports. A Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) violation occurs only when the state withholds exculpatory information in its possession from the defendant, and where the state does not withhold any information, but the police lose it, there is no error under O.C.G.A. § 17-7-211 (repealed), which requires the state to furnish the defendant copies of scientific reports it possesses. Dawson v. State, 166 Ga. App. 515, 304 S.E.2d 570 (1983).

Appointment of criminologist properly denied.

- Because the defendant's motion for appointment of a criminologist or other expert to assist the defense, considered in the light of the record before the judge when the judge made a dispositive ruling, failed to create a reasonable probability that expert (nonpsychiatric) assistance was necessary to the defense and that without such assistance the defendant's trial would be rendered unfair, the trial court did not err in denying the defendant's motion. Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987), aff'd, 972 F.2d 319 (11th Cir. 1992).

No obligation to appoint identical experts for defendant.

- Where the prosecution had no witness who had participated in the fatal transaction and necessarily relied upon the opinion testimony of experts, under these circumstances, the state was not required to appoint identical experts, such as a ballistics expert, on behalf of the defendant to even the score. Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988).

Blood test fee must be given to indigent in abandonment proceeding.

- O.C.G.A. § 19-10-1(f)(2) (abandonment of dependent child) is violative of the equal protection and due process clauses of U.S. Const., amend. 14 to the extent that persons determined to be indigent are initially responsible for the expense of paternity blood tests they request pursuant to the statute. Therefore, in a prosecution for child abandonment, where the defendant is an indigent, it is error to deny the defendant's motion for funds for a blood test. Burns v. State, 252 Ga. 140, 312 S.E.2d 317 (1984). (See also Peterson v. Moffitt ex rel. Department of Human Resources, 253 Ga. 253, 319 S.E.2d 449 (1984), annotated under "1. In General" above.)

Indigent defendant was entitled to funds to pay expert to examine dental-impression evidence that was the sole connecting link between defendant and the murder. Thornton v. State, 255 Ga. 434, 339 S.E.2d 240 (1986).

Transcription of argument.

- Absent a showing of harm, the failure to transcribe such things as argument does not amount to a constitutional violation sufficient to require vacating a death sentence. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

Transcription of mistrial.

- Defendant did not have to show particularized need for transcript of prior mistrial. Walker v. State, 156 Ga. App. 478, 274 S.E.2d 680 (1980).

Physical evidence, samples, and tests.

- Absent evidence that the state acted in bad faith in failing to preserve potentially exculpatory evidence, and because blood evidence found on a flashlight used by the victim to hit the defendant in the head after being stabbed was not material, but was cumulative of other evidence showing the undisputed fact that the state never denied that the victim hit the defendant in the head with the flashlight, and indeed offered testimony that the victim struck the defendant with enough force to knock the defendant to one knee, the defendant's due process rights were not violated; hence, the trial court did not err in denying a mistrial based on the defendant's allegation that the state failed to preserve potentially exculpatory evidence. Lonergan v. State, 281 Ga. 637, 641 S.E.2d 792 (2007).

Denial of use of unofficial court reporter.

- Appellant not deprived of fair trial by denial of use of unofficial court reporter at the appellant's expense. Estep v. State, 129 Ga. App. 909, 201 S.E.2d 809 (1973).

Time of arrest is question of fact depending on evaluation of testimony by trial judge. Franklin v. State, 143 Ga. App. 3, 237 S.E.2d 425 (1977), cert. denied, 435 U.S. 950, 98 S. Ct. 1575, 55 L. Ed. 2d 799 (1978).

Statutory requirement that trial court give jury statutory instructions in writing does not violate due process and equal protection under U.S. Const., amend. 5 and U.S. Const., amend. 14 and without a concurrent right to send written instructions to the jury as to mitigating circumstances, the aggravating circumstances are not prejudicially emphasized, because the written material furnished to the jury is purely of a procedural nature and amounts to nothing more than a written formulation of the jury's potential verdicts. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993).

Total ignorance of jury not required.

- The sixth and Fourteenth Amendment right to an impartial jury does not require that jurors be wholly ignorant of the case before trial begins. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

Jury charge as to presumptions.

- Charge telling jury that they were entitled to make certain presumptions or draw certain inferences from the evidence, not that the law required them to do so, did not violate due process. Freeman v. State, 183 Ga. App. 264, 358 S.E.2d 623, cert. denied, 183 Ga. App. 906, 358 S.E.2d 623 (1987).

General jury instructions sufficient.

- Defendant was not denied due process where jury was given only general charges on child molestation and aggravated child molestation; the jury instructions, when taken as a whole, properly set forth the basis on which the jury was authorized to convict defendant on each count of the indictment and did not constitute a constructive amendment of the indictment. Thomas v. State, 264 Ga. App. 389, 590 S.E.2d 778 (2003).

No hearing in which all parties participated required on improper jury communications.

- After a juror reported that improper jury communications had taken place during an inmate's trial on drug and weapons offenses, the inmate's defense counsel was not ineffective for failing to move for a hearing in which all interested parties were permitted to participate because, to the extent that the federal requirement for such hearings applied in state proceedings, the federal requirement did not address the procedures to be followed by trial judges when a question of jury bias was being investigated during a trial; in such circumstances, federal law left the extent to which the parties could participate in such a hearing to the discretion of the trial court, and the due process clause of the Fourteenth Amendment could not possibly require more of a state court system. Greer v. Thompson, 281 Ga. 419, 637 S.E.2d 698 (2006).

Trial court's failure to give a correct charge on the presumption of innocence resulted in a violation of the defendant's right to a fair trial as guaranteed by the due process clause of U.S. Const., amend. 14. Blair v. State, 179 Ga. App. 519, 347 S.E.2d 337 (1986).

Judge need not point out specific mitigating circumstances or use words "mitigating circumstances" in charge.

- In making it clear to the jury that mitigating circumstances must be considered, there is no requirement that trial court point out specific mitigating circumstances which may be present in defendant's case and it is also unnecessary to include the magic words "mitigating circumstances" in the charge; where Georgia juries are instructed in sentencing to consider all facts and circumstances which have appeared at both phases of trial, this necessarily includes any mitigating circumstances which defendant has shown, or argued, or both. Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219, cert. denied, 454 U.S. 1037, 102 S. Ct. 579, 70 L. Ed. 2d 483 (1981).

Duty to instruct jury on mitigating circumstances and option to recommend against death.

- Under Georgia's death sentencing scheme the eighth and Fourteenth Amendments require that the trial judge clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death. Where the instruction, taken as a whole, at best was contradictory and confusing as to the jury's function if it determined that an aggravating circumstance was present, as the jury was told that upon finding an aggravating circumstance its verdict would be death but it is possible to lift isolated phrases from the jury instruction and find in those phrases an indication that a death sentence need not have inexorably flowed from a finding of an aggravated circumstance, on the whole, the instruction falls far short of providing clear and explicit information to the jury that it had the option not to recommend a sentence of death, and defendant's death sentences must therefore be set aside. Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987), aff'd, 972 F.2d 319 (11th Cir. 1992).

Jury charge on conspiracy.

- It is not inappropriate to charge upon law of conspiracy merely because indictment does not, in terms, allege conspiracy to commit the offense, on trial of one of two or more persons jointly indicted for a crime. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444 (1969).

Charge that witnesses are presumed truthful disapproved but not unconstitutional.

- A charge, given in a murder trial, that "when witnesses appear and testify in a case such as this, they are presumed to speak the truth unless they are impeached in some manner provided by law", was not unconstitutional as negating the presumption of innocence and shifting the burden of proof to the defendant, but the charge can be misleading and is of little positive value, so that its use should be discontinued. Noggle v. State, 256 Ga. 383, 349 S.E.2d 175 (1986).

Use of peremptory challenges in racially discriminatory manner.

- Statistical evidence was sufficiently strong to raise an inference that the prosecutor was exercising peremptory challenges in a racially discriminatory manner. Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 503 U.S. 952, 112 S. Ct. 1516, 117 L. Ed. 2d 652 (1992).

Improper excusal of lone juror holding out for acquittal.

- The trial judge's failure to make a reliable determination of whether, in the final moments of jury deliberations, the lone juror to reserve a reasonable doubt as to the defendant's guilt, who was reported by the jury foreman to be "extremely nervous," was actually incapacitated, the judge's failure to ensure that the juror understood the juror's right to adhere to the juror's view that the defendant should be acquitted, and the judge's failure, upon excusing that juror and replacing the juror with an alternate juror, to instruct the reconstituted jury to begin anew deprived the defendant of the defendant's constitutional right to a trial by a fair and impartial jury and deprived the defendant of the defendant's due process right to a fair trial. Peek v. Kemp, 746 F.2d 672 (11th Cir. 1984), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986).

Fact that two or more jurors visited the crime scene and related information about their observations to the rest of the jurors during their deliberations did not constitute reversible error where there was nothing to indicate that any of the jurors changed their minds because of the extrarecord information. Moore v. State, 179 Ga. App. 125, 345 S.E.2d 631 (1986).

Coercion of jurors.

- A trial judge's efforts to coerce reluctant jurors into delivering a verdict may sufficiently invade the province of the jury so as to deny the defendant fundamental fairness. Scruggs v. Williams, 903 F.2d 1430 (11th Cir. 1990).

Where the judge asked a juror two leading questions, but they led in different directions: first, "In other words, you're saying that is not your verdict?" and later, "So if that is your verdict . . . ," the judge's questioning was not sufficiently coercive to violate due process. Scruggs v. Williams, 903 F.2d 1430 (11th Cir. 1990).

Fingerprint evidence alone can be sufficient to sustain a conviction for an offense like burglary against a constitutional attack on the sufficiency of evidence. Duncan v. Stynchcombe, 704 F.2d 1213 (11th Cir. 1983).

Under O.C.G.A. § 24-2-2, evidence of prior difficulties between the accused and the victim is admissible to illustrate the accused's motive, intent, or bent of mind toward the victim; therefore, a peace warrant that victim had taken out against the defendant nine months before the victim's death was clearly relevant to show the defendant's motive and "bent of mind" towards the victim, and its admission into evidence did not violate the defendant's due process rights. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931 (1989).

Photographs of victim's body allowed.

- Challenged photographs of the victim's body were not a crucial, highly significant factor in the case against the defendant so as to have denied the defendant a fundamentally fair trial. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 103 L. Ed. 2d 931 (1989).

Recent unexplained possession of stolen goods is sufficient to support inference of guilt beyond reasonable doubt; there is no need for further proof of guilt. Evans v. State, 156 Ga. App. 162, 275 S.E.2d 341 (1980).

Permitting Bible in jury room during deliberations.

- It was constitutional error for the court to permit the Christian Bible to go into the jury room at the request of the jurors, apparently for consultation in connection with their deliberations after a murder trial. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

Determination of harmless error.

- It is permissible for state to determine for itself what constitutes "harmless" error in conduct of trial. Pennington v. Stynchcombe, 428 F.2d 875 (5th Cir. 1970).

Bombastic argument is not unconstitutional.

- Prosecutor's bombastic or grandiloquent argument in a criminal prosecution is not unconstitutional. Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 816, 83 L. Ed. 2d 809 (1985).

A prosecutor is entitled to argue the state's case vigorously, so long as the prosecutor talks about matters the prosecutor is entitled to talk about. Patillo v. State, 258 Ga. 255, 368 S.E.2d 493, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988).

Unlawful use of racial epithets by defense counsel toward defendants, absent any hint of prohibition by the court, was presumed to have infected the verdict and the "essential demands of fairness" insured by the due process clause required a new trial. Kornegay v. State, 174 Ga. App. 279, 329 S.E.2d 601 (1985).

Order of trial judge fixing a new date for execution of sentence after the original date has passed is not void because the defendant is involuntarily absent and has not waived or authorized any one else to waive the right to be present at the time and place of resentencing, and the passage of such order is not violative of the plaintiff's rights under provisions of the state and federal Constitutions. McBurnett v. Balkcom, 207 Ga. 452, 62 S.E.2d 180 (1950).

No due process violation where attack is on order setting new date of execution entered without defendant's presence.

- Although it was necessary for the defendant to have been present in court when the original sentence of execution was pronounced, as well as during other proceedings throughout the trial, in the absence of waiver, no violation of due process appears, where the attack is not on the original sentence, but merely on an order fixing a new date of execution, entered without the presence of the defendant at that time, which became necessary after the date fixed in the original sentence had passed by reason of a supersedeas pending the determination of a writ of error in this court. Setting a new date of execution is not a new sentence of defendant, as to which the judge has no discretion, but merely setting the time. Fowler v. Grimes, 198 Ga. 84, 31 S.E.2d 174, cert. denied, 323 U.S. 784, 65 S. Ct. 266, 89 L. Ed. 626 (1944).

Trial court's order that only one attorney argue for state and one for appellant does not violate rights under U.S. Const., amend. 6 and U.S. Const., amend. 14. Willis v. State, 243 Ga. 185, 253 S.E.2d 70, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Exclusionary sperm test not required in rape trial.

- In a rape trial, the fact that an exclusionary sperm test (which purportedly classifies sperm into particular blood groupings for identification purposes) was not performed is not grounds for reversal, and due process does not require the performance of the test. Gray v. State, 151 Ga. App. 684, 261 S.E.2d 402 (1979).

State's not providing civilian clothes does not amount to compelling accused to stand trial in prison garb, which is proscribed by U.S. Const., amend. 14. United States v. Casey, 540 F.2d 811 (5th Cir. 1976).

Wearing of prison-issue shoes at trial.

- Because there was nothing about the clothing and shoes worn by the defendant indicating that the defendant was a prisoner, the defendant's being forced to wear prison-issue shoes at trial was not a denial of the defendant's presumption of innocence. Lockhart v. State, 172 Ga. App. 170, 322 S.E.2d 503 (1984).

Notice and evidentiary hearing required upon trial court's decision to revoke appeal bail bond.

- Due process requirements of U.S. Const., amend. 5 and U.S. Const., amend. 14 mandate notice and an evidentiary hearing upon the trial court's decision to revoke an appeal bail bond. Riggins v. State, 134 Ga. App. 941, 216 S.E.2d 723 (1975).

One at large on bail pending appeal of federal conviction can be extradited by sister state for the purpose of serving sentences imposed by that state. Extradition under such circumstances does not violate due process constitutional rights of the party extradited. Crane v. State, 233 Ga. 264, 210 S.E.2d 800 (1974).

Unified appeal procedure under Code 1933, § 27-2538 (see O.C.G.A. § 17-10-36) does not violate due process in that it fails to provide a defendant with reciprocal rights of discovery. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982).

In determining whether an unbiased jury was impaneled, appellate court is obligated to make an independent evaluation of the circumstances involved in the case. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

Cross-examination as to agreement between witness and state.

- There was no denial of due process or confrontation rights where the trial court ruled improper a question by defense counsel on cross-examination that presumed the existence of an unprovable "deal" between the state and the witness; the court did not preclude all inquiry on a subject with respect to which the defendant was entitled to reasonable cross-examination. Watkins v. State, 264 Ga. 657, 449 S.E.2d 834 (1994).

Prosecution of lesser included offense in a different county.

- A prosecution for a lesser included offense, which includes the underlying felony in a felony murder case, after a conviction for the greater offense in a different county violates O.C.G.A. § 16-1-6, Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, and the fifth and Fourteenth Amendments to the United States Constitution. Perkinson v. State, 273 Ga. 491, 542 S.E.2d 92 (2001).

Statutory aggravators supporting death penalty.

- Georgia procedure of listing the statutory aggravators that support a death penalty through means other than the indictment was not unconstitutional under the due process clause; the state was not under a constitutional obligation to place the statutory aggravators in the indictment. Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002), cert. denied, 540 U.S. 835, 124 S. Ct. 88, 157 L. Ed. 2d 64 (2003).

Application to juvenile proceedings.

- Juvenile court erred in adjudicating the juvenile delinquent on the ground that the juvenile violated the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1, as the state's delinquency petition did not allege an essential element of the offense; namely, the predicate acts upon which the "pattern of criminal gang activity" was based. Accordingly, the juvenile's procedural due process rights were violated when the juvenile court adjudicated the juvenile delinquent based on that offense, as the insufficiency in the state's petition meant the juvenile was denied the juvenile's due process rights because the juvenile was not able to prepare an adequate defense. In the Interest of E.S., 262 Ga. App. 768, 586 S.E.2d 691 (2003).

Court required to make findings on Mandarin Chinese speaker's competency to stand trial without interpreter.

- Trial court erred in denying a defendant's motion for new trial based on the defendant's contention that the defendant did not understand the proceedings because an interpreter was not provided to the defendant without making findings; there was sufficient evidence to raise a question as to whether the defendant, whose native language was Mandarin Chinese, was competent to be tried without an interpreter, and the trial court was required to make findings as to the defendant's competency on the record. Ling v. State, 288 Ga. 299, 702 S.E.2d 881 (2010).

No due process violation in delay in defendant's arrest and indictment.

- Superior court did not err in failing to dismiss the indictment on the ground that the delay in the defendant's arrest and indictment violated the defendant's rights to due process under the Fifth and Fourteenth Amendments and Ga. Const. 1983, Art. I, Sec. I, Para. I because neither actual prejudice nor deliberate adverse action on the part of the state had been shown; the defendant was not in custody during the period in question. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482 (2011).

11. Sentencing

Defendant not denied due process because assigned to formerly appropriate commission, not successor.

- Fact that the trial court, in sentencing the defendant, assigned the defendant, or ordered the defendant delivered to the Prison Commission, which has been abolished, instead of assigning the defendant or ordering the defendant delivered to the State Board of Corrections, which succeeded to the powers and duties of the commission, while not technically in the proper form, is not such an irregularity as is hurtful to any right of liberty, nor is it such a defect as to vitiate the sentence and deprive the defendant of due process of law under either the state or federal Constitutions. Dixon v. State, 83 Ga. App. 227, 63 S.E.2d 278 (1951).

Cruel and unusual punishment clause applicable to states.

- Cruel and unusual punishment clause of U.S. Const., amend. 8, is made applicable to states through U.S. Const., amend. 14. United States v. Kaiser, 545 F.2d 467 (5th Cir. 1977).

Qualitative differences in meting out punishment permitted.

- Mere fact that an indigent in a particular case may be imprisoned for a longer time than a nonindigent convicted of the same offense does not give rise to a violation of the equal protection clause. Sentencing judges are vested with wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear. The Constitution permits qualitative differences in meting out punishment, and there is no requirement that two persons convicted of the same offense receive identical sentences. Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972).

Regard to past life and habits of particular offender allowed.

- The belief no longer prevails that every offense in a like legal category calls for, under this section, an identical punishment without regard to the past life and habits of a particular offender. Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972).

Prosecutorial remarks.

- The United States Constitution does not forbid a sentencer to hear argument from counsel on the need for a deterrent sentence and to fashion a sentence to satisfy that need. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984).

U.S. Const., amend. 14 does not prevent a prosecutor from commenting during closing argument in the sentencing phase of a defendant's trial on the defendant's silence during the culpability phase of the defendant's capital trial when the defendant has testified only in the sentencing phase; after the defendant has waived the defendant's constitutional privilege by testifying, any expectation of protection from adverse comment also is waived. Tucker v. Francis, 723 F.2d 1504 (11th Cir.), vacated in part, 728 F.2d 1358 (11th Cir. 1984), cert. denied, 478 U.S. 1022, 106 S. Ct. 3340, 92 L. Ed. 2d 743 (1986).

The standard to be employed in reviewing a prosecutor's argument is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

Arguments by the prosecutor that the death penalty serves as a deterrent are proper in the sentencing phase of a capital case. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

The prosecutor's arguments seeking to justify the execution of defendant based upon society's legitimate interest of purging itself of this wrong was a permissible argument in the sentencing phase of a capital case. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

The future dangerousness of a defendant is a proper consideration in imposing death, and a legitimate future dangerousness argument is not rendered improper merely because the prosecutor refers to possible victims. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

During the sentencing phase of a capital case, the prosecutor may appropriately analogize the role of the jury and the role of soldiers fighting for their country. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

Where the prosecutor argued that the jurors should find the defendant guilty of both rape and murder in order to preserve their chance to sentence the defendant to death at the sentencing hearing, the prosecutor also argued that the state medical examiner, who testified concerning the evidence suggesting rape, must have believed that the victim was raped or the medical examiner would not have taken the stand, and the prosecutor supported the argument that the jury should convict defendant by suggesting that they imagine looking out their windows and seeing the defendant approach their houses at night, these arguments may well have violated § 5.8 of the ABA Standards on the Administration of Criminal Justice, but the statements did not, however, render the trial fundamentally unfair. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

Prosecutorial arguments made during the sentencing phase of a capital trial will not warrant habeas relief under 28 U.S.C. § 2254 unless the statements render the entire sentencing proceeding fundamentally unfair. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 103 L. Ed. 2d 931 (1989).

Because a prosecutor read the jury a lengthy and literal quotation from a court opinion that included the statement that the court had "no sympathy with that sickly sentimentality that springs into action whenever a criminal is at length about to suffer for crime," use of the quote in the prosecutor's closing argument to the jury clearly was highly improper and rendered the sentencing phase of the petitioner's trial fundamentally unfair in violation of the due process clause of the Fourteenth Amendment. Presnell v. Zant, 959 F.2d 1524 (11th Cir. 1992).

Proof of prior guilty pleas for purposes of recidivist sentencing.

- Trial court did not deprive the defendant of due process of law by admitting in evidence the defendant's prior guilty plea so as to make the defendant eligible for a recidivist sentence; even though a transcript of the plea proceeding was not available, the validity of the plea was shown by extrinsic evidence. Nash v. State, 233 Ga. App. 75, 503 S.E.2d 23 (1998), rev'd on other grounds, 271 Ga. 281, 519 S.E.2d 893 (1999).

Where defendant not informed of conditions of sentence.

- There is authority, when there is an error or irregularity in failing to inform the defendant of the conditions of the sentence, for correction by the court by recalling the defendant and sentencing the defendant as provided by law. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

Effect of sentence with condition for obedience of laws only in later order is unconditional discharge.

- Where a condition in the sentence for obedience of laws is reflected only in a later written order, knowledge of such condition is not imputable to the defendant, and the effect of such a sentence is an unconditional discharge. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

Due process is not abridged where court fails to have jury publish defendant's sentence in open court if defendant has waived right to be present at that time. Beavers v. State, 132 Ga. App. 94, 207 S.E.2d 550 (1974).

For those who plead guilty, that fact is consideration in sentencing, a consideration that is not present when one is found guilty by a jury. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).

State may pursue death sentence upon plea withdrawal.

- Where the defendant contended that the defendant's death sentence was arbitrarily imposed because the prosecution sought the death penalty after the defendant voluntarily withdrew the defendant's plea agreement in which the defendant would have received 30 years for manslaughter, it was held that by withdrawing the defendant's plea, the defendant and the state were returned to the position they occupied prior to the execution of the plea bargain when the defendant stood charged with the murder of the victim and burglary. Accordingly, the state was free to proceed with its prosecution and to pursue the death sentence. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 103 L. Ed. 2d 931 (1989).

Discretion of court.

- Under the provisions of O.C.G.A. § 17-10-1 as it existed prior to the 1993 amendment, it was within the discretion of the trial court to impose a life sentence for armed robbery; a sentence for a specific number of years was not required. Null v. State, 216 Ga. App. 641, 455 S.E.2d 359 (1995).

Court powerless to increase punishment once person enters upon execution of sentence.

- While it is true that an oral sentence is not a binding judgment of the court, the law is also clear that once a person has entered upon the execution of that person's sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the prohibition against double punishment or jeopardy under U.S. Const., amend. 5. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

Fact that person charged with felony is without legal counsel when sentence imposed does not render sentence void as a denial of due process and cause the resulting confinement to be illegal. Balkcom v. Shores, 219 Ga. 429, 134 S.E.2d 3 (1963).

Sentence is not necessarily void where counsel for convicted defendant declines to appeal case though requested by the client to do so. Balkcom v. Roberts, 221 Ga. 339, 144 S.E.2d 524 (1965); Bolick v. State, 127 Ga. App. 542, 194 S.E.2d 302 (1972).

Increased term based upon prior conviction where counsel was unavailable prohibited.

- The rule prohibiting consideration of uncounseled convictions as the predicate for an enhanced sentence forbids the sentencing of a defendant to an increased term of incarceration solely upon consideration of a prior conviction obtained in a proceeding for which, due to the indigence of the defendant or some misconduct of the state, counsel was unavailable to the defendant. Moore v. Jarvis, 885 F.2d 1565 (11th Cir. 1989).

Indigent defendant's imprisonment not necessary to promote compelling governmental interest.

- Imprisonment of an indigent defendant who cannot immediately avail oneself of the fine option in an "alternative sentence" is not necessary to promote a compelling governmental interest. Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972).

Municipal court sentencing cannot require indigent to pay fine or alternatively serve jail sentence.

- A municipal court may not constitutionally impose a sentence requiring an indigent defendant to pay a fine or, alternatively, serve a specified number of days in jail. Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972).

Ex post facto provision not violated by individual's being sentenced to penalty less harsh than the one that it appeared the individual would be subjected to, and was given notice of, at the moment of the crime. Federal Election Comm'n v. Lance, 617 F.2d 365 (5th Cir. 1980), appeal dismissed, 453 U.S. 917, 101 S. Ct. 3151, 69 L. Ed. 2d 999 (1981).

Extension of noncustodial period of supervision to term within statutory limits does not implicate a liberty interest sufficient to require a preextension hearing as a constitutionally commanded right. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).

Instances where State may execute persons who murder other persons.

- Constitutionally and legally, the State of Georgia may execute persons who murder other persons, provided that they have been constitutionally and legally tried and sentenced, and provided further that they have been afforded their constitutional right of access to the courts to assert such procedural and substantive rights as may be available under state and federal law. Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

This state's death penalty statute is not subject to attack under U.S. Const., amend. 14. Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).

Punishment of death does not invariably violate the Constitution. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Exclusion of potential jurors opposed to death penalty.

- Defendant was not unconstitutionally denied a fair trial because prospective members of the jury were excluded who were unequivocally opposed to the death penalty. House v. Balkcom, 562 F. Supp. 1111 (N.D. Ga. 1983), rev'd on other grounds, 725 F.2d 608 (11th Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984).

Death sentence cannot be imposed under sentencing procedures creating substantial risk of infliction in arbitrary, capricious manner. Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

Death sentence based on one valid aggravating circumstance.

- Defendant's death sentence was affirmed as the defendant's death sentence was based upon at least one valid statutory aggravating circumstance, even though the notice of the statutory aggravating circumstances upon which the state intended to rely was not filed until the first day of voir dire; one of the statutory aggravating circumstances relied upon by the state and found by the jury, that the murder was committed while the defendant was engaged in a kidnapping with bodily injury, was alleged in the indictment, and the defendant was on sufficient actual notice for due process purposes of the kidnapping statutory aggravating circumstance. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

System of capital punishment not clearly defining standards to guide exercise of sentencing discretion is unconstitutional. United States v. Kaiser, 545 F.2d 467 (5th Cir. 1977).

A jury must be given standards to guide and limit its discretion whether to recommend life imprisonment or death. Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

If a state wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a state's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion. Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).

When states may adopt additional standards governing capital sentencing procedures.

- As long as state's capital sentencing procedures meet constitutional requirements, state's courts are free to adopt additional standards governing those sentencing procedures. Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

Judge's mandatory incarceration policy for certain offense not unconstitutional.

- Assuming the state trial judge who sentenced the defendant had a policy of sentencing all persons found guilty of shoplifting to a period of incarceration, the sentencing court may have abused its discretion in following that policy because it does not result in individualized sentencing; but any abuse of discretion was not unconstitutional. Nation v. Georgia, 645 F. Supp. 179 (N.D. Ga. 1986).

Imposition of death sentence not discriminatory.

- A statistical study, while showing a race-of-the-victim relationship with the imposition of the death sentence discernible in enough cases to be statistically significant in the system as a whole, did not support a ruling that the system as a whole was arbitrary and capricious, and was insufficient to show that the defendant's death sentence was determined by the race of his victim, or even that the race of his victim contributed to the imposition of the penalty. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).

Imposition of death sentence on minor.

- The constitution does not prohibit a state from imposing the death penalty on one who, while 17 years old, has intentionally and viciously taken a life in cold blood. High v. Kemp, 819 F.2d 988 (11th Cir. 1987), cert. granted, 487 U.S. 1233, 108 S. Ct. 2896, 101 L. Ed. 2d 930 (1988), cert. denied, 492 U.S. 926, 109 S. Ct. 3264, 106 L. Ed. 2d 609 (1989) (but see Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (juvenile death penalty declared unconstitutional)).

Sentencer may consider mitigating factors.

- United States Const., amend. 8 and U.S. Const., amend. 14 require that the sentencer not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980), cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1981); Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983); Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).

O.C.G.A. § 16-5-1(d) was not unconstitutional as applied to the defendant due to an alleged lack of a mechanism or guidance for the imposition of a sentence or the provision of mitigating evidence because, while no individual determination was required to sentence the defendant in a non-death penalty case, the defendant was allowed to submit mitigating evidence at sentencing, so the defendant's due process rights were not violated. Williams v. State, 291 Ga. 19, 727 S.E.2d 95 (2012), overruled on other grounds by Kimbrough v. State, 300 Ga. 516, 796 S.E.2d 694 (Ga. 2017).

Statute providing for death penalty must allow sentencing body discretion to weigh all aspects of defendant's character and record as well as circumstances of the offense. Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1402, 67 L. Ed. 2d 372 (1981).

Mitigating factors may be considered in all but the rarest kind of capital case.

- See Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980), cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1981).

Grandparent's testimony of not wishing to see grandchild die is admissible in mitigation at the sentencing phase of a death penalty case. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), aff'd, 256 Ga. 521, 350 S.E.2d 446 (1986), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Instructions must explain role of mitigation.

- Where the defendant contends that the jury instructions given during the sentencing phase of the trial failed to apprise the jury of the nature and function of mitigating circumstances, the standard of review is whether any reasonable juror could have failed to understand the challenged instructions and the role of mitigation. The challenged instructions need not include any particular words or phrases to define the concept of mitigation or of the function of mitigating circumstances. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 103 L. Ed. 2d 931 (1989) (standard met).

When evidence inadmissible under evidentiary rule admissible in capital case in mitigation of punishment.

- The Constitution requires that evidence which would be inadmissible under an evidentiary rule must not automatically be excluded if tendered in a capital case in mitigation of punishment; the potentially mitigating influence of the testimony must be weighed against the harm resulting from the violation of the evidentiary rule. In close cases the doubt should be resolved in favor of admissibility. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993).

Where the defendant could receive any sentence within the statutory limitation upon resentencing, the defendant is entitled to be present at resentencing. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975), overruled on other grounds, 293 Ga. 656 (2013).

There is no absolute constitutional bar to imposing more severe sentence upon resentencing, but vindictiveness must not be the motivating force behind the increased sentence. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975), overruled on other grounds, 293 Ga. 656 (2013).

Guarantee against double jeopardy does not restrict length of sentence that may be imposed upon reconviction, and imposition of a more severe sentence upon retrial does not violate the equal protection clause of U.S. Const., amend. 14. Chaffin v. State, 227 Ga. 327, 180 S.E.2d 741 (1971); Rozier v. State, 126 Ga. App. 336, 190 S.E.2d 627 (1972).

Imposition of more severe sentence upon defendant's reconviction not barred.

- Neither the double jeopardy clause nor the equal protection clause bars imposition of a more severe sentence upon retrial. Chaffin v. State, 227 Ga. 327, 180 S.E.2d 741 (1971); Stuckey v. Stynchcombe, 614 F.2d 75 (5th Cir. 1980).

Imposition of heavier sentence to punish defendant for having successfully appealed first conviction is denial of due process. Stuckey v. Stynchcombe, 614 F.2d 75 (5th Cir. 1980).

When the sentencing phase of a death penalty case is retried by a jury other than the one which determined guilt, evidence presented by the defense, as well as evidence presented by the state, may not be excluded on the ground that it would only go to the guilt or innocence of the defendant. Although a resentencing trial will have no effect on any previous convictions, the parties are entitled to offer evidence relating to circumstances of the crime. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983), aff'd, 258 Ga. 43, 365 S.E.2d 265, cert. denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152 (1988).

Sentencing after new trial not to be affected by vindictiveness.

- Vindictiveness against a defendant for having successfully attacked the defendant's first conviction must play no part in the sentence the defendant receives after a new trial. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978); Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).

Imposition of higher sentence by jury on retrial not violative of due process unless product of vindictiveness.

- The imposition of a higher sentence by a jury upon retrial does not violate the Constitution unless the increased punishment can be shown to be the product of vindictiveness. Grace v. Caldwell, 231 Ga. 407, 202 S.E.2d 49 (1973).

When defendant's receiving greater sentence on retrial not violative of constitutional rights.

- The imposition of a higher sentence on a defendant being retried for a crime does not violate due process or constitute double jeopardy so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973); McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975).

When a jury imposes a higher sentence on reconviction, this is not a violation of due process so long as the jury was not informed of the prior sentence. Shields v. State, 147 Ga. App. 96, 248 S.E.2d 171 (1978).

Without affirmative showing in record to justify increased sentence, court is limited upon resentencing to the sentence initially imposed. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975), overruled on other grounds, 293 Ga. 656 (2013).

Judge's imposition of more severe sentence after new trial.

- Whenever judge imposes more severe sentence upon defendant after new trial, reasons for doing so must affirmatively appear. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973).

Imposition of death sentence following deadlocked first trial.

- Double jeopardy clause did not bar defendant's death penalty sentence even though defendant's first trial resulted in a deadlocked jury; the first jury did not adjudicate defendant's sentence. Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002), cert. denied, 540 U.S. 835, 124 S. Ct. 88, 157 L. Ed. 2d 64 (2003).

Based on objective information about defendant's identifiable conduct after original proceeding.

- Due process of law requires that vindictiveness against a defendant for having successfully attacked the defendant's first conviction must play no part in the sentence the defendant receives after a new trial. Where the judge imposes a more severe sentence on the second trial the reasons for the judge's doing so must be made a part of the record, and those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. Hewell v. State, 238 Ga. 578, 234 S.E.2d 497 (1977); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).

Court must include in record affirmative statement of reasons underlying decision to increase punishment upon resentencing, whether the resentencing is after a successful collateral attack upon multiple sentences or after a successful direct appeal, since the rationale to prevent the imposition of harsher penalties as a means of punishing a defendant for attacking the conviction is equally applicable to either situation. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975), overruled on other grounds, 293 Ga. 656 (2013); Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).

Failure to disclose deal with state's witness at sentencing phase not reversible error.

- See Patillo v. State, 258 Ga. 255, 368 S.E.2d 493, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988).

Resentencing from concurrent sentences including death to consecutive life sentences.

- Where the state trial court originally sentenced defendant to death for kidnapping and to life imprisonment for armed robbery, presumably to run concurrently, but the death sentence was set aside on direct appeal, and the case was remanded to the trial court for resentencing on the kidnapping count, and, upon resentencing, the trial court imposed a second life sentence for the kidnapping, specifically directing that it was to run consecutively to the original life sentence for the armed robbery, the trial court did not impose a harsher sentence after remand than that originally imposed, in violation of the eighth and Fourteenth Amendments, since a death sentence, even when imposed concurrently with a life sentence, is more severe than two life sentences, whether imposed concurrently or consecutively to each other. Thomas v. Newsome, 821 F.2d 1550 (11th Cir.), cert. denied, 484 U.S. 967, 108 S. Ct. 461, 98 L. Ed. 2d 401 (1987).

O.C.G.A.

§ 17-10-30 (death penalty aggravating circumstances) cannot be applied in constitutionally vague manner. - The jury instruction and its application are not vague where, although the jury returns a finding using language not given in the original charge, the finding is based on the statute. Brooks v. Francis, 716 F.2d 780 (11th Cir. 1983), , Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985), , 478 U.S. 1016, 106 S. Ct. 3325, 92 L. Ed. 2d 732 (1986), judgment vacated, remanded for further consideration in light of Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), 478 U.S. 1022, 106 S. Ct. 3337, 92 L. Ed. 2d 742 (1986), cert. denied,.

Instructions as to presumption of innocence of aggravating circumstances.

- The trial court did not err in refusing to instruct the jury at the sentencing phase of a capital offense trial that a defendant is presumed innocent of aggravating circumstances. Green v. Zant, 738 F.2d 1529 (11th Cir.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716 (1984).

Where a defendant challenged as constitutionally insufficient only one of two aggravating circumstances found by the jury, even if it were concluded that the claim was valid, the defendant's sentence was still constitutionally valid. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 103 L. Ed. 2d 931 (1989).

Unclear capital sentencing instructions violate due process.

- Capital sentencing instructions which do not clearly guide a jury in its understanding of mitigating circumstances and their purpose violate the eighth amendment and U.S. Const., amend. 14. Finney v. Zant, 709 F.2d 643 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Electrocution does not inflict unnecessary torture and torment constituting cruel and unusual punishment in violation of the eighth and Fourteenth Amendments. McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981), aff'd in part, rev'd in part, 705 F.2d 1553 (11th Cir. 1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984); Felker v. Turpin, 101 F.3d 95 (11th Cir. 1996).

Mandatory life imprisonment sentence found in O.C.G.A. § 16-13-30(d) of the controlled substances law does not unconstitutionally deprive a defendant of due process of law. Tillman v. State, 260 Ga. 801, 400 S.E.2d 632 (1991).

O.C.G.A. § 16-13-30(d), which mandates a sentence of life imprisonment upon a second conviction for selling cocaine, does not violate due process or equal protection and does not violate state or federal constitutional guarantees against cruel and unusual punishment. Isom v. State, 261 Ga. 596, 408 S.E.2d 701 (1991); Crutchfield v. State, 218 Ga. App. 360, 461 S.E.2d 555 (1995).

Mandatory life sentence not cruel and unusual punishment.

- A mandatory life sentence imposed upon a defendant convicted of a second offense of selling cocaine under O.C.G.A. § 16-13-30 does not constitute cruel and unusual punishment under the eighth and Fourteenth Amendments. Rucks v. State, 201 Ga. App. 142, 410 S.E.2d 206 (1991).

O.C.G.A. § 16-13-30, providing mandatory life imprisonment for a second drug conviction, does not violate due process or equal protection based on statistical evidence as to the high percentage of African-Americans serving life sentences for drug offenses, nor because it creates an irrational sentencing scheme. Stephens v. State, 265 Ga. 356, 456 S.E.2d 560, cert. denied, 516 U.S. 849, 116 S. Ct. 144, 133 L. Ed. 2d 90 (1995).

Life sentence neither discriminatory nor disproportionate.

- Mandatory life sentence for second violation of O.C.G.A. § 16-13-30 did not violate the defendant's equal protection or due process rights, nor was it disproportionate. Jackson v. State, 223 Ga. App. 471, 477 S.E.2d 893 (1996).

Penalty under O.C.G.A.

§ 16-13-30.1 upheld. - O.C.G.A. § 16-13-30.1, which subjects a defendant to a greater penalty for the sale of a non-controlled substance than for the sale of some controlled substances, does not violate due process. Thompson v. State, 254 Ga. 393, 330 S.E.2d 348 (1985).

Penalty under O.C.G.A.

§ 17-10-7 upheld. - No violation of due process found for the imposition of the maximum of life sentence as prescribed by the general recidivist statute, O.C.G.A. § 17-10-7. Getty v. State, 207 Ga. App. 736, 429 S.E.2d 100 (1993).

12. Appeals and Habeas Corpus

U.S. Const., amend. 14 does not contemplate right to appeal.

- Where such right of appeal is given, the state may prescribe the conditions and procedure to be followed. Alexander v. Blackmon, 129 Ga. App. 214, 199 S.E.2d 376 (1973).

For proper procedure for appellate review of in camera inspections of state's files where defendant's counsel is not granted opportunity to review files, see Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980).

Due process under U.S. Const., amend. 14 does not require that states provide appellate review of criminal convictions. In re Stoner, 507 F. Supp. 490 (N.D. Ga. 1981).

Delay in filing transcript not prejudicial.

- Defendant was not deprived of defendant's due process rights by a seven-month delay in the filing of the transcript as defendant did not show that the delay impacted defendant's ability to adequately present defendant's appeal or impaired any defense that defendant might have had. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

Defendant's state and federal due process rights were not violated by the lack of a speedy appeal as: (1) there was no evidence that the eight-year delay in filing the notice of appeal was due to the state or to defendant's counsel; (2) since the post-motion for new trial filings were pro se, the inference was that defendant desired to proceed without counsel and without appealing; (3) defendant failed to show prejudiced by the delay as the appeal was without merit; and (4) defendant's attempt to show prejudice based on the death of trial counsel was rejected as trial counsel testified at the new trial hearing. Butler v. State, 277 Ga. App. 57, 625 S.E.2d 458 (2005).

Where defendant deprived of right of appeal.

- Where there is no evidence that a convicted defendant was ever advised of the defendant's right to appeal the defendant's conviction or that the defendant's attorneys ever consulted with the defendant or obtained the defendant's consent before allowing the time for a direct appeal to lapse, the defendant is deprived of the defendant's right of appeal under U.S. Const., amend. 6. Gregory v. United States, 446 F.2d 498 (5th Cir. 1971).

Standard of materiality that evidence not disclosed to defense must satisfy to warrant new trial is relaxed in cases where the suppression is found to be deliberate or where the substantial value of the evidence to the defense could not have escaped the prosecutor's attention. Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975).

Omitted evidence must create reasonable doubt of guilt not otherwise existing in order to justify new trial. United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, D'Antignac v. United States, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981).

Person convicted of crime has right to transcript of trial for use on appeal. Wilson v. State, 246 Ga. 672, 273 S.E.2d 9 (1980).

Adequate and effective appellate review for indigent defendant.

- Equal protection and due process require that an indigent defendant, unable to pay the cost of recording and transcribing the proceedings, may not be denied adequate and effective appellate review accorded to all who have the money to pay these costs. Sales v. State, 152 Ga. App. 635, 263 S.E.2d 519 (1979).

State to provide trial records and counsel to indigent inmates for meaningful appeal.

- Because adequate and effective appellate review is impossible without a trial transcript or adequate substitute, states must provide trial records to inmates unable to buy them. Similarly, counsel must be appointed to give indigent inmates a meaningful appeal from their convictions. Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

Though purchase of complete court reporter's transcript for indigent defendants is not required in all instances.

- The burden which rests upon the state is to afford the indigent defendant a record of sufficient completeness to permit proper consideration of his contentions of error. Sales v. State, 152 Ga. App. 635, 263 S.E.2d 519 (1979).

Harm to indigent defendant.

- Harm arises when, due to the absence of a transcript or an effective alternative, an enumeration of error raised by an indigent defendant cannot be adequately and effectively reviewed by the appellate courts. Sales v. State, 152 Ga. App. 635, 263 S.E.2d 519 (1979).

Indigent criminal defendant was entitled under U.S. Const., amend. 14 to trial transcript at public expense. Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972).

Provisions for transcript from recollection or by stipulation not denial of due process.

- The provisions of Code 1933, § 6-805(g), (i) (see O.C.G.A. § 5-6-41(g),(i)), relating to the preparation of a transcript of proceedings from recollection or by stipulation, do not deny due process of the law. Wall v. Citizens & S. Bank, 247 Ga. 216, 274 S.E.2d 486 (1981).

Indigent is entitled to copy of trial transcript for direct appeal of conviction, but such is not the case in collateral post-conviction proceedings, and there is no due process or equal protection right to a free copy of one's court records absent a showing of necessity or justification. McDowell v. Balkcom, 246 Ga. 611, 272 S.E.2d 280 (1980).

No absolute right to free transcript.

- While there is a basic right to a free transcript to perfect a timely direct appeal, there is no absolute right to a free transcript just so the prisoner may have it. Some justification for use in a habeas corpus or related proceeding must be shown in order to be entitled to such records in a collateral attack on the sentence. Wilson v. Downie, 228 Ga. 656, 187 S.E.2d 293, cert. denied, 409 U.S. 1037, 93 S. Ct. 533, 34 L. Ed. 2d 486 (1972).

Mere request for transcript by indigent defendant imposes no constitutional duty on trial court to order it prepared; only "differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." United States v. Smith, 605 F.2d 839 (5th Cir. 1979).

Once appeal dismissed, defendant no longer has right to trial transcript at state expense. Yates v. Brown, 235 Ga. 391, 219 S.E.2d 729 (1975).

Defendant's knowing decision not to appeal not required in record before preclusion from appellate review.

- It is not required that the record reflect that the defendant made a knowing and intelligent decision not to appeal before the defendant can be precluded from appellate review. Murphy v. Balkcom, 245 Ga. 13, 262 S.E.2d 784 (1980).

Failure to inform defendant of right to attend jury view of scene of offense did not violate due process rights under U.S. Const., amend. 14. Harwell v. England, 234 Ga. 640, 217 S.E.2d 154 (1975).

Due process not violated because defendant not present for order fixing new date of execution.

- Assuming that it was necessary for the defendant to have been present in court when the original sentence of execution was pronounced, as well as during other proceedings throughout the trial, in the absence of waiver no violation of the due process clause of U.S. Const., amend. 14 appears where the attack is not on the original sentence, but merely on an order fixing a new date of execution entered without the presence of the defendant, which became necessary after the date fixed in the original sentence had passed by reason of supersedeas pending the determination of a writ of error in this court. Smith v. Henderson, 190 Ga. 886, 10 S.E.2d 921 (1940), cert. denied, 312 U.S. 698, 61 S. Ct. 737, 85 L. Ed. 1132 (1941); Smith v. Ricketts, 234 Ga. 245, 215 S.E.2d 249 (1975).

Though if violative of rights, no discharge on petition for habeas corpus, but, remand for resentence in defendant's presence.

- Even if the absence of the defendant at the time of fixing a new date of execution could be taken as violative of the defendant's constitutional rights, this would in no event have entitled the defendant to a discharge on the defendant's petition for habeas corpus, but only to a remand to the trial court for resentence during the defendant's presence in court. Smith v. Henderson, 190 Ga. 886, 10 S.E.2d 921 (1940), cert. denied, 312 U.S. 698, 61 S. Ct. 737, 85 L. Ed. 1132 (1941).

Defendant denied fair trial where victim's mother repeatedly disrupted trial.

- Where during the entire trial the victim's mother repeatedly disrupted the courtroom proceedings with emotional outbursts and other interruptions, and where the defendant repeatedly and unsuccessfully moved for a mistrial, defendant was denied a fair trial. Price v. State, 149 Ga. App. 397, 254 S.E.2d 512 (1979).

Criminal conviction based on known perjured testimony or uncorrected false evidence violative of due process.

- A criminal conviction obtained by the use of perjured testimony known by the prosecution to be perjured and knowingly used by them in order to procure the conviction, is without due process of law and in violation of U.S. Const., amend. 14. The same result obtains when the state, although not soliciting false evidence, allows it to go uncorrected when it appears. Smith v. State, 153 Ga. App. 862, 267 S.E.2d 289 (1980).

Showing fair trial prevented by pretrial publicity.

- Under the decisions of the Supreme Court of the United States where pretrial publicity is at issue to find that the defendant did not receive a fair trial, the defendant must show: (1) that the setting of the trial was inherently prejudicial, or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), sentence vacated, 243 Ga. 244, 253 S.E.2d 707 (1979); Young v. State, 237 Ga. 852, 230 S.E.2d 287 (1976), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986).

Jury viewing restraints on accused.

- State death row inmate's federal habeas corpus petition was denied since the Fourteenth Amendment right to a fair trial by an impartial jury was not violated by the jury's briefly seeing the inmate in handcuffs in a parking lot during a lunch break. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).

Trial court's finding on pretrial publicity not set aside unless error "manifest".

- A trial court's finding as to a prospective juror's ability to lay aside an opinion about the case arising from pretrial publicity should not be set aside unless the error is "manifest." Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Free transcript of habeas corpus trial furnished to indigent defendants if they request it for appeal. Harper v. State, 229 Ga. 843, 195 S.E.2d 26 (1972).

Appointment of mental health expert by court.

- State death row inmate's federal habeas corpus petition was denied where the trial court did not violate Fourteenth Amendment due process by appointing a mental health expert to examine defendant on the condition that the expert disclose the expert's findings to the prosecution or by refusing to permit defendant to challenge the expert's competency. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).

Drawing of jurors in open court not deprivation of due process or equal protection.

- Petitioner in a habeas corpus hearing is not deprived of due process of law or equal protection of the laws simply because jurors must be drawn in open court. Hill v. Stynchcombe, 225 Ga. 122, 166 S.E.2d 729 (1969).

Petitioner for writ of habeas corpus based on denial of constitutional rights in criminal prosecution must show not only that the petitioner has been denied the petitioner's rights, but also that either the petitioner has exhausted all the corrective processes of the state or that such processes are inadequate for his protection. Melton v. Beard, 15 F. Supp. 980 (M.D. Ga. 1936).

Writ of habeas corpus cannot be used merely as substitute for writ of error or other remedial procedure to correct errors of law, of which the defendant had opportunity to avail himself; and no question as to guilt or innocence or as to any irregularity can be so raised, unless it was such as to render the judgment wholly void. Sanders v. Aldredge, 189 Ga. 69, 5 S.E.2d 371 (1939); White v. George, 195 Ga. 465, 24 S.E.2d 787 (1943).

Remedy of writ of habeas corpus when defendant denied due process in trial.

- Writ of habeas corpus is the appropriate remedy only when the court was without jurisdiction in the premises, or when it exceeded its jurisdiction in passing sentence by virtue of which the party is imprisoned, or where the defendant in the trial was denied due process of law, in violation of U.S. Const., amend. 14 and Ga. Const. 1983, Art. I, Sec. I, Para. I. Balkcom v. Parris, 215 Ga. 122, 109 S.E.2d 48 (1959).

Writ of habeas corpus was properly denied where the contention that the plaintiff in error was denied certain constitutional rights, including due process of law, because the refusal to continue the case was decided on the motion for new trial, adversely to the contentions of the plaintiff in error. Starr v. Balkcom, 209 Ga. 680, 75 S.E.2d 5 (1953).

Mere error by competent court regarding plea of former jeopardy gives no right to habeas corpus.

- A mere error as to the applicability or inapplicability of plea of former jeopardy in a particular case by a court of competent jurisdiction would not give the right to habeas corpus under U.S. Const., amend. 14. Hall v. Scoggins, 202 Ga. 198, 42 S.E.2d 763 (1947).

Petitioner for habeas corpus may be relieved from waiver of constitutional rights if the petitioner can demonstrate that the failure to object was "for cause." Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

Showing of actual prejudice will allow petitioner for habeas corpus to avoid bar raised by state procedural timeliness rule concerning the waiver of federal constitutional rights. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

Actual prejudice must be extraneous influence moving tribunal to decide case on improper basis, commonly, though not always, an emotional one. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

No federal claim for habeas relief stated by alleging that state habeas court failed to apply state law properly. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

Writs of habeas corpus should issue where retarded petitioners' waiver of constitutional rights not knowing.

- Where uncontroverted evidence was that petitioners for writs of habeas corpus were 15 and 16 years of age, with I.Q.'s estimated between 60 and 68, and had not more than second-grade reading levels, any waiver of constitutional rights by them was not knowing and intelligent, and the writs should issue. Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972).

Where court has jurisdiction, rulings and judgment not subject to collateral attack by habeas corpus.

- Where both the trial court and Court of Appeals have jurisdiction to deal with a plea of former jeopardy, it necessarily follows that, whether the rulings and judgment against the plea were correct or incorrect, they were not absolutely void so as to render them subject to collateral attack by habeas corpus. This is true regardless of whether the right to assert the defense of former jeopardy in a state court is one that comes within the due process clause of U.S. Const., amend. 14 and the case is not altered by the fact that a petition for certiorari was denied. Hall v. Scoggins, 202 Ga. 198, 42 S.E.2d 763 (1947).

If state deliberately conceals eyewitness to crime, due process has been violated and habeas must be granted if, in the context of the entire trial, the missing witness' testimony was such as might have created a reasonable doubt which would not otherwise have existed. Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 641 (1980).

Investigating police officer's willful, intentional concealment of material information imputed to state.

- When an investigating police officer willfully and intentionally conceals material information, regardless of the officer's motivation and the otherwise proper conduct of the state attorney, the police officer's conduct must be imputed to the state as part of the prosecution team. Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 641 (1980).

Habeas corpus will not lie to challenge jury charge in absence of clear denial of due process so as to render the trial fundamentally unfair. Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

Habeas corpus will not lie to set aside conviction on basis of improper jury instructions.

- Habeas corpus does not lie to set aside a conviction on the basis of improper jury instructions unless the impropriety is a clear denial of due process so as to render the trial fundamentally unfair. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972).

In habeas corpus proceeding, the burden is on petitioner to establish denial of benefit of counsel by proof, and it was not error to deny the petitioner's release on this ground. Plocar v. Foster, 211 Ga. 153, 84 S.E.2d 360 (1954), cert. denied, 349 U.S. 962, 75 S. Ct. 893, 99 L. Ed. 1284 (1955).

Expert witness fees award not necessary.

- The refusal of a state habeas corpus judge to allocate funds to the petitioner to secure expert testimony does not infringe on the petitioner's constitutional right to a full and fair hearing on his petition in the Georgia courts. Morgan v. Zant, 582 F. Supp. 1026 (S.D. Ga.), aff'd in part, rev'd in part on other grounds, 743 F.2d 775 (11th Cir. 1984), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986), 486 U.S. 1009, 108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988).

In federal habeas corpus court, test of legality of state arrest is "federal probable cause." Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975).

Discharge under writ of habeas corpus, after conviction, cannot be granted unless judgment is absolutely void, as where the convicting court was without jurisdiction, or where the defendant in the trial was denied due process of law in violation of U.S. Const., amend. 14, and Ga. Const. 1877, Art. I, Sec. I, Para. V. (See Ga. Const. 1983, Art. I, Sec. I, Para. XIV.) Aldredge v. Williams, 188 Ga. 607, 4 S.E.2d 469 (1939), cert. denied, 309 U.S. 661, 60 S. Ct. 512, 84 L. Ed. 1009 (1940); Sanders v. Aldredge, 189 Ga. 69, 5 S.E.2d 371 (1939); White v. George, 195 Ga. 465, 24 S.E.2d 787 (1943).

Dismissal of appeal of denial of habeas corpus because prisoner escaped is not ground for habeas corpus relief. Yates v. Brown, 235 Ga. 391, 219 S.E.2d 729 (1975).

Habeas petitioner must show prejudice.

- A habeas petitioner must show an actual or identifiable prejudice on the part of the jury resulting from publicity, community prejudice actually infecting the jury box, or pretrial publicity so inflammatory and prejudicial and so pervasive or saturating the community as to render virtually impossible a fair trial by an impartial jury, thus raising a presumption of prejudice. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Scope of federal habeas corpus review of sentencing.

- If a federal habeas court concludes that the Georgia Supreme Court's determination following its "proportionality" review of a death sentence under O.C.G.A. § 17-10-35 "shocks the conscience," it is required to remand the case to allow the state court to resentence the petitioner. A federal habeas court may not conduct a de novo proportionality review and thereby inject itself into the state sentencing procedure. Its review remains confined to whether the state sentencing procedure both on its face and as applied violates the eighth and Fourteenth Amendments. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.), modified, 722 F.2d 629 (11th Cir. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984).

Unconstitutional to dismiss appeal due to counsel's failure to file.

- Dismissal of a criminal defendant's appeal because of counsel's failure to timely file an appeal is a violation of due process because the defendant is thereby deprived of the effective assistance of counsel. Campbell v. State, 178 Ga. App. 814, 344 S.E.2d 745 (1986).

Effect of media coverage.

- State death row inmate's federal habeas corpus petition was denied; the inmate's right to be tried by an impartial jury was not compromised by the trial court's failure to excuse a number of allegedly biased jurors, including prospective jurors who were exposed to pretrial publicity, a prospective juror who was a local attorney, and a prospective juror who had once been the defendant in a debt collection action by filed the law firm of which the inmate's counsel was a member. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).

State death row inmate's federal habeas corpus petition was denied; although the prosecutor improperly referred in closing argument to the biblical condemnation of the crime of murder, the comment's inflammatory nature did not prejudice the jury because defense counsel responded in kind by referencing the biblical quality of mercy. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).

Appeal bond denial upheld.

- The provision in O.C.G.A. § 17-6-1(g) denying appeal bonds to persons convicted of "murder, rape . . . and who have been sentenced to serve a period of seven years or more" does not violate either the due process or equal protection clause. Hall v. State, 254 Ga. 507, 330 S.E.2d 878 (1985).

Guilty plea waives suppression issue on appeal.

- Because defendant pled guilty to the charges of possession of a firearm by a convicted felon, defendant waived any claim that the trial court erred in denying defendant's motion to suppress evidence of said firearm found in defendant's residence. Stuart v. State, 267 Ga. App. 463, 600 S.E.2d 629 (2004).

On appeal of a denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court's findings must be adopted unless determined to be clearly erroneous. Dennis v. State, 166 Ga. App. 715, 305 S.E.2d 443 (1983).

Exculpatory materials disclosure request first made on appeal.

- Where defendant filed no Brady motion for disclosure of exculpatory materials, the Court of Appeals held it could not consider matters raised for the first time on appeal. Halsell v. State, 183 Ga. App. 549, 359 S.E.2d 393 (1987).

Enumerations of error are abandoned on appeal where there is no citation to authority or argument to support them other than a general reference to the due process requirements of the Constitution. Jacobs v. State, 167 Ga. App. 454, 306 S.E.2d 717 (1983).

Pro se motion alleging ineffective assistance unauthorized and without effect.

- Habeas court erred in granting the defendant a new trial on the ground that the defendant received ineffective assistance of counsel on appeal since the defendant was not afforded defendant's constitutional right to conflict-free appellate representation because there was no impediment to trial counsel's continued representation of the defendant on appeal; because the defendant expressed defendant's contention that trial counsel's representation fell below the constitutional standard in a pro se motion defendant filed while represented by trial counsel, defendant's motion was unauthorized and without effect, and the contents of the motion were without force to support any viable claim of an actual conflict of interest on the part of counsel. Williams v. Moody, 287 Ga. 665, 697 S.E.2d 199 (2010).

13. Probation and Parole

Entitlement to parole.

- A convicted person does not have a constitutional or inherent right to be conditionally released before expiration of a valid sentence. A state may, however, create a legitimate claim of entitlement to parole through statutory language creating a protectable expectation of release. Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 (11th Cir.), cert. denied, 459 U.S. 1043, 103 S. Ct. 462, 74 L. Ed. 2d 612 (1982).

Where a prisoner argued that the prisoner had a liberty interest in parole consideration and that the prisoner could, therefore, invoke the due process clause in a claim against the defendants, it was held that no entitlement or liberty interest in parole was created by Georgia statute. Fuller v. Georgia State Bd. of Pardons & Paroles, 851 F.2d 1307 (11th Cir. 1988).

No protected liberty interest in parole is created by the Georgia parole system. To give rise to a liberty interest in parole, the statutes and regulations must meaningfully limit the discretion of state officials, and, in Georgia, the substantial discretion reserved by the Board of Pardon and Paroles belies any claim to reasonable expectation of parole. Indeed, the system contains a statutory presumption against parole, O.C.G.A. § 42-9-42, and an explicit reservation of authority to depart from the grid recommendation, negating any reasonable claim of an entitlement to parole. Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir. 1994), cert. denied, 513 U.S. 1191, 115 S. Ct. 1254, 131 L. Ed. 2d 134 (1995).

A retroactive change in the method for calculating the tentative parole month of certain crime severity level offenders under the parole decision guidelines did not violate due process as the prisoners affected did not have a derivative due process right to be sentenced in reliance on an expectation of parole. Jones v. Georgia State Bd. of Pardons & Paroles, 59 F.3d 1145 (11th Cir. 1995).

The exceptional parole process governed by O.C.G.A. § 42-9-45 did not create a constitutionally protected liberty interest in parole. Worley v. Georgia Bd. of Pardons & Paroles, 932 F. Supp. 1466 (N.D. Ga. 1996).

Defendant to be given notice and opportunity to be heard regarding violation of rules of suspended or probated sentence.

- To deprive a defendant of the defendant's liberty upon the theory that the defendant violated any of the rules and regulations prescribed in a suspended or probated sentence without giving the defendant a notice and opportunity to be heard upon the question of whether or not the defendant violated such rules and regulations, would be to violate one of the fundamentals of our system of jurisprudence that a person shall not be deprived of one's liberty without due process of law, which includes notice and an opportunity to be heard. Lester v. Foster, 207 Ga. 596, 63 S.E.2d 402 (1951).

When revocation of suspended sentence not denial of due process.

- Where it appears that full notice and hearing were afforded and that the defendant was represented by counsel both in the original trials and the subsequent revocation proceedings, the revocation of a suspended sentence is not a denial of due process. Cross v. State, 128 Ga. App. 774, 197 S.E.2d 853 (1973).

Judge authorized to revoke suspension or probation when defendant has violated court-prescribed rules.

- The judge only has authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

Last sentence of O.C.G.A. § 42-8-36(a), which allows the court to revoke probation without notice to the probationer under certain circumstances, constitutes a denial of due process. Hughes v. Hinks, 249 Ga. 416, 291 S.E.2d 545 (1982).

Defendant denied due process by deprivation of liberty because of rule violations where none imposed in sentence.

- To deprive a defendant of the defendant's liberty upon the theory that the defendant has violated rules and regulations prescribed in the defendant's sentence, when no rules, regulations, conditions, limitations, or restrictions were imposed by such sentence, would deprive the defendant of "due process of law." Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

Suspension of sentence conditioned on defendant's obeying all laws is enforceable.

- The condition for suspension of a sentence that the defendant obey all state, federal, and municipal laws is not so vague, indefinite, ambiguous, and uncertain as to be unenforceable. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

Defendant must be made aware of payment of fine as condition precedent to beginning probation.

- While a court may lawfully require the payment of a fine as a condition precedent to beginning a probationary period, due process demands that the defendant be made aware that the condition is in fact a condition precedent. Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978).

Condition of probation invading right to self-expression and not directly related to rehabilitation unreasonable.

- A condition of probation that invades a person's constitutionally protected right to personal self-expression and that is not related directly to the person's rehabilitation cannot meet the test of reasonableness. Inman v. State, 124 Ga. App. 190, 183 S.E.2d 413 (1971).

Condition precluding contact between perpetrator of sexual crime and victim.

- Imposition as a condition of probation that the defendant, who was convicted of aggravated child molestation, have no direct or indirect contact with the defendant's seven-year-old child until the child reached the age of majority was within the discretion of the court, and was not a violation of the defendant's constitutional rights. Tuttle v. State, 215 Ga. App. 396, 450 S.E.2d 863 (1994).

Requiring the defendant to wear short haircut as condition of probation is violative of U.S. Const., amend. 14. Inman v. State, 124 Ga. App. 190, 183 S.E.2d 413 (1971).

Where restitution court-ordered out of probationer's weekly salary on penalty of imprisonment.

- Prior notice and an opportunity to be heard are prerequisite where restitution is ordered by a court to be paid out of a probationer's weekly salary, and the penalty for failure to pay is imprisonment. Morgan v. Wofford, 472 F.2d 822 (5th Cir. 1973).

Fixing amount of restitution to be paid without notice and opportunity for hearing violative of due process.

- Fixing the amount of restitution required to be paid under Code 1933, § 27-2711 (see O.C.G.A. § 42-8-35), without notice to the probationer and without any opportunity for the probationer to question or appeal the amount, especially where criminal sanctions may be involved, violates U.S. Const., amend. 14, since due process requires notice and an opportunity for hearing appropriate to the nature of the case when the state seeks to deprive a person of property or liberty. Morgan v. Wofford, 472 F.2d 822 (5th Cir. 1973).

Due process right to revocation hearing does not attach until execution of violator warrant, so delay in granting such a hearing while the warrant is held in abeyance does not offend rights under U.S. Const., amend. 14 absent an affirmative showing of prejudice. Gray v. Hogan, 388 F. Supp. 476 (N.D. Ga. 1975), aff'd sub nom, Gray v. Sigler, 532 F.2d 1008 (5th Cir. 1976), cert. denied, 429 U.S. 981, 97 S. Ct. 495, 50 L. Ed. 2d 591 (1976).

Guarantee of due process applies to revocations of probation, since revocation of probation results in the same loss of liberty. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).

Probationer is entitled to notice and hearing when petition is filed to revoke probation. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).

Due process requires that a hearing be held before decision to revoke probation is made. Hughes v. Hinks, 249 Ga. 416, 291 S.E.2d 545 (1982).

Notice and hearing procedure can be consolidated.

- Failure of the trial court to afford a preliminary hearing to establish probable cause to conduct a revocation of probation hearing followed by an evidentiary show cause hearing, rather than consolidating the procedure into one hearing, does not violate due process. Wilson v. State, 152 Ga. App. 695, 263 S.E.2d 691 (1979), cert. denied, 449 U.S. 847, 101 S. Ct. 133, 66 L. Ed. 2d 57 (1980).

District courts shall provide notice to probationers of proposed extensions and advise right to hearing before the court acts. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).

Explanation for departure from parole guidelines.

- The plaintiff had no constitutional right to procedural due process protections, and, therefore, had no right to an explanation for departure from parole guidelines. O'Kelley v. Snow, 53 F.3d 319 (11th Cir. 1995).

Proceeding to revoke probated sentence is not criminal proceeding.

- The prohibition against putting any person twice in jeopardy of life or limb applies only to twice subjecting an individual to criminal processes for the same offense against the same sovereign; there is no bar to the state's imposing both a civil and a criminal penalty for the same act. A proceeding to revoke a probated sentence is not a criminal proceeding. Johnson v. State, 142 Ga. App. 124, 235 S.E.2d 550 (1977), aff'd, 240 Ga. 526, 242 S.E.2d 53, cert. denied, 439 U.S. 881, 99 S. Ct. 221, 58 L. Ed. 2d 194 (1978).

Evidence required to revoke suspension is evidence defendant has violated conditions of probation which satisfies the trial court in the exercise of a very wide discretion; it is not necessary to show that the defendant has been convicted of the act constituting the violation of the probation. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

Revocation of probation, under "slight" evidence test, the standard by which the sufficiency of the evidence is determined, is not violative of due process in that it is less than that necessary to sustain a conviction. King v. State, 154 Ga. App. 549, 269 S.E.2d 55 (1980).

Application of "slight evidence" rule did not deny defendant due process in probation revocation.

- Because the defendant received written notice of the claimed violation of probation, the disclosure of the evidence against the defendant, an opportunity to be heard in person, to present witnesses and document evidence, and the right to confront and cross-examine adverse witnesses, heard by a neutral and detached judicial officer with a written statement by the fact-finder as to the evidence relied on and reasons for revoking probation, application of the "slight evidence" rule did not deny the defendant due process and equal protection. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).

Revocation of probation based, at least in part, upon alleged commission of crime for which a party has not yet stood trial and been found guilty does not contravene principles of due process and fundamental fairness. King v. State, 154 Ga. App. 549, 269 S.E.2d 55 (1980).

Establishment of defendant's guilt beyond reasonable doubt not necessary for revocation of probation.

- The benefit and protection afforded under the due process and equal protection clauses of the state and federal Constitutions have not in anywise been violated in that the establishment of a defendant's guilt beyond a reasonable doubt is not necessary to justify the revocation of a sentence of probation. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).

Even if grand jury entered a "No Bill" as to charge against the defendant for criminal damage to property in the second degree and the trial judge in the hearing concerning revocation of probation found "criminal trespass," there was no violation of the due process guarantee bestowed upon defendant by U.S. Const., amend. 5 and U.S. Const., amend. 14 and the Constitution of this state. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).

Revocation of probation, premised upon failure to timely pay court-ordered restitution upheld as not violating due process and equal protection. Wilson v. State, 155 Ga. App. 825, 273 S.E.2d 210 (1980).

Same minimum due process requirements in parole revocation cases apply to revocation of probation proceedings. Tucker v. State, 157 Ga. App. 202, 276 S.E.2d 842 (1981).

Due process clause requires that individual on parole be afforded hearing before parole is revoked. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).

Parole revocation not part of criminal prosecution.

- Supreme Court of Georgia in Johnson v. State, 240 Ga. 526, 242 S.E.2d 53 (1978), in affirming Johnson v. State, 142 Ga. App. 124, 235 S.E.2d 550 (1977), adopted the language of the Supreme Court of the United States in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) which is as follows: "The revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty property dependent on observance of special parole restrictions." Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980); Christian v. State, 164 Ga. App. 612, 298 S.E.2d 325 (1982).

Fact finder in revocation of parole hearing must make written statement of evidence relied on and reasons for revoking parole. Tucker v. State, 157 Ga. App. 202, 276 S.E.2d 842 (1981).

Hearing officer in revocation of parole hearing must make summary, or digest, of what occurs in terms of responses of the parolee, and the substance of documents or evidence given in support of parole revocation and of the parolee's position. Tucker v. State, 157 Ga. App. 202, 276 S.E.2d 842 (1981).

Right to counsel at revocation proceeding.

- A probationer has no sixth amendment right to counsel at a revocation proceeding, but has only a more limited due process right to counsel under the Fourteenth Amendment. Vaughn v. Rutledge, 265 Ga. 773, 462 S.E.2d 132 (1995).

Under the due process clause, a probationer in a revocation proceeding has no inflexible constitutional right to have counsel appointed; thus, a habeas court erred in predicating the grant of a petition upon a finding that the trial court's failure to inform probationer of a right to appointed counsel was a constitutional violation. Vaughn v. Rutledge, 265 Ga. 773, 462 S.E.2d 132 (1995).

Trial court's failure to inform a probationer of the probationer's right to request counsel at a revocation proceeding did not necessarily mandate the grant of the probationer's petition for habeas relief; thus, the order granting the petition was reversed and the case remanded for the court to determine whether the appointment of counsel would have been mandated had the probationer requested legal representation. Vaughn v. Rutledge, 265 Ga. 773, 462 S.E.2d 132 (1995).

A probationer has only a more limited due process right to counsel under the due process clause of U.S. Const., amend. 14, and whether the probationer is entitled to counsel must be determined on a case-by-case basis. Kitchens v. State, 234 Ga. App. 785, 508 S.E.2d 176 (1998).

Since a probationer has no inflexible right to appointed counsel under the due process clause of U.S. Const., amend. 14, there is no absolute requirement that the probationer be informed of that right, so a probationer is entitled to be informed only of his or her right to request counsel. Kitchens v. State, 234 Ga. App. 785, 508 S.E.2d 176 (1998).

Probationer had no U.S. Const., amend. 6 right to counsel at a revocation proceeding because it was not a stage of a criminal prosecution, and only had a more limited due process right to counsel under U.S. Const., amend. 14; trial court's flawed reasoning for refusing to appoint counsel for the defendant in a probation revocation proceeding was harmless because the defendant admitted to having committed another crime, did not claim any reasons justifying or mitigating the defendant's violations, capably spoke, and failed to show a lack of fundamental fairness. Banks v. State, 275 Ga. App. 326, 620 S.E.2d 581 (2005).

Waiver of right not shown.

- Because the defendant was not notified that by failing to report to the defendant's probation supervisor or by changing the defendant's place of abode without permission, the defendant's probation could be revoked without notice and hearing under O.C.G.A. § 42-8-36, the defendant's act of moving from county without permission of probation officer did not constitute knowing waiver of right to notice and hearing prior to probation revocation. Hughes v. Hinks, 249 Ga. 416, 291 S.E.2d 545 (1982).

14. Prisoners

Eighth amendment protection excludes claim under due process.

- Since the eighth amendment provides explicit protection to prisoners against cruel and unusual punishment, a prisoner could not bring a separate civil rights claim for the same behavior based on substantive due process under the Fourteenth Amendment. Lee v. Sikes, 870 F. Supp. 1096 (S.D. Ga. 1994).

Procedural due process requires, as minimum, that notice be given of rules prisoners are required to follow. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Disciplinary proceedings.

- Where disciplinary actions are taken against prisoner, Constitution requires only that hearing be held before final disciplinary action taken and final forfeiture occurs. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976).

Due process claim on improper disciplinary hearing.

- Summary judgment on an inmate's procedural due process claim for prison officials' denying the inmate witnesses at the inmate's disciplinary proceedings was properly denied as genuine issue of material fact existed, and damages claim was ordered remanded for further proceedings. Harper v. Thomas, 988 F.2d 101 (11th Cir. 1993).

Pretrial detainees.

- Whether a pretrial detainee may press a claim of excessive force under the fourth amendment remains open. It is clear, however, that the due process clause protects a pretrial detainee from the use of excessive force that amounts to punishment. Wright v. Whiddon, 951 F.2d 297 (11th Cir. 1992).

Prisoner has right to hearing before being placed in solitary confinement. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Prison inmates are afforded no due process constitutional protection against imposition of solitary confinement in the absence of some liberty interest created by the state. Dudley v. Stewart, 724 F.2d 1493 (11th Cir. 1984).

Where inmate's good time is forfeited constitutionally minimum procedures required are: (1) a hearing; (2) written notice of the charges served at least 24 hours in advance of the hearing; (3) a written report of the hearing setting out the reasons for the action taken and the evidence relied on. The prisoner may be permitted to call witnesses and present evidence consistent with the needs of the institution. There is no constitutional right to confrontation, cross-examination, or counsel. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976).

Parole board's refusal to allow inmate to examine file not deprivation of constitutional rights.

- The refusal of a parole board to allow an inmate to examine the inmate's file does not assume the proportions of a deprivation of the inmate's rights under the Constitution or the laws of the United States. Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979).

Inadequacy of review procedure for transfer from special restrictive prison facility.

- See Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Prisoner being disciplined must be given written statement by fact finder as to evidence relied on and reasons. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Hearing is not required to transfer prisoner for disciplinary reasons from the general prison populace of one prison to the general prison populace of another prison with less favorable conditions. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Wrongful beating of prisoner by arresting officer acting under warrant, whether void or valid, is unlawful deprivation of a right of a citizen of the United States which U.S. Const., amend. 14 protects. Screws v. United States, 140 F.2d 662 (5th Cir. 1944), rev'd on other grounds, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).

Use of undue force by prison guard is actionable as deprivation of due process rights, even though violation of U.S. Const., amend. 8, may not be established. George v. Evans, 633 F.2d 413 (5th Cir. 1980).

Prisoners have constitutional right of access to courts. Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

The constitution forbids courts to abridge inmates' rights to have meaningful access to and communications with the courts, and a blanket declaration that all filings would be "null and void by operation of law" was impermissible. Hooper v. Harris, 236 Ga. App. 651, 512 S.E.2d 312 (1999).

States must protect every prisoner's constitutional right of access to the courts by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

States must shoulder affirmative obligations to assure all prisoners meaningful access to courts. Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

Shaving requirements for death row inmates.

- Institutional policy prohibiting inmates from leaving death row unless all shaving requirements are complied with is a permissible restriction on an inmate's access to the courts, and enforcement of such a rule does not violate an inmate's constitutional rights. Solomon v. Zant, 888 F.2d 1579 (11th Cir. 1989).

Prisoner should always be accorded privilege of conferring freely with counsel at all reasonable times. Morris v. Peacock, 202 Ga. 524, 43 S.E.2d 531 (1947).

Prisoner not to be wrongfully deprived of privileges for desire to represent self in appeal.

- A prisoner who wishes to represent oneself in a criminal appeal is entitled to be protected from any unconstitutional discrimination or abuse of discretion in the dispensing of those privileges granted to the prison population as a whole. Lee v. Stynchcombe, 347 F. Supp. 1076 (N.D. Ga. 1972).

U.S. Const., amend. 14 protects right of prisoners to seek access to courts concerning conditions of incarceration. Clark v. Hendrix, 397 F. Supp. 966 (N.D. Ga. 1975).

Prisoners do not have absolute right to file any civil action they desire, and prisons may prohibit the filing of any civil action unrelated to their personal liberty. Clark v. Hendrix, 397 F. Supp. 966 (N.D. Ga. 1975).

When prisoner asserts lack of mental competence at trial.

- When a prisoner, either state or federal, seeking post-conviction relief, asserts, with substantial facts to back up the prisoner's allegation, that at the time of the trial the prisoner was not mentally competent to stand trial, and that there was no resolution of that precise issue before the prisoner was tried, convicted, and sentenced, U.S. Const., amend. 14 requires that such conviction and sentence be set aside unless upon adequate hearing it is shown that the prisoner was mentally competent to stand trial. Jackson v. Caldwell, 461 F.2d 682 (5th Cir.) cert. denied, 409 U.S. 991, 93 S. Ct. 334, 34 L. Ed. 2d 257 (1972).

Prison regulation prohibiting inmate assistance in drafting of pro se legal papers constituted deprivation of due process of law, where no "reasonable alternative" was available to furnish legal advice. Williams v. United States Dep't of Justice, 433 F.2d 958 (5th Cir. 1970).

State expenditures for providing indigent inmates' legal rights.

- Indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them. States must forego collection of docket fees otherwise payable to the treasury and expend funds for transcripts. State expenditures are necessary to pay lawyers for indigent defendants at trial and in appeals as of right. This is not to say that economic factors may not be considered, for example in choosing the methods used to provide meaningful access; but the cost of protecting a constitutional right cannot justify its total denial. Thus, neither the availability of jailhouse lawyers nor the necessity for affirmative state action is dispositive; the inquiry is rather whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts. Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

Medical needs.

- The Fourteenth Amendment right of pretrial detainees, like the eighth amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee. McDay ex rel. McDay v. City of Atlanta, 740 F. Supp. 852 (N.D. Ga. 1990), aff'd, 927 F.2d 614 (11th Cir. 1991).

Deliberate indifference to serious medical needs by governmental custodians violates due process. However, unlike an eighth amendment violation, a due process violation does not require a subjective deliberate indifference; such violation requires action under color-of-law and causation, as in an eighth amendment violation. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Where medical policies were promulgated and carried out under the mandate of O.C.G.A. § 42-5-2, requiring that a county provide adequate medical care for its inmates, and the seriously ill prisoner was seen only by undertrained LPNs, not by a physician, before the inmate died, this was a violation of the inmate's due process and eighth amendment rights. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Suicide.

- In the context of a pretrial detainee's suicide, defendants must have had knowledge that the detainee was a suicide risk before they can be charged with deliberate indifference. McDay ex rel. McDay v. City of Atlanta, 740 F. Supp. 852 (N.D. Ga. 1990), aff'd, 927 F.2d 614 (11th Cir. 1991).

Official liability for detainee's suicide.

- County commissioners and jail administrators ignorant of a decedent's custody or suicidal threats were not liable under a duty to protect the decedent's liberty interests, but overseeing sheriff was potentially liable as a reasonable person in sheriff's position would have known that providing inadequate psychiatric care to a person in the sheriff's custody could violate that person's due process rights. Merideth v. Grogan, 812 F. Supp. 1223 (N.D. Ga. 1992), aff'd, 985 F.2d 579 (11th Cir. 1993).

Health conditions.

- If the municipal bureau of corrections persistently maintained conditions in the city jail which did not conform to the city ordinance regulating health and sanitary conditions, but which did amount to a custom of (as opposed to random) deprivation of rights, then the city was subject to liability for the deprivation of the defendant's due process rights. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

Because a city was immune from suit in performing the governmental function of maintaining the city jail, it could not be concluded as a matter of law, in a federal civil rights action against the city and its police officers, alleging that the physical conditions in the jail deprived the defendant of due process, that "adequate state remedies" existed. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

Substandard sanitation and deficient medical care of inmates at a county jail was unconstitutional, and necessitated releasing some inmates to relieve overcrowding until construction of a new jail was completed. Fambro v. Fulton County, 713 F. Supp. 1426 (N.D. Ga. 1989).

O.C.G.A. § 17-10-15(b) does not violate the right to privacy under the due process clause of U.S. Const., amend. 14 or the state or federal equal protection clauses. Adams v. State, 269 Ga. 405, 498 S.E.2d 268 (1998).

Requiring the defendant to serve a sentence in installments because the defendant's premature release was brought about through no fault of the defendant's own, and because reincarceration would be inconsistent with fundamental principles of liberty and justice, was a violation of due process. Derrer v. Anthony, 265 Ga. 892, 463 S.E.2d 690 (1995).

Prisoner entitled to protection against cruel and unusual punishment.

- Certain constitutional rights follow a person into state prison through U.S. Const., amend. 14 and among these is the protection of U.S. Const., amend. 8, against cruel and unusual punishment. Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga.), aff'd, 393 U.S. 266, 89 S. Ct. 477, 21 L. Ed. 2d 425 (1968).

Independent state ground for challenging custodial abuse.

- Ga. Const. 1983, Art. I, Sec. I, Para. XVII, which states that no person shall be abused while under arrest, provides an independent state ground for this action, and provides at least as much protection to pretrial detainees under certain circumstances as the Fourteenth Amendment due process clause. Long v. Jones, 208 Ga. App. 798, 432 S.E.2d 593 (1993).

An inmate has right to reasonable protection from constant threat of violence; however, an isolated attack by another inmate does not establish the absence of this protection. O'Neal v. Evans, 496 F. Supp. 867 (S.D. Ga. 1980).

Censorship of prisoner mail is justified only where regulation or practice in question furthers important or substantial governmental interest unrelated to the suppression of expression, and the limitation of freedoms under U.S. Const., amend. 1, is no greater than is necessary or essential to the protection of the particular governmental interest involved. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Usually no constitutionally sufficient reason to stop letter.

- Unless a letter contains a threat to prison order and security or is in direct violation of law, there is usually no constitutionally sufficient reason to stop it. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Outgoing letters from prisoners may be inspected and, when deemed necessary, read to determine whether they contain escape plots, violations of law, or threats to the institution. Letters containing simply profane or obscene language, however, are not the proper subject of direct censorship through either halting the letter or suspending the mailing privilege. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Decision to censor or withhold delivery of particular letter must be accompanied by minimum procedural safeguards, since the interest of prisoners and their correspondents in uncensored communications by letter, grounded as it is in U.S. Const., amend. 1 is plainly a "liberty" interest within the meaning of U.S. Const., amend. 14. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Censorship of prisoner's reading material is allowed only when government shows that censorship furthers important or substantial governmental interest unrelated to the suppression of expression and that the censorship is no greater a limitation on U.S. Const., amend. 1 rights than generally necessary to protect one or more legitimate governmental interests. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Controlling and taking of prisoner's property.

- Prison officials may not permanently take property from prisoners once they have been allowed to have property in prison, but controlling how much property prisoners can have with them in the cell is clearly within the discretion of prison officials. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Freezing prisoner's account.

- Prison wardens' conduct in freezing an inmate's account upon receipt of a letter from a judgment creditor's attorney did not involve a federal constitutional deprivation. Grant v. Newsome, 201 Ga. App. 710, 411 S.E.2d 796 (1991).

A prison inmate may bring a federal civil rights action against prison officials for negligent deprivation of his personal property done in violation of the inmate's due process rights, where the state provided no adequate post deprivation remedy to the inmate. Hight v. Burden, 180 Ga. App. 716, 350 S.E.2d 471 (1986).

Prisoner may be found guilty of escape by department of corrections.

- Even though a prisoner is not tried for the statutory offense of escape in the courts, the prisoner may be found guilty by the Department of Corrections. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976).

Racial segregation for limited purpose of avoiding imminent prison violence is at discretion of prison authorities. Stroman v. Griffin, 331 F. Supp. 226 (S.D. Ga. 1971).

Mere assignment of prisoner to one job rather than another does not state constitutional claim absent other allegation, such as racial discrimination. O'Neal v. Evans, 496 F. Supp. 867 (S.D. Ga. 1980).

Dismissal of suit for damages and conjugal visits with lawfully imprisoned spouse proper for failure to state claim.

- Where plaintiff sued on grounds of U.S. Const., amend. 14 for damages and an order permitting conjugal visits between the plaintiff and the plaintiff's spouse during the time the plaintiff's spouse was lawfully incarcerated, the dismissal of the suit for failure to state a claim upon which relief could be granted was proper. Polakoff v. Henderson, 370 F. Supp. 690 (N.D. Ga. 1973), aff'd, 488 F.2d 977 (5th Cir. 1974).

15. Election and Voting Rights

First amendment freedoms protected from state impairment by due process clause include political activities.

- The "liberty" protected from state impairment by due process clause of Fourteenth Amendment includes freedoms of speech and association guaranteed by first amendment. These first amendment freedoms extend to political activities such as running for elective office, and state election practices must therefore serve legitimate state interest narrowly and fairly to avoid obstructing and diluting these fundamental liberties. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Right to vote freely for candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

States may determine conditions under which right to vote may be exercised.

- A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction; however, this right is not absolute, for states have power to determine conditions under which right of suffrage may be exercised, absent discrimination which the Constitution condemns. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Although administration of election is generally a state concern, voting rights are federally protected.

- Administration of elections is generally a matter of state concern, but United States Supreme Court decisions leave no room for doubt that plaintiffs' voting rights are, at bottom, federally protected. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

United States Constitution protects right to vote once a state has established an electoral system.

- Although the United States Constitution confers no right to vote as such, it does guarantee to every citizen the right to participate on a fair and equal basis with all other citizens in the electoral process once a state has chosen to select its public officials by popular vote. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Constitution of the United States protects right to vote in state as well as federal elections. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Constitutional right to vote includes right to have vote counted.

- Qualified citizens not only have a constitutionally protected right to vote, but also the right to have their votes counted, a right which can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot box stuffing. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Due process clause prohibits state from unlawfully eliminating right to vote.

- Just as the equal protection clause of the Fourteenth Amendment prohibits state officials from improperly diluting right to vote, the due process clause of the Fourteenth Amendment forbids state officials from unlawfully eliminating that fundamental right. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Due process clause prohibits action by state officials which seriously undermines fundamental fairness of electoral process. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Patent and fundamental unfairness in election process.

- If the election process itself reaches point of patent and fundamental unfairness, a violation of the due process clause may be indicated and relief under 42 U.S.C. § 1983 is therefore in order. Such a situation must go well beyond ordinary dispute over counting and marking of ballots. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

If the right is denied altogether or abridged in a manner which renders the electoral process fundamentally unfair, a violation of due process may be found. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Alleged infringement on right to vote must be carefully and meticulously scrutinized.

- Since right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil rights, any alleged infringement of right of citizens to vote must be carefully and meticulously scrutinized. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Right to vote is clearly fundamental, and is protected by both due process and equal protection guarantees of the Fourteenth Amendment; in either case, any alleged infringement of right to vote must be carefully and meticulously scrutinized, for a state has precious little leeway in making it difficult for citizens to vote. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Any state encroachment on right to vote must be justified by a compelling state interest. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Due process clause offers no guarantee against an unintentional error in supervision of an election which allowed a number of people to cast ballots even though they were unqualified under state law to participate in the election. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

No guarantee against innocent irregularities in administration of state elections.

- Fourteenth Amendment provides no guarantee against innocent irregularities in administration of state elections. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Ballot language summarizing proposed constitutional amendment.

- The ballot language selected by Georgia's General Assembly briefly summarizing a proposed amendment to the state's constitution was not so misleading to voters as to justify a federal court's invalidating the outcome of a state referendum on the amendment. Burton v. Georgia, 953 F.2d 1266 (11th Cir. 1992).

At-large election system constitutional.

- African-American residents of a city failed to establish that, by retaining an at-large election system for city officials, the city acted with a discriminatory purpose in violation of the federal constitution. Cofield v. City of LaGrange, 969 F. Supp. 749 (N.D. Ga. 1997).

Local legislation.

- Procedures for enactment of local legislation by the General Assembly do not violate the principle of "one person, one vote" in violation of the Fourteenth Amendment. DeJulio v. Georgia, 127 F. Supp. 2d 1274 (N.D. Ga. 2001).

Judicial appointment to a vacant seat.

- Since any appointment for the judicial position would have been made less than six months prior to the election, pursuant to Ga. Const. 1983, Art. VI, Sec. VII, the judge candidate could not show that the candidate was deprived of the candidate's right to vote or participate in the electoral process where the candidate's candidacy was "revoked" by the Secretary of State after the Governor decided to appoint a judge to the vacant seat; thus, the judge candidate failed to state a claim pursuant to 42 U.S.C. § 1983 or U.S. Const., amend. 14 against the Governor or the Secretary of State. Hornsby v. Barnes, F. Supp. 2d (N.D. Ga. July 22, 2002).

16. Property Rights

Rational relationship test.

- Where the statute's classification scheme involves solely economic interests, the proper standard of review is whether the classification bears a rational relationship to a legitimate governmental purpose. Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989).

Property interests are created and dimensions defined by existing rules or understandings that stem from independent source such as state law. Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. 1981). See also Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980).

Federal constitutional law determines whether state-created interests constitute protected property interests.

- Although underlying substantive interest is created by independent source such as state law, federal constitutional law determines whether that interest rises to level of legitimate claim of entitlement protected by due process clause. Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. 1981).

State cannot declare long-established property right to be nonproperty.

- Although primary source of property rights is state law, the state may not magically declare an interest to be nonproperty after the fact for Fourteenth Amendment purposes if, for example, a long-standing pattern of practice has established an individual's entitlement to a particular governmental benefit. Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. 1981).

Person must have legitimate claim of entitlement to have property interest in benefit.

- To have property interest in a benefit, one clearly must have more than a unilateral expectation of it. One must, instead, have a legitimate claim of entitlement to it. Williams v. Housing Auth., 158 Ga. App. 734, 282 S.E.2d 141 (1981).

While a unilateral expectation of a benefit does not rise to level of a protected interest, a mutually recognized entitlement will receive constitutional protection. Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. 1981).

Mutually recognizable entitlement will receive constitutional protection.

- An interest attains the status of "property" by virtue of the fact that it has been initially recognized and protected by federal or state rules of law. Brown v. Ledbetter, 569 F. Supp. 170 (N.D. Ga. 1983).

Legitimate claim of entitlement required.

- In order to acquire a Fourteenth Amendment property interest with accompanying procedural due process, a person must have more than a unilateral expectation; the individual must possess a legitimate claim of entitlement. Adams v. Bainbridge-Decatur County Hosp. Auth., 888 F.2d 1356 (11th Cir. 1989).

Constitutional protection inapplicable to abandoned property.

- The constitutional protection of the fourth and Fourteenth Amendments does not apply to property which has been abandoned. Cooper v. State, 186 Ga. App. 154, 366 S.E.2d 815 (1988).

Arbitrary and capricious deprivation of a state-created property right through the action of a county executive did not violate substantive due process under the Fourteenth Amendment. DeKalb Stone, Inc. v. County of DeKalb, 106 F.3d 956 (11th Cir. 1997), cert. denied, 522 U.S. 861, 118 S. Ct. 163, 139 L. Ed. 2d 107 (1997).

Person receiving benefits under statutory and administrative standards defining "eligibility" for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. City of Athens v. McGahee, 178 Ga. App. 76, 341 S.E.2d 855 (1986).

No property right against social security diminution.

- Recipients have no constitutionally protected property interest against a direct or an indirect diminution by Congress of their old age, survivors, and disability benefits under the Social Security Act. Oliver v. Ledbetter, 821 F.2d 1507 (11th Cir. 1987).

Subsequent hearing curing earlier deprivation.

- Because the plaintiff had a property right and liberty interest in continued employment with the sheriff's department, the plaintiff must be afforded due process, including notice and an opportunity to be heard. However, the state may cure any procedural deprivation by providing a later procedural remedy; therefore, any error resulting from insufficient notice of the first pre-termination hearing is remedied by the second hearing. Smith v. Upson County, 859 F. Supp. 1504 (M.D. Ga. 1994), aff'd, 56 F.3d 1392 (11th Cir. 1995).

To be entitled to bring a claim of due process violations following termination, an employee must show that the employee has a property interest in continued employment. Abernathy v. City of Cartersville, 642 F. Supp. 529 (N.D. Ga. 1986).

A property interest in public employment arises whenever the public employee can be terminated only for cause. Barnett v. Housing Auth., 707 F.2d 1571 (11th Cir. 1983), overruled on other grounds, 20 F.3d 1550 (11th Cir. 1994), cert. denied, McKinney v. Osceola County Bd. of County Comm'rs, 513 U.S. 1110, 115 S. Ct. 898, 130 L. Ed. 2d 783 (1995); Hudgins v. City of Ashburn, 890 F.2d 396 (11th Cir. 1989).

Where, after a hearing required by procedural due process, a hearing tribunal of the professional practice commission declined to revoke the plaintiff's teaching certificate, there was no deprivation of any property interest. Brewer v. Schacht, 235 Ga. App. 313, 509 S.E.2d 378 (1998).

Right to continued public employment may arise where there is a guarantee of employment for a fixed term or where the employment allows termination only for cause. Moore v. Tri-City Hosp. Auth., 696 F. Supp. 1496 (N.D. Ga. 1988).

No right to continued public employment or pay raises.

- The fact that most of a public employee's previous contracts have been for a certain length of time and have contained pay raises may lead to an expectation of receiving these terms, but it does not evidence an entitlement to them, where there is no statute, rule, regulation, policy, or contractual term that reasonably could be read as providing him with an entitlement to these benefits. Cook v. Ashmore, 579 F. Supp. 78 (N.D. Ga. 1984).

No property interest in promotion.

- Municipal fire fighter had no protected property interest in a promotion to fire engineer, and the firefighter's demotion from that position did not constitute a deprivation of the firefighter's property interest without due process of law. Hunter v. City of Warner Robins, 842 F. Supp. 1460 (M.D. Ga. 1994).

Public employee governed by Georgia Merit Systems Act and State Board Personnel Rules has a property interest in the employee's job entitling the employee to the protections of due process. Brown v. Georgia Dep't of Revenue, 881 F.2d 1018 (11th Cir. 1989).

State law determines the legitimacy of a claim of entitlement to continued employment. Barnett v. Housing Auth., 707 F.2d 1571 (11th Cir. 1983), overruled on other grounds, 20 F.3d 1550 (11th Cir. 1994), cert. denied, McKinney v. Osceola County Bd. of County Comm'rs, 513 U.S. 1110, 115 S. Ct. 898, 130 L. Ed. 2d 783 (1995).

Person's entitlement to continued employment is a constitutionally protectable property interest if there are rules or mutually explicit understandings that support his claim. Lovell v. Floyd County, 710 F. Supp. 1364 (N.D. Ga. 1989).

Refusal to reinstate exonerated hospital paramedic unconstitutional.

- A hospital's refusal to reinstate a paramedic, who had been exonerated of misconduct by an employee grievance committee, because of a subsequent accusation that the paramedic lacked a physician's sponsorship was a deprivation of the paramedic's constitutionally protected interest in continued employment. Baxter v. Fulton-DeKalb Hosp. Auth., 764 F. Supp. 1510 (N.D. Ga. 1991).

Employee does not have a property interest in a particular position within the employing organization. Unless the aggrieved employee has suffered a dismissal from employment, demotion, disciplinary reduction in salary, or suspension without pay, the employee has not suffered an "adverse action" nor been deprived of any property interest. Horlock v. Georgia Dep't of Human Resources, 890 F.2d 388 (11th Cir. 1989).

City police officers were not entitled to substantive due process protection in regard to their claims that reassignment without cause from a special investigation unit to a regular patrol unit violated charter or ordinance provisions allowing demotions only for cause and violated their due process rights. Angell v. Hart, 232 Ga. App. 222, 501 S.E.2d 594 (1998).

Termination of employment only for cause implies property interest.

- An at-will public employee typically does not have a reasonable expectation of continued employment sufficient to form a protectable property interest. However, a property interest does arise whenever a public employee can be terminated only for cause. Wofford v. Glynn Brunswick Mem. Hosp., 864 F.2d 117 (11th Cir. 1989); Nolin v. Douglas County, 903 F.2d 1546 (11th Cir. 1990), overruled on other grounds, 32 F.3d 1521 (11th Cir. 1994), overruled in part on other grounds, McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), cert. denied, McKinney v. Osceola County Bd. of County Comm'rs, 513 U.S. 1110, 115 S. Ct. 898, 130 L. Ed. 2d 783 (1995).

In Georgia, generally, no one in public employment has a vested right to such employment. However, a property interest does arise whenever the public employee can be terminated only for cause. Payung v. Williamson, 747 F. Supp. 705 (M.D. Ga. 1990).

County personnel handbook which made numerous distinctions between department heads and rank and file employees - e.g., department heads were given the authority to evaluate rank and file employees, to grant raises, and to hear appeals from employees facing detrimental job actions - supported the conclusion that the county board of commissioners intended to grant a property interest to rank and file employees but not to department heads when it passed the personnel ordinances which make up the handbook. Warren v. Crawford, 927 F.2d 559 (11th Cir. 1991).

Scope of rights of tenured teachers.

- Where plaintiff clearly qualified as a tenured principal under Georgia law, the plaintiff's rights as a tenured principal extended to not being demoted except by specified procedures and for specified reasons. Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546 (11th Cir. 1987).

Where a tenured teacher held a constitutional property interest in continued comparable employment and was demoted as a result of the elimination of the position, the board of education was not constitutionally required to grant the teacher a hearing at the time the schools were closed and the initial reassignments made. Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546 (11th Cir. 1987).

Once initial reassignments had been made, displaced teachers who held a constitutional property interest in continued comparable employment that was denied by virtue of their placement in a lesser position were entitled to obtain a hearing regarding any positions that were assigned to individuals who did not hold a property interest in the position. Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546 (11th Cir. 1987).

Nontenured as well as tenured teachers are entitled to due process protections.

- Nothing in Fourteenth Amendment restricts due process protections to tenured teachers; where no formal system of tenure exists, due process may be mandated nonetheless where state rules or understandings between parties support a claim of entitlement to continued employment. LaPier v. Holliman, 514 F. Supp. 692 (N.D. Ga. 1980).

Discretionary merit salary increases not protected interests.

- Discretionary merit salary increases, designed to serve as a reward for an acceptable teaching performance, are, at best, expectations rather than entitlements, and such expectations are not protected property or liberty interests for due process purposes. Ballard v. Blount, 581 F. Supp. 160 (N.D. Ga. 1983), aff'd, 734 F.2d 1480 (11th Cir.), cert. denied, 469 U.S. 1086, 105 S. Ct. 590, 83 L. Ed. 2d 700 (1984).

Termination of benefits under a city pension plan.

- A city pension plan which terminated a surviving spouse's benefits upon remarriage, where the employee was not retired at the time of death, did not violate due process as a surviving spouse does not have a property right in post-remarriage benefits. Strickland v. City of Albany, 270 Ga. 31, 504 S.E.2d 666 (1998).

Distinction in city pension plan between benefits available to surviving spouses of retired and nonretired employees did not violate equal protection since it arose only as the result of a voluntary election by the employee, rather than a unilateral imperative of the plan. Strickland v. City of Albany, 270 Ga. 31, 504 S.E.2d 666 (1998).

Insubordination and willful neglect.

- County school board and school administrators did not violate standards of federal due process in failing to renew a school teacher's contract, where they informed the teacher that the reasons for their actions were the teacher's insubordination and willful neglect of duty, in addition to "other good and sufficient cause." Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989).

Placing separation notice in confidential file.

- Court clerk's placing of a terminated deputy's separation notice in the confidential files of the Department of Labor did not amount to "stigmatizing" the deputy so as to deprive the terminated deputy of a liberty interest without due process. Zellner v. Ham, 735 F. Supp. 1052 (M.D. Ga. 1990).

Effect of city personnel ordinance enactment.

- Enactment of city personnel ordinance created in covered employees a present property interest subject to termination only for cause and only after a pre-termination hearing. Payung v. Williamson, 747 F. Supp. 705 (M.D. Ga. 1990).

Discharged police officer's property interest in a reinstatement hearing never ripened, where such interest was conditioned upon the occurrence of certain factors expressly identified in a letter creating a claim of entitlement to reinstatement, and those conditions failed to occur. Dudley v. City of Macon, 678 F. Supp. 280 (M.D. Ga. 1988).

Presuspension requirements satisfied.

- Although a police officer's 10-day suspension without pay affected a limited property interest which could not be characterized as de minimis, the officer's meeting with the police chief was sufficient to satisfy the necessary presuspension due process requirements. Burch v. Rame, 676 F. Supp. 1218 (S.D. Ga. 1988).

Action under federal Civil Rights Act.

- Where a police detective alleged that the detective could be terminated only "for cause" and thus held a constitutionally protected "property" interest in continued employment, the defendants' motion to dismiss the action under the federal Civil Rights Act (42 U.S.C. § 1983) was denied. Byrd v. City of Atlanta, 683 F. Supp. 804 (N.D. Ga. 1988).

Terminated city police officer was not entitled to summary judgment on the officer's substantive due process claims, where the officer admitted that the officer used personal funds to obtain cocaine and made no report of the purchase to the police department, and that the officer gave cocaine to an informant and made no report of the incident. Byrd v. City of Atlanta, 709 F. Supp. 1148 (N.D. Ga. 1989).

City police officers had property interests in their employment, and were entitled to a hearing - formal or informal - prior to being discharged. Duck v. Jacobs, 739 F. Supp. 1545 (S.D. Ga. 1990).

Police chiefs lacked property interest in continued employment.

- City police chiefs who successively served at the will of the mayor and council had no property interest in continued employment. Duck v. Jacobs, 739 F. Supp. 1545 (S.D. Ga. 1990).

Racial preferences for police hiring upheld.

- City's use of racial preferences in employment decisions, as applied to the police department, is justified by a compelling government interest in remedying past discrimination, where, until the late 1970's, black officers were only allowed to work the night shift, they were only allowed to police black neighborhoods, and they were not authorized to arrest whites. Fountain v. City of Waycross, 701 F. Supp. 1570 (S.D. Ga. 1988).

Discharge of police officer for insubordination did not violate the officer's rights to substantive and procedural due process. Guntharp v. Cobb County, 723 F. Supp. 771 (N.D. Ga. 1989), aff'd, 898 F.2d 159 (11th Cir. 1990).

Termination of plaintiff's position as a parole review officer of the board of pardons and paroles after the plaintiff's election to county and state political party committees did not violate the plaintiff's constitutional rights of due process and equal protection or the plaintiff's constitutionally protected rights of political speech and association. MacKenzie v. Snow, 675 F. Supp. 1333 (N.D. Ga. 1987).

Discharged police officer did not possess a constitutionally protected property interest in continued employment and thus was not discharged without due process of law because there was no formal contract of employment; there was no civil service act containing a "for cause" termination requirement; police department regulations did not unambiguously indicate whether a "for cause" termination requirement existed; and because, by a provision of the city charter, the mayor and council had discretionary authority to discharge an employee. Harrison v. City of Adairsville, 560 F. Supp. 445 (N.D. Ga. 1983).

Human services program manager has protected property interest in his employment.

- O.C.G.A. § 45-20-1 and Rules 4 and 14 of the Rules and Regulations of the State Personnel Board create a mutually recognizable entitlement, and one is entitled to a reasonable expectation that where one performs the duties and responsibilities of a human services program manager, one will be classified as such and will receive an increase in benefits and pay in accordance with this classification. Brown v. Ledbetter, 569 F. Supp. 170 (N.D. Ga. 1983).

A cause of action is a species of property protected by the due process clause. Sisson v. Douglas County Sch. Dist., 181 Ga. App. 77, 351 S.E.2d 272 (1986).

Hospital staff membership.

- Public hospital bylaws excluding nonallopathic physicians, who have not completed allopathic postgraduate training, from the medical staff do not violate the due process clause where the bylaws are rationally related to differences in allopathic and nonallopathic training and promote a legitimate state interest in providing quality health care. Silverstein v. Gwinnett Hosp. Auth., 672 F. Supp. 1444 (N.D. Ga. 1987), aff'd, 861 F.2d 1560 (11th Cir. 1988).

Hospital may contract exclusively for radiology services.

- A county hospital's exclusive contract for radiological services, in order to reduce the operating losses of its radiology department, is constitutionally valid, as it is rationally related to a legitimate state interest, i.e., financial well-being. Mays v. Hospital Auth., 582 F. Supp. 425 (N.D. Ga. 1984).

At-will hospital employee, who was terminable by the employer at any time with or without cause, was not entitled to procedural due process in connection with the termination. Adams v. Bainbridge-Decatur County Hosp. Auth., 888 F.2d 1356 (11th Cir. 1989).

Hospital's selection of a competing anesthesiology service did not deprive anesthesiologist, where the anesthesiologist continued to have full staff privileges and to receive referrals at the hospital. Faucher v. Rodziewicz, 891 F.2d 864 (11th Cir. 1990).

Procreation is a fundamental right. Motes v. Hall County Dep't of Family & Children Servs., 251 Ga. 373, 306 S.E.2d 260 (1983).

"Clear and convincing" evidence required to authorize sterilization.

- The seriousness of an individual's interest at stake in a state initiated sterilization proceeding is such that due process requires "clear and convincing" evidence to authorize the sterilization of an individual. The standard of a "legal preponderance" set by O.C.G.A. § 31-20-3(c)(4) does not meet constitutional requirements. Motes v. Hall County Dep't of Family & Children Servs., 251 Ga. 373, 306 S.E.2d 260 (1983).

High school football player has no protectible property interest in sports participation.

- High school football player has no right to participate in interscholastic sports and has no protectible property interest which would give rise to a due process claim. Georgia High Sch. Ass'n v. Waddell, 248 Ga. 542, 285 S.E.2d 7 (1981).

Bar examination as prerequisite to practice law is not deprivation of property right.

- Requiring applicant to take bar examination before being permitted to practice law does not deprive the applicant of a property right in violation of due process. Pace v. Smith, 248 Ga. 728, 286 S.E.2d 18 (1982).

Compliance with malt beverages statute does not create expectation of licensure.

- O.C.G.A. § 3-3-2 does not create the concrete expectation necessary for the creation of a constitutionally protectible property interest because it merely requires the promulgation of standards for the issuance of a malt-beverage license, but does not itself outline standards which, if met, would lead to the issuance of a malt-beverage license. Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga.), aff'd, 747 F.2d 1466 (11th Cir. 1984).

Malicious prosecution resulting in loss of license states claim.

- Ordinarily, a claim of malicious prosecution does not constitute a deprivation of life, liberty or property without due process of law and, therefore, is not cognizable under 42 U.S.C. § 1983. Where, however, a prosecution of a pharmacist causes the pharmacist to lose the pharmacist's license to practice pharmacy, that prosecution deprives the pharmacist of the right to engage in one of the common occupations of life. A claim of malicious prosecution therefore is cognizable under § 1983. Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984).

Driver had no property right in plastic license; rather, the right referenced by the plaintiff was the right to drive, but such right is actually a privilege, which the plaintiff retained by virtue of the officer issuing a traffic citation stating that the plaintiff could continue to drive pending resolution of the case. McGraw v. State, 230 Ga. App. 843, 498 S.E.2d 314 (1998).

Procedural due process requirement in the context of beer and wine licensing is two-fold: (1) the licensing authority must give an applicant adequate notice of the standards the applicant must satisfy to obtain a license; and (2) it must accord the applicant due process in the application of those standards through a fair hearing. McCollum v. City of Powder Springs, 720 F. Supp. 985 (N.D. Ga. 1989).

Plaintiffs who challenged the standards for the issuance of a malt-beverage license, and not defendant city's failure to promulgate such standards, possessed a protectable property interest that could be the basis for a due process claim. McCollum v. City of Powder Springs, 720 F. Supp. 985 (N.D. Ga. 1989).

Tort victims were not unconstitutionally deprived of property by a grant of immunity to public employees when acting under color of state law, where potential claimants retain the remedy of a tort action for a public employee's discretionary acts done willfully, maliciously, or corruptly. Sisson v. Douglas County Sch. Dist., 181 Ga. App. 77, 351 S.E.2d 272 (1986).

No right to have lease renewed.

- A lessor breached no duty, created by contract, tort, or Georgia property law, to its lessee by failing to renew its lease or purchase its property, and, thus, did not deprive the lessee of a constitutionally protected property interest. Stone Mt. Game Ranch, Inc. v. Hunt, 746 F.2d 761 (11th Cir. 1984).

A county's failure to put leases of county airport space up for competitive bid did not deprive the plaintiff of due process, where the plaintiff was deprived of no property to which it had legitimate claim of entitlement. Hill Aircraft & Leasing Corp. v. Fulton County, 561 F. Supp. 667 (N.D. Ga. 1982), aff'd, 729 F.2d 1467 (11th Cir. 1984).

A business does not have a right under the due process clause to be free from "anticompetitive injury." Hill Aircraft & Leasing Corp. v. Fulton County, 561 F. Supp. 667 (N.D. Ga. 1982), aff'd, 729 F.2d 1467 (11th Cir. 1984).

Creation of special districts for implementing hotel/motel tax.

- Statute creating special districts for the purpose of implementing a hotel/motel tax did not violate state and federal constitutional due process and equal protection guarantees. Youngblood v. State, 259 Ga. 864, 388 S.E.2d 671 (1990).

A blind vendor's state-issued license issued pursuant to federal law is a property right subject to constitutional protection. Turner v. Giles, 264 Ga. 812, 450 S.E.2d 421 (1994), cert. denied, 514 U.S. 1108, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995).

Notice of foreclosure.

- It is not presumed that the General Assembly intended to enable a tax sale purchaser to forego any methods of notice of foreclosure of the right to redeem which might be required by the due process clause, and the words "for any reason" in O.C.G.A. § 48-4-46(c) are construed to mean that notice by publication is permissible only if a sheriff's inability to effect personal service satisfies the constitutional mandate of due process. Hamilton v. Renewed Hope, Inc., 277 Ga. 465, 589 S.E.2d 81 (2003).

Parent's interest in the custody of his or her child is a liberty interest entitled to constitutional protection. Bendiburg v. Dempsey, 707 F. Supp. 1318 (N.D. Ga. 1989), aff'd in part and rev'd in part, 909 F.2d 463 (11th Cir. 1990), cert. denied, 500 U.S. 932, 111 S. Ct. 2053, 114 L. Ed. 2d 459 (1991).

The state must provide a parent an opportunity to be heard prior to the termination of his or her parental rights. Under certain extraordinary circumstances, however, the state may legally move to terminate the parent's custody rights without prior notice or opportunity for hearing, provided a meaningful postdeprivation remedy is made available. Bendiburg v. Dempsey, 707 F. Supp. 1318 (N.D. Ga. 1989), aff'd in part and rev'd in part, 909 F.2d 463 (11th Cir. 1990), cert. denied, 500 U.S. 932, 111 S. Ct. 2053, 114 L. Ed. 2d 459 (1991).

The due process clause requires that before a state may sever the rights of a parent in a natural child, the state must support its allegations of the parent's unfitness "by at least clear and convincing evidence." Thorne v. Padgett, 259 Ga. 650, 386 S.E.2d 155 (1989).

O.C.G.A.

§ 19-8-10(b) denies meaningful hearing on failure to provide support. - Because O.C.G.A. § 19-8-10(b) forecloses an inquiry into the reasons for a parent's failure to provide care and support, thus depriving that parent of a meaningful opportunity to be heard, it denies due process of law. Thorne v. Padgett, 259 Ga. 650, 386 S.E.2d 155 (1989).

17. Jurisdiction

Long-arm jurisdiction will be exercised to the extent permitted by procedural due process. Najran Co. v. Fleetwood Enters., Inc., 659 F. Supp. 1081 (S.D. Ga. 1986).

Significant relation to state as prerequisite to application of Georgia law.

- Even if Georgia choice-of-law rules would require application of its own common-law rules to some claims involving purchases of securities in other states, the law of Georgia could be applied consistent with due process only if the particular transaction had some significant relation to Georgia. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir. 1987), cert. denied, 485 U.S. 959, 108 S. Ct. 1220, 99 L. Ed. 2d 421 (1988).

"Minimum contacts" is test for jurisdiction over nonresidents.

- Georgia courts may exercise personal jurisdiction over nonresident defendants to the maximum extent permitted by procedural due process and the constitutional touchstone remains whether a nonresident purposefully established "minimum contacts" in the forum state. W.S. McDuffie & Assocs. v. Owens, 682 F. Supp. 1226 (N.D. Ga. 1988).

Scope of federal court's jurisdiction over nonresidents.

- In a diversity action, a federal court may exercise in personam jurisdiction over a nonresident defendant only to the extent permitted by the long-arm statute of the forum state and by the due process constraints of the Fourteenth Amendment. W.S. McDuffie & Assocs. v. Owens, 682 F. Supp. 1226 (N.D. Ga. 1988).

Limitations of clause do not bind federal court adjudicating federal rights.

- A federal court adjudicating federally created rights and exercising the sovereign power of the United States is not bound by limitations developed under the due process clause of the Fourteenth Amendment, an amendment which by its terms applies only to the 50 states and not to the federal government. Wallace v. Milrob Corp. (In re Rusco Indus., Inc.), 104 Bankr. 548 (Bankr. S.D. Ga. 1989).

Garnishment may reach out-of-state wages.

- Allowing garnishment of wages earned wholly outside this state is not an unconstitutional extension of the laws of this state to a debt created outside the geographical limits of this state, thus depriving the garnishee of due process. United Merchants & Mfrs., Inc. v. Citizens & S. Nat'l Bank, 166 Ga. App. 468, 304 S.E.2d 552 (1983).

Obtaining personal jurisdiction in federal question case.

- To apply the test of amenability to personal jurisdiction in a federal question case, the test of constitutionality, the appropriate inquiry lies with the due process of law clause of the fifth amendment. While the limitations imposed in the fifth amendment are similar to those imposed upon the state courts under the Fourteenth Amendment, they are not necessarily identical. Vest v. Waring, 565 F. Supp. 674 (N.D. Ga. 1983).

Nonresident contracting with resident.

- Jurisdiction is not conferred upon a nonresident who merely contracts with a Georgia resident. Rather, the nonresident must purposefully do some act or consummate some transaction in Georgia from which the claim arises or to which the claim is related. Further, the exercise of jurisdiction must not offend traditional notions of fair play and substantial justice. A.I.M. Int'l, Inc. v. Battenfeld Extrusions Sys., 116 F.R.D. 633 (M.D. Ga. 1987).

Where parties allegedly negotiated at least three times, twice in Atlanta, such negotiations involved discussions as to both the terms of a contract and the modification of these terms, commission rates and sales territories were discussed and agreed upon, and these negotiations and the resulting contract prompted plaintiffs to represent themselves as defendants' agents and as such to consummate substantial sales of defendants' products, but defendants failed to pay commissions allegedly due plaintiffs, defendants purposefully established sufficient minimum contacts with the forum state and the plaintiffs' claim arose from such contacts, thus enabling the court to properly assert in personam jurisdiction over the defendants, including foreign nationals, without offending traditional notions of fair play and substantial justice. A.I.M. Int'l, Inc. v. Battenfeld Extrusions Sys., 116 F.R.D. 633 (M.D. Ga. 1987).

Because plaintiff initiated a letter agreement with the nonresident defendant which called for delivery of railcars to defendant outside of Georgia and no representative of defendant visited Georgia in connection with the performance of the agreement, defendant was not subject to personal jurisdiction in Georgia. Railcar, Ltd. v. Southern Ill. Railcar Co., 42 F. Supp. 2d 1369 (N.D. Ga. 1999).

Relation of claims to contacts.

- The relationship between a Spanish corporation that owned a resort in the Dominican Republic and its contacts with Georgia - which included an Internet web site - and the negligence of a taxi driver who allegedly injured the taxi's passengers, residents of Georgia who had been vacationing at the resort, was too tenuous to permit jurisdiction over the corporation in Georgia. Sol Melia v. Brown, 301 Ga. App. 760, 688 S.E.2d 675 (2009).

Shipping contract insufficient.

- The exercise of specific personal jurisdiction over Danish shipping partnerships violated due process since contracts to deliver cargo to a Georgia port, in and of themselves, did not constitute sufficient minimum contacts with the forum state. Francosteel Corp. v. M/V Charm, 19 F.3d 624 (11th Cir. 1994).

No personal jurisdiction over nonresident whose only contact with state is telephone conversations.

- A federal court does not have personal jurisdiction over a nonresident defendant whose only significant contacts with the State of Georgia are allegedly defamatory, isolated telephone conversations, none of which were initiated by the defendant, with Georgia residents, one of whom is an alleged co-conspirator. McDonald v. St. Joseph's Hosp., 574 F. Supp. 123 (N.D. Ga. 1983).

Personal jurisdiction not allowed although constitutional minimum contacts in existence.

- In a diversity action to collect on accounts receivable obtained from a carpet manufacturer, among which accounts were a nonresident's obligations for carpet purchased, the court dismissed for lack of personal jurisdiction, although constitutional minimum contacts existed, because jurisdiction was not permitted by the long-arm statute (see O.C.G.A. § 9-10-91), the only "contacts" of the defendant consisting of the following: (1) the defendant regularly attended trade fairs in Georgia; (2) it visited a manufacturer's mill in Georgia to determine whether it would buy carpet; (3) the defendant returned to another state and placed orders with the manufacturer; (4) the defendant sent its trucks into Georgia to pick up the carpet; (5) during this trip, the defendant hauled goods for Georgia residents unrelated to the carpet transaction; and (6) relating to this trucking business, the defendant maintained a certificate of authority and a registered agent. Brooks v. State, 140 Ga. App. 371, 231 S.E.2d 138 (1976) (refusing to be bound by Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375 (5th Cir. 1980).

Foreign manufacturers.

- When a foreign manufacturer sells its product to a United States distributor knowing that its product will be sold in every state, it should reasonably expect to be haled into court in Georgia for an injury caused in this state by that product. Showa Denko K.K. v. Pangle, 202 Ga. App. 245, 414 S.E.2d 658 (1991), cert. denied, 202 Ga. App. 907, 414 S.E.2d 658 (1992).

To permit a foreign manufacturer to insulate itself from foreseeable liability by setting up a separate but wholly-owned out-of-state subsidiary for conducting its business in the United States would deny the notion of fair play to Georgia consumers. Showa Denko K.K. v. Pangle, 202 Ga. App. 245, 414 S.E.2d 658 (1991), cert. denied, 202 Ga. App. 907, 414 S.E.2d 658 (1992).

Discussion of jurisdiction over a foreign manufacturer and designer of automobiles. See Vermeulen v. Renault, U.S.A., Inc., 965 F.2d 1014 (11th Cir. 1992), modified on other grounds, 985 F.2d 1534 (11th Cir.), cert. denied, 508 U.S. 907, 113 S. Ct. 2334, 124 L. Ed. 2d 246 (1993).

Hazardous product.

- When a manufacturer from another state sells its product, particularly one with a hazardous potential, to a wholesaler customer from Florida knowing that its product will ultimately be sold in that customer's wholesale outlets in Georgia, it should reasonably expect to be haled into court in Georgia for an injury caused in the state by that product. Continental Research Corp. v. Reeves, 204 Ga. App. 120, 419 S.E.2d 48 (1992).

In product liability suit, Georgia's exercise of personal jurisdiction over French manufacturer of automobiles was consistent with Georgia law and with the due process clause of the Fourteenth Amendment since the manufacturer designed the car in question for the Georgia market, advertised that car in Georgia, established channels for customers in Georgia to seek advice about the car, and maintained a distribution network by which the cars were brought to Georgia, thus establishing minimum contracts with Georgia sufficient to satisfy due process requirements; and since Georgia's exercise of jurisdiction over the manufacturer comported with traditional notions of fair play and substantial justice. Vermeulen v. Renault U.S.A., Inc., 975 F.2d 746 (11th Cir. 1992), revised 985 F.2d 1534 (11th Cir. 1993), cert. denied, 508 U.S. 907, 113 S. Ct. 2334, 124 L. Ed. 2d 246 (1993).

Sufficient contacts found where in-state subsidiaries equivalent to divisions of parent corporation.

- Allegations of tortious interference with a contract and of unfair competition were sufficient to invoke long-arm jurisdiction over a foreign corporation which exercised pervasive and tight control over its in-state subsidiaries (accomplished primarily through interlocking directorates, commonality of officers, and necessity of parent review and approval of subsidiary actions), rendering these subsidiaries functionally equivalent to departments or divisions of the parent corporation. Coca-Cola Co. v. Procter & Gamble Co., 595 F. Supp. 304 (N.D. Ga. 1983).

Personal jurisdiction allowed in airline passenger's suit for injuries.

- The plaintiff 's jurisdictional allegations in the complaint, that the plaintiff purchased a ticket for an out-of-state airline flight, aboard a plane owned and operated by a foreign corporation not licensed to do business in Georgia, from an airline corporation with its headquarters in Georgia, at a ticket office of the state corporation in Georgia, and was subsequently injured while deplaning at the conclusion of the out-of-state flight, were sufficient to support an inference that the foreign corporation had subjected itself to the jurisdiction of courts sitting in Georgia and that the defendant had sufficient contacts with Georgia to satisfy all statutory and constitutional requirements for the exercise of long-arm jurisdiction, which allegations were not overcome by proof that the sale of tickets in Georgia was an isolated and individual event. Bracewell v. Nicholson Air Servs., Inc., 748 F.2d 1499 (11th Cir. 1984).

Modification of foreign divorce decree.

- Where, although the non-resident spouse maintained a marital residence in Georgia and the separation occurred there, the divorce decree was actually entered in Arkansas and the non-resident spouse had not been a resident of Georgia for nearly 20 years and thus had not availed oneself of the privileges of the state of Georgia, the connection with the state was sufficiently attenuated under those facts that due process would be offended by the exercise of jurisdiction over the non-resident spouse's person to modify the domesticated Arkansas divorce decree. Popple v. Popple, 257 Ga. 98, 355 S.E.2d 657 (1987).

Claim of fraudulent divorce judgment under federal civil rights statute.

- A federal district court could not enjoin enforcement of a state court judgment in a divorce proceeding that had been allegedly obtained by fraud and which therefore allegedly deprived the plaintiff of property without due process of law, in that the plaintiff failed to state a claim under the federal civil rights statute, because the existence of adequate review procedures under Georgia law accorded the plaintiff sufficient due process. Collins v. Collins, 597 F. Supp. 33 (N.D. Ga. 1984).

Copyright infringement.

- By having licensed their song to a distributor, knowing that the distributor distributed or licensed the song nationally, including within the state of Georgia, defendants have established sufficient minimum contacts with Georgia so that plaintiff's copyright infringement action does not violate due process guarantees. Payne v. Kristofferson, 631 F. Supp. 39 (N.D. Ga. 1985), But see, Gust v. Flint, 257 Ga. 129, 356 S.E.2d 513 (1987).

The following constituted insufficient minimum contacts between an electrical contractor, a foreign state, and the litigation in question (i.e., breach of contract) to satisfy due process: (1) the contractor was a local businessman whose business was confined primarily to Georgia; (2) the contractor had never been to the other state and had never done any business there; (3) the out-of-state plaintiff, who obtained a default judgment against the contractor in the plaintiff's home state, initiated the contract by calling the contractor's name from a Georgia telephone directory; and (4) the contract was to be performed entirely in Georgia. Bertke v. Cartledge, 597 F. Supp. 68 (N.D. Ga. 1984).

Procedure for disclosure to court of child abuse records.

- Where defendant assigns error to a trial court's failure to direct the Department of Human Resources to disclose any and all reports, etc., used by or prepared by it in investigating an allegation of child abuse, since the records sought by defendant are confidential and access thereto is prohibited except as provided by O.C.G.A. § 49-5-40 et seq., regarding child abuse and deprivation records, the proper procedure for obtaining access to such records in such cases is to petition the trial court to subpoena the records and conduct an in camera inspection as to whether the records are necessary for determination of an issue before the court and are otherwise admissible under the rules of evidence, which procedure comports with the requirements of due process. Defendant's general Brady motion was inadequate to have properly raised this issue in the court below, and the assertion of error in this regard was meritless. Davidson v. State, 183 Ga. App. 557, 359 S.E.2d 372, cert. denied, 183 Ga. App. 905, 359 S.E.2d 372 (1987).

Child's social security benefits included in calculation of sibling's welfare benefits.

- The regulations and policy requiring that old age, survivors, and disability insurance benefits received by children must be included in calculating their coresident siblings' eligibility for assistance under the aid to families with dependent children program do not deny them substantive due process by imposing a financial burden on a sibling who bears no financial responsibility for the sibling's brothers or sisters, nor by depriving the sibling of property to which the sibling is entitled, without just compensation in violation of the fifth and Fourteenth Amendments, nor are the siblings deprived of procedural due process when a sibling is denied property to which the sibling is legally entitled without a hearing. Oliver v. Ledbetter, 821 F.2d 1507 (11th Cir. 1987).

Right of foster child to sue for deprivation of civil rights.

- A child involuntarily placed in a foster home is in a situation so analogous to a prisoner in a penal institution and a child confined in a mental health facility that the foster child may bring an action under the federal Civil Rights Act for violation of Fourteenth Amendment rights. Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989).

The Georgia statutory foster care scheme created in a two-year old child a legitimate and sufficiently vested claim of entitlement such that deprivation of that entitlement without due process of law imposed on the child a grievous loss, supporting an action for injuries under the federal Civil Rights Act. Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989).

Sufficient minimum contacts established.

- For purposes of personal jurisdiction under the due process clause of the Fourteenth Amendment, the nonresident corporation purposefully established sufficient minimum contacts with Georgia and should have anticipated defending a suit there; the nonresident corporation established a substantial and ongoing relationship with a manufacturer by engaging in 14 transactions in six months, each of which involved contacts with Georgia. Each purchase order specified delivery by customer pickup, and the nonresident corporation allowed its customers to take delivery of the goods in Georgia; because the nonresident corporation did not pay for two of the shipments its customers picked up, it caused foreseeable injury to the manufacturer in the forum. Diamond Crystal Brands, Inc. v. Food Movers Int'l, 593 F.3d 1249 (11th Cir.), cert. denied, 131 S. Ct. 158, 178 L. Ed. 2d 39 (2010).

18. Entrapment

Proof required.

- In a prosecution for conspiracy to possess with intent to distribute the cocaine, the defendant was not entitled to have the jury instructed as to the defense of entrapment where the defendant failed to meet the burden of producing evidence to establish government misconduct. United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).

19. Civil Proceedings

State notice provision, O.C.G.A. § 9-10-2, is rationally related to several legitimate governmental interests and does not violate due process. Georgia Dep't of Medical Assistance v. Columbia Convalescent Ctr., 265 Ga. 638, 458 S.E.2d 635 (1995).

Automatic dismissal provision of O.C.G.A. § 9-2-60 is a reasonable procedural rule and does not violate due process. Georgia Dep't of Medical Assistance v. Columbia Convalescent Ctr., 265 Ga. 638, 458 S.E.2d 635 (1995).

Workers' compensation was the exclusive remedy following the on-the-job death of a Metropolitan Atlanta Rapid Transit Authority worker, as there was no independent substantive due process right to a safe working environment separate and beyond the framework of the workers' compensation laws. Brooks-Powers v. MARTA, 260 Ga. App. 390, 579 S.E.2d 802, cert. denied, 540 U.S. 1089, 124 S. Ct. 959, 157 L. Ed. 2d 794 (2003).

Civil contempt order in divorce case.

- A civil contempt order in a divorce case requiring a husband to pay $1,500 to the wife for each day that passed without him paying the wife insurance proceeds pursuant to an oral order did not violate due process; a trial court could sua sponte raise an issue of contempt, and although the order to pay the proceeds was oral, the order was not ineffective as a matter of law, as the husband was well aware that the payment of the proceeds would be at issue and that the trial court would decide the matter without a jury. Chatfield v. Adkins-Chatfield, 282 Ga. 190, 646 S.E.2d 247 (2007).

Listing on child abuse registry.

- Child sex abuse offender whose name was added to the child abuse registry under the Child Protective Services Information System, O.C.G.A. § 49-5-180 et seq., failed to show the deprivation of a liberty interest by the registry listing based on an injury to the offender's reputation; there was no evidence that the offender intended to work in the childcare field. Ga. Dep't of Human Servs. v. Steiner, 303 Ga. 890, 815 S.E.2d 883 (2018).

Punitive damage due process guideposts are based on the principle that a person receive fair notice not only of the conduct that will subject the person to punishment, but also of the severity of the penalty that a state may impose; O.C.G.A. § 51-12-5.1(f) informs the public that the $ 250,000 cap on punitive damages in Georgia does not apply to torts where the defendant acted or failed to act while under the influence of alcohol, drugs, or other judgment altering substances. Craig v. Holsey, 264 Ga. App. 344, 590 S.E.2d 742 (2003), cert. denied, 543 U.S. 820, 125 S. Ct. 59, 160 L. Ed. 2d 29 (2004).

Punitive damages awarded in toxic tort case not excessive.

- Jury's award of $17.5 million in punitive damages against a manufacturer of carbon black that permitted its smokestacks to spew an oily substance onto adjacent properties over a course of years with notice but without effectively remedying the problem was not constitutionally excessive; due process concerns were met because such conduct was exceedingly reprehensible, having damaged non-parties' as well as parties' property and health. Action Marine, Inc. v. Cont'l Carbon, Inc., 481 F.3d 1302 (11th Cir. 2007).

Punitive damage jury award of $17.5 million against a carbon black manufacturer was not excessive under constitutional due process standards even though it exceeded the U.S. Supreme Court's suggested 4:1 ratio for compensatory-to-punitive damages; the manufacturer had been on notice for years that an oily substance that its smoke stacks were spewing on adjacent properties were causing damage and health problems, yet it thwarted local inspection attempts to stop the practice and evinced a specific intent to cause harm, thus presenting a "race exception" to the U.S. Supreme Court's suggested amount of punitive damages. Action Marine, Inc. v. Cont'l Carbon, Inc., 481 F.3d 1302 (11th Cir. 2007).

Action for termination of parental rights.

- Parents' were not denied due process where evidence of psychosexual evaluations and allegations of sexual abuse, molestation, and sexual abuse by the children against other children was admitted in a termination of parental rights trial, despite the petition's lack of allegations of sexual misconduct as: (1) the trial court based its findings of parental inability on the parents' failure to comply with the case plan, especially their continued failure to obtain stable employment and suitable housing; (2) neither parent was accused of sexually abusing the children; (3) evidence of past sexual abuse was relevant to establish the complex psychological problems of the two older children, to demonstrate the special needs of those children, and to expose the danger that reunification would pose; and (4) as some of the children's psychological problems were attributable to their victimization, evidence as to that issue could not have surprised the parents. In the Interest of M.E.S., 263 Ga. App. 132, 587 S.E.2d 282 (2003).

Hearing on motion for summary judgment.

- Where a trial court indicated that it sent a notice of a combined rescheduled hearing on a construction manager's motion for summary judgment and a hearing on the issue of unliquidated damages to a condominium owner, it was presumed that such notice was sent and received in compliance with O.C.G.A. §§ 9-11-5(b) and9-11-6(d), and the owner's mere contention that it did not receive notice of the hearing was not controlling and did not satisfy its burden of showing that notice was in fact not received; accordingly, the owner's claim that it did not appear at the hearing because notice was insufficient lacked merit, due process was met, and the judgment entered from the hearing was affirmed. Blue Stone Lofts, LLC v. D'Amelio, 268 Ga. App. 355, 601 S.E.2d 719 (2004).

Equal Protection

1. In General

No precise definition of equal protection.

- U.S. Const., amend. 14 prohibits a state's denying to any citizen the equal protection of the laws. What satisfies this equality has not been, and probably never can be, precisely defined. Generally it has been said that it only requires the same means and methods to be applied impartially to all the constituents of a class, so that the law shall operate equally and uniformly upon all persons in similar circumstances. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84, 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490, 91 L. Ed. 685 (1947).

Amendment not source of substantive rights.

- The guarantee of equal protection under the Fourteenth Amendment is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity. Rush v. Johnson, 565 F. Supp. 856 (N.D. Ga. 1983).

Equal protection and due process not always interchangeable.

- The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and the two are not always interchangeable phrases. Discrimination may be so unjustifiable as to be violative of due process. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir.), rev'd on other grounds en banc, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

All persons to be treated alike under like circumstances and conditions.

- Constitutional guaranty of "equal protection" requires that all persons be treated alike under like circumstances and conditions. Dorsey v. City of Atlanta, 216 Ga. 778, 119 S.E.2d 553 (1961); G.W. v. State, 233 Ga. 274, 210 S.E.2d 805 (1974).

No one group entitled to extraordinary benefits or burdens.

- Equal protection provisions of state and federal Constitutions are intended to prevent extraordinary benefits or burdens from flowing to any one group. Bickford v. Nolen, 240 Ga. 255, 240 S.E.2d 24 (1977).

General rules applying evenhandedly to all persons within jurisdiction comply with equal protection clause.

- Equal protection clause of the Fourteenth Amendment announces a fundamental principle: the State must govern impartially. General rules that apply evenhandedly to all persons within the jurisdiction unquestionably comply with this principle. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

"Equal protection of the laws" includes the right to be tried and punished in the same manner as others accused of crime are tried and punished, the right to protection from injury from the officers having them in charge, and the right of protection by the officers from injury third persons seek to inflict upon them as prisoners. It must appear beyond a reasonable doubt that the officer's dereliction of duties, whether of omission or commission, sprang from a willful intent to deprive the prisoner of the rights. United States v. Lynch, 94 F. Supp. 1011 (N.D. Ga. 1950), aff'd, 189 F.2d 476 (5th Cir.), cert. denied, 342 U.S. 831, 42 S. Ct. 50, 96 L. Ed. 629 (1951).

No equal justice where kind of trial a person gets depends on amount of money the person has. Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972).

Imposition of harsher sentence upon defendant following appeal and award of new trial not violative of equal protection.

- It is not a denial of equal protection of law guaranteed by U.S. Const., amend. 14 of the United States Constitution to impose a harsher sentence upon a defendant following a successful appeal and award of a new trial. Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412 (1967).

Comparison of state and federal equal protection clauses.

- The protection of the equal protection clause in the 1983 Georgia Constitution and the United States Constitution is coextensive; yet this court may interpret the equal protection clause in the Georgia Constitution to offer greater rights than the federal equal protection clause as interpreted by the U.S. Supreme Court. Grissom v. Gleason, 262 Ga. 374, 418 S.E.2d 27 (1992).

Standards applicable to states also applicable to federal government.

- All standards of equal protection applicable to the states through U.S. Const., amend. 14 are also applicable to the federal government through U.S. Const., amend. 5. Morris v. Richardson, 346 F. Supp. 494 (N.D. Ga. 1972), vacated on other grounds, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973).

Criteria for establishing equal protection violation by state action.

- In order to establish a violation of the equal protection clause based upon the ad hoc action of state officials, a plaintiff must demonstrate that the action was prompted by some racial, or perhaps otherwise class-based, invidiously discriminatory animus. Cook v. Ashmore, 579 F. Supp. 78 (N.D. Ballard v. Blount, 581 F. Supp. 160 (N.D. Ga. 1983), aff'd, 734 F.2d 1480 (11th Cir.), cert. denied, 469 U.S. 1086, 105 S. Ct. 590, 83 L. Ed. 2d 700 (1984); Cook v. Ashmore, 579 F. Supp. 78 (N.D. Ga. 1984).

A plaintiff is not deprived of equal protection of the laws unless a defendant acts in a way that discriminates against a class or otherwise, through unequal treatment, invidiously discriminates against the plaintiff. Terrell v. Shope, 687 F. Supp. 579 (N.D. Ga. 1988), aff'd, 911 F.2d 741 (11th Cir. 1990).

Equal protection clause does not require absolute equality. Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205, 82 L. Ed. 252 (1937), overruled on other grounds, Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966).

Equal protection does not demand exact equality, in any event. Savannah Elec. & Power Co. v. Georgia Pub. Serv. Comm'n, 239 Ga. 156, 236 S.E.2d 87 (1977).

Equal protection applicable to privileges conferred and liabilities imposed.

- The guaranty of equal protection of the laws requires that all persons shall be treated alike under like circumstances and conditions, both in privileges conferred and in liabilities imposed. Chatterton v. Dutton, 223 Ga. 243, 154 S.E.2d 213, cert. denied, 389 U.S. 914, 88 S. Ct. 247, 19 L. Ed. 2d 266 (1967).

No denial of constitutionally guaranteed right where mere privilege involved.

- Where no right, but a mere privilege, is involved, one is not in a position to assert the denial of a right guaranteed by the state or federal Constitutions. Goldberg v. Mulherin, 226 Ga. 785, 177 S.E.2d 667 (1970).

Private conduct abridging individual rights not concern of equal protection clause.

- Private conduct abridging individual rights does no violence to the equal protection clause unless to some significant extent the state in any of its manifestations has been found to have become involved in it. Walker v. State, 220 Ga. 415, 139 S.E.2d 278 (1964), rev'd on other grounds, 381 U.S. 355, 85 S. Ct. 1557, 14 L. Ed. 2d 681 (1965).

While U.S. Const., amend. 14 guarantees equal protection of the laws, it does not create any new rights in itself. Burnham v. Department of Pub. Health, 349 F. Supp. 1335 (N.D. Ga. 1972), rev'd on other grounds, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057, 95 S. Ct. 2680, 45 L. Ed. 2d 709 (1975).

Congressional power to legislate in furtherance of elimination of racial discrimination is derived from U.S. Const., amend. 13, the power over interstate commerce, the power under U.S. Const., amend. 14, and the power under U.S. Const., amend. 15. United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir.), cert. denied, 414 U.S. 826, 94 S. Ct. 131, 38 L. Ed. 2d 59 (1973).

Selective enforcement of statute where discrimination is invidious and purposeful offends equal protection; however, this rule does not ordinarily apply to the enforcement of statutes by administrative agencies. United States v. Lewis, 355 F. Supp. 1132 (S.D. Ga. 1973).

Discriminatory application of law fair and impartial on its face constitutes denial of equal justice.

- Though a law itself is fair on its face and impartial in appearance, if it is applied and administered by public authority with an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. Searcy v. Williams, 656 F.2d 1003 (5th Cir. 1981), aff'd, 455 U.S. 984, 102 S. Ct. 1605, 71 L. Ed. 2d 844 (1982).

Uneven or erroneous application of an otherwise valid law or regulation constitutes denial of equal protection only if it represents intentional or purposeful discrimination. Gilbert v. West Ga. Medical Ctr. Auth., 629 F. Supp. 738 (N.D. Ga. 1985), aff'd, 784 F.2d 402 (11th Cir. 1986).

A single invidiously discriminatory governmental act is not necessarily immunized by the absence of such discrimination in the making of other comparable decisions. Bleakley v. Jekyll Island-State Park Auth., 536 F. Supp. 236 (S.D. Ga. 1982).

When discriminatory intent inferred from foreseeable discriminatory consequences.

- When official actions challenged as discriminatory include acts and decisions that do not have a firm basis in well-accepted and historically sound nondiscriminatory social policy, discriminatory intent may be inferred from fact that those acts had foreseeable discriminatory consequences. Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981).

School did not have duty of protection.

- Summer school student's voluntary school attendance did not create a custodial relationship between the student and the school sufficient to give rise to a constitutional duty of protection. Wright v. Lovin, 32 F.3d 538 (11th Cir. 1994).

Mandatory attendance at school.

- O.C.G.A. § 20-2-690.1 did not violate equal protection because the defendant failed to show any potential variation in application of the statute without a rational basis and the statute was reasonably related to the legitimate governmental interest of ensuring that children residing in Georgia are afforded the opportunity of an education. Pitts v. State, 293 Ga. 511, 748 S.E.2d 426 (2013).

Insufficient evidence to prove disability discrimination.

- Since the defendants were not even aware that the plaintiff's eye had been removed until after the plaintiff had been terminated from employment, there is absolutely no evidence from which a jury could find that the defendants intended to discriminate against the plaintiff on the basis of the plaintiff's disability. Thus, plaintiff's equal protection claim failed. Smith v. Upson County, 859 F. Supp. 1504 (M.D. Ga. 1994), aff'd, 56 F.3d 1392 (11th Cir. 1995).

Availability to all on equal terms of state or municipal employment opportunities.

- Public employment opportunities afforded by state or municipal government must be made available to all on equal terms. Johnson v. City of Albany, 413 F. Supp. 782 (M.D. Ga. 1976).

No established right to be free from retaliation.

- In an action by a county public services officer against police officials alleging that defendants violated the officer's equal protection rights by discriminating against the officer on the basis of sex and by retaliating against the officer for complaints of discrimination, defendants were entitled to qualified immunity from the latter claim because no established right exists under the equal protection clause to be free from retaliation. Ratliff v. DeKalb County, 62 F.3d 338 (11th Cir. 1995).

Immunity granted employers in workers' compensation act does not violate the due process and equal protection provisions of the state and federal constitutions. Georgia Dep't of Human Resources v. Joseph Campbell Co., 261 Ga. 822, 411 S.E.2d 871 (1992).

Georgia "Anti-Mask Act", which proscribes intimidating or threatening mask- wearing behavior, does not violate the constitutional rights of freedom of speech, freedom of association, and equal protection of the law. State v. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990).

Olympic Sign Ordinance.

- The Olympic Sign Ordinance, which creates a five-member committee charged with recommending "Concentrated Sign Districts" within the City of Atlanta and empowers the committee to grant permits to those desiring to erect signs pursuant to that ordinance, which permits only those signs which in some way promote an Olympic-related event, is unconstitutional in that it violates the first and Fourteenth Amendments of the U.S. Constitution. Outdoor Sys. v. City of Atlanta, 885 F. Supp. 1572 (N.D. Ga. 1995).

1994 Sign Ordinance.

- The 1994 Sign Ordinance, a comprehensive regulatory framework for the posting of all signs within the City of Atlanta, does not violate equal protection or free speech. Outdoor Sys. v. City of Atlanta, 885 F. Supp. 1572 (N.D. Ga. 1995).

Ordinance prohibiting pinball machine business not violative of equal protection.

- Ordinance prohibiting the owning, operating and maintaining of pinball machines and the like was not violative of the equal protection clauses of the federal and state Constitutions, on the grounds that it was discriminatory and not impartial, in that other novelty games and games of skill were not included in said ordinance. Woodward v. City of Lithonia, 191 Ga. 234, 11 S.E.2d 476 (1940).

Adult entertainment restricted.

- Even though the fundamental right of free expression is involved, a city may classify and regulate adult entertainment establishments differently from other places of entertainment. Gravely v. Bacon, 263 Ga. 203, 429 S.E.2d 663 (1993).

City ordinance prohibiting nude dancing.

- Municipal ordinance prohibiting nude dancing in licensed drinking establishments made a constitutionally valid distinction, non-violative of the equal protection clause, between mainstream and non-mainstream performances, which was rationally related to the city's legitimate governmental interest in health, safety and welfare. Top Shelf, Inc. v. Mayor & Aldermen, 840 F. Supp. 903 (S.D. Ga. 1993).

Zoning ordinance which changed rear-yard setback for properties zoned for multi-family use after the date the ordinance was passed, but which retained a prior and more restrictive setback requirement for properties zoned prior to that date, was arbitrary and unreasonable and, thus, violated the equal protection clauses of the United States and Georgia Constitutions. Bailey Inv. Co. v. Augusta-Richmond County Bd. of Zoning Appeals, 256 Ga. 186, 345 S.E.2d 596 (1986).

Finality of action required for equal protection challenges.

- Landowner's equal protection claims contesting county officials' resolutions in zoning and land use matters were not ripe for review where landowners failed to show that particular decisions being challenged had been finally applied to the property at issue. James Emory, Inc. v. Twiggs County, 883 F. Supp. 1546 (M.D. Ga. 1995).

Approval of landfill permit.

- Federal district court properly rejected property owners' equal protection claim regarding a landfill permit in an area occupied by 3,367 black residents and 2,149 white residents, where the owners failed to demonstrate any discriminatory intent in approval of the permit. East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264 (11th Cir. 1989).

An allegation of uneven treatment in a cleanup operation on plaintiff's property was insufficient to constitute an equal protection violation since plaintiffs are not members of a suspect class and Congress has given the Environmental Protection Agency discretionary authority over how to conduct a cleanup operation. Amtreco, Inc. v. O.H. Materials, Inc., 802 F. Supp. 440 (M.D. Ga. 1992).

County nuisance immunity.

- The state's decision to protect counties from nuisance claims by virtue of the immunity provision in O.C.G.A. § 36-1-4, while allowing for such claims against municipalities, does not violate the equal protection clause, as the state's protection of counties is rationally related to the legitimate state of purpose of preserving the resources of a division of the state government. Marion v. DeKalb County, 821 F. Supp. 685 (N.D. Ga. 1993).

Nonresident motorist may be sued in any county.

- It is not violation of equal protection clause to allow nonresident motorist to be sued in any county of the state at the election of the plaintiff. Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633, 10 S.E.2d 46 (1940).

Statute denying membership to county board of education to employees of another county.

- Appellant not denied equal protection by statute denying membership to county board of education to employees of another county board of education, but not to employees of the same county board of education, since state's common law rule on conflicts of interest clearly prohibits the latter situation. Culpepper v. Veal, 246 Ga. 563, 272 S.E.2d 253 (1980).

City's policies of using wrist and ankle cuffs on pre-trial detainees brought to a hospital for emergency treatment without prior classification has a rational basis. Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986).

Immunity of parole board members.

- A prison inmate may challenge the denial of pardon or parole on equal protection grounds and, although the individual members of the parole board are entitled to absolute quasi-judicial immunity from a suit for damages, to the extent that the inmate is seeking declaratory and injunctive relief, the shield of absolute immunity is inapplicable. Fuller v. Georgia State Bd. of Pardons & Paroles, 851 F.2d 1307 (11th Cir. 1988).

Pension Act providing for forfeiture during certain later employment not violative of equal protection.

- Pension Act making no differentiation or distinction as to any employee, but providing that if any employee who has been pensioned accepts employment by a governmental agency, or accepts other employment and receives as compensation an amount equivalent to, or greater than the pensioner's former salary, said pensioner shall forfeit the pension during the time of said employment does not violate the equal protection clauses of the state and federal Constitutions. Franklin v. Mayor of Savannah, 199 Ga. 426, 34 S.E.2d 506 (1945).

Public Service Commission order permitting rate increase to be effected on different dates for different customers does not violate equal protection guarantees of the state and federal Constitutions because to apply a new rate at a particular point in time would require the utility to read all its meters at that particular point of time which would be unreasonable, if not impossible, to do, and even if done over a short period of time, would result in some customers' being billed for power used at a lesser rate than others. Moore v. Georgia Pub. Serv. Comm'n, 242 Ga. 182, 249 S.E.2d 549 (1978).

Subsidization of bus passengers not unfairly or illegally discriminatory against county resident, infrequent users, or nonusers.

- The subsidization of bus passengers does not unfairly and illegally discriminate against residents of the county who do not regularly, or do not at any time, use the system and who will subsidize the transportation expenses of the remaining residents and nonresidents of the county who use the system through their payment of the sales and use tax. Camp v. Metropolitan Atlanta Rapid Transit Auth., 229 Ga. 35, 189 S.E.2d 56 (1972).

Governing authority's refusal to issue alcoholic beverage license when applicant meets standards denies equal protection.

- If the governing authority of the city or county decides to permit the sale of malt beverages or beer, it shall adopt an ordinance setting forth the prescribed standards for the issuance of a license. When an applicant for a license meets these standards, a refusal by the governing authority to issue the license constitutes a denial of equal protection, entitling the applicant to a writ of mandamus. Grandpa's Store, Inc. v. City of Norcross, 247 Ga. 350, 275 S.E.2d 59 (1981).

Where denial of application for operator of taxicabs violated equal protection.

- Petitioner alleged compliance with all the requirements of city ordinance for the operation of taxicabs and denial of application for permit to operate taxicabs though no objection was made that applicant had not complied with the requirements of the ordinance. Petitioner further alleged that such denial was without legal justification or excuse, was arbitrary, illegal and capricious and an abuse of discretion, depriving the petitioner of the equal protection of the law, and that because of the denial of the permit the petitioner is deprived of the right to pursue the petitioner's chosen livelihood and suffers pecuniary loss for which the petitioner cannot be compensated in damages. This states a cause of action for mandamus to compel city officials to issue permit. McWhorter v. Settle, 202 Ga. 334, 43 S.E.2d 247 (1947).

Rape statute (see O.C.G.A. § 16-6-1) is not violative of equal protection clause of U.S. Const., amend. 14 to the United States Constitution. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Predicate offense allowing for easier conviction does not violate equal protection.

- Trial court did not err in denying defendant's motion in arrest of judgment, as the indictment filed against defendant arising out of the offense of first-degree homicide by vehicle, which contained a predicate offense making it easier to convict defendant because defendant was under 21-years-old and had a blood alcohol concentration of .02 or more at the time of the accident that killed defendant's passenger, did not violate defendant's equal protection rights under the state and federal constitutions because the predicate offense did not operate to disadvantage a suspect class or interfere with a fundamental right; rather, it was rationally related to the state's legitimate purpose in deterring younger, more inexperienced drivers from drinking and driving. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003).

Charitable immunity doctrine not unconstitutional.

- The charitable immunity doctrine does not constitute a violation of the equal protection or due process clauses of the federal or state constitutions. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 353 S.E.2d 515, cert. denied, 484 U.S. 863, 108 S. Ct. 181, 98 L. Ed. 2d 134 (1987), aff'd, 384 S.E.2d 205 (1989).

Objective qualification for officeholder not violative of equal protection.

- Former Code 1933, § 24-2111a (see O.C.G.A. § 15-7-21) regarding the legislatively created office of judge and solicitor of state courts of counties states objective qualification that one must have been engaged in the active practice of law for three years before taking office. This does not deny equal protection of law; it simply limits eligibility to hold office to a class of persons with a quantum of experience similar to that required under the state Constitution for the similar position of a district attorney. Nathan v. Smith, 230 Ga. 612, 198 S.E.2d 509 (1973).

Imprisonment of indigent for failure to pay fine is unconstitutional, where state legislatively adopted "fines only" policy; the equal protection clause of U.S. Const., amend. 14 forbids conversion of an indigent's sentence of a fine into a prison term. Hutchinson v. Jones, 477 F. Supp. 51 (N.D. Ga. 1979).

Certain class of convicted defendants cannot be imprisoned beyond statutory maximum because indigent.

- Though a state has considerable latitude in fixing the punishment for state crimes and may impose alternative sanctions, it may not under the equal protection clause subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency. Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972).

Person who has means to pay fine but refuses or neglects to do so may be jailed, but "it is a denial to equal protection to limit punishment to payment of a fine for those who are able to pay it but to convert the fine to imprisonment for those who are unable to pay it." Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972).

Defendant may not be kept in prison longer than statutory maximum simply for failing to pay fine and court costs immediately because this violates the equal protection clause by visiting different consequences on two categories of persons. Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972).

Providing transcript of prior proceedings to indigent defendant.

- Indigent defendant must be provided with transcript of prior proceedings when needed for effective defense or appeal, as a matter of equal protection. Walker v. State, 156 Ga. App. 478, 274 S.E.2d 680 (1980).

Invidious discrimination based on wealth or indigency.

- Prohibition of equal protection clause extends to instances of invidious discrimination based upon wealth or indigency. Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972).

Discrimination between rich and poor where merits of indigent's appeal of right decided without counsel.

- Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel in a state criminal case, there has been a discrimination between the rich and the poor which violates U.S. Const., amend. 14. Chenoweth v. Smith, 225 Ga. 572, 170 S.E.2d 235 (1969).

Providing "adequate substitute" for deprivation based on wealth.

- In every case involving discrimination based on wealth, had state provided some "adequate substitute" for the resulting deprivation, there would have been no denial of equal protection. Crim v. McWhorter, 242 Ga. 863, 252 S.E.2d 421 (1979).

Classification by General Assembly of procedural rules based upon amount in controversy does not deny poor persons equal protection of the laws under the Georgia and federal Constitutions. Sellers v. Home Furnishing Co., 235 Ga. 831, 222 S.E.2d 34 (1976).

Vindictive damages provision not violative of equal protection.

- Code 1933, § 105-2003 (see O.C.G.A. § 51-12-6) authorizing the jury to consider the "worldly circumstances of the parties" in tort actions where "the entire injury is to the peace, happiness, or feelings of the plaintiff," does not violate the equal protection clause of U.S. Const., amend. 14. Wilson v. McLendon, 225 Ga. 119, 166 S.E.2d 345 (1969).

Interspousal and intra-family doctrine of immunity not violative of equal protection or due process.

- The interspousal and intra-family doctrine of immunity, which bars tort actions between family members is substantially related to the legitimate state interest of promoting the preservation of the "family unit" for the good of the society in general, does not violate due process and equal protection of the Constitution. Jones v. Swett, 244 Ga. 715, 261 S.E.2d 610 (1979).

County board must implement state findings as to handicapped child's education.

- A county board of education violates federal law by refusing to act on the findings of a state hearing officer that a handicapped child cannot receive an appropriate education in public school. Christopher N. v. McDaniel, 569 F. Supp. 291 (N.D. Ga. 1983).

Former Code 1933,

§ 74-9902 (see O.C.G.A. § 19-10-1) does not violate equal protection principles. - Former Code 1933, § 74-9902 (see O.C.G.A. § 19-10-1) does not violate the constitutional requirement that the state's administration of its laws must be impartial and evenhanded. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Enforcement of contractual uninsured motorist provision.

- Upholding an uninsured motorist policy exclusion does not deny equal protection under the federal constitution to those injured by self-insureds, where there was not a situation of uneven or unequal application of the Texas statutory scheme of uninsured/underinsured motorist coverage, but rather the enforcement of a contractual provision not shown to be offensive to Texas law. Nationwide Gen. Ins. Co. v. Parnham, 182 Ga. App. 823, 357 S.E.2d 139 (1987).

Manner of enforcement of sodomy law.

- Where the defendant contended that the defendant had been denied equal protection of the law because officials actually enforce the sodomy law only against offending homosexuals and not against others who violate the sodomy law, the defendant had not proved the contention, as the manner of enforcement of the sodomy law was not established in the record. Gordon v. State, 257 Ga. 439, 360 S.E.2d 253 (1987).

Punitive damage awards.

- O.C.G.A. § 51-12-5.1(e)(2), requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not violate the equal protection clauses of the United States and Georgia Constitutions. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993); State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994).

Year's support law (see O.C.G.A. § 53-5-1 et seq.) is not unconstitutional, since a 1979 amendment to that chapter removed gender classification for year's support eligibility, and since the year's support statute when first adopted was not violative of the Constitution under court interpretations of that period. Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982).

An award entered after the corrective 1979 amendment to O.C.G.A. § 53-5-1, but from an estate of a decedent who died before the amendment, is valid; because the right was constitutionally vested under the original statute and there is no constitutional bar to the right being pursued under the amended statute. Lawrence v. Lawrence, 254 Ga. 692, 333 S.E.2d 610 (1985).

Proceeding to legitimate child.

Nonresident aliens.

- The equal protection clause did not extend to nonresident aliens; therefor, the State Board of Workers' Compensation correctly awarded death benefits under former O.C.G.A. § 34-9-265(b)(5), which limited compensation for dependents of nonresident aliens to $1,000, even though resident survivors would have been treated more favorably. Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 429 S.E.2d 671 (1993).

Guardianship.

- Former O.C.G.A. § 29-6-11(c), prohibiting a guardian appointed to allow a ward to receive Department of Veterans Affairs benefits from receiving a bequest under the ward's will, did not violate the equal protection clause of U.S. Const., amend. 14 because it was rationally related to the legitimate state interest in regulating guardianships created to allow a ward to receive those benefits. Cross v. Stokes, 275 Ga. 872, 572 S.E.2d 538 (2002).

Survivors benefits under federal law.

- As applied to this case, the incorporation by the federal Social Security Act, 42 U.S.C. § 402(d), of the Georgia intestacy scheme to require a child seeking survivors benefits to establish paternity within two and one-half years violated equal protection. Daniels ex rel. Daniels v. Sullivan, 979 F.2d 1516 (11th Cir. 1992).

Wrongful death statute does not violate equal protection clause of U.S. Const., amend. 14 to the Constitution of the United States, because in no action ex delicto in this state, save when predicated on this statute can a plaintiff recover in a case based on simple negligence more than actual compensation. In the exercise of the state's broad police power the Legislature can create a measure of damages for homicides resulting from ordinary negligence, as well as for homicide resulting from wanton, willful, or criminal negligence. Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932).

Property valuation by method other than standard method.

- The uniformity clause of the state constitution and the equal protection clauses of the state and federal Constitutions were not offended by a county's valuation of a motel by a method other than the standard method for motels, where the motel property was not actually being operated as a motel and there was no income stream from which to calculate room revenue for use with the standard gross income multiplier method. Coastal Equities, Inc. v. Chatham County Bd. of Tax Assessors, 201 Ga. App. 571, 411 S.E.2d 540, cert. denied, 201 Ga. App. 903, 411 S.E.2d 540 (1991).

Denial of liquor license on arbitrary grounds constitutes violation of equal protection for which a writ of mandamus will lie. Hernandez v. Board of Comm'rs, 242 Ga. 76, 247 S.E.2d 870 (1978).

Arbitrary refusal to grant license or permit to group when others obtain permits under similar circumstances constitutes denial of equal protection of the law. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964); Rogers v. Mayor of Atlanta, 110 Ga. App. 114, 137 S.E.2d 668 (1964).

Traffic consideration was rational basis for denying conditional use permit.

- A city's rationale for granting a conditional use permit to a school, but not allowing it to build a 1500-seat football stadium, did not violate the school's equal protection rights, as evidence that the school's proposed stadium would exacerbate an already existing traffic problem in the area was a rational basis for the denial of that part of the permit; moreover, even if the school had shown it was similarly situated with other property owners whose applications were granted, it failed to show that the city's decision was not rationally related to a legitimate government interest. City of Roswell v. Fellowship Christian Sch., Inc., 281 Ga. 767, 642 S.E.2d 824 (2007).

City ordinance prohibiting the sale of alcohol.

- City ordinance prohibiting the sale of alcohol at an erotic dance establishment was constitutional. The adult entertainment establishment ordinance was narrowly drawn to promote the city's interest in combating the secondary effects of adult entertainment establishments. Gravely v. Bacon, 263 Ga. 203, 429 S.E.2d 663 (1993).

Equal protection denied when liquor license applicant is refused license though meeting prescribed standards.

- When an applicant for an alcoholic beverage license has met the prescribed standards for obtaining such a license, a refusal by the municipal authorities to issue the license constitutes a denial of equal protection, entitling the applicant to a writ of mandamus in state court. City of Atlanta v. Hill, 238 Ga. 413, 233 S.E.2d 193 (1977); Hernandez v. Board of Comm'rs, 242 Ga. 76, 247 S.E.2d 870 (1978).

Fact that County A authorizes sale of liquor while County B does not, does not mean that County B has been denied equal protection of the laws. Sims v. Town of Baldwin, 249 Ga. 293, 290 S.E.2d 433, appeal dismissed, 459 U.S. 802, 103 S. Ct. 25, 74 L. Ed. 2d 40 (1982).

Fact that liquor is not sold in unincorporated areas of county does not, without more, illustrate a violation of equal protection where all liquor sold in county will be uniformly taxed under local amendment. Sims v. Town of Baldwin, 249 Ga. 293, 290 S.E.2d 433, appeal dismissed, 459 U.S. 802, 103 S. Ct. 25, 74 L. Ed. 2d 40 (1982).

Granting of beer and wine license applications based on public opposition.

Former Code 1933, § 79A-811.2 (see O.C.G.A. § 16-13-32.1) is not a bill of attainder and does not deny "head shops" equal protection of the law. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

Prisoner and similarly situated, classified inmates with no opportunity for conjugal visits not denied equal protection.

- A prisoner is not denied the equal protection of the law where the prisoner and other similarly situated and classified inmates have been afforded no opportunity for conjugal visits. Polakoff v. Henderson, 370 F. Supp. 690 (N.D. Ga. 1973), aff'd, 488 F.2d 977 (5th Cir. 1974).

Probationary guideline departure.

- Because plaintiff did not make a statistical showing sufficient to provide the "exceptionally clear proof" of either racial or gender discrimination that is required to raise an inference of discrimination, summary judgment for defendant state parole board was appropriate in an equal protection claim contesting a guideline departure. Greene v. Georgia Pardons & Parole Bd., 807 F. Supp. 748 (N.D. Ga. 1992).

Prison regulations restricting media access to the prison to responsible persons employed by and responsible to recognized media organizations did not violate the equal protection rights of newsmen not employed by a media organization, since the regulation was rationally related to the need to maintain order and security in the prison. Jersawitz v. Hanberry, 783 F.2d 1532 (11th Cir.), cert. denied, 479 U.S. 883, 107 S. Ct. 272, 93 L. Ed. 2d 249 (1986).

Consumer with standing to challenge rate schedule discriminating against consumer in violation of equal protection.

- A consumer has standing to challenge a rate schedule on the ground that the schedule discriminates against the consumer or a class of consumers in violation of the equal protection guarantees of the state and federal Constitutions. Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975).

Present customers and future customers of a utility do not form discrete classes for purposes of equal protection analysis because customers are a constantly fluctuating group. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).

State not prevented from prescribing reasonable, appropriate condition precedent to bring specified kind of suit.

- U.S. Const., amend. 14 does not prevent a state from prescribing a reasonable and appropriate condition precedent to the bringing of a suit of a specified kind or class so long as the basis of distinction is real and the condition imposed has reasonable relation to a legitimate object. State v. Sanks, 225 Ga. 88, 166 S.E.2d 19 (1969), appeal dismissed, 401 U.S. 144, 91 S. Ct. 593, 27 L. Ed. 741 (1971).

Burden on party complaining of discrimination to show injury.

- Discrimination in the grant of favors is not a denial of the equal protection of the law. In order to attack the constitutionality of a statute under the equal protection clause of U.S. Const., amend. 14 of the Constitution, on the ground of discrimination, the complaining party must show injury by the alleged discrimination. Mulling v. Houlihan, 205 Ga. 735, 55 S.E.2d 150 (1949), cert. denied, 338 U.S. 948, 70 S. Ct. 86, 94 L. Ed. 585 (1950).

Requiring graduates of unapproved law schools to pass bar examination within five years in order to be admitted to the state bar, while imposing no similar time limitations on graduates of approved law schools, does not violate the equal protection clause, since the distinction is rationally related to the legitimate goal of ensuring a competent bar. Cline v. Supreme Court, 781 F.2d 1541 (11th Cir. 1986).

Specialty training for physicians.

City ordinance requiring dress code.

- City ordinance imposing dress code on taxicab drivers was rationally related to a legitimate government interest: the need to promote a safe image to visitors from out-of-town. Bah v. City of Atlanta, 103 F.3d 964 (11th Cir. 1997).

State's prohibition against medicaid reimbursement for experimental surgery, including transsexual surgery, is rationally related to its legitimate governmental interest in protecting the public health. Rush v. Johnson, 565 F. Supp. 856 (N.D. Ga. 1983).

Lack of an opportunity for a defendant to appear before a grand jury does not violate equal protection, even though statutes give certain public officials such right, since there is a rational basis for the distinction. Lewis v. State, 255 Ga. 101, 335 S.E.2d 560 (1985).

Federal court cannot review Georgia appellate judgment.

- A federal district court is without jurisdiction under 42 U.S.C. § 1983 to review a final judgment of the Georgia Court of Appeals on the ground that it denied the plaintiff equal protection under the law as guaranteed by the Fourteenth Amendment. National Carloading Corp. v. Shulman, 570 F. Supp. 3 (N.D. Ga. 1983).

Wrongful denial of parole.

- Prison inmate's in forma pauperis complaint that the inmate was denied parole because the inmate pursued litigation against prison officers on account of the inmate's sibling's allegedly wrongful death stated an equal protection claim, whether the inmate was the named plaintiff in the litigation or merely enabled others to pursue litigation by the inmate's acts. Clark v. Georgia Pardons & Paroles Bd., 915 F.2d 636 (11th Cir. 1990).

No disparate treatment in employment situation.

- Local police union local president's equal protection claim against the president's county employer, alleging that the employer treated the president differently than other officers by declining to question the president as part of the county's internal disciplinary investigation into the president's alleged comments that the police chief should be replaced failed because the president did not provide valid comparators as proof of disparate treatment. Local 491 v. Gwinnett County, 510 F. Supp. 2d 1271 (N.D. Ga. 2007).

Suspended professor failed to show that he was similarly situated to other professors.

- State university biology professor failed to show an equal protection violation by the university in its suspension of the professor for poor teaching, scholarship, and research, because the professor failed to show that any other professor was deficient in all three areas, although some had poorer evaluations than the professor in one of the three areas. Edmonds v. Bd. of Regents, 302 Ga. App. 1, 689 S.E.2d 352 (2009), cert. denied, No. S10C0824, 2010 Ga. LEXIS 437 (Ga. 2010); overruled on other grounds by Wolfe v. Regents of the Univ. Sys. of Ga., 300 Ga. 223, 794 S.E.2d 85 (Ga. 2016).

Age classification in criminal statute of limitation tolling provision.

- Supreme Court of Georgia holds that the age classification chosen in the tolling statute of O.C.G.A. § 17-3-2.2 does not violate the Equal Protection clauses of Ga. Const. 1983, Art. I, Sec. I, Para. II, and U.S. Const., amend. XIV. Harper v. State, 292 Ga. 557, 738 S.E.2d 584 (2013).

2. Statutory Classifications

State's right and power to classify subjects of legislation.

- It is not the purpose of U.S. Const., amend. 14, in the equal protection clause, to take from the states the right and power to classify the subjects of legislation. McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965).

Legislation challenged under equal protection clause is subjected to standard of rationality. The state's goal need only be reasonable, and the statute need not be a perfect method to achieve the goal. If the court cannot conceive of a rational viewpoint that justifies the statute, it will stand. When legislation affects certain fundamental liberties and rights, however, it is subjected to a stricter constitutional test: only a compelling state interest will suffice. Williamson v. Fortson, 376 F. Supp. 1300 (N.D. Ga. 1974).

Tests for examining state policy or statute.

- Any state policy, rule or statute creating a classification which is attacked as violating the equal protection clause must be examined against either of two constitutional tests: (1) that the classification is rationally related to a legitimate state end; or (2) that the classification is justified by a compelling state interest. Houston v. Prosser, 361 F. Supp. 295 (N.D. Ga. 1973).

Standing to seek to set aside state statute as unconstitutional.

- Where a class including the complaining party is not prejudiced by the alleged discrimination, that person will not be heard to attack the constitutionality of a statute under the "equal protection" clause of U.S. Const., amend. 14 on the ground that it discriminates and denies equal protection between other classes. Cooper Co. v. State, 187 Ga. 497, 1 S.E.2d 436 (1939).

One who seeks to set aside a state statute as repugnant to the federal Constitution must show that one is within the class with respect to whom the act is unconstitutional, and that the alleged unconstitutional feature injures that person. Bryant v. Prior Tire Co., 230 Ga. 137, 196 S.E.2d 14 (1973).

Standing to challenge administration of municipal programs.

- City employees did not have standing to make equal protection challenges against the administration of retirement incentive programs where they retired prior to adoption of the programs or at a time when the administration of a particular program did not affect their rights. Smith v. City of LaGrange, 218 Ga. App. 394, 461 S.E.2d 550 (1995).

Legislative classification allowed only classification with direct, real relation to legislative object or purpose.

- The equal protection clause allows classification by legislation when and only when the basis of such classification bears a direct and real relation to the object or purpose of the legislation. Citizens & S. Nat'l Bank v. Mann, 234 Ga. 884, 218 S.E.2d 593 (1975).

Rational relationship test.

- Although classification legislation, per se, does not violate U.S. Const., amend. 14, the line that is drawn must be rational. Furthermore, the distinctions that result from the classification legislation must bear some relevance to the purpose for which the legislation was enacted. Jinks v. Mays, 332 F. Supp. 254 (N.D. Ga. 1971), aff'd in part and remanded in part, 464 F.2d 1223 (5th Cir. 1972).

Where there is no suggestion that right asserted is fundamental or that suspect classification exists in the case, the standard of review is that the classification not be arbitrary or unreasonable, and that a fair and substantial relationship exist between the classification and the purpose of the law. Bickford v. Nolen, 240 Ga. 255, 240 S.E.2d 24 (1977).

Where no fundamental right is infringed upon or no suspect class is present, the appropriate constitutional test is rational relationship. Under this test, the classification must be examined to determine whether it is rationally related to a legitimate state purpose. Street v. Cobb County Sch. Dist., 520 F. Supp. 1170 (N.D. Ga. 1981).

Only when attempted classification is arbitrary and unreasonable can statute be declared beyond legislative authority. McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965).

Importance of service performed by state does not determine whether it must be regarded as fundamental for equal protection purposes. Chatham v. Jackson, 613 F.2d 73 (5th Cir. 1980).

Classification where distinction based on valid state interests upheld.

- The constitutional guaranty of equal protection requires that all persons shall be treated alike under like circumstances and conditions; however, it does not prevent a reasonable classification relating to the purpose of the legislation. Reed v. Hopper, 235 Ga. 298, 219 S.E.2d 409 (1975).

The equal protection clause of U.S. Const., amend. 14 requires that all persons be treated alike under similar circumstances and conditions. It does not, however, prevent classification if the distinction is based on valid state interests. Quilloin v. Walcott, 238 Ga. 230, 232 S.E.2d 246 (1977), aff'd, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978).

Filing a legal malpractice claim.

- Trial court did not treat similarly situated individuals differently, based on its application of O.C.G.A. § 9-11-9.1(b) (now (e)), because whether it was a plaintiff filing a legal malpractice claim or, as here, a defendant filing a counterclaim more than ten days before the expiration of the statute of limitations, the party would have been required to file an expert's affidavit contemporaneously with the claim and would not be entitled to the 45-day extension period of O.C.G.A. § 9-11-9.1(b) (now (e)); accordingly, there was no equal protection violation under U.S. Const., amend. 14 in the dismissal of defendant's counterclaim for failure to file the affidavit in a timely manner. Landau v. Davis Law Group, P.C., 269 Ga. App. 904, 605 S.E.2d 461 (2004).

Contract bidding process.

- Bidding insurer's summary judgment motion was properly granted as to its equal protection claim against a county as the county did not exercise arbitrary power but acted rationally and reasonably in rejecting all bids across the board after it was discovered that a consultant lacked a counselor's license under O.C.G.A. §§ 33-23-1.1 and33-23-4; because of the taint to the process, all bids were rejected, no classification was created at all, and all similarly situated persons were treated alike. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).

Application of "compelling state interest" test where impingement of fundamental interest or suspect class.

- In determining if a state policy, rule or statute is in violation of this section the "compelling state interest test" is applied where there has been an impingement of a fundamental interest by the rule, policy or statute, or where the state statute, rule or policy creates a classification which is based upon criteria that are inherently "suspect" in a constitutional sense. Houston v. Prosser, 361 F. Supp. 295 (N.D. Ga. 1973).

Focus is reasonableness of means used to accomplish objective not whether superior means available.

- The focus of the rational relationship test is not whether the state has superior means available to accomplish its objectives, but whether the means it has chosen is a reasonable one. Davidson v. Georgia, 622 F.2d 895 (5th Cir. 1980).

Where legislative purpose legitimate and classification with reasonable relation to furthering that purpose, classification is valid.

- Classification must be reasonable resting upon some difference having fair and substantial relation to object of legislation, so that all persons similarly circumstanced shall be treated alike. Hartford Steam Boiler Inspection & Ins. Co. v. Harrison, 301 U.S. 459, 57 S. Ct. 838, 81 L. Ed. 1223 (1937).

In order to be valid statutory classification must reasonably promote some proper object of public welfare or interest, must rest on real and substantial differences, having a natural, reasonable, and substantial relation to the subject of the legislation, and must affect alike all persons or things within a particular class, or similarly situated. Geele v. State, 202 Ga. 381, 43 S.E.2d 254 (1947).

Where there is reasonable relation to object within governmental authority, exercise of legislative or municipal discretion is not subject to judicial review. McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965).

Distinguishing classification must be based on reasonable ground and on difference bearing just and proper relation to attempted classification. Campbell v. J.D. Jewell, Inc., 221 Ga. 543, 145 S.E.2d 569 (1965).

In order to withstand equal protection scrutiny statutory scheme must bear reasonable relation to legitimate state purpose. Because the state has broad powers to regulate businesses and professions within its boundaries, especially when the profession deals directly with the health and welfare of the people of the state, the state can exclude from the practice of medicine those whom it finds not to be qualified and can set the standards for qualifications. Oliver v. Morton, 361 F. Supp. 1262 (N.D. Ga. 1973).

In order to withstand equal protection scrutiny statutory scheme must bear reasonable relation to legitimate state purpose. Oliver v. Morton, 361 F. Supp. 1262 (N.D. Ga. 1973).

Under "traditional" analysis, legislative classification must be sustained, if classification is rationally related to legitimate governmental interest. Davis v. Weir, 497 F.2d 139 (5th Cir. 1974).

The validity of the state's classifications does not depend upon their absolute correctness or upon the absence of any under- or over-inclusiveness in the categories drawn, and the court need not necessarily agree with the soundness of the distinction maintained by the statutory scheme. If the legislative purpose is legitimate and the classification drawn has some reasonable relation to furthering that purpose, the classification passes muster. Wilder v. State, 232 Ga. 404, 207 S.E.2d 38 (1974).

Burden on party assailing classification to show it to have no reasonable, but essentially arbitrary basis.

- A classification having some reasonable basis does not offend equal protection merely because it is not made with mathematical nicety, or because in practice it results in some inequality. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of fact at the time the law was enacted must be assumed. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Gibbs v. Milk Control Bd., 185 Ga. 844, 196 S.E. 791 (1938); Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 251 S.E.2d 250 (1978).

Clearly foreseeable impact, unexplained by any permissible rationale, as violation of fourteenth amendment.

- Foreseeability alone is insufficient to make out a violation of the Fourteenth Amendment. However, a clearly foreseeable impact which is unexplained by any permissible rationale could support such a finding. Fact of a constitutional violation would then rest - not on fact of foreseeability - but on finding of actual discriminatory purpose reached because circumstances admit no other explanation. Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981).

Concept of equal protection viewed as requiring uniform treatment of persons in same relation to governmental action questioned or challenged. It does not permit legislation that accords different treatment to persons classified on the basis of criteria wholly unrelated to the objective of the statute. Winningham v. United States Dep't of HUD, 371 F. Supp. 1140 (S.D. Ga. 1974), aff'd, 512 F.2d 617 (5th Cir. 1975).

Different persons, different circumstances.

- Constitution is offended where public law is applied differently to different persons under same or similar circumstances. Mayor of Savannah v. Savannah Distrib. Co., 202 Ga. 559, 43 S.E.2d 704 (1947).

Special or class legislation.

- If law operates alike on all members of class, including all persons and property similarly situated, it is not subject to objection that it is special or class legislation. Blackmon v. Monroe, 233 Ga. 656, 212 S.E.2d 827 (1975).

Equal protection clause does not require state to treat different groups in same manner. Only unreasonable discriminations are forbidden. Wall v. American Optometric Ass'n, 379 F. Supp. 175 (N.D. Ga.), aff'd, 419 U.S. 88, 95 S. Ct. 166, 42 L. Ed. 2d 134 (1974).

Equal protection denied where laws applied differently to different persons under same or similar circumstances.

- It is only in cases where laws are applied differently to different persons under the same or similar circumstances that the equal protection of the law is denied. Franklin v. Mayor of Savannah, 199 Ga. 426, 34 S.E.2d 506 (1945); Ford v. State, 202 Ga. 599, 44 S.E.2d 263 (1947); Bennett v. State, 153 Ga. App. 21, 264 S.E.2d 516 (1980).

States denied power to legislate different treatment according to statutory classification based on criteria unrelated to statutory objective.

- The equal protection clause in U.S. Const., amend. 14 of the federal constitution does not deny a state the power to treat different classes of people in different ways, but it does deny to states the power to legislate that different treatment be accorded to persons placed by statute into different classes on the basis of criteria wholly unrelated to the objective of the statute. Davis v. Weir, 497 F.2d 139 (5th Cir. 1974); Bickford v. Nolen, 240 Ga. 255, 240 S.E.2d 24 (1977); Corey v. Jones, 484 F. Supp. 616 (S.D. Ga. 1980), aff'd in part and rev'd in part on other grounds, 650 F.2d 803 (5th Cir. 1981).

Equal protection clause provides basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).

Function of equal protection clause is to measure validity of classifications created by state laws. Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979).

Equal protection clause requires uniformity upon all those coming within class. Citizens & S. Nat'l Bank v. Mann, 234 Ga. 884, 218 S.E.2d 593 (1975).

Uniformity within classes.

- Where proper basis for classification exists law may classify, and uniformity within classes satisfies the Constitution. Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 752, 164 S.E.2d 803 (1968).

Equal protection requirements as to classifications.

- The equal protection clause of U.S. Const., amend. 14 of the United States Constitution does not absolutely deny a state the power to classify groups of persons differently. Equal protection does require that such a classification be rationally related to the object of the legislation so that all persons similarly situated will be treated alike. This "rational relationship" test gives way to the more stringent test of strict judicial scrutiny only where a "fundamental right" or "suspect classification" is involved. Crim v. McWhorter, 242 Ga. 863, 252 S.E.2d 421 (1979).

An equal protection clause claim need not involve a policy toward an entire class of persons. Bleakley v. Jekyll Island-State Park Auth., 536 F. Supp. 236 (S.D. Ga. 1982).

The Fourteenth Amendment does not deny to states the power to treat different classes of persons in different ways. An equal protection analysis, therefore, requires as a "preliminary step" a determination of whether persons who are similarly situated are subject to disparate treatment. Stuart-James Co. v. Tanner, 259 Ga. 289, 380 S.E.2d 257 (1989).

Initial step in equal protection analysis is to determine nature of interest affected or classification involved. Street v. Cobb County Sch. Dist., 520 F. Supp. 1170 (N.D. Ga. 1981).

Classification not to be held arbitrary because practical and attacking only objects fostering evil on large scale.

- A classification is not to be pronounced arbitrary because it goes on practical grounds and attacks only those objects that exhibit or foster an evil on a large scale. It is not required to be mathematically precise and to embrace every case that theoretically is capable of doing the same harm. Wilder v. State, 232 Ga. 404, 207 S.E.2d 38 (1974).

Equal protection does not require that all evils of same genus be eradicated or none at all. Wilder v. State, 232 Ga. 404, 207 S.E.2d 38 (1974).

Abstract approaches to equal protection cases.

- The Supreme Court of the United States has taken two abstract approaches to equal protection cases. Under the "traditional" test, a classification is valid under the equal protection clause if it has a reasonable basis. If, however, the classification affects a "fundamental right," the state must have a "compelling" interest in perpetuating the classification. Davis v. Weir, 359 F. Supp. 1023 (N.D. Ga. 1973), aff'd in part and modified in part on other grounds, 497 F.2d 139 (5th Cir. 1974).

Legislative discrimination not invalid if not so arbitrary as to be unreasonable.

- If the legislature has the power to enact discriminatory legislation, the discrimination is not invalid under the equal protection provision of U.S. Const., amend. 14 if not so arbitrary as to be unreasonable and beyond the wide discretion that a legislature may exercise. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1, 187 S.E. 648 (1936), rev'd on other grounds, 301 U.S. 459, 57 S. Ct. 838, 81 L. Ed. 1223 (1937).

Statutory discrimination not set aside if any facts reasonably conceived to justify it.

- U.S. Const., amend. 14 permits the states a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. Spahos v. Mayor of Savannah Beach, 207 F. Supp. 688 (S.D. Ga.), aff'd, 371 U.S. 206, 83 S. Ct. 304, 9 L. Ed. 2d 269 (1962); Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964); Owens v. Parham, 350 F. Supp. 598 (N.D. Ga. 1972).

Discrimination not invalid if not so arbitrary to be beyond legislative discretion.

- Discrimination is not invalid under the equal protection provision of U.S. Const., amend. 14 if not so arbitrary as to be beyond the wide discretion that a legislature may exercise. Harrison v. Hartford Steam Boiler Inspection & Ins. Co., 183 Ga. 1, 187 S.E. 648 (1936), rev'd on other grounds, 301 U.S. 459, 57 S. Ct. 838, 81 L. Ed. 1223 (1937).

If state of facts may reasonably be conceived that would sustain classification, it is not violative of equal protection clause of U.S. Const., amend. 14 even though discriminatory. Wilder v. State, 232 Ga. 404, 207 S.E.2d 38 (1974); Citizens & S Nat'l Bank v. Mann, 234 Ga. 884, 218 S.E.2d 593 (1975).

Discriminatory purpose implies more than acting in spite of adverse effects upon identifiable group.

- Discriminatory purpose implies that decision maker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981).

Three factors in determining whether state action is impermissibly discriminatory.

- In determining whether state action is impermissibly discriminatory in violation of the equal protection clause, the court looks to three factors: character of classification in question; individual interests affected by classification; and governmental interests asserted in support of the classification. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Only invidious discrimination is prohibited.

- There must be showing of invidious, purposeful discrimination to give rise to relief under equal protection clause. Bond v. Floyd, 251 F. Supp. 333 (N.D. Ga.), rev'd on other grounds, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966).

Not all classifications of citizens, however, are proscribed by the Fourteenth Amendment: only invidious discrimination is prohibited. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

The prohibition of the equal protection clause goes no further than the invidious discrimination. Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987).

Test of whether different treatment is invidious discrimination.

- The equal protection clause does not mean that a state may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference in treatment is an invidious discrimination. Blackmon v. Monroe, 233 Ga. 656, 212 S.E.2d 827 (1975); Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S. Ct. 574, 66 L. Ed. 2d 474 (1980).

Classification with reasonable basis not required to be mathematically or practically perfect.

- A classification having some reasonable basis does not offend against the equal protection clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965); Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D Ga. 1973); Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 251 S.E.2d 250 (1978).

State-created classification in practice resulting in some inequality.

- State-created classification must have reasonable basis and does not fail because it in practice results in some inequality. If any state of facts reasonably can be conceived that will sustain it, the existence of that state of facts must be assumed. Those who assail the classification must carry the burden of proving that it does not rest upon any reasonable basis, but is essentially arbitrary. Spahos v. Mayor of Savannah Beach, 207 F. Supp. 688 (S.D. Ga.), aff'd, 371 U.S. 206, 83 S. Ct. 304, 9 L. Ed. 2d 269 (1962).

States with great discretion in making classifications unless based on closely scrutinized criterion or affecting fundamental right.

- The Constitution permits states a wide scope of discretion in making classifications, unless the classification is based on some more closely scrutinized criterion, such as race or sex, or unless the classification affects a fundamental right or interest. Chatham v. Jackson, 613 F.2d 73 (5th Cir. 1980).

Statute is subject only to minimum scrutiny unless it draws suspect classification or infringes fundamental interest, under usual principles of equal protection analysis. Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980).

Threshold questions as to strict judicial scrutiny.

- Before a state's laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, certain threshold questions must be analyzed. One of these threshold questions is "whether the relative - rather than absolute - nature of the asserted deprivation is of significant consequence." Crim v. McWhorter, 242 Ga. 863, 252 S.E.2d 421 (1979).

Strict scrutiny applied to classification based upon inherently suspect criteria.

- Where the state rule impinges upon a fundamental right or creates a classification which is based upon inherently suspect criteria, the required standard of review is that of strict scrutiny. Under strict scrutiny it must be shown that the classification furthers a compelling state interest and that the means chosen to effectuate that purpose is the least restrictive alternative available. Street v. Cobb County Sch. Dist., 520 F. Supp. 1170 (N.D. Ga. 1981).

To survive strict scrutiny, the classification must be reasonably necessary to promote a compelling state interest. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Classification by gender must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. Perini v. State, 245 Ga. 160, 264 S.E.2d 172 (1980).

Gender-based classifications require less than strict scrutiny but more than minimum scrutiny and must serve important governmental objectives and must be substantially related to achievement of those objectives. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).

While gender-based classifications are subject to scrutiny under equal protection clause, they are not inherently unconstitutional. Crist v. Crist, 460 F. Supp. 891 (N.D. Ga. 1978), aff'd, 632 F.2d 1226 (5th Cir. 1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2321, 68 L. Ed. 2d 844, , 454 U.S. 819, 102 S. Ct. 100, 70 L. Ed. 2d 90 (1981).

Gender-based classification must serve important governmental objectives and must be substantially related to achievement of those to withstand scrutiny under the equal protection clause. Crist v. Crist, 460 F. Supp. 891 (N.D. Ga. 1978), aff'd, 632 F.2d 1226 (5th Cir. 1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2321, 68 L. Ed. 2d 844, , 454 U.S. 819, 102 S. Ct. 100, 70 L. Ed. 2d 90 (1981); Perini v. State, 245 Ga. 160, 264 S.E.2d 172 (1980).

Treatment of deprived children.

- Treating deprived children who were placed in the legal custody of the Department of Families and Children Services because there was no relative committed to the child who was available for immediate placement differently from deprived children who did have a committed parent or guardian available for immediate placement did not violate the equal protection clause or Ga. Const. 1983, Art. I, Sec. I, Para. II as the classes were not similarly situated and the laws were rationally related to the goal of minimizing government intervention while ensuring that children were reared in a familial environment. In the Interest of A.N., 281 Ga. 58, 636 S.E.2d 496 (2006).

Sodomy.

- Claim of defendant that the sodomy statute violates due process and equal protection because it is selectively enforced against unmarried persons, and because "victims" are not prosecuted for engaging in the consensual conduct, failed where defendant did not establish the actual manner of enforcement. King v. State, 265 Ga. 440, 458 S.E.2d 98 (1995).

Distinction made between male and female in Georgia's rape statute (see O.C.G.A. § 16-6-1) is reasonable. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Statutory rape.

- A juvenile male defendant convicted of statutory rape was not deprived of equal protection, even though the statutory rape law applies only to a male engaging in sexual intercourse with an underage female, since, under the statute on child molestation, a female who engages in sexual intercourse with a male under the age of 14 is subject to the same penalties. In re B.L.S., 264 Ga. 643, 449 S.E.2d 823 (1994).

Psychological reality and public purpose in preventing sexual attacks on women.

- The difference between male and female recognized by Georgia's rape statute (see O.C.G.A. § 16-6-1) is a physiological reality, and the objective serves a public purpose in preventing sexual attacks upon women, with the resulting physical injury, psychological trauma and possible pregnancy. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Statute prohibiting firearm possession by domestic violence offenders.

- Federal statute prohibiting anyone convicted of a domestic violence misdemeanor from possessing or receiving a firearm did not violate equal protection. National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).

Incest statute's classification on the basis of step-parent and step-child bears a rational relationship to the governmental interest in protecting children and family unity and does not violate equal protection guarantees. Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995).

Compelling governmental interest in terminating parental rights of mentally deficient parents incapable of caring for their children through no fault of their own is the welfare of the children and thus, such parents are not denied constitutional equal protection. In re J.C., 242 Ga. 737, 251 S.E.2d 299 (1978).

Discrimination between legitimate and illegitimate under statute bears no rational connection to purposes of Social Security Act.

- A federal Social Security Act statute which allows illegitimate children to receive survivor's benefits only from the residual benefits, if any, remaining after the insured's surviving legitimate children have received their individual maximum shares violates U.S. Const., amend. 5 and U.S. Const., amend. 14 since the discrimination between legitimate and illegitimate children under the statute in question bears no rational connection to the purposes of the Social Security Act. Morris v. Richardson, 346 F. Supp. 494 (N.D. Ga. 1972), vacated on other grounds, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973).

Statutory scheme protecting children from sexual offenses regardless of offender's gender not violative of equal protection.

- Together, Code 1933, §§ 26-2018, 26-2019, and 26-2020 (see O.C.G.A. §§ 16-6-3,16-6-4 and16-6-5) provide a general statutory scheme giving protection to both male and female children under the age of 14 (now 16) from sexual offenses, regardless of the offender's gender, and thus are not invalid as depriving this defendant of equal protection of the law. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).

Code 1933, § 26-2018 (see O.C.G.A. § 16-6-3), which defines statutory rape, is substantially related to the legislative objectives of protecting young girls from the unique physical and psychological damage resulting from sexual intercourse with males. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).

Statute allowing hearsay evidence by children.

- The 1995 amendment of O.C.G.A. § 24-3-16, allowing the admission into evidence of hearsay statements made by a child under the age of 14 years who witnessed an act of physical or sexual abuse inflicted upon another, violates constitutional principles of equal protection. Woodard v. State, 269 Ga. 317, 496 S.E.2d 896 (1998).

Statutes imposing alimony obligations on husbands but not wives violative of equal protection.

- Former Code 1933, §§ 30-201, 30-202, 30-202.1, and 30-203 (see O.C.G.A. §§ 19-6-1,19-6-2, and19-6-3) impose alimony obligations on husbands but not wives and violate the equal protection clause of U.S. Const., amend. 14, and are therefore unconstitutional. Stitt v. Stitt, 243 Ga. 301, 253 S.E.2d 764 (1979) (decided prior to amendment by Ga. L. 1979, p. 466, §§ 6 through 9).

Statute providing only for modification of alimony awarded to wife violative of equal protection.

- Former Code 1933, § 30-220(b) (see O.C.G.A. § 19-6-19(b)) provides only for the modification of alimony awarded to the wife, and this is a classification by gender which violates the equal protection clause of U.S. Const., amend. 14. Sims v. Sims, 243 Ga. 275, 253 S.E.2d 762 (1979) (decided prior to amendment by Ga. L. 1979, p. 466, § 27).

Inheritance through out-of-wedlock children.

- O.C.G.A. § 53-2-4(b)(2) creates a gender-based classification in violation of the equal protection clauses of both the United States and Georgia constitutions; it provides that a father of a child born out of wedlock cannot inherit from his child if he failed or refused to openly treat the child as his own, but that a mother who acts in the same manner can inherit from the child, and there is no legitimate state interest achieved by not subjecting mothers of illegitimate children to the same standards of conduct. Rainey v. Chever, 270 Ga. 519, 510 S.E.2d 823 (1999), cert. denied, 527 U.S. 1044, 119 S. Ct. 2411, 144 L. Ed. 2d 808 (1999).

Treatment as juvenile is not inherent right but one granted by state legislature, and the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved. In re J.J.S., 246 Ga. 617, 272 S.E.2d 294 (1980).

Classification of minors in statute of limitations.

- The 1987 amendment which altered tolling provisions otherwise applicable to tort claims by injured minors, in cases in which tort claims arose from health care professionals' malpractice, did not violate brain-damaged childs' right to equal protection or right of access to the courts. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 423 S.E.2d 235 (1992).

Availability of abortions.

- Where abortions may be obtained only from licensed physicians and surgeons, and only after psychiatric consultation, the mere fact that physicians and psychiatrists are more accessible to rich people than to poor people, making abortions more available to the wealthy than to the indigent, is not in itself a violation of the equal protection clause of U.S. Const., amend. 14. Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), modified, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).

Age qualifications are not unconstitutional per se, and age may well be a relevant factor in determining a teacher's continued fitness for classroom duties. Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975).

Age requirement for Lieutenant Governor.

- In light of the fact that the Lieutenant Governor may be called upon to exercise the powers of the office of Governor, a similar maturity requirement for the Lieutenant Governor is eminently reasonable, and the mere fact that other state officers, such as the Attorney General, may serve upon reaching 25, does not render the age requirement for Lieutenant Governor a violation of equal protection to candidates for the lieutenant governorship. Traylor v. Democratic Party, 241 Ga. 429, 246 S.E.2d 192 (1978).

Mandatory venue provisions constitutional.

- The mandatory venue provisions of O.C.G.A. § 46-1-2, applying to personal injury actions against railroad and electric companies, do not violate the equal protection guarantees of the federal constitution. Driskell v. Georgia Power Co., 260 Ga. 488, 397 S.E.2d 285 (1990).

Judgment of acquittal by reason of insanity provides state rational reason for treating "insanity acquittees" differently from other persons involuntarily committed to state health facilities (see O.C.G.A. § 17-7-131). Specifically, insanity acquittees have no right to be free of the burden of proof in commitment and release hearings. Also, it is not unreasonable to presume continued mental illness based on a judgment of not guilty by reason of insanity. Benham v. Ledbetter, 609 F. Supp. 125 (N.D. Ga. 1985), aff'd, 785 F.2d 1480 (11th Cir. 1986).

Improper to charge aliens tuition for public education.

- A city's procedure requiring certain nonimmigrant aliens to pay tuition to attend public schools violated the equal protection clause. Pena v. Board of Educ., 620 F. Supp. 293 (N.D. Ga. 1985).

Exemption of libraries from obscenity statute.

- Exemption of libraries from a statute prohibiting the sale or display of materials deemed "harmful to minors" was rationally related to making material available in an atmosphere free of commercial pressure and generally available for educational purposes, and therefore did not offend the equal protection clause. American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), cert. denied, 500 U.S. 941, 111 S. Ct. 2237, 114 L. Ed. 2d 479 (1991).

Federal social welfare legislation carries strong presumption of constitutionality.

- In area of economics and social welfare, state does not violate equal protection merely because classifications imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. Owens v. Parham, 350 F. Supp. 598 (N.D. Ga. 1972).

Classifications may be illogical, unequal, unscientific and mathematically imperfect and still not deny equal protection in the area of welfare legislation. Equal protection does not place a "straitjacket" on legislatures in dealing with problems of the poor and needy. Winningham v. United States Dep't of HUD, 371 F. Supp. 1140 (S.D. Ga. 1974), aff'd, 512 F.2d 617 (5th Cir. 1975).

A statutory classification in the area of social welfare is consistent with the equal protection clause of U.S. Const., amend. 14 if it is "rationally based and free from invidious discrimination." Winningham v. United States Dep't of HUD, 371 F. Supp. 1140 (S.D. Ga. 1974), aff'd, 512 F.2d 617 (5th Cir. 1975).

Constitutional challenge to United States Congress' social welfare legislation must overcome the strong presumption of constitutionality inherent in such legislation and, such challenge must be assessed under reasonable basis standard governing classifications made by United States Congress' laws. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

A zoning ordinance does not offend equal protection if it has some fair and substantial relation to the object of the legislation and furnishes a legitimate ground of differentiation. Parking Ass'n v. City of Atlanta, 264 Ga. 764, 450 S.E.2d 200 (1994), cert. denied, 515 U.S. 1116, 115 S. Ct. 2268, 132 L. Ed. 2d 273 (1995).

Right to housing and to welfare benefits are not so fundamental as to require closest constitutional scrutiny. Chatham v. Jackson, 613 F.2d 73 (5th Cir. 1980).

Income benefit limitation in former Code 1933,

§ 56-3403b(b)(2) and (b)(3) (see O.C.G.A. §§ 33-34-4(a)(2)(B) and (a)(2)(C)) is constitutionally permissible. - Limitation on income benefits in former Code 1933, § 56-3403b(b)(2) and (b)(3) (see O.C.G.A. §§ 33-34-4(a)(2)(B) and (a)(2)(C)), as construed by the Supreme Court and the Court of Appeals, establishes a constitutionally permissible classification reasonably related to purposes of the no-fault Act. Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574, 277 S.E.2d 675 (1981).

County actions against balanced, dispersed public housing violative of equal protection.

- Actions of a county taken to resist attempts designed to achieve the national housing policy of balanced and dispersed public housing and failing to assist such attempts violate the equal protection clause of U.S. Const., amend. 14. Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff'd, 457 F.2d 788 (5th Cir. 1972).

The policy of the exclusive remedy provision of the workers' compensation law is served equally whether the employee is injured or killed, and such policy does not violate equal protection when applied to wrongful death actions. Smith v. Gortman, 261 Ga. 206, 403 S.E.2d 41 (1991).

State's basis of computing worker's compensation does not violate equal protection of U.S. Const., amend. 14 either facially or in the application thereof to blacks or low income segments of the state's employed population. Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973).

Exemption of employers with less than five (now three) employees from provisions of Workers' Compensation Act not denial of equal protection to third-party joint tort-feasors. See Coleman v. GMC, 386 F. Supp. 87 (N.D. Ga. 1974).

City's withholding union dues for department requires same application to other department.

- Where a city has unions within both fire and police departments, and has agreed to withhold union dues for the firemen who are union members, the city may not, under the equal protection clause, refuse to apply the same rules to its police. Truck Drivers & Helpers Local 728 v. City of Atlanta, 468 F. Supp. 620 (N.D. Ga. 1979).

O.C.G.A. § 34-9-285, in authorizing disparate treatment of occupational diseases and other injuries compensable under the Workers' Compensation Act, does not violate constitutional guarantees of equal protection. Price v. Lithonia Lighting Co., 256 Ga. 49, 343 S.E.2d 688 (1986).

O.C.G.A. § 34-9-285, which provides a restrictive rule for determining worker's compensation benefits for persons disabled due to the aggravation of a pre-existing condition by an occupational disease, is rationally related to a legitimate state interest and does not violate the Fourteenth Amendment's equal protection clause. Price v. Tanner, 855 F.2d 820 (11th Cir. 1988), cert. denied, 489 U.S. 1081, 109 S. Ct. 1534, 103 L. Ed. 2d 839 (1989).

Distinction among workers' injured while under influence of legal or illegal drugs.

- Where an injured worker's claim was denied because the worker tested positive for marijuana and cocaine after the accident and then failed to rebut the presumption found in O.C.G.A. § 34-9-17(b)(2) that the accident was caused by the illegal use of controlled substances, the supreme court held that paragraph (b)(2) does not violate equal protection by differentiating between legal and illegal drug use. There is a rational basis for distinguishing between workers who are injured while taking prescription medication and those who are injured while taking illegal substances and distinguishing between legal and illegal drug use bears a direct and real relationship to the legitimate government objective of promoting a safe work place. Kendrix v. Hollingsworth Concrete Prods., 274 Ga. 210, 553 S.E.2d 270 (2001).

DUI cases ineligible for first offender treatment.

- O.C.G.A. § 40- 6-391(f) did not violate equal protection under the Fourteenth Amendment or Ga. Const. 1983, Art. I, Sec. I, Para. II by excluding driving-under-the-influence offenses from First Offender Act, O.C.G.A. § 42-8-60 et seq., coverage. The defendant did not show the absence of a rational relationship between the state's compelling interest in protecting the public's safety and the classification; the defendant's equal protection argument boiled down to no more than the claim that the legislature made a bad policy judgment about which offenders should be eligible for First Offender Act treatment. Rhodes v. State, 283 Ga. 361, 659 S.E.2d 370 (2008).

Rational relationship test applicable to school tuition policy.

- Where a summer session tuition policy contains a waiver policy which waives the tuition fee for students who desire to attend summer school but are financially unable to pay tuition, the strict scrutiny test is not applicable; and the school board need show only that a rational relationship existed between the classifications created by the tuition policy and the object of this legislation. Crim v. McWhorter, 242 Ga. 863, 252 S.E.2d 421 (1979).

School board policy granting maternity leave to tenured teachers, denying maternity leave to untenured teachers, is arbitrary, it has no rational basis, and bears no relevance to the purpose of a Local Teacher Tenure Act or to the purpose of the administrative scheme of the Board of Education. Jinks v. Mays, 332 F. Supp. 254 (N.D. Ga. 1971), aff'd in part and remanded in part, 464 F.2d 1223 (5th Cir. 1972).

Consecutive years of enrollment eligibility rule for interscholastic sports does not deny student equal protection of the laws. Smith v. Crim, 240 Ga. 390, 240 S.E.2d 884 (1977).

Prior service credit for retirement.

- The Employee Retirement System classification system, providing differing methods of credit for military service based upon the dates and conditions of service, does not violate equal protection rights. Horton v. State Employee Retirement Sys., 262 Ga. 458, 421 S.E.2d 703 (1992).

Automobile guest passenger rule not violative of equal protection.

- The automobile guest passenger rule, distinguishing between paying and nonpaying guests, does not violate the equal protection guarantees of the state and federal Constitutions. Bickford v. Nolen, 240 Ga. 255, 240 S.E.2d 24 (1977).

Georgia's guest passenger rule, by creating a distinction between paying and nonpaying passengers, does not violate equal protection clause of Fourteenth Amendment. Corey v. Jones, 650 F.2d 803 (5th Cir. 1981).

Adult films may be classed differently from other films and regulated.

- A zoning ordinance regulating the location of "adult motion picture theaters" and treating them differently from other motion picture theaters, does not violate U.S. Const., amend. 1 or U.S. Const., amend. 14 because even though a city may not suppress adult films, it may place them in a different classification from other films and regulate them. Airport Bookstore, Inc. v. Jackson, 242 Ga. 214, 248 S.E.2d 623 (1978), cert. denied, 441 U.S. 952, 99 S. Ct. 2182, 60 L. Ed. 2d 1057 (1979).

Classifying which games are prohibited on Sunday.

- No constitutional infirmity necessarily inheres in regulatory scheme because certain games prohibited on Sunday while others are not. Wilder v. State, 232 Ga. 404, 207 S.E.2d 38 (1974).

Distinction between business invitee and licensee is permissible classification under equal protection guarantees of the state and federal Constitutions. Delk v. Sellers, 149 Ga. App. 439, 254 S.E.2d 446 (1979).

Statutory scheme providing different procedures for handling service upon foreign and domestic corporations does not deny domestic corporations equal protection under the state and federal constitutions. Ticor Constr. Co. v. Brown, 255 Ga. 547, 340 S.E.2d 923 (1986).

Driver's license restrictions.

- Statutes barring illegal aliens residing in Georgia from obtaining a Georgia driver's license do not deprive them of equal protection of the laws in violation of the Fourteenth Amendment. John Doe No. 1 v. Ga. Dep't of Pub. Safety, 147 F. Supp. 2d 1369 (N.D. Ga. 2001).

Motorcycle helmet law.

- O.C.G.A. § 40-6-315 does not violate the equal protection rights of motorcycle riders under the Fourteenth Amendment. ABATE of Ga., Inc. v. Georgia, 137 F. Supp. 2d 1349 (N.D. Ga. 2001), aff'd, 264 F.3d 1315 (11th Cir. 2001).

Power to limit highway usage by carriers for hire justified and is reasonable classification.

- The power to select, limit and prohibit uses of the highways by carriers for hire, which is implied in the requirement of a certificate of public convenience and necessity, is justified both as a regulation of the business, and as a regulation for the protection and safety of the highways. There is thereby no unequal protection of law, but a reasonable classification. Southern Motorways, Inc. v. Perry, 39 F.2d 145 (N.D. Ga. 1930).

Certificate and fees legally demandable by state as nondiscriminatory prerequisite to use of highway for carrier purposes.

- A certificate of public convenience and necessity, with a reasonable fee therefor, and an annual license fee for the trucks, are legally demandable by a state as a nondiscriminatory prerequisite of the use of the highway for carrier purposes, even though the commerce involved is wholly interstate. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

Limited highway weight load exemptions not unconstitutional.

- Where a limited exemption to highway weight requirements was granted for certain industries which could not take advantage of other statutory exceptions, there was no arbitrary decision violative of equal protection of those industries which were not granted the same limited exemptions since overall gross weights and axle load requirements still had to be met. DOT v. Georgia Mining Ass'n, 252 Ga. 128, 311 S.E.2d 443 (1984).

Exempting public utility employees but requiring examination and licensing of others unreasonable.

- There is no reasonable basis for requiring examination and licensing of plumbers and steamfitters who are not employees of public utility corporations, and exempting employees of public utility corporations operating in the territory covered by the act. This is an unjust discrimination between classes of persons, and renders the proviso in Ga. L. 1937, p. 748, § 16-A unconstitutional and void, as a violation of the due process clauses of the state and federal Constitutions, and § 2-203. Jenkins v. Manry, 216 Ga. 538, 118 S.E.2d 91 (1961).

O.C.G.A. § 46-2-26.3 does not create an unconstitutional classification although its application is in fact limited to only one power plant, because it is possible to conclude that the section does not confer a special benefit upon the utility. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).

Classifications for examination for licensing as dental hygienists upheld as constitutional.

- Ga. L. 1949, p. 1192 (see O.C.G.A. § 43-11-70 et seq.), regarding licensing dental hygienists, is not violative of the equal protection clauses of the state and federal Constitutions as requiring one kind of examination for one class of applicants and a different kind of examination for another class; and it does not discriminate against either class of applicants, but applies equally to all. The act deprives none of the plaintiffs of any right or property without due process of law. Lamons v. Yarbrough, 206 Ga. 50, 55 S.E.2d 551 (1949).

Provisions for certification for plumbing or steamfitting business discriminatory.

- The provisions of Ga. L. 1937, p. 748, § 12 are discriminatory against individuals not connected with a partnership or corporation, since the individual would not be allowed to engage in the plumbing or steamfitting business without obtaining the certificate provided for by the act, whereas a partnership or corporation would have the right to engage in either of such businesses if one person holding such a certificate is connected with the partnership or corporation, whether or not that person is supervising the plumbing or steamfitting work done. Jenkins v. Manry, 216 Ga. 538, 118 S.E.2d 91 (1961).

Classification based on location of garages not unconstitutional.

- Though the General Assembly exempts the business of "garages" for the safekeeping and repair of automobiles which are not located in a city or town having a population of 1,000 or more, and not located within a mile of such municipalities, from the payment of an occupation tax, while imposing a special tax graduated according to population upon the occupation of keeping such garages as are located in such cities or towns and within one mile thereof, such classification is not violative of the state or the federal Constitution. Milliron v. Harrison, 175 Ga. 764, 166 S.E. 231 (1932).

Noise abatement program which distinguished between residential and commercial property for the purpose of a city's purchase of property near an airport did not violate equal protection. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994).

Prohibiting chiropractors from prescribing nutritional substances for treatment.

- Although common merchants are allowed to sell nutritional substances to customers without a prescription, in that the substances do not require medical supervision for use, and in that the substances are not habit-forming, the Georgia Chiropractic Practices Act (O.C.G.A. § 43-9-1 et seq.) does not violate the equal protection clause because it prohibits chiropractors from prescribing or recommending such substances in the treatment of patients. Purchase or sale of such substances is not the vice which is condemned. Rather, the vice condemned, and that which constitutes the unlicensed practice of medicine, is: (1) prescription of nutritional treatment; (2) to cure; (3) an ailment or disease; (4) for compensation. Foster v. Georgia Bd. of Chiropractic Exmrs., 257 Ga. 409, 359 S.E.2d 877 (1987).

Statutory exemption of medical malpractice actions from general statute of limitation provisions, does not violate equal protection when applied to loss-of-consortium actions arising out of medical malpractice. Perry v. Atlanta Hosp. & Medical Ctr., 255 Ga. 431, 339 S.E.2d 264 (1986).

The statute of repose for medical malpractice claims is rationally related to a legitimate legislative attempt to reduce the uncertainties and costs related to malpractice litigation long after the medical services have been rendered and does not violate equal protection guarantees. Hanflik v. Ratchford, 848 F. Supp. 1539 (N.D. Ga. 1994), aff'd, 56 F.3d 1391 (11th Cir. 1995).

The statute of repose for medical malpractice suits under O.C.G.A. § 9-3-71(b) did not violate the equal protection clauses of the federal or Georgia Constitutions. There was a rational basis for treating medical malpractice differently from other forms of professional malpractice and for the five-year repose period itself, based on the considerations that uncertainty over the causes of illness and injury made it difficult for insurers to adequately assess premiums and that the passage of time made it more difficult to determine the cause of injury. Nichols v. Gross, 282 Ga. 811, 653 S.E.2d 747 (2007).

Classification held arbitrary.

- Since there is no rational basis for a limitation scheme which permits medical malpractice wrongful death action if patient dies within two years of defendant's negligent act but which bars wrongful death action if patient lives for two years after defendant's negligent act where defendant is a doctor but not in other wrongful death cases, O.C.G.A. § 9-3-71 is unconstitutional as applied to actions for wrongful death. Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983).

Public officers' malpractice statute not unconstitutional.

- O.C.G.A. § 45-11-4, by affording only certain enumerated officials the privilege of appearing before the grand jury prior to indictment for malpractice, does not violate the equal protection clauses of the state and federal constitutions. State v. Deason, 259 Ga. 183, 378 S.E.2d 120 (1989).

O.C.G.A.

§ 35-2-43(a) (repealed) unconstitutional. - O.C.G.A. § 35-2-43(a) (repealed), insofar as it prohibits naturalized citizens of the United States from being eligible for the position of officer or trooper with the uniform division of the Department of Public Safety, is unconstitutional as violative of the equal protection clause of U.S. Const., amend. 14. Fernandez v. Georgia, 716 F. Supp. 1475 (M.D. Ga. 1989).

Classification held reasonable.

- Separate classification and treatment of architects, engineers, and contractors by O.C.G.A. § 9-3-51 from owners, tenants, and manufacturers is reasonable and not arbitrary. Mullis v. Southern Co. Servs., 250 Ga. 90, 296 S.E.2d 579 (1982).

Preferential treatment of military under drinking law not unconstitutional.

- O.C.G.A. § 3-3-23 (purchase of alcoholic beverages) does not violate the equal protection clause of the Fourteenth Amendment because it treats 18 year old members of the armed forces differently from all other 18 year olds. Kelley v. State, 252 Ga. 208, 312 S.E.2d 328 (1984).

The rule that treatment of obese persons with amphetamines constitutes unprofessional conduct does not violate defendant's federal constitutional right to equal protection merely because doctors are allowed to prescribe amphetamines for certain other purposes provided in Rule 360-2-.09(h) of the Composite State Board of Medical Examiners. Jackson v. Composite State Bd. of Medical Exmrs., 256 Ga. 264, 347 S.E.2d 581 (1986).

Basis for classification for tax purposes is to be related to the objective of ordinance. Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 725, 164 S.E.2d 803 (1968).

No inflexible rule of equality applicable to state taxation.

- The equal protection clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. Ingalls Iron Works Co. v. Chilivis, 237 Ga. 479, 228 S.E.2d 866 (1976), appeal dismissed, 429 U.S. 1081, 97 S. Ct. 1086, 51 L. Ed. 2d 528 (1977).

It is competent for state to exempt certain kinds of property and tax others, the restraints upon it only being against clear and hostile discriminations against particular persons and classes. Campbell v. J.D. Jewell, Inc., 221 Ga. 543, 145 S.E.2d 569 (1965).

Discriminatory revenue or tax-raising statute not arbitrary if based on reasonable distinction.

- The fact that a revenue or tax-raising statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is sounded upon a reasonable distinction. Nance v. Harrison, 176 Ga. 674, 169 S.E. 22 (1933).

Discrimination in taxation which equal protection clauses forbid is the failure of the taxing authorities to tax all like property which is subject to taxation equally or to tax the property of one owner and exempt like property belonging to another owner. Delta Air Lines v. Coleman, 219 Ga. 12, 131 S.E.2d 768, cert. denied, 375 U.S. 904, 84 S. Ct. 195, 11 L. Ed. 2d 145 (1963); Smith v. State, 222 Ga. 552, 150 S.E.2d 868 (1966).

Classification of tax exempt persons must not be arbitrary and unreasonable.

- Law requires that classification of persons who are to be exempt from taxation shall not be arbitrary and unreasonable. Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 752, 164 S.E.2d 803 (1968).

Different tax rates on intangible personal property and real property.

- To provide different rate of taxation on intangible personal property from that on real property does not violate equal protection clause of U.S. Const., amend. 14. Miller v. Mitchell, 226 Ga. 892, 178 S.E.2d 175 (1970).

Tax assessors' increasing value of property systematically to raise additional revenue violative of equal protection.

- Where tax assessors, without investigation, made a systematic and comprehensive increase in the value of all property returned in the county for taxes, for a particular year, not for the purpose of fixing just and fair values after investigation, or for the purpose of equalizing taxes, but for the sole purpose of raising additional revenue, such assessments were null and void, as they were clearly violative of the uniform taxation clause of state Constitution and the equal protection clauses of state and federal Constitutions. Hutchins v. Howard, 211 Ga. 830, 89 S.E.2d 183 (1955).

Ordinance imposing occupational tax upheld.

- That a seller, in order to obtain business at a distant city and compete with its local laundries, subjects oneself to unusual expense and makes little profit under adverse conditions, does not afford a basis for declaring arbitrary, prohibitory, confiscatory, and void an ordinance imposing an occupational tax as applied to a business which admittedly is in its infancy. National Linen Serv. Corp. v. City of Gainesville, 181 Ga. 397, 182 S.E. 610 (1935).

Local ordinance levying sales and use tax on nonresidents of county while doing business within that county does not violate equal protection under U.S. Const., amend. 14. Camp v. Metropolitan Atlanta Rapid Transit Auth., 229 Ga. 35, 189 S.E.2d 56 (1972).

Excise tax on some but not all oleomargarine upheld.

- Ga. L. 1935, p. 81, imposing an excise tax on all oleomargarine sold in this state containing any fat or oil other than certain specified fats or oils, was not violative of U.S. Const., amend. 14 in that it set up an arbitrary classification between persons engaged in the sale of products of a similar nature, providing a tax enforceable against some members of a class and unenforceable against other members of a class, or in that it provided no reasonable, uniform, or rational ground for distinction between the various members of the same class, in order to determine who should be taxed, and who should be exempt, or in that it did not provide equal protection of the laws of the state for property of a similar nature, by making certain oleomargarine liable for and exempting certain other oleomargarine of a similar nature from the tax. Coy v. Linder, 183 Ga. 583, 189 S.E. 26 (1936).

City ordinances fixing different water rates for those outside corporate limits not violative of equal protection.

- The plaintiffs with no right to demand water service from the city may purchase it at the city's charge therefor, or they may decline to do so, at their will; but they are in no position which authorizes them to complain of an excessive charge or a discriminating rate. There was no merit in the contention that the city's ordinances which fixed different water rates for those who resided outside of its corporate limits offended U.S. Const., amend. 14 or the equal protection clause of Georgia's Constitution. City of Moultrie v. Burgess, 212 Ga. 22, 90 S.E.2d 1 (1955).

Ordinance increasing rates and fixing higher rates for nonresident water users not violative of due process and equal protection.

- Where the city has the right under its charger to furnish water to resident and nonresident users, and to classify the rates for such service, an ordinance, increasing the rates and fixing rates for nonresident users higher than for resident users, is not violative of the due process and equal protection clauses of the federal and state Constitutions. Messenheimer v. Windt, 211 Ga. 575, 87 S.E.2d 402 (1955).

Statute authorizing municipality's assessing different costs in like circumstances violative of equal protection.

- A statute which authorizes a municipality to pave streets similarly situated and alike in all respects, or similarly situated portions of the same street, and to assess a different portion of the cost of the improvement of abutting landowners is discriminatory and violative of the guaranty of equal protection of the laws of the Constitutions of the United States and of Georgia. Dorsey v. City of Atlanta, 216 Ga. 778, 119 S.E.2d 553 (1961).

Municipal ordinance using gross sales of preceding year as basis for license fees with no provision for new markets violative of equal protection.

- A municipal ordinance which uses the gross sales of the preceding year as a basis on which to fix a graduated scale of license fees for meat markets, and makes no provision for fees for meat markets not in business the preceding year, is unconstitutional in that it is discriminatory and violates the equal protection clauses of the state and federal Constitutions. Elder v. Smith, 188 Ga. 65, 2 S.E.2d 670 (1939).

Tax based on number of stores one operated held arbitrary, unreasonable classification violative of equal protection.

- Ga. L. 1929, p. 71, Para. 109 which imposed a tax on one operating six stores or more, and refused to tax one who operated five or less stores, is an arbitrary and unreasonable classification and is void because it is in conflict with Ga. Const. 1983, Art. VII, Sec. I, Para. III, (tax uniformity), Ga. Const. 1983, Art. I, Sec. I, Para. II (government duty to protect property), and U.S. Const., amend. 14. F.W. Woolworth Co. v. Harrison, 172 Ga. 179, 156 S.E. 904 (1931).

Ordinance imposing license tax on butcher shop and grocery operation according to graduated scale valid.

- Ordinance imposing a license tax on the right to operate butcher shops and retail grocery stores, classified according to a graduated scale based on the number meat blocks, or value of stock and fixtures, respectively, and number of hours operated, and applicable to all persons operating businesses of the designated classes within the city, were reasonable revenue measures, and not violative of U.S. Const., amend. 14. Ard v. City of Macon, 187 Ga. 127, 200 S.E. 678 (1938).

Former bank share tax scheme constitutional.

- The 1975 Georgia bank share tax scheme did not subject banks to a tax classification that was so "palpably arbitrary" or "invidious" as to run afoul of the constitutional equal protections of the equal protection clause of the United States Constitution and the due process clauses of the United States and Georgia Constitutions. Roberts v. Gunter, 251 Ga. 276, 304 S.E.2d 369 (1983).

Classification exempting owners but penalizing dealers in sale of securities is reasonable.

- The state may constitutionally make reasonable classifications, and a classification which exempts owners but penalizes dealers in the sale of securities is reasonable and not arbitrary. Saunders v. State, 172 Ga. 770, 158 S.E. 791, appeal dismissed sub nom. Saunders v. Georgia, 284 U.S. 591, 52 S. Ct. 140, 76 L. Ed. 509 (1931).

Classification of cash and carry grocery and cash and credit grocery not reasonable basis for taxation.

- The difference in operating a retail grocery store on the cash and carry system, where all sales are for cash and no deliveries made outside the store, and operating the same kind of store on a system of cash and credit sales and making deliveries of goods in the store and at other places, is not a reasonable basis of classification, for the purpose of taxing the former a higher rate than the latter, and such tax is discriminatory and void and inhibited by the equal protection clauses of the state and federal Constitutions. City of Douglas v. South Ga. Grocery Co., 180 Ga. 519, 179 S.E. 768 (1935).

Classification of hotels by daily charge with regard to requirement for fire escapes arbitrary.

- Where provisions of statute require hotels and inns charging $2.00 per day or more to provide outside fire escapes and making violation a misdemeanor, because the amount charged the guests has no conceivable relation to the danger of fire, to avoid which is the sole purpose of the law, the classification here is arbitrary, rendering the law unconstitutional as denying equal protection of the law. Geele v. State, 202 Ga. 381, 43 S.E.2d 254 (1947).

Former O.C.G.A. § 34-8-40(o)(11) did not deny equal protection in exempting independent salespersons such as real estate agents and insurance agents and solicitors from the unemployment tax, while not exempting securities salespersons, in the absence of proof that securities salespersons were in fact similarly situated to the real estate and insurance agents who were exempted. Stuart-James Co. v. Tanner, 259 Ga. 289, 380 S.E.2d 257 (1989).

Different pre-judgment and post-judgment interest percentages constitutional.

- Where no suspect class of condemnees is involved, application of different statutory percentages to prejudgment and post-judgment interest in condemnation cases is not unconstitutional. Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985).

Plaintiff 's inability to recover punitive damages in a wrongful death action does not violate the plaintiff's right to equal protection of the laws. Berman v. United States, 572 F. Supp. 1486 (N.D. Ga. 1983).

Qualification of expert witnesses and the admissibility of expert testimony.

- In a personal injury suit wherein the trial court excluded the testimony of plaintiffs' two expert witnesses upon application of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702 and24-7-703), the trial court did not err in rejecting the plaintiffs' equal protection challenge since the plaintiffs could not establish the necessary element of an equal protection claim that the plaintiffs were situated similarly to those being treated differently. For purposes of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases are not similarly situated to those engaged in criminal prosecutions. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008).

Distinguishing between voluntary patients with legal guardians and those without in the state's procedure for discharge from a state mental hospital does not violate equal protection since there is a rational basis for the distinction. Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992), aff'd, 995 F.2d 237 (11th Cir.), cert. denied, 510 U.S. 947, 114 S. Ct. 389, 126 L. Ed. 2d 338 (1993).

Review of Department of Natural Resources decisions

- The Georgia Administrative Procedure Act and O.C.G.A. § 12-2-1 govern the procedure for judicial review of final decisions of the Department of Natural Resources and, where a party seeking review failed to make a timely request therefor, affirmance of the final decision of the department did not violate equal protection. Nix v. Long Mtn. Resources, Inc., 262 Ga. 506, 422 S.E.2d 195 (1992).

Billboard restrictions.

- Denial of permission to a landowner to raise a billboard following reconstruction of a highway which reduced visibility of the billboard to traffic was not a denial of equal protection where the landowner failed to show that it received treatment dissimilar to others similarly situated. Moreton Rolleston, Jr. Living Trust v. DOT, 242 Ga. App. 835, 531 S.E.2d 719 (2000).

Disability.

- With regard to equal protection, the United States Supreme Court has not determined that the physically disabled constitute a "suspect" or "quasi-suspect" class, and unlike race or gender, disability may legitimately affect a person's ability to serve as a juror; permitting disabled people selected for grand jury service to voluntarily seek and be granted excusal on a medical hardship basis if they provide supporting documentation from their doctor is not unreasonable or illegal. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).

Trial court did not err in revoking a convicted sexual offender's probation for failing to register an address change after the offender moved into a motel because the offender failed to establish that the offender was treated differently from a similarly situated nonresident sexual offender entering the state; if O.C.G.A. § 42-1-12(e)(7) applies to a hypothetical nonresident sexual offender, that person must update his or her information within 72 hours of a change of address as required in § 42-1-12(f)(5), and any nonresident sexual offender who is required to register by virtue of the specification of § 42-1-12(e)(7) is equally subject to the requirement that he or she register a new address within 72 hours of changing that address and equally subject to being charged with a violation. Dunn v. State, 286 Ga. 238, 686 S.E.2d 772 (2009).

3. Race Discrimination

State must not discriminate against person because of race. Shelton v. GECC, 359 F. Supp. 1079 (M.D. Ga. 1973).

State flag.

- The Georgia state flag, which incorporated the stars and bars of the Confederate flag, did not violate an African-American citizen's equal protection rights, even though a discriminatory purpose was a motivating factor in the passage of O.C.G.A. § 50-3-1, since the evidence failed to show a sufficiently concrete, present-day discriminatory impact on African-Americans. Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998); Coleman v. Miller, 912 F. Supp. 522 (N.D. Ga. 1996), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

Display of the Georgia state flag did not violate an African-American citizen's constitutional rights to equal protection and freedom of expression. Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

Classifications based solely upon race must be scrutinized with particular care, since they are contrary to the traditions and hence constitutionally suspect. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir.), on rehearing, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

Discrimination due solely to race or color constitutes infringement of constitutional right, and in a case properly coming within this rule, a declaratory judgment is proper and an injunction should issue requiring equality of treatment. The fact that salary schedules and rules are fair upon their face, is not a defense if they are, in their practical application, administered in a discriminatory manner. Davis v. Cook, 80 F. Supp. 443 (N.D. Ga. 1948), rev'd on other grounds, 178 F.2d 595 (5th Cir. 1949), cert. denied, 340 U.S. 811, 71 S. Ct. 38, 95 L. Ed. 596 (1950).

National origin discrimination not actionable.

- A federal civil rights claim under 42 U.S.C. § 1981 that the plaintiff was discriminatorily discharged not because of any "racial" distinctions such as skin color, but because of the plaintiff's national origin as a person of Hispanic descent, had to be dismissed. Davis v. Boyle-Midway, Inc., 615 F. Supp. 560 (N.D. Ga. 1985).

U.S. Const., amend. 14 forbids any distinction in voting process based upon race or color irrespective of whether such distinction involves the actual denial of the vote. United States v. Bibb County Democratic Executive Comm., 222 F. Supp. 493 (M.D. Ga. 1962).

Refusing person right to vote in primary because of race or color unconstitutional.

- Defendants, acting as the duly constituted authorities of the Democratic Party, in refusing to permit plaintiff to vote in said primary election solely on account of the plaintiff's race and color, deprived the plaintiff of a right secured to the plaintiff by the Constitution and laws of the United States. King v. Chapman, 62 F. Supp. 639 (M.D. Ga. 1945), aff'd, 154 F.2d 460 (5th Cir.), cert. denied, 327 U.S. 800, 66 S. Ct. 905, 90 L. Ed. 1025 (1946).

Segregation of polling places, although involving no actual denial of vote, is constitutionally impermissible as the elective franchise is a function of utmost importance in the process of government and so intrinsically characteristic of the dignity of citizenship. Anderson v. Courson, 203 F. Supp. 806 (M.D. Ga. 1962).

Marriage not to be restricted by racial discrimination.

- U.S. Const., amend. 14 requires that freedom of choice to marry not be restricted by invidious racial discriminations. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir.), rev'd on other grounds en banc, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

Racially disproportionate impact of government activity.

- Even if government activity has racially disproportionate impact, that alone does not sustain claim of racial discrimination. Proof of racially discriminatory intent or purpose is required to show a violation. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir.), rev'd on other grounds en banc, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

Although a plaintiff may demonstrate a statistical over-representation of black students in lower level classrooms and in educable mentally retarded programs, a court cannot presume that this current condition results from prior de jure segregation in the school system where none of the students involved have attended a school segregated by law, and the school system has been unitary for at least a decade. Consequently, proof and finding of subsequent discriminatory intent on the part of the educational authorities is necessary to establish a present constitutional violation. Georgia State Conference v. Georgia, 570 F. Supp. 314 (S.D. Ga. 1983).

Affirmative action programs.

- Plaintiffs, a white male and a white female and their company, had standing to challenge the constitutionality of a county's minority and female business enterprise program. Webster v. Fulton County, 44 F. Supp. 2d 1359 (N.D. Ga. 1999).

Legitimate classification causing racial disadvantage.

- Otherwise legitimate classification not constitutionally "suspect" simply because greater numbers of racial minority fall in group disadvantaged by classification. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S. Ct. 2660, 49 L. Ed. 2d 393 (1976).

Statistical evidence of disparate racial impact alone may establish prima facie case of racial discrimination, shifting to the defendant the burden of demonstrating that invidious discrimination was not among the reasons for his actions. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S. Ct. 2660, 49 L. Ed. 2d 393 (1976).

Denial of seat to black representative-elect because of race would amount to invidious discrimination under the equal protection clause of U.S. Const., amend. 14. Bond v. Floyd, 251 F. Supp. 333 (N.D. Ga.), rev'd on other grounds, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966).

That no black person has ever been appointed to particular position as indicative of purposeful discrimination.

- In an appointment case, the fact that no black person has ever been appointed to a particular position, offered without explanation, is an indicator of purposeful discrimination. Searcy v. Williams, 656 F.2d 1003 (5th Cir. 1981), aff'd, 455 U.S. 984, 102 S. Ct. 1605, 71 L. Ed. 2d 844 (1982).

Refusal to admit blacks by restaurant leased from city-owned airport sufficiently involved state action to invoke requirements of U.S. Const., amend. 14. Coke v. City of Atlanta, 184 F. Supp. 579 (N.D. Ga. 1960).

State statute or policy that child of mixed parentage cannot be adopted by white family cannot be countenanced under the United States Constitution. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir.), on rehearing, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).

State court enforcement of private agreement exclude certain race from residential real estate violative of equal protection.

- It is a violation of the equal protection clause of U.S. Const., amend. 14 of the United States Constitution for a state court to enforce a private agreement to exclude persons of a designated race or color from the use or occupancy of real estate for residential purposes. Evans v. Abney, 224 Ga. 826, 165 S.E.2d 160 (1968), aff'd, 396 U.S. 435, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970).

Trust fails where discriminatory purpose.

- Where an order of the Supreme Court of the United States would require the trustees of a park to operate and maintain it as to whites and blacks on a nondiscriminatory basis contrary to and in violation of the specific purpose of the trust property as provided in the will of the grantor, the trust fails and is terminated. Evans v. Newton, 221 Ga. 870, 148 S.E.2d 329 (1966).

County officials prohibited from exercising discretion to deny building permits to exclude low-income blacks.

- U.S. Const., amend. 14 prohibits county officials from exercising whatever discretion allowed by municipal law to deny building permits for the avowed purpose of excluding low-income blacks from apartments proposed for construction on land zoned for apartments. Crow v. Brown, 457 F.2d 788 (5th Cir. 1972).

Municipal zoning laws excluding low-income blacks.

- U.S. Const., amend. 14 prohibits county officials from exercising whatever discretion allowed by municipal zoning laws for purpose of excluding low-income blacks from apartments proposed for construction on land zoned for apartments. Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff'd, 457 F.2d 788 (5th Cir. 1972).

County action or inaction toward confinement of public housing to racially compacted areas unconstitutional.

- In the absence of supervening necessity, any county action or inaction intended to perpetuate or which in effect does perpetuate the confinement of public housing to racially compacted areas cannot stand. Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff'd, 457 F.2d 788 (5th Cir. 1972).

Submitting package bond issue to voters.

- In requesting the county board of commissioners to submit a package bond issue to the voters instead of three separate bond issues, the county board of education did not time and structure the school bond referendum with the intent of diluting minority voting strength and manipulating the minority vote in violation of the first, thirteenth, fourteenth, and fifteenth amendments to the Constitution of the United States. Lucas v. Townsend, 783 F. Supp. 605 (M.D. Ga.), aff'd, 967 F.2d 549 (11th Cir. 1992).

Approval of landfill in area with majority black population.

- County planning and zoning commission's decision to approve a landfill in a census tract containing a majority black population was not motivated by the intent to discriminate against black persons, where the evidence did not establish a background of discrimination in the commission's decisions. East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb County Planning & Zoning Comm'n, 706 F. Supp. 880 (M.D. Ga.), aff'd, 896 F.2d 1264 (11th Cir. 1989).

Property owners' equal protection claim was properly denied, where they failed to demonstrate that a county zoning and planning commission acted with a discriminatory intent when it approved a conditional land use permit to operate a "nonputrescible" landfill in a census tract where 3,367 black residents and 2,149 white residents lived. East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264 (11th Cir. 1989).

Refusing blacks substantially equal-use of municipal facilities with whites is forbidden discrimination.

- Refusing to allow plaintiffs and others similarly situated because they are blacks, to make use, on a substantially equal basis with white citizens of municipal facilities is to practice a forbidden discrimination. Holmes v. City of Atlanta, 124 F. Supp. 290 (N.D. Ga. 1954), aff'd, 223 F.2d 93 (5th Cir.), vacated on other grounds, 350 U.S. 879, 76 S. Ct. 141, 100 L. Ed. 776 (1955).

Discrimination in use of municipally owned recreational facilities is violative of U.S. Const., amend. 14. Wesley v. City of Savannah, 294 F. Supp. 698 (S.D. Ga. 1969).

Staging of golf tournament on segregative basis upon municipally-owned golf course falls short of equal protection and is prohibited under U.S. Const., amend. 14. Wesley v. City of Savannah, 294 F. Supp. 698 (S.D. Ga. 1969).

University affirmative action program held unconstitutional.

- The University of Georgia's freshman admissions policy, more specifically that policy's preferential treatment of non-white applicants, violated the right of the plaintiff white females to equal protection since, even assuming that student body diversity can be a compelling interest, the university's policy was not narrowly tailored to serve that interest. Johnson v. Bd. of Regents, 263 F.3d 1234 (11th Cir. 2001).

Aim of equal protection is to assure state supported educational opportunity without regard to race; it is not to achieve racial integration in public schools. Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975).

Intentionally segregated schools are per se illegal. Georgia State Conference v. Georgia, 570 F. Supp. 314 (S.D. Ga. 1983).

State is not strictly liable for any alleged unlawful segregation activities by local schools. However, it has continuing authority and obligation to insure that local education agencies have completely eliminated all vestiges of the dual system and have not adopted practices that will cause racial separation. Georgia State Conference v. Georgia, 570 F. Supp. 314 (S.D. Ga. 1983).

Action of county perpetuating or reestablishing dual school system violates desegregation order.

- In light of the affirmative duty of the DeKalb County Board of Education to desegregate its dual school system, under a 1969 desegregation order, it was error for the district court to hold that the planned expansion of a high school could only be enjoined if it was motivated by discriminatory intent. Until the school system achieved unitary status, official action that had the effect of perpetuating or reestablishing a dual school system violated the board's duty to desegregate - regardless of the board's lack of discriminatory intent. Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985), aff'd in part and rev'd in part on other grounds, 887 F.2d 1438 (11th Cir. 1989), rev'd on other grounds, 499 U.S. 954, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992).

Duty of school district to remedy demographic imbalance.

- Once the racial imbalance due to the constitutional violation has been remedied, a school district is under no duty to remedy imbalance that is caused by demographic factors. Freeman v. Pitts, 503 U.S. 467, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992).

School de jure segregation eliminated.

- The district court's conclusions that the school board had eliminated the vestiges of de jure segregation as far as practicable and that the school board had shown a good faith commitment to and compliance with the desegregation plan was not clearly erroneous. Lockett v. Board of Educ., 111 F.3d 839 (11th Cir. 1997).

Procedures utilized by local school districts to assign students to ability groupings did not violate the equal protection clause, despite the substantial racial disparity in the lower ability groups, because the procedures were not based on the present effects of past segregation, and because the procedures remedied the consequences of prior segregation through better educational opportunities. Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985).

Withdrawal of judicial supervision of school system.

- A district court may relinquish its supervision and control over those aspects of a school system in which there has been compliance with a desegregation decree if other aspects of the system remain in noncompliance. Freeman v. Pitts, 503 U.S. 467, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992).

Practice of arbitrarily segregating races in state, county and city penal facilities is unconstitutional. Stroman v. Griffin, 331 F. Supp. 226 (S.D. Ga. 1971).

Racial segregation of prisoners.

- Danger to security, discipline, and good order must presently exist and be apparent to justify racial segregation of prisoners. Stroman v. Griffin, 331 F. Supp. 226 (S.D. Ga. 1971).

Where action of voluntary association made state agency to extent of nominating power violative of equal protection.

- The Georgia Legislature, by giving to voluntary associations of dentists the right to nominate members of various state agencies made it an agency of the State of Georgia to that extent. By excluding black dentists from its membership it thereby deprived them of the right to vote in connection with the nomination of dentists to fill places in the agencies. The result of such action therefore is that only dentists approved by those of the white race can be elected to such offices and black dentists can have no voice in their selection. This seems to be a clear violation of the equal protection clause. Bell v. Georgia Dental Ass'n, 231 F. Supp. 299 (N.D. Ga. 1964).

Draft induction orders de facto valid.

- A claim of racial discrimination in the composition of a draft board, even if factually sustained, is not a defense to a criminal charge based on refusing to submit to an induction order, because the orders of such draft are de facto valid. Gee v. Smith, 479 F.2d 642 (5th Cir. 1973), cert. denied, 415 U.S. 932, 94 S. Ct. 1446, 39 L. Ed. 2d 491 (1974).

Removal of prosecutions to federal court.

- Civil Rights Act of 1964 entitles defendants to remove prosecutions to federal court if the right upon which they rely is a right under any law providing for equal civil rights and they are denied or cannot enforce that right in the state courts. Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966).

Discrimination in parole requires similar situation.

- A prisoner alleging racial discrimination in the denial of parole failed to provide the "exceptionally clear proof" of discrimination which is required where the prisoner did not show that the prisoner was similarly situated with white inmates who were paroled. Fuller v. Georgia State Bd. of Pardons & Paroles, 851 F.2d 1307 (11th Cir. 1988).

Death penalty statute.

- Even if the studies enumerated by petitioner in a motion for federal habeas corpus relief were to establish conclusively that the present Georgia death penalty statute has had a racially disproportionate impact, such a showing in itself would not establish an equal protection violation. Ross v. Hopper, 538 F. Supp. 105 (S.D. Ga. 1982), aff'd in part, rev'd in part, 756 F.2d 1483 (11th Cir. 1985).

A petitioner is entitled to the grant of a writ of habeas corpus if the petitioner establishes that the petitioner was singled out for the imposition of the death penalty by some specific act or acts evidencing an intent to discriminate against the petitioner on account of the petitioner's race or the race of the petitioner's victim. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984), rev'd on other grounds sub nom. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), cert. denied, 501 U.S. 1282, 112 S. Ct. 38, 115 L. Ed. 2d 1118, 501 U.S. 1224, 111 S. Ct. 2841, 115 L. Ed. 2d 1010 (1991).

No relief for conclusionary statement that sentence discriminatory.

- Where defendant contended that the defendant's death sentence was a result of an unconstitutional pattern and practice of discrimination against poor white males accused of killing white victims, the defendant's bald, conclusory assertions of discrimination merited no habeas relief. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 103 L. Ed. 2d 931 (1989).

4. Election and Voting Rights

Unconstitutionality of Second Congressional District.

- The Second Congressional District was drawn to segregate voters according to their race and so violated equal protection. Johnson v. Miller, 922 F. Supp. 1552 (S.D. Ga. 1995).

Power of states to determine qualifications of voters and candidates.

- Each state has the sole right to determine the qualifications of those seeking state or local offices and the qualifications of voters in state elections as long as the laws of a state do not deny to the citizens of the state their rights under the federal Constitution. Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595, appeal dismissed and cert. denied, 397 U.S. 149, 90 S. Ct. 999, 25 L. Ed. 2d 183 (1970).

States have broad powers to regulate voting, which may include laws relating to the qualifications and functions of electors. Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595, appeal dismissed and cert. denied, 397 U.S. 149, 90 S. Ct. 999, 25 L. Ed. 2d 183 (1970).

The right to vote, as intended to be protected by U.S. Const., amend. 14, refers to the right to vote as established by the laws and Constitution of the state, which has broad powers to determine the conditions under which such right of suffrage may be exercised, such as residence requirements, age or previous criminal record, absent of course, any discrimination which U.S. Const., amend. 14 condemns. Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595, appeal dismissed and cert. denied, 397 U.S. 149, 90 S. Ct. 999, 25 L. Ed. 2d 183 (1970).

Equal protection violations generally involve purposeful denial, or dilution, of voting rights of segment of electorate. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Because the legislature, at the request of a city council, passed legislation authorizing the city to change its form of government from a strong mayor/weak council system to a weak mayor/strong council system employing a city manager, the mayor, who was African-American, did not show that this was an unconstitutional dilution of African-American voters' political power because the mayor did not show the legislation was conceived or operated as a purposeful means to further racial discrimination. Griffin v. City Council, 279 Ga. 835, 621 S.E.2d 734 (2005).

Disenfranchisement of persons convicted of crimes of moral turpitude does not violate U.S. Const., amend. 14 because sec. 2 of U.S. Const., amend. 14 specifically qualifies equal protection guarantees by recognizing the right of a state to disenfranchise persons "for participation in rebellion or other crime." Kronlund v. Honstein, 327 F. Supp. 71 (N.D. Ga. 1971).

A state may constitutionally disenfranchise otherwise qualified voters because they have been convicted of a felony, since the state has a compelling interest in protecting the integrity of its electoral process. Kronlund v. Honstein, 327 F. Supp. 71 (N.D. Ga. 1971).

Discrimination against some members of electorate may violate equal protection guarantee.

- If state discriminates in favor of some members of electorate and against others, the equal protection guarantee may have been violated. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Equal protection clause and its "one-person, one vote" sequel applies: (1) in the actual voting process by general or primary election; and (2) in the legislative functions of a state. Conversely, it apparently does not apply in nonlegislative functions of a state or in the administration of the judiciary. Smith v. State Executive Comm. of Democratic Party, 288 F. Supp. 371 (N.D. Ga. 1968).

State constitutional provision requiring that county officer be county resident for two years preceding election is reasonable and not a denial of equal protection under U.S. Const., amend. 14. Griggers v. Moye, 246 Ga. 578, 272 S.E.2d 262 (1980).

Statute imposing election qualifying fees violative of equal protection where not shown reasonably necessary.

- Where the state does not show that the imposition of election qualifying fees is reasonably necessary to accomplishing any legitimate state objectives, the statute requiring payment of such a fee violates the equal protection clause of U.S. Const., amend. 14. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972).

State or political party can impose filing fee in amount reasonably approximating cost of processing candidate's application for a place on the ballot. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972).

Right to appear on ballot.

- State statute creating the presidential candidate selection committee, by identifying three logically representative members of each party to serve on the committee, and by providing a check against arbitrariness by allowing only one member of the party on the committee to override the unanimous decision of the committee, is narrowly tailored to advance the interests of the state in conducting orderly and efficient elections and allowing the parties to choose their candidates, and is not violative of the first and Fourteenth Amendments. Duke v. Cleland, 884 F. Supp. 511 (N.D. Ga. 1995), aff'd, 87 F.3d 1226 (11th Cir. 1996).

Prohibiting candidates from getting names on ballot due to lack of funds.

- To prohibit candidates from getting names on ballot solely because they cannot post certain amount of money is unconstitutional and illegal. This unconstitutionality does not attach, where the candidate can get his name on the ballot in some other fashion, either by nominating petition, primary election, or pauper's affidavit. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Right to appear on general election ballot is constitutionally favored but less than fundamental, and may be burdened, but only by means reasonably necessary to limit the field to serious candidates. "Seriousness" comprehends two factors, the first of which is a candidate's actual popularity and, by implication, his reasonable chances of success, and the second of which is a candidate's subjective desire and motivation. Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980).

Interests behind right-to-access rule: the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980).

Concept of political equality in voting booth extends to all phases of state elections. Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963).

One-person, one-vote test as to constitutionality of election system.

- To test the constitutionality of an election system, the first step is to determine the geographical unit, and then to see if the voters in the unit are treated equally. This is the one-person, one-vote admeasurement. Where it is plain that every voter in the county is treated equally, the test is satisfied. Reed v. Mann, 237 F. Supp. 22 (N.D. Ga. 1964).

Proper judicial approach toward legislative apportionment at issue.

- The proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual state whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination. Toombs v. Fortson, 241 F. Supp. 65 (N.D. Ga. 1965), aff'd, 384 U.S. 210, 86 S. Ct. 1464, 16 L. Ed. 2d 483 (1966).

Constitutionality of Eleventh Congressional District.

- Race was the predominant, overriding factor explaining the General Assembly's decision to attach to the Eleventh District various appendages containing dense majority-black populations, thereby giving rise to a valid equal protection claim under the principles announced in Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2819, 125 L. Ed. 2d 511 (1993), and the district could not be sustained as narrowly tailored to serve a compelling governmental interest. Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995).

Mathematical formula fixing maximum variance by which population of district may differ from average district population is not possible, but a variance of more than 15 percent would be difficult, if not impossible, to justify. The court will base any test as to the reasonableness of variances on the departure figure of 15 percent. Of course, this does not mean a deliberate built-in variance of this degree but a good faith effort to meet the average with departure only where necessary to afford individual representation to as many counties as possible. Toombs v. Fortson, 241 F. Supp. 65 (N.D. Ga. 1965), aff'd, 384 U.S. 210, 86 S. Ct. 1464, 16 L. Ed. 2d 482 (1966).

Deviations in district populations allowed if redistricting plan good faith effort toward equality of voting strength.

- Deviations in the populations of legislative districts will be allowed only if a redistricting plan represents a good faith effort to attain the goal of equality of voting strength. Millican v. Georgia, 351 F. Supp. 447 (N.D. Ga. 1972), vacated on other grounds sub nom. Fortson v. Millican, 413 U.S. 909, 93 S. Ct. 3045, 37 L. Ed. 2d 1019 (1973).

Legislative districts must come as close to equality of voting strength as practicable.

- Although mechanical exactitude in the drawing of legislative districts is not a constitutional requirement and each district need not have precisely the same number of individuals per elected representative, the districts created must come as close to the ideal of equality of voting strength as is practicable. Millican v. Georgia, 351 F. Supp. 447 (N.D. Ga. 1972), vacated on other grounds sub nom. Fortson v. Millican, 413 U.S. 909, 93 S. Ct. 3045, 37 L. Ed. 2d 1019 (1973).

Once significant deviations in populations of legislative districts are shown, burden shifts to state to justify these deviations by showing that there has been a good faith adherence to a plan of population based representation, with only such deviations as occur in recognizing certain factors of state interest which are free from any signs of arbitrariness or discrimination. Millican v. Georgia, 351 F. Supp. 447 (N.D. Ga. 1972), vacated on other grounds sub nom. Fortson v. Millican, 413 U.S. 909, 93 S. Ct. 3045, 37 L. Ed. 2d 1019 (1973).

Redistricting attempting to interfere with right of school board member to hold office or vote.

- While voting rights and the right to run for public office are core constitutional rights, an attempted deprivation of constitutional or statutory rights is not the same as an actual deprivation. Furthermore, incurring legal fees to vindicate rights does not itself establish that those rights were violated. Thus, plaintiff, a school board member, pursing attempted violations of plaintiff's right to run and hold a designated seat in a predefined district, could not succeed as an injunction in another lawsuit and failure of preclearance interfered with the implementation of the efforts of defendants, the local voting registrars; since the attempt to deprive plaintiff of plaintiff's constitutional rights did not succeed, neither can plaintiff's lawsuit succeed. Cook v. Randolph County, 573 F.3d 1143 (11th Cir. 2009).

Agreement for appointment of certain number of black judges unconstitutional.

- In an action challenging Georgia's judicial election system under the Voting Rights Act and the Federal Constitution, a proposed consent decree that would require the state to have a certain number of black judges was a violation of equal protection. Brooks v. State Bd. of Elections, 848 F. Supp. 1548 (S.D. Ga. 1994), appeal dismissed, 59 F.3d 1114 (11th Cir. 1995).

Test whether rights violated under system of legislative representation is invidious discrimination.

- The test that must be applied in determining whether the plaintiffs' rights under the equal protection clause have been violated by a system of legislative representation in either or both of the chambers of the state legislature is that of "invidious discrimination." The elements of such a test are the rationality of the state policy, whether or not the system is arbitrary, the historical basis in the political system, and the possible remedies for the inequality. Toombs v. Fortson, 205 F. Supp. 248 (N.D. Ga. 1962), vacated on other grounds, 379 U.S. 621, 85 S. Ct. 598, 13 L. Ed. 2d 527 (1965).

Discrimination in political rights actionable where invidious.

- Political rights, such as the right to vote, are protected by the equal protection clause; but discrimination must reach the point of invidiousness to become actionable, and discrimination is not invidious if there is a reasonable chance that political relief can be obtained. Spahos v. Mayor of Savannah Beach, 207 F. Supp. 688 (S.D. Ga.), aff'd, 371 U.S. 206, 83 S. Ct. 304, 9 L. Ed. 2d 269 (1962).

Multi-member districts not per se illegal.

- Multi-member districts, even though they have certain undesirable features, are not per se illegal under the equal protection clause. In the absence of factual proof of dilution or cancellation, multi-member districts do afford citizens the equal protection of the law that comes from U.S. Const., amend. 14 and are not unconstitutional under the equal protection clause. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

Election process equality established by U.S. Const., amend. 14 includes not only the "one-person, one-vote" rule, but also includes, as to state created multi-member election district schemes, the prohibition that such districts may not operate to minimize or cancel out the voting strength of racial or political elements of the voting population. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

To sustain claim that multi-member election districts are unconstitutional, plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question - that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

Burden on challengers to prove multi-member districts dilute or cancel voting strength of racial or political elements.

- To sustain a challenge that multi-member election districts are unconstitutional because they operate to minimize or cancel out the voting strength of racial or political elements of the voting population, the challengers must carry the burden of proving that multi-member districts operate to dilute or cancel the voting strength of racial or political elements. Such proof focuses not on population-based apportionment "one-man, one-vote" rule but on the quality of representation afforded the challengers by the multi-member district arrangement as compared with single-member districts. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

Constitutionality of multi-member election districts evaluated according to actual performance.

- In evaluating the constitutionality of multi-member election district schemes, factual proof of dilution or cancellation is derived from an examination of the manner in which the multi-member system has performed or actually worked in past years - the real-life impact of multi-member districts on individual voting power. It is not derived from a theoretical projection of the effect that a multi-member system will have in years to come. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

When challengers factually prove that multi-member districts operate to dilute or cancel voting strength of racial or political elements, they thereby establish that such a scheme denies them the inalienable right derived from the equal protection clause of U.S. Const., amend. 14 that each and every citizen has full and effective participation in the political processes of his state's legislative bodies. Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977).

Proof of improper assignment of voters.

- Parties alleging that a state has assigned voters on the basis of race are neither confined in their proof to evidence regarding the district's geometry and makeup nor required to make a threshold showing of bizarreness. Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995).

Discrepancy in population of militia districts from which members of county board of education are elected denies fair and equal vote and violates the "one person, one vote" principle of the equal protection clause. Grimes v. Clark, 226 Ga. 195, 173 S.E.2d 686 (1970).

Statutory referendum procedure to remove county from fluoridation requirement constitutional.

- The construction of § 12-5-175(a) by a county board of elections, to the effect that a referendum petition to remove the county from the statutory requirement of fluoridation of public water must be signed by 10 percent of the registered voters who actually voted in the election, did not violate the constitutional rights of the petitioners to equal protection and the right to vote. Kelly v. Macon-Bibb County Bd. of Elections, 608 F. Supp. 1036 (M.D. Ga. 1985).

Evidence of intent to discriminate.

- A speech favoring "white primary bill" made by the sponsor of the 1947 Single-Commissioner Act for Carroll County, which act he later sponsored in 1951, was evidence of an intent to discriminate against black voters in any voting legislation before the General Assembly during that session, and a finder of fact might well infer that such intent continued until 1951 when the bill was re-introduced under the same sponsorship. City of Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (11th Cir. 1987), cert. denied, 485 U.S. 936, 108 S. Ct. 1111, 99 L. Ed. 2d 272 (1988).

Evidence of racial prejudice excluded.

- In discrimination action by black employees, the district court did not abuse its discretion in excluding evidence of plant managers' racial prejudice where employees' counsel failed to explain adequately the importance of the evidence. Ross v. Buckeye Cellulose Corp., 980 F.2d 648 (11th Cir. 1993), cert. denied, 513 U.S. 814, 115 S. Ct. 69, 130 L. Ed. 2d 24 (1994).

Right to exclude candidate from publicly broadcast political debate.

- Georgia Public Telecommunications Commission's decision to air a debate between Democrat and Republican candidates for Governor, while excluding a Libertarian candidate, was rational, and did not constitute an equal protection violation. Chandler v. Georgia Pub. Telecommunications Comm'n, 917 F.2d 486 (11th Cir. 1990), cert. denied, 502 U.S. 816, 112 S. Ct. 71, 116 L. Ed. 2d 45 (1991).

Use of direct recording electronic equipment does not deny equal protection.

- Trial court did not err in granting the Secretary of State, the Governor, and the Georgia State Election Board summary judgment in voters' action challenging the use of direct recording electronic equipment on the ground that it denied the voters equal protection under the equal protection clause of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. II because all Georgia voters had the option of casting an absentee ballot or using the touch screen electronic voting machines on election day, and in deciding to forego the privilege of voting early on a paper ballot, voters assumed the risk of necessarily different procedures if a recount was required; since every Georgia citizen could vote by absentee ballot or by utilizing the touch screen voting system, the voters' contention that there was some state based classification between voters was false. Favorito v. Handel, 285 Ga. 795, 684 S.E.2d 257 (2009).

Strict scrutiny review should not have been applied to plaintiff school board members' challenges under the First and Fourteenth Amendments to O.C.G.A. § 20-2-51(c)(2) because the statute's nepotism provision prohibited plaintiffs only from running for the school board in districts where certain family members were employed, but the statute did not otherwise impair plaintiffs' right to run for office or to vote; plaintiffs' injury was not so severe as to require strict scrutiny. Plaintiffs' claims that the statute was both too narrow and overbroad also failed; that the statute did not prevent nepotism in all its possible forms did not heighten the severity of the restriction to necessitate strict scrutiny. Grizzle v. Kemp, 634 F.3d 1314 (11th Cir. 2011).

5. Selection of Juries

Jury service is not right or privilege, but burden which state summons certain of citizens to bear. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Standards of intelligence, uprightness and experience for jurors are not violative of the Constitution. White v. State, 230 Ga. 327, 196 S.E.2d 849, appeal dismissed, 414 U.S. 886, 94 S. Ct. 222, 38 L. Ed. 2d 134 (1973).

Youth as justification for striking juror.

- Youth and lack of experience can be a race-neutral reason for striking a juror. Robert v. State, 227 Ga. App. 26, 488 S.E.2d 105 (1997).

"Reverse Batson" challenges.

- In a federal habeas corpus case, a Caucasian state death row inmate's equal protection challenge to the prosecutor's striking of African-American venirepersons from the jury at the inmate's murder trial failed because, at the time of trial, the U.S. Supreme Court had not yet ruled that a "reverse Batson" challenge to the use of peremptory challenges to strike jurors of a different race than the defendant was possible; because a "reverse Batson" challenge was not clearly established federal law at the time, it did not form a proper basis for federal habeas relief. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).

When right to jury trial exists, jury's proper composition is fundamental. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Artistic tendencies as justification for juror striking.

- Trial court did not err in denying defendant's Batson challenge regarding the state's peremptory strike of an African-American juror who was a dance instructor, as the prosecutor explained that the prosecutor struck the juror because people in artistic professions had "a different slant," discriminatory intent was not inherent in this race-neutral explanation, and the juror was not similarly situated to other jurors who were not stricken. White v. State, 258 Ga. App. 546, 574 S.E.2d 629 (2002).

Prosecutor's reason for a peremptory challenge against a student who was in graduate school in order to be a school counselor was race-neutral: the prosecutor was concerned that psychology would be a part of the defense of battered person syndrome, and the prosecutor did not want someone who would give strong credence to psychology. Demery v. State, 287 Ga. 805, 700 S.E.2d 373 (2010).

Use of "forced balancing" of grand jury pool upheld.

- Motion to dismiss a murder indictment on the ground that the grand jury was drawn from a grand jury pool that systematically underrepresented blacks and overrepresented whites, in violation of the Sixth and Fourteenth Amendments, based on the selection process known as "forced balancing" the grand jury pool to the most recent decennial census for the county, was properly denied under the law in effect as of November 2010, before the Jury Composition Reform Act of 2011 took effect. Franklin v. State, 303 Ga. 165, 810 S.E.2d 118 (2018).

Impartial venires representative of community as a whole required.

- Very integrity of fact-finding process depends on impartial venires representative of community as whole. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Just and fair trial by unbiased, unprejudiced and impartial tribunal is great American constitutional principle. There can be no due process or equal protection unless that principle remains inviolate. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Constitutional principle that juries must be selected from fair cross section of community is well-established. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Affirmative duties of jury commissioners, including list that is fairly representative cross section.

- The United States Constitution casts upon jury commissioners, as judicial administrators, affirmative duties which must be carried out in order to have a constitutionally secure system. A list that is fairly representative cross section of the community is both a constitutional standard as well as a duty in jury selection procedures in Georgia. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Jury roll need not accurately reflect proportionate strength of every identifiable group.

- A jury roll need not be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group, for while the cross-sectional concept is firmly imbedded in the law, the constitution does not require that the jury or jury venire be a statistical mirror of the community. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

In determining whether particular discrepancy is substantial or significant, some allowance may be made for the imprecision of the jury selection process and the operation of constitutionally inoffensive factors such as exemptions from jury duty based on occupation. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Consideration of percentages not determinative.

- The consideration of percentages of minorities on a jury panel and on the jury is relevant but not determinative. Gooden v. State, 204 Ga. App. 62, 418 S.E.2d 632 (1992).

Guarantee of equal protection applies to any identifiable group in community.

- The constitutional guarantee of equal protection of the laws is not directed solely against discrimination between whites and blacks. It applies to any identifiable group in the community. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

State cannot deliberately exclude identifiable, distinct groups from jury lists.

- A defendant is not constitutionally entitled to a venire or jury roll of any particular composition, but U.S. Const., amend. 14, equal protection and due process clause, and U.S. Const., amend. 6, right to a jury trial, do require that the state not deliberately and systematically exclude identifiable and distinct groups from their jury lists. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Failure to show actual under-representation of a claimed cognizable group.

- Supreme Court of Georgia found no need to address the trial court's finding regarding whether Hispanic persons were a cognizable group in Cobb County in order to decide the defendant's jury composition claim, because: (1) the defendant failed to show any actual under-representation of Hispanic persons; (2) a slight over-representation of Hispanic persons who were citizens, in comparison to the total county population, was shown by the evidence; and (3) the defendant's own expert belied the defendant's claim of under-representation. Rice v. State, 281 Ga. 149, 635 S.E.2d 707 (2006).

Defendant's argument that Hispanic persons were misrepresented in the composition of the grand and traverse jury pools in violation of the Sixth and Fourteenth Amendments and O.C.G.A. § 15-12-40 was rejected because the defendant failed to show any actual misrepresentation of this group: the defendant's own expert witness testified that when using 2000 Census data, absolute disparity figures for Hispanics were under the five percent threshold, although when adjusted to account for the citizenship rate of Hispanic persons, the absolute disparity figure showed over-representation by 6.12 percent for the grand jury list. Thus, the absolute disparity figures were well within constitutional requirements of 10 percent. Foster v. State, 288 Ga. 98, 701 S.E.2d 189 (2010).

Burden of proof regarding discriminatory peremptory challenges.

- The ultimate burden of persuasion in a challenge to a peremptory strike is on the opponent rather than the proponent of the strike. Hinson v. State, 237 Ga. App. 366, 515 S.E.2d 203 (1999).

Defendant may now complain of exclusion from jury of distinct class to which he does not belong. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Accused entitled to demand no exclusion of race and no discrimination because of race in grand and petit juries.

- What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the impaneling of the petit jury, there shall be no exclusion of the accused's race, and no discrimination against them, because of their race or color. The question of unlawful exclusion is one of fact. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Method of jury selection does not have to guarantee all groups in community will be fully represented in order to meet equal protection standards. Brookins v. State, 221 Ga. 181, 144 S.E.2d 83 (1965).

State's use of peremptory challenges to dismiss males not unconstitutional.

- In a prosecution for the murder of a homosexual victim, the state's exercise of peremptory strikes against male members of the jury pool was not unconstitutional as being gender based where, during voir dire, several of the stricken male jurors expressed hostile attitudes toward gay men, and thus may have been unsympathetic toward the victim. Tedder v. State, 265 Ga. 900, 463 S.E.2d 697 (1995).

In a prosecution for cruelty to children by maliciously causing physical pain through failing to seek medical attention, the trial court did not improperly allow the state to exercise its jury strikes in a discriminatory manner to exclude males. Herrin v. State, 221 Ga. App. 356, 471 S.E.2d 297 (1996).

Proportionate representation of races on grand or petit jury is not necessary to guarantee equal protection of the law to the accused. Brookins v. State, 221 Ga. 181, 144 S.E.2d 83 (1965).

The trial court did not err by ruling that the composition of the grand and traverse jury pools did not violate the Constitution, O.C.G.A. § 15-12-40, and the Unified Appeal Procedure where, in a comparison of the 1990 Census numbers for Hispanics in the county with the percentage of Hispanics on the jury lists, it was shown that the absolute disparities were within the legal limit. Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1408, 149 L. Ed. 2d 350 (2001).

Waiver of jury of 12.

- It is not necessary for an accused to personally waive the accused's right to a jury of 12 and agree to be tried by a jury of less than 12; counsel for accused may validly waive this right for the accused if (1) waiver is made, without objection, in accused's presence or (2) accused otherwise acquiesces in waiver. Hudson v. State, 250 Ga. 479, 299 S.E.2d 531 (1983).

Record sufficient to establish prima facie case of discrimination.

- Evidence that the state exercised a disproportionate percentage of its strikes against blacks, by using 50 percent of its allotted strikes in selecting from a venire that was 20 percent black, was sufficient to establish a prima facie inference of discriminatory intent. Griffeth v. State, 224 Ga. App. 462, 480 S.E.2d 889 (1997).

Discrepancy in number on selection panel.

- Appellant's constitutional rights to due process of law and a jury trial were not violated where his jury was selected from one panel of 14 and one panel of ten, rather than from two panels of 12 persons each. Hester v. State, 164 Ga. App. 871, 298 S.E.2d 292 (1982).

Results speak for themselves and jury commissioners must be held to have intended natural result of conduct. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Record insufficient to establish prima facie case of discrimination.

- Colloquies between court and counsel and argument of counsel, though included in the record, were not competent evidence of the facts observed therein, and did not suffice to make a proper record of facts required to establish a prima facie case of discrimination. Shaw v. State, 201 Ga. App. 438, 411 S.E.2d 534 (1991).

Evidence that the state exercised a disproportionate percentage of its strikes against blacks, by using 50 percent of its allotted strikes in selecting from a venire that was 20 percent black, was sufficient to establish a prima facie inference of discriminatory intent. Griffeth v. State, 224 Ga. App. 462, 480 S.E.2d 889 (1997).

Upon appellate review of an order denying defendant's Batson challenge, the appeals court found that after considering that the ratio of African-American jurors to white jurors exceeded the ratio of potential African-American jurors to potential white jurors, defendant failed to make out a prima facie showing of racial discrimination in jury selection. Goldberg v. State, 280 Ga. App. 600, 634 S.E.2d 419 (2006), aff'd, 282 Ga. 542, 651 S.E.2d 667 (2007).

Trial court's finding that the defendant failed to set forth a prima facie case of racial discrimination sufficient to support a Batson challenge was not clearly erroneous, as the defendant failed to show that the totality of the relevant facts gave rise to an inference of discriminatory purpose. Moreover, the number of strikes by the state exercised against African-American veniremen did not give rise to an inference of discrimination. Ludy v. State, 283 Ga. 322, 658 S.E.2d 745 (2008).

Burden on challenger to establish purposeful racial discrimination by satisfactory evidences.

- The proposition that a defendant in a criminal case is entitled to a proportionate number of the defendant's race on the jury which tries the defendant, or that the venire or jury list accurately reflect the proportionate strength of every identifiable group is not law since the challenger must establish by satisfactory evidence purposeful racial discrimination, even if the figures are not proportionate, except that a gross and unexplained disparity may be sufficient alone to demonstrate such discrimination. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444 (1969).

Burden is upon defendant to demonstrate that a particular class was the subject of discrimination in the jury selection procedures. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Threshold question that must be answered by the defendant is whether the particular class constitutes an identifiable and distinct class for purposes of a jury challenge based on U.S. Const., amend. 14. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Defendant has initial burden of proving existence of systematic racial exclusion in selection of jurors. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972).

Burden of proof regarding discriminatory peremptory challenges.

- Prosecutor must demonstrate the racial neutrality of the prosecutor's peremptory challenges only if the defendant establishes a prima facie case of racial discrimination in the prosecutor's exercise of peremptory challenges. Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987).

Failure to apply the three-step Batson/McCollum test was error.

- While the trial court found that the state established a prima facie case of defendant's use of racial discrimination in using peremptory challenges, asked defense counsel to explain the basis for each strike, and listened to rebuttal by the prosecuting attorney, based on the assumption that defense counsel used peremptory strikes to remove all white males from the venire, it erred by failing to apply the three-step Batson/McCollum process in disallowing defendant's exercise of peremptory strikes against jurors 5, 7, and 10 and in ordering those panel members reseated. Moon v. State, 280 Ga. App. 84, 633 S.E.2d 418 (2006).

Underrepresentation not unconstitutional absent discrimination.

- The defendant's allegations that the venire from which the grand and petit juries were drawn was unconstitutionally composed because both women and African-Americans were underrepresented did not establish a prima facie violation of either the sixth amendment or the Fourteenth Amendment, because there was no showing that the underrepresentation was due to the systematic exclusion of the groups in the jury-selection process or that the venire was selected under a practice providing an opportunity for discrimination. Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991).

No inference arises because no member of defendant's race on jury trying the defendant.

- The arbitrary, systematic and purposeful exclusion of members of the defendant's race from the defendant's jury cannot be inferred merely from the fact that no one of that race is on such jury. Heard v. State, 210 Ga. 523, 81 S.E.2d 467 (1954).

Inference of discriminatory behavior.

- Where the state used its peremptory strikes to eliminate only black veniremen and eliminated all but one for an unarticulated reason, the inference of discriminatory behavior is sufficiently raised. Barton v. State, 184 Ga. App. 258, 361 S.E.2d 250 (1987).

Race-neutral explanation for peremptory strikes.

- The prosecutor, who used three of six peremptory challenges to strike the only three black members of the jury pool, did not use the peremptory strikes to challenge members of the venire on the basis of race, where the prosecutor offered a racially neutral explanation for the exercise of each peremptory strike. United States v. Williams, 936 F.2d 1243 (11th Cir. 1991), cert. denied, 503 U.S. 912, 112 S. Ct. 1279, 117 L. Ed. 2d 504 (1992).

The state's striking of the only African-American venireperson because the individual was a practicing attorney was properly found to be a race-neutral reason. Collins v. State, 239 Ga. App. 11, 520 S.E.2d 542 (1999).

Trial court did not err in denying defendant's Batson challenge even though the state did use all of its peremptory strikes against African-American jurors, as defendant did not rebut the state's race-neutral reasons for the strikes, that each of the jurors who were struck said that they had close friends or family members whom the state mistreated or falsely accused of crimes. Daniels v. State, 276 Ga. 632, 580 S.E.2d 221 (2003).

Prosecutor's explanation that the prosecutor decided to use peremptory challenges to strike one African-American venireperson because the venireperson knew defendant, a second African-American venireperson because that individual was unemployed, and a third African-American venireperson because that individual was related to a defendant previously prosecuted by the prosecutor's office and was friends with other defendants prosecuted by the prosecutor's office established race-neutral reasons for striking all three people, and the trial court did not violate defendant's right to equal protection by granting the prosecutor's motions to strike. Floyd v. State, 263 Ga. App. 3, 587 S.E.2d 166 (2003).

Despite defendant's ostensibly race-neutral reason for a single contested peremptory strike, after failing to express any reason why the juror's friendship with a district attorney was case-related, and the record failed to indicate that defendant did not challenge at least one other juror with a friend who worked as a prosecutor in the same judicial circuit, upon a showing by the state of a prima facie case of racial discrimination by virtue of defendant's use of all of defendant's peremptory strikes to remove whites from the jury, the trial court's finding that defendant's reliance on non-racial explanations to defend the strike was implausible and a mere pretext to disguise discrimination against white males was not clearly erroneous. Allen v. State, 280 Ga. 678, 631 S.E.2d 699 (2006).

Appeals court rejected the defendant's claim that the state committed a Batson violation in peremptorily striking two jurors, as: (1) the state's reasons in striking the first juror appeared concrete and race-neutral and any question of doubt was decided in favor of the state, given the great deference to the determination that the state's reason was not so wholly fantastic as to be pretextual; and (2) a second juror was properly stricken based on evidence that that juror worked nights, appeared to be extremely fatigued, and actually slept through portions of the voir dire. Woolfolk v. State, 282 Ga. 139, 644 S.E.2d 828 (2007).

Because the defendant was unable to rebut the state's explanation of the race-neutral reasons for the state's peremptory strike, the trial court properly denied the defendant's Batson motion. Specifically, the state explained that the state struck the juror at issue because the juror had a prison ministry, had been a character witness in a criminal case, and was related to another juror the state struck because the other juror was previously charged with aggravated assault. Boone v. State, 293 Ga. App. 654, 667 S.E.2d 880 (2008).

Trial court did not err in denying the defendant's Batson challenge under the Fourteenth Amendment. The state explained that the state struck an African-American juror because the juror was combative and reluctant to answer the state's questions, and the defendant's argument that this was not an adequate nondiscriminatory reason for striking the juror was unpersuasive. Jackson v. State, 291 Ga. 25, 727 S.E.2d 120 (2012).

State provided sufficient race-neutral reasons for using nine of the state's 10 peremptory strikes against non-white prospective jurors, including that one stricken prospective juror worked for a group home with boys close to the defendant's age, one had multiple conflicts with the criminal justice system, and one had been falsely accused of a crime but acted in self-defense, the same legal theory advanced by the defendant. Stacey v. State, 292 Ga. 838, 741 S.E.2d 881 (2013).

Purposeful discrimination found in striking of prospective jurors.

- The State's strikes of two black prospective jurors in a prisoner's capital murder trial were motivated in substantial part by discriminatory intent. The prosecution's proffered reasons for the strikes also applied to otherwise-similar nonblack panelists who were allowed to serve, and other evidence of discriminatory intent included shifting explanations, misrepresentations of the record, and a persistent focus on race in documents in the prosecution's file. Foster v. Chatman, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (2016).

State may provide race-neutral explanations upon remand.

- The equal protection clause prohibits a prosecutor from using the state's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. Where the record on appeal contains no transcription of the voir dire, but the state asserts that it could have provided explanations for its strikes, but did not do so at the time of the trial, the case will be remanded to provide an opportunity for the state to establish, if it can, that its strikes of veniremen were racially neutral. Congdon v. State, 261 Ga. 398, 405 S.E.2d 677 (1991).

Discrimination cannot be established by merely proving that no one of defendant's race was on jury. An accused person cannot, of right, demand a mixed jury, some of whom are of the defendant's race, nor is a jury of that kind guaranteed to any race. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Nonwhite defendant not entitled to racially mixed jury with members of his race.

- A black person or member of any other race, who is on trial is not entitled to a mixed jury composed of members of the defendant's own race and members of the white race; no such right to a mixed jury is guaranteed by the due process and equal protection clauses of either the Constitution of the United States or of Georgia. Heard v. State, 210 Ga. 523, 81 S.E.2d 467 (1954).

Discriminatory selection of grand and petit juries in state courts may be challenged under the equal protection clause of U.S. Const., amend. 14. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983); Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983).

Discriminatory selection of grand and traverse juries in state court may be challenged under the equal protection clause of U.S. Const., amend. 14. Davis v. Zant, 721 F.2d 1478 (11th Cir. 1983), rev'd on other grounds, 752 F.2d 1515 (11th Cir.), cert. denied, 471 U.S. 1143, 105 S. Ct. 2689, 86 L. Ed. 2d 707 (1985).

Prima facie case of discrimination.

- Two things need be were shown to make out a prima facie case of discrimination: (1) an infected source of jurors such as racially segregated tax returns; and (2) an impermissible disparity between the venire and the source of jurors. Johnson v. Caldwell, 228 Ga. 776, 187 S.E.2d 844 (1972).

Improper basis for excluding juror.

- Where prosecutor stated that he was "not comfortable" with the excluded juror, the court held it not appropriate to deal with the prosecutor's level of comfort other than to say that such was too vague, too subjective, non-specific, noncase related, and as such failed to meet Batson's requirement of "clear and reasonably specific." Covin v. State, 215 Ga. App. 3, 449 S.E.2d 550 (1994).

Showing of substantial underrepresentation of cognizable class can establish prima facie case of discriminatory selection of jurors. Mann v. Cox, 487 F. Supp. 147 (S.D. Ga. 1979).

No constitutional guarantee of representative cross-section in particular case.

- The fact that the jury panel in a particular case actually contained a lower percentage of blacks is not especially significant. There is no constitutional guarantee that the grand or petit juries impanelled in a particular case will constitute a representative cross-section of the entire community. Truitt v. State, 212 Ga. App. 286, 441 S.E.2d 800 (1994).

Underrepresentation of women.

- When the jury commissioners have selected persons at random directly from the voter registration list, in such mechanical manner as to virtually eliminate the possibility of bias in that selection, it is not sufficient to establish a prima-facie equal protection violation to establish that women are underrepresented on a single grand jury list by some undetermined amount. Dobbs v. Kemp, 809 F.2d 750 (11th Cir. 1987), cert. denied, 481 U.S. 1059, 107 S. Ct. 2203, 97 L. Ed. 2d 751 (1987), rev'd on other grounds, 506 U.S. 357, 113 S. Ct. 835, 122 L. Ed. 2d 103 (1993).

Striking of women not pretextual.

- Defendant failed to show that the striking of two female jurors by the prosecutor was gender based since the explanations proffered by the prosecutor, that the prosecutor feared that the jurors would be distracted or preoccupied by their impending moves, were not so implausible or fantastic as to render them pretextual. Shell v. State, 264 Ga. App. 547, 591 S.E.2d 450 (2003).

Underrepresentation of young persons on grand jury list did not violate the requirement that the grand jury be drawn from a fair cross section of the community; the underrepresentation was explained by the jury commissioner's compliance with the legal requirement that only a limited number of the most experienced persons on the traverse jury list be selected for inclusion on the grand jury list. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985).

Systematic exclusion of blacks from jury rolls where blacks constitute sizeable part of population is violation of equal protection clause. Mann v. Cox, 487 F. Supp. 147 (S.D. Ga. 1979).

No purposeful discrimination found in exclusion of blacks from jury.

- Although due to the notoriety of the case in the black community, more blacks than whites had some prior knowledge of the case and were excluded for cause, this fact did not reflect "purposeful discrimination." Hughes v. State, 257 Ga. 200, 357 S.E.2d 80 (1987).

State's peremptory challenges of seven black veniremen was not purposefully discriminatory, where the state struck three veniremen on the basis of their employment (unemployed or recently employed) and the remaining four veniremen because they did not appear to be particularly interested in or responsive to the selection process. Evans v. State, 183 Ga. App. 436, 359 S.E.2d 174 (1987).

Where a black defendant argued that the numerical ratios reflected by the government's strikes constituted a prima-facie showing that the prosecutor acted with discriminatory racial intent in exercising peremptory strikes, and specifically, the government struck two-thirds of the blacks from the regular panel and one-half of the blacks from the alternate panel, it was held that although the percentage of black jurors struck from a jury panel might establish a prima-facie case in some instances, it did not because of the coincidence of two factors: (1) the number of black persons on the regular panel was small and (2) the prosecutor could have, but did not, strike all of the black members of that panel. In such a case a more appropriate analysis focuses on the prosecutor's decision-making process as to each of the seven strikes (six strikes for the regular panel and one for the alternate panel), and since the prosecutor's statement of reasons was clear and reasonably specific, and, since the prosecutor's explanation was credible, no discrimination was found. United States v. David, 662 F. Supp. 244 (N.D. Ga. 1987), aff'd, 844 F.2d 767 (11th Cir. 1988).

Assuming, arguendo, that the striking of both black jurors on the panel raised a prima-facie showing of discrimination, the record amply supported the trial court's finding that the prosecutor used peremptory challenges to remove those jurors for legitimate, racially-neutral reasons, including that the two prospective jurors knew key witnesses in the case, and that one of the jurors gave contradictory responses, and one gave no response, to questions concerning their knowledge about the case. Henderson v. State, 257 Ga. 434, 360 S.E.2d 263 (1987).

Defendant failed to make a prima-facie case for unlawful discrimination in showing prosecution's use of 10 peremptory challenges to strike seven blacks from a jury panel where the prosecution accepted five black jurors prior to exhausting its strikes and there were at least three blacks on the jury; even if a prima-facie case was established, a race-neutral explanation was given as to all potential jurors stricken. Mincey v. State, 257 Ga. 500, 360 S.E.2d 578 (1987).

Facts did not support defendant's contention that jury was selected in racially discriminatory manner. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989).

Where prosecution used five of its strikes to remove black jurors from the venire, one black juror remained on the panel and served on the jury, and legitimate, race-neutral reasons were presented by the assistant district attorney for the exercise of each strike, giving "great deference" to the trial court, it cannot be said its conclusion that the strikes were not motivated by intentional discrimination was clearly erroneous. Hamm v. State, 187 Ga. App. 318, 370 S.E.2d 158, cert. denied, 187 Ga. App. 907, 370 S.E.2d 158 (1988).

State's use of three of its peremptory challenges to strike prospective jurors who were black, and one peremptory challenge to strike a prospective alternate juror who was black, was for legitimate, racially-neutral reasons. Lee v. State, 258 Ga. 481, 371 S.E.2d 389 (1988).

Where the record indicated that after the jury selection had ended, the percentage of blacks on the jury had increased from the number of blacks on the panel, there was no prima facie case of discrimination, and the trial court did not err in failing to require that the prosecutor provide an explanation for using eight of his ten peremptory jury challenges against young black men. Willis v. State, 201 Ga. App. 727, 411 S.E.2d 714, cert. denied, 201 Ga. App. 904, 411 S.E.2d 714 (1991).

In a Batson challenge, the trial court found that defendant made a prima facie showing of racial discrimination and proceeded to an evaluation of the state's explanations for its strikes against two African-American members of the jury venire, but the state's explanations that: (1) it struck the first prospective juror because that juror's answers did not relate to the questions asked of the juror and were not well articulated, leading the prosecutor to suspect that the juror possessed limited intelligence; and (2) it struck the second juror because the second juror's perceptions of an incident at a water fountain with another juror and the second juror's decision to report it indicated undue attention to issues of race, and that it would have struck any potential juror who reported such an incident, regardless of that juror's race were race neutral and did not show any discriminatory intent; therefore, the trial court's ruling that defendant did not carry defendant's burden of proof to show a discriminatory purpose in the state's exercise of its peremptory strikes was not clearly erroneous. Roberts v. State, 278 Ga. 541, 604 S.E.2d 500 (2004).

Establishing prima facie equal protection case of arbitrary, systematic exclusion of blacks from jury service.

- A prima facie equal protection case of arbitrary and systematic exclusion of blacks from jury service on the basis of race may be established by proof of a long and continued history of the exclusion of blacks from local juries. Brookins v. State, 221 Ga. 181, 144 S.E.2d 83 (1965).

In order to establish prima facie case of discrimination, the defendant must demonstrate that there exists a substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population and that the selection procedures themselves are not racially neutral. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Prima facie case of purposeful racial discrimination can be established solely on evidence of the prosecutor's exercise of peremptory challenges at trial; once the defendant makes this prima facie showing, then the burden shifts to the state to come forward with a neutral explanation for its challenges to black jurors. Hillman v. State, 182 Ga. App. 47, 354 S.E.2d 673, aff'd, 184 Ga. App. 712, 362 S.E.2d 417 (1987).

To make out a prima facie case of unconstitutional exclusion of a cognizable group from the jury selection process, a defendant must show more than mere exclusion of a distinct group; the defendant must show: that the group alleged to have been excluded was a distinctive group in the community; that the representation of this group on the jury venire was not fair and reasonable in relation to the number of such persons in the community; and that this underrepresentation was due to the state's systematic exclusion of the group from the venire. Willis v. Zant, 720 F.2d 1212 (11th Cir. 1983), cert. denied, 467 U.S. 1256, 104 S. Ct. 3546, 82 L. Ed. 2d 849, cert. denied, 467 U.S. 1256, 104 S. Ct. 3548, 82 L. Ed. 2d 851 (1984), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596 (1989).

Prima facie case of racially discriminatory peremptory challenges.

- Prima facie case of racial discrimination was established, where prosecutor used all ten peremptory challenges to strike all ten blacks from the venire. Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987).

Trial court's finding that defense counsel's explanation for a prima facie racially discriminatory peremptory strike was pretextual was not clear error based on defense counsel's demeanor while explaining the strike, counsel's misstating what the juror's response was during voir dire, counsel's failure to excuse similarly situated jurors, and counsel's exercise of 11 of 12 strikes against Caucasians. Nelson v. State, 271 Ga. App. 870, 611 S.E.2d 147 (2005).

No prima facie showing of discrimination was established, where, although the state used six of its ten peremptory challenges to strike six of the ten prospective jurors who were black, the proportion of blacks on the selected jury (one-third) was greater than the proportion of blacks on the panel (one-fourth). Williams v. State, 258 Ga. 80, 365 S.E.2d 408 (1988).

Prosecutor's use of all ten peremptory challenges to strike blacks from the jury, leaving an all-white petit jury, did not establish a prima facie equal protection violation, where although the prosecutor had previously used peremptory challenges to strike 70 black jurors, the prosecutor had allowed 72 blacks to sit as jurors, even though 65 could have been excluded through the use of peremptory challenges. Willis v. Kemp, 838 F.2d 1510 (11th Cir. 1988), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596 (1989).

Where percentage of blacks on the jury was, as a result of the use of peremptory strikes, higher than that of the panel from which they were chosen, defendant did not show a prima facie case of discrimination. Harris v. State, 186 Ga. App. 756, 368 S.E.2d 527 (1988).

The fact that the state exercised nine peremptory strikes alone did not establish a disproportionate exercise of strikes sufficient to raise a prima facie inference that the strikes were exercised with discriminatory intent. Whitaker v. State, 269 Ga. 462, 499 S.E.2d 888 (1998).

A white defendant lacked standing to make an equal protection claim regarding the absence of blacks on the jury where the claim was based on the fact that the defendant's black defense counsel was a member of a minority and this may have adversely influenced the jury. Heaton v. State, 180 Ga. App. 718, 350 S.E.2d 480 (1986).

White defendant lacked standing to make an equal protection claim against the state for excluding all black jurors by use of peremptory challenges. McGuire v. State, 185 Ga. App. 233, 363 S.E.2d 850 (1987).

Once prima facie case of racial exclusion made, burden shifts.

- Once a prima facie case of racial exclusion in the selection of jurors is made, the burden shifts to the prosecution to disprove the existence of racial exclusion. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972).

To shift burden of proof.

- Statistical evidence establishing that blacks are underrepresented, together with evidence that the jury selection procedures are not radically neutral, establishes a prima facie case of invidious racial discrimination thus shifting the burden of proof to the state. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Fact that jury commissioners have acted in good faith is not defense to the failure to discharge the affirmative constitutional duties cast upon them to compose a list of intelligent and upright jurors who represent a cross section of such persons. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973).

Mere assertions by public officials that they did not exclude prospective jurors because of race are not sufficient to meet a prima facie equal protection case of arbitrary and systematic exclusion of blacks from juries. Brookins v. State, 221 Ga. 181, 144 S.E.2d 83 (1965).

Statements by jury commissioners that selection was made without regard to race does not destroy prima facie case of discrimination based on historical statistics. Mann v. Cox, 487 F. Supp. 147 (S.D. Ga. 1979).

Inquiry concerns procedures for compiling jury lists, not actual jury composition.

- In determining whether there has been a denial of defendant's U.S. Const., amend. 6 right to have a jury venires selected from fairly representative cross-sections of the community, and in determining whether the defendant's rights under the equal protection clause of U.S. Const., amend. 14 have been violated because members of the defendant's race have been deliberately excluded from the jury lists, the inquiry concerns the procedures for compiling the jury lists and not the actual composition of the grand or traverse jury in a particular case. Patterson v. Balkcom, 245 Ga. 563, 266 S.E.2d 179 (1980).

Inquiry into use of peremptory challenges denied.

- No reversible error for trial judge's denial of defense counsel's request for an opportunity to cross-examine the prosecutor after the prosecutor had offered a race-neutral justification for each exercise of his peremptory challenges, whereby he struck five African-American males, given that seven of the twelve jurors empanelled were African-Americans. While this statistic did not negate the possibility of race discrimination, it was significant to the highly deferential undertaken review. United States v. Jiminez, 983 F.2d 1020 (11th Cir.), cert. denied, 510 U.S. 925, 114 S. Ct. 330, 126 L. Ed. 2d 276 (1993).

The court did not err in refusing to allow defense counsel to question the prosecutor with regard to the prosecutor's reasons for peremptory challenges since there is no requirement that the prosecutor's explanations for peremptory challenges be supported by facts ascertained during voir dire, and it is the duty of the trial court, rather than the party opposing the challenges, to inquire as to any suspected impropriety in determining credibility. Chavarria v. State, 248 Ga. App. 398, 546 S.E.2d 811 (2001).

Number of peremptory challenges afforded codefendants.

- O.C.G.A. § 17-8-4(b), which allows defendants tried jointly 14 peremptory challenges (while O.C.G.A. § 15-12-165 allows a defendant tried alone nine such challenges) does not violate equal protection as there are valid reasons for discriminating between the peremptory challenges of single defendants and codefendants: the avoidance of undue delay and a needless burden on the public. Dixon v. State, 285 Ga. 312, 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242, 695 S.E.2d 255 (2010).

Jury list to be supplemented if voter list used for jury selection procedures substantially racially disparate list.

- If the voter list used for the selection of jurors produces a jury list showing substantial racial disparity with the voter list, U.S. Const., amend. 14 and Code 1933, § 59-106 (see O.C.G.A. § 15-12-40) require that the jury list be supplemented by other sources. Broadway v. Culpepper, 439 F.2d 1253 (5th Cir. 1971) (decided under former version of O.C.G.A. § 15-12-40).

Exclusions and exemptions from jury duty.

- There is nothing in U.S. Const., amend. 14 which prevents a state from excluding and exempting from jury duty certain classes (lawyers, ministers, doctors, etc.) on the bona fide ground that it is for the good of the community that their regular work should not be interrupted; provided, the exclusion is not the result of race or class prejudice. Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964).

Blanket exclusion of women from jury duty is unconstitutional. Mann v. Cox, 487 F. Supp. 147 (S.D. Ga. 1979).

Statute authorizing judge to excuse homemaker with young children from jury not unconstitutional.

- The Georgia statute authorizing the trial judge to excuse a juror who is a homemaker with children 14 years of age or under does not violate U.S. Const., amend. 6 or U.S. Const., amend. 14 to the United States Constitution, for a state may have an important interest in assuring that those members of the family responsible for the care of children are available to do so. Willis v. State, 243 Ga. 185, 253 S.E.2d 70, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Blacks not on panel because all struck or otherwise disqualified.

- Because there is no constitutional right to trial jury of any particular racial composition, evidence showing that although blacks were on the panel, none were on the trial jury because all were struck or otherwise disqualified, is not sufficient to show an improperly composed grand or petit jury. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

Prosecutor's use of peremptory strikes to exclude blacks from the jury did not deny defendant the right to equal protection, where one juror was excused because the juror attended the same church as the defendant's parent and another was excused because the juror failed to indicate, when asked, that the juror's child had been arrested on numerous occasions. Killens v. State, 184 Ga. App. 717, 362 S.E.2d 425 (1987).

Race-neutral explanation for peremptory strikes.

- Where the prosecuting attorney offered a racially neutral motivation for the exercise of peremptory strikes, that only those black prospective jurors who knew the defendant or knew of the defendant had been removed, even if a prima facie case had been made, a review of the explanations offered by the prosecutor revealed that a race-neutral explanation was given as to all of the potential jurors, accordingly, the trial court properly denied the defendant's Batson motion. Adams v. State, 186 Ga. App. 599, 367 S.E.2d 871, cert. denied, 186 Ga. App. 917, 367 S.E.2d 871 (1988).

Where the district court found that the prosecutor articulated a neutral explanation for the prosecutor's challenges for each of the excluded black jurors, since the district court's determination that the government has rebutted the prima facie case typically turns on an evaluation of the prosecutor's creditability, so a reviewing court must give the district court's findings great deference, it was held that the district court's findings was not clearly erroneous. United States v. David, 844 F.2d 767 (11th Cir. 1988).

The court properly rejected the defendant's race-neutral reason for striking a juror inasmuch as the court found, with regard to that juror, no objection to jury service because of a new job or otherwise, and found an implicitly unacceptable "pattern" relevant to the strike by the defense; thus, the trial court's upholding of the state's challenge to the peremptory strike of that juror by the defense cannot be found to be clearly erroneous. Wolfe v. State, 273 Ga. 670, 544 S.E.2d 148 (2001).

State's use of peremptory challenges to dismiss blacks not unconstitutional.

- There being an absence of any pattern of systematic exclusions of blacks from juries within the jurisdiction and a reasonable explanation of record for the exercise of the peremptory challenges of two black jurors, there is no merit in the enumeration that the state pursued racially motivated practices. Johnson v. State, 179 Ga. App. 467, 346 S.E.2d 903 (1986).

Prosecutor's reasons for striking black jurors were racially neutral, where peremptory challenges were used to remove nine blacks who knew defendant and one black person whose family was known to the sheriff. McCormick v. State, 184 Ga. App. 687, 362 S.E.2d 472 (1987).

Prosecutor's failure to ask same questions of white juror as asked of black juror did not evidence racial animus in the exercise of a peremptory challenge. Turner v. State, 267 Ga. 149, 476 S.E.2d 252 (1996).

The striking of one black juror for a racial reason violates the equal protection clause, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown. United States v. David, 803 F.2d 1567 (11th Cir. 1986).

State cannot deprive class of persons of privilege of serving on juries by "perverted" use of peremptory challenges, although a particular defendant does not have an equal protection right to be tried by jurors of any particular race. United States v. Carlton, 456 F.2d 207 (5th Cir. 1972).

Jury from which persons with scruples against death penalty excluded not fair cross section of community.

- In Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), the Supreme Court decided that a jury from which persons with scruples against the death penalty have been excluded does not represent a fair cross section of the sentiment of the community. Witherspoon, however, concerns only the exclusion of persons who merely assert conscientious scruples against capital punishment; it does not proscribe the exclusion of a person who states unequivocally that the person would never impose the death penalty or that the person's attitude toward the death penalty would prevent the person from making an impartial decision as to the defendant's guilt. Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S. Ct. 908, 21 L. Ed. 2d 799 (1969), later appeal, 431 F.2d 70 (5th Cir. 1970), vacated on other grounds, 408 U.S. 938, 92 S. Ct. 2867, 33 L. Ed. 2d 758 (1972).

Challenging for cause any juror stating reservations about death penalty.

- State has right to challenge for cause any prospective juror stating reservations about capital punishment would prevent impartial decision as to a defendant's guilt of rape. Massey v. Smith, 224 Ga. 721, 164 S.E.2d 786 (1968), cert. denied, 395 U.S. 912, 89 S. Ct. 1756, 23 L. Ed. 2d 225 (1969), later appeal, Massey v. State, 229 Ga. 846, 195 S.E.2d 28 (1972).

State has right to exclude from jury any juror who states the juror could never vote to impose death penalty or that the juror would refuse even to consider its imposition in the case before the juror. Massey v. Smith, 224 Ga. 721, 164 S.E.2d 786 (1968), cert. denied, 395 U.S. 912, 89 S. Ct. 1756, 23 L. Ed. 2d 225 (1969), later appeal, Massey v. State, 229 Ga. 846, 195 S.E.2d 28 (1972).

Exclusion of jurors with scruples against death penalty invalidates death sentence, not conviction.

- Exclusion of jurors with scruples against the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), does not invalidate a conviction, but only the death sentence. Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S. Ct. 908, 21 L. Ed. 2d 799 (1969), later appeal, 431 F.2d 70 (5th Cir. 1970), vacated on other grounds, 408 U.S. 938, 92 S. Ct. 2867, 33 L. Ed. 2d 758 (1972).

Racial considerations in capital sentencing.

- A complex statistical study that indicated a risk that racial considerations enter into capital sentencing determinations did not prove that a particular defendant's capital sentence was unconstitutional under the eighth amendment or the equal protection clause of the Fourteenth Amendment. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).

Death sentence cannot be executed where those opposed to capital punishment removed for cause.

- A death sentence cannot constitutionally be executed if imposed by a jury from which have been removed for cause those who are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Clark v. Smith, 224 Ga. 766, 164 S.E.2d 790 (1968), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2279, 29 L. Ed. 2d 859 (1971).

Defendant has no right to have capital punishment objectors serve on guilt determination phase of trial as part of the "cross section of the community" to which the defendant is entitled. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).

Indictment of the defendant by grand jury from which members of the defendants' race are systematically excluded is denial of equal protection of the laws. Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167, 100 L. Ed. 77 (1955).

Conviction cannot stand if based on indictment of grand jury or verdict of petit jury from which blacks excluded by reason of their race. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967); Brown v. State, 239 Ga. 435, 238 S.E.2d 21 (1977).

Jury must be impartially drawn from cross section of community.

- Equal protection clause prohibits convicting person by jury not impartially drawn from cross section of community. Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964).

Action of jury invalid when impaneling not in compliance with law.

- When the impaneling of a jury is not in compliance with law, the jury as a body is not competent to act, and its action is invalid. Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964).

Member of minority group whose race was systematically excluded from jury service entitled to new trial before a legally constituted jury. Watson v. United States, 350 F. Supp. 57 (N.D. Ga. 1972), aff'd, 484 F.2d 34 (5th Cir. 1973), cert. denied, 416 U.S. 940, 94 S. Ct. 1944, 40 L. Ed. 2d 291 (1974).

White person indicted and convicted by juries from which blacks were systematically excluded entitled to have conviction set aside without a showing of actual bias. Watson v. United States, 350 F. Supp. 57 (N.D. Ga. 1972), aff'd, 484 F.2d 34 (5th Cir. 1973), cert. denied, 416 U.S. 940, 94 S. Ct. 1944, 40 L. Ed. 2d 291 (1974).

Standard of review of trial courts' rulings.

- Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) is not controlling authority as to the standard of review to be applied by state appellate courts reviewing trial courts' rulings on jury selection. Greene v. Georgia, 117 S. Ct. 578 (1996).

Jury discrimination claims must be raised in a timely fashion. One who tardily brings the claim must make a showing of cause for the failure and must also make a showing of actual prejudice. Tennon v. Ricketts, 574 F.2d 1243 (5th Cir. 1978), cert. denied, 439 U.S. 1091, 99 S. Ct. 874, 59 L. Ed. 2d 57 (1979).

Defendant granted more peremptory challenges than state.

- Equal protection clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man, and thus the law provides a remedy for jurors who are struck for illegal reasons by the defense; O.C.G.A. § 15-12-165, which grants a criminal defendant twice as many peremptory juror challenges as the state, is not unconstitutional. Robinson v. State, 278 Ga. 134, 598 S.E.2d 466 (2004).

Time for raising claim of racial discrimination in use of peremptory challenges.

- Where the record reflected that following voir dire, the jury was selected, sworn, given preliminary instructions by the trial court, and excused for lunch, and following the recess and a lengthy hearing on an unrelated defense motion, counsel for defendant moved for mistrial, claiming that defendant's constitutional rights had been violated by the prosecutor's use of peremptory challenges to exclude blacks from the jury panel, the motion should have been deemed to be timely, since there were no judicial guidelines regarding the time and manner in which such a claim is to be presented and since the defendant's motion in this regard was made relatively promptly in the course of the proceedings. Henceforth, however, any claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), should be raised prior to the time the jurors selected to try the case are sworn. State v. Sparks, 257 Ga. 97, 355 S.E.2d 658 (1987); Ford v. State, 257 Ga. 661, 362 S.E.2d 764 (1987), reversed on other grounds, 498 U.S. 411, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991).

A contention that the prosecutor exercised peremptory challenges in a racially discriminatory manner must be raised in a timely manner, and after trial is too late. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

The rule announced by the Georgia Supreme Court in State v. Sparks, 257 Ga. 97, 355 S.E.2d 658 (1987), regarding the time for raising a claim of racial discrimination in the use of peremptory challenges, did not bar federal judicial review of petitioner's equal protection claim, where the rule had not been firmly established at the time of petitioner's trial. Ford v. Georgia, 498 U.S. 411, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991).

A state court may adopt a general rule that a claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), is untimely if it is raised for the first time on appeal, or after the jury is sworn, or before its members are selected. In any given case, however, the sufficiency of such a rule to limit all review of a constitutional claim itself depends upon the timely exercise of the local power to set procedure. Ford v. Georgia, 498 U.S. 411, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991).

The requirement that any claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule. The imposition of this rule is nevertheless subject to the United States Supreme Court's standards for assessing the adequacy of independent state procedural grounds to bar all consideration of claims under the U.S. Constitution. Ford v. Georgia, 498 U.S. 411, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991).

Timely challenge of composition of grand jury required.

- A state prisoner who fails to make a timely challenge to the composition of the grand jury that indicts the prisoner cannot challenge the composition in a subsequent federal habeas corpus attack of the prisoner's state conviction. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

Time for challenge of array of grand jurors.

- A challenge to the array of grand jurors may not be entertained by a trial court unless it is made prior to the return of the indictment or the defendant has shown that the defendant had neither actual nor constructive knowledge of the alleged illegal composition of the grand jury prior to the time the indictment was returned. Tennon v. Ricketts, 574 F.2d 1243 (5th Cir. 1978), cert. denied, 439 U.S. 1091, 99 S. Ct. 874, 59 L. Ed. 2d 57 (1979).

Failure to object at trial waives objection.

- An objection on the grounds of systematic racial exclusion on grand jury should have been presented in a proper way at the trial, and upon failure to do so it is to be considered as waived and does not present a ground for habeas corpus. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).

In order for the defendant's motion to quash the indictment and challenge to the array of the grand jurors to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that the defendant had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned; otherwise, the objection is deemed to be waived. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).

Objection to composition of grand jury or traverse jury.

- Objection to the composition of a grand jury must be raised by challenge to the array duly presented before the indictment is returned or by plea in abatement filed before arraignment. A like objection to the traverse jury in a criminal case must be raised by challenge to the array at the earliest opportunity the defendant has to avail the defendant of that right. Cobb v. State, 218 Ga. 10, 126 S.E.2d 231 (1962), cert. denied, 371 U.S. 948, 83 S. Ct. 499, 9 L. Ed. 2d 497 (1963).

Complaint of exclusion of blacks from jury requires timely challenge.

- In the absence of a timely challenge to the grand jury or the traverse jury, the complaint of exclusion of blacks therefrom is not reviewable. Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967).

Batson challenge not preserved.

- Defendant failed to preserve defendant's Batson claim for review where, following the initial Batson challenge, defendant and the state agreed to the seating on the jury of a woman and an African-American, and defendant did not object when the African-American was later removed due to the African-American's failure to disclose a recent arrest. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

Objection to grand jury and petit jury waived as basis for habeas relief where no objection at trial.

- A defendant, by failing to object at his trial to a grand jury and petit jury subsequently adjudicated unconstitutional, thereby waived the objection as a basis for habeas relief. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

When accused not afforded opportunity to object to composition of jury, motion for new trial of habeas corpus proceedings available.

- Where a person accused of a crime is not afforded the opportunity to make appropriate objections to the illegal composition of the grand jury or the traverse jury before indictment or during the progress of the trial, the person may raise the issue by motion for new trial or by habeas corpus proceedings. Cobb v. State, 218 Ga. 10, 126 S.E.2d 231 (1962), cert. denied, 371 U.S. 948, 83 S. Ct. 499, 9 L. Ed. 2d 497 (1963).

Six-person limitation for petit juries in certain civil actions not violative of equal protection.

- The six person limitation in Code 1933, §§ 59-703 and 59-704 (see O.C.G.A. §§ 15-12-122 and15-12-123) for petit juries in civil actions seeking recoveries of less than $5,000 exclusive of interest and costs does not deny equal protection of the laws. Wall v. Citizens & S. Bank, 247 Ga. 216, 274 S.E.2d 486 (1981).

No challenge as to selection of foreperson.

- Discrimination in the selection of grand jury foremen can have little, if indeed any, appreciable effect upon a defendant's due process rights to fundamental fairness and therefore provides no basis upon which to reverse a conviction or dismiss an indictment. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985).

6. Criminal Procedure

Differing terms of court.

- O.C.G.A. §§ 15-6-3(15.1) and17-7-171 did not combine to deprive a criminal defendant of equal protection of the law by permitting the county of adjudication to operate with only two terms of court, while other similar-sized counties operate with more terms of court. Although the defendant may have had to wait months longer for trial than similarly situated defendants in other counties, the presumptive validity of the statutes stood. Henry v. State, 263 Ga. 417, 434 S.E.2d 469 (1993).

No actual prejudice shown in 24-year delay.

- Defendant's fifth and Fourteenth Amendment due process rights were not violated by the 24-year delay between the crimes and the indictment as defendant failed to show actual prejudice; that the defense was weakened by the absence of witnesses who had died or could not be found and by the faded memories of witnesses who testified did not satisfy the actual prejudice prong of the Wooten test. Jackson v. State, 279 Ga. 449, 614 S.E.2d 781 (2005).

Selective enforcement of criminal statute.

- To be a constitutional violation, selective enforcement of a criminal statute must represent an intentional and purposeful discrimination based upon some unjustifiable standard such as race, religion, or other arbitrary classification. Sabel v. State, 250 Ga. 640, 300 S.E.2d 663 (1983), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 321 S.E.2d 703 (1984).

Prosecutors are vested with discretion in deciding what charges to bring against what defendants based on evidentiary considerations and, where there was no evidence tending to show that the decision to prosecute defendant was based upon invidious discrimination or upon a desire to punish him for the exercise of his legal rights, there was no violation of his equal protection rights. Russell v. State, 222 Ga. App. 475, 474 S.E.2d 673 (1996).

Prosecution of defendant for retaliatory purpose.

- There was no presumption that prosecution of defendant was undertaken for retaliatory purpose after defendant had filed a civil lawsuit against the investigating officer in a burglary case. Lee v. State, 177 Ga. App. 698, 340 S.E.2d 658 (1986).

Admission of child witness' testimony.

Revocation of indigent defendant's probation for failure to pay fine.

- U.S. Const., amend. 14 prohibits a state court from automatically revoking an indigent defendant's probation for failure to pay a fine and restitution without determining that the defendant did not make sufficient bona fide efforts to pay or that alternative forms of punishment were inadequate. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

Sentencing court could not revoke defendant's probation for failure to pay imposed fine and restitution, absent evidence and findings that defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

Forfeiture of seized controlled substances.

Distinction between crack and powder cocaine valid.

- Federated sentencing scheme for defendants convicted of possession of crack cocaine with intent to distribute did not violate equal protection, as defendant failed to produce any evidence whatsoever of discriminatory purpose by Congress or the Sentencing Commission in establishing harsher sentencing penalties for base or crack cocaine than for powder cocaine, and as rational basis requirements were met because the sentencing statutes serve legitimate government interests. United States v. Byse, 28 F.3d 1165 (11th Cir. 1994), cert. denied, 513 U.S. 1097 , 115 S. Ct. 767, 130 L. Ed. 2d 663 (1995).

Sentencing of habitual violators.

- Because the equal protection clause does not deny a state the power to treat different classes of people in different ways, the General Assembly could have reasonably concluded that habitual violators are more dangerous than those who have had their licenses suspended or revoked. Thus, a defendant was not denied equal protection when the defendant was sentenced as an habitual violator under O.C.G.A. § 40-5-58(c) rather than being sentenced under O.C.G.A. § 40-5-121. Gaines v. State, 260 Ga. 267, 392 S.E.2d 524 (1990).

Basis of sentence.

- Defendant was not denied due process in sentencing because the record indicated that the trial judge did not rely on the victim's apparently false testimony in imposing the sentence, but relied on the severity of the crime. Stephenson v. State, 261 Ga. App. 402, 582 S.E.2d 492 (2003).

Exclusion of murder from those crimes to which coercion would be a defense does not deny a defendant the right to equal protection of the law. Luther v. State, 255 Ga. 706, 342 S.E.2d 316 (1986).

The feticide statute, O.C.G.A. § 16-5-80, does not violate equal protection by creating two classifications that are arbitrary and capricious, although O.C.G.A. § 16-12-140 punishes the offense of criminal abortion with imprisonment for not less than one year nor more than 10 years, while the Georgia feticide statute requires a life sentence, as the distinction between the sentences required by the Georgia feticide statute and the Georgia criminal abortion statute are rationally related to legitimate governmental purposes. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987).

Implied consent statute, O.C.G.A. § 40-5-67.1, does not violate the dictates of equal protection set forth in the Georgia and federal constitutions. Lutz v. State, 274 Ga. 71, 548 S.E.2d 323 (2001).

Pay-day lender statutes.

- The trial court did not err in rejecting both the defendants' equal protection and vagueness challenges to O.C.G.A. § 16-17-1 et seq., after they were charged with violating O.C.G.A. § 16-17-2, as both the defendants, as in-state lenders, were not similarly situated with out-of-state banks designated in O.C.G.A. § 16-17-2(a)(3), and hence were subject to state regulation restricting high interest rates on loans, whereas the out-of-state banks were not; the Georgia legislature had a rational basis for creating a class based on those in-state payday lenders who were subject to state regulation, and moreover the prohibition against payday loans in whatever form transacted, was sufficiently definite to satisfy due process standards. Glenn v. State, 282 Ga. 27, 644 S.E.2d 826 (2007).

Jury instructions did not violate the equal protection clause.

- Equal protection clause was not violated in charging the jury to convict if defendant was under the influence of alcohol to the extent that it was "less safe" for defendant to drive, rather than if defendant was "rendered incapable of driving safely"; the standards were legally equivalent. Johnson v. State, 268 Ga. App. 426, 602 S.E.2d 177 (2004).

Georgia witness competency statutes present a reasonable requirement regarding the minimal level of understanding for people participating in one of the most important functions of government and do not violate the equal protection clause. Ambles v. State, 259 Ga. 406, 383 S.E.2d 555 (1989).

State had standing to challenge Georgia witness competency statutes. Ambles v. State, 259 Ga. 406, 383 S.E.2d 555 (1989).

Black defendant's death sentence for the murder of a white person did not violate the eighth and Fourteenth Amendments, where, although the jurors possessed some racial prejudices, and some more so than others, defendant did not show that the jurors, either individually or as a whole, were influenced by prejudices that would make them favor the death penalty for a black person who murdered a white person. Dobbs v. Zant, 720 F. Supp. 1566 (N.D. Ga. 1989), aff'd, 963 F.2d 1403 (11th Cir. 1991), rev'd on other grounds, 506 U.S. 357, 113 S. Ct. 835, 122 L. Ed. 2d 103 (1993).

Mandatory life sentence constitutional.

- Provision that mandates a sentence of life imprisonment upon a second conviction for selling cocaine, O.C.G.A. § 16-13-30(d), does not violate due process or equal protection and does not violate state or federal constitutional guarantees against cruel and unusual punishment. Isom v. State, 261 Ga. 596, 408 S.E.2d 701 (1991).

The life-without-parole statute, O.C.G.A. § 17-10-16, does not violate the equal protection clause because it places the discretion to withhold the presentation of a life-without-parole sentence in cases of crimes committed before May 1, 1993, in the hands of the prosecutor. Freeman v. State, 264 Ga. 27, 440 S.E.2d 181 (1994).

Mandatory minimum sentences.

- O.C.G.A. § 17-10-6.1, imposing mandatory minimum sentences in certain cases, does not violate equal protection because that section bears a reasonable relationship to the legitimate legislative concern of deterring crime and ensuring that a court imposed sentence will be served in its entirety. Campbell v. State, 268 Ga. 44, 485 S.E.2d 185 (1997).

Prior convictions in sentencing.

- In an action in which the defendant was convicted of shoplifting as a felon in accordance with O.C.G.A. § 16-8-14(b)(1)(C), there was no requirement that the prior convictions upon which the conviction and sentence were based be proved beyond a reasonable doubt, as there was an exception under Apprendi for such prior convictions based upon the general principle that prior convictions were generally already proved beyond a reasonable doubt; further, there was no due process violation under U.S. Const., amend. 14 because defendant received notice of the state's intent to use the prior convictions for sentencing and the defendant had an opportunity to challenge the convictions pursuant to former O.C.G.A. § 17-10-2(a). Redd v. State, 281 Ga. App. 272, 635 S.E.2d 870 (2006).

Allowable conditions of probation.

- The court had the authority to impose as a condition of probation the requirement that defendant wear a fluorescent pink plastic bracelet imprinted with the words "D.U.I. CONVICT." Such a requirement did not impose cruel and unusual punishment or deprive defendant of equal protection and it was not an impermissibly indeterminate condition. Ballenger v. State, 210 Ga. App. 627, 436 S.E.2d 793 (1993).

Decisions by parole board.

- The doctrine of qualified immunity does not shield defendants Chairman of the Board of Pardons and Paroles and Parole Decisions Guidelines employee from liability for plaintiff's equal protection claim. When making a parole decision, members of a parole board may not engage in invidious discrimination based on race, religion, national origin, poverty, or some other constitutionally protected interest. Parisie v. Morris, 873 F. Supp. 1560 (N.D. Ga. 1995).

DNA sample collection from convicted felons.

- Classification of subjecting convicted felons but not convicted misdemeanants to the DNA identification process was rationally related to the Georgia legislature's legitimate law enforcement purpose of creating a permanent identification record of convicted felons because the statute encompasses all convicted felons whose crimes and/or past histories were serious enough to warrant a sentence to confinement, as opposed to lesser punishment, and the legislature acted reasonably and not arbitrarily when the legislature focused on those convicted felons who were housed in a correctional facility where DNA samples could be efficiently and economically obtained. As a result, former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) rationally related to the legitimate state interest the statute was intended to promote and did not violate equal protection. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007).

OPINIONS OF THE ATTORNEY GENERAL

U.S. Const., amend. 14 prohibits state action only;

- state inaction is the opposite of state action and cannot be converted into the latter through the actions of lawless individuals whose acts are nowhere included in the amendment. 1957 Op. Att'y Gen. p. 14.

Hearing required before administrative agency action to revoke license.

- The due process clauses of U.S. Const., amend. 14 and Ga. Const. 1983, Art. I, Sec. I, Para. I, require notice and a hearing before an administrative agency before any action may be taken to revoke a license; this constitutional requirement must be met, even though the act granting the right to revoke the license provides for an appeal to the superior court. 1958-59 Op. Att'y Gen. p. 1.

Procedure for serviceman stationed overseas to change name.

- Serviceman, citizen of Georgia stationed overseas, cannot submit to jurisdiction of Japanese Family Court in order to have his name changed without relinquishing his Georgia and United States citizenship but must petition superior court in county in which the name to be changed is recorded. 1962 Op. Att'y Gen. p. 345.

Statutory construction.

- Statutes which possibly infringe on U.S. Const., amends. 1 and 14's rights should be narrowly construed, and construed as explicit, not vague, so as to avoid the question of the statute's constitutionality whenever possible. 1977 Op. Att'y Gen. No. 77-15.

Provisions concerning livestock running at large or straying (see O.C.G.A.

§ 4-3-1 et seq.) not void for ambiguity. - 1952-53 Op. Att'y Gen. p. 381 (rendered prior to amendment by Ga. L. 1953, Nov.-Dec. Sess., p. 395).

Regulatory license tax on newspapers.

- The constitutional guarantee of a free press prohibits a municipality from levying a regulatory license tax on newspapers where such a levy subjects the newspaper to operational and expression control by the municipality. 1950-51 Op. Att'y Gen. p. 115.

While there is no statute dealing specifically with the question of prohibition against the levying of a license tax on newspapers by a municipality, if such a levy is determined to be regulatory in nature it would be in contravention to U.S. Const., amends. 1 and 14, and would therefore be null and void. 1950-51 Op. Att'y Gen. p. 115.

Contributions by public utility corporations.

- O.C.G.A. § 21-5-10 (see now O.C.G.A. § 21-5-30(f)), which prohibits contributions to a political campaign by persons acting on behalf of a public utility corporation regulated by the Public Service Commission, does not unconstitutionally deny equal protection to common carriers. 1982 Op. Att'y Gen. No. 82-56.

The differential treatment between regulated and nonregulated corporations imposed by O.C.G.A. § 21-5-10 (see now O.C.G.A. § 21-5-30(f)) can be justified on the ground that in granting and protecting the monopolies of public utilities, the state has the duty also to see that the power so granted is not abused and does not even appear to have a corrupting influence on the political process. 1982 Op. Att'y Gen. No. 82-56.

Regulation making vehicles entering state hospital grounds subject to search valid.

- A regulation established by the Department of Human Resources which makes vehicles entering on the grounds of Central State Hospital subject to search is a valid exercise of the department's power, and does not violate U.S. Const., amend. 14. 1974 Op. Att'y Gen. No. 74-15.

Selection of a county board of education

- can be changed from an appointive method to an elective one by complying with Ga. Const. 1983, Art. VIII, Sec. V, Para. IV; where this is done, the one-man, one-vote principle of U.S. Const., amend. 14 is not violated by a requirement that members reside in particular militia districts, so long as their election is on a county-wide basis. 1971 Op. Att'y Gen. No. U71-14.1.

Employment of aliens.

- Provisions excluding aliens from employment (see O.C.G.A. § 45-2-7) cannot be constitutionally applied to exclude aliens from public employment except to bar them from positions that participate directly in the formulation, execution, or review of broad public policy or from positions where citizenship otherwise bears some rational relationship to the special demands of the particular position. 1976 Op. Att'y Gen. No. 76-74.

Admission of aliens to public schools.

- Local school systems may not deny free public education to resident alien students, legally admitted to the United States or not, solely on the basis of their status as aliens; however, a local school district may charge tuition to nonresident students, citizens and aliens alike, so long as the definition of residency found in Georgia law is applied to all. 1982 Op. Att'y Gen. No. 82-81.

Citizenship requirement for licensure by State Examining Board for Certified Public Accountants

- is unenforceable under equal protection clause of U.S. Const., amend. 14. 1974 Op. Att'y Gen. No. 74-4.

Rule of merit system of personnel administration requiring applicants to be United States citizens.

- Rule of State Merit System of Personnel Administration providing that applicants must be citizens of the United States to be eligible to take an examination violates the equal protection clause of U.S. Const., amend. 14. 1974 Op. Att'y Gen. No. 74-10.

Due process clause inapplicable to resignations of state classified employees.

- Since employees in classified services of State Merit System have no property interest in continuing employment or ownership over any position, due process clause of the Fourteenth Amendment does not require that any specific procedure be followed when such an employee resigns, whether pursuant to formal letter of resignation or by abandoning his position for more than five workdays. 1981 Op. Att'y Gen. No. 81-104.

Allowing students moving into Greek housing to void university housing contracts violative of equal protection.

- Allowing students who move into Greek housing to void their contracts binding them to pay rent for university housing for the entire school year while not extending the same privilege to other students is state action which denies equal protection of the laws and as such is contrary to U.S. Const., amend. 14. 1971 Op. Att'y Gen. No. 71-93.

Freedom of religion guaranteed against state encroachment.

- Freedom of religion constitutes one of those "fundamental principles of liberty and justice" embraced within the concept of substantive due process and hence guaranteed against state encroachment by U.S. Const., amend. 14. 1960-61 Op. Att'y Gen. p. 349.

Continued incarceration of defendant for failure to pay fine.

- A criminal defendant may not be incarcerated beyond the period of imprisonment imposed by the defendant's sentences based solely upon the defendant's failure to pay a contemporaneously imposed fine. A separate sentence for contempt may be imposed, however, upon a judicial finding that the individual is capable of paying the fine, but has willfully refused to do so. 1983 Op. Att'y Gen. No. U83-32.

Laws governing administrative hearings must prescribe notice and hearing.

- It is necessary that law under which administrative hearings are conducted prescribe notice and hearing, and it is not sufficient that a notice and hearing are given, even though not required by law. 1958-59 Op. Att'y Gen. p. 1.

Constitutionality of fingerprint requirement.

- Requiring applicants for driver's license or identification card to submit fingerprints does not violate constitutional rights. 1997 Op. Att'y Gen. No. U97-7.

RESEARCH REFERENCES

Defending Against Claim of Ineffective Assistance of Counsel, 30 Am. Jur. Trials 607.

Strategies for Enforcing the Right to Effective Representation, 46 Am. Jur. Trials 571.

ALR.

- Inequality of population or lack of compactness of territory as invalidating apportionment of representatives, 2 A.L.R. 1337.

Constitutionality and applicability of curative provisions of taxing statutes where sale is irregular, 5 A.L.R. 164.

Constitutionality of statute or ordinance providing for destruction of animals, 8 A.L.R. 67.

Constitutionality of discrimination as regards degree of penalty or punishment for violation of Sunday law, 8 A.L.R. 566.

Constitutionality of statute as affected by discrimination in punishments for same offense based upon age, color, or sex, 8 A.L.R. 854.

Constitutionality of statute requiring railroad to construct and maintain private crossing, 12 A.L.R. 227.

Constitutionality of statutes providing for bounty or pension for soldiers, 13 A.L.R. 587, 15 A.L.R. 1359, 147 A.L.R. 1432, 156 A.L.R. 1458.

Construction and effect of soldiers' bounty laws, 13 A.L.R. 594, 35 A.L.R. 791, 22 A.L.R.2d 1134.

Federal Constitution as a limitation upon the powers of the states in respect to search and seizure, 19 A.L.R. 644.

Constitutionality of trading stamp legislation,.

Constitutionality of statute for cumulative penalty for delay in paying claim, 26 A.L.R. 1200.

Constitutionality of statute regulating the time of payment of wages, 26 A.L.R. 1396.

Applicability of civil rights acts to restaurant, 31 A.L.R. 339.

Constitutionality of statutes relating to insurance contracts made and to be performed out of state, upon property or life within state, 32 A.L.R. 636.

Discrimination in license tax regulations based on difference of methods used in same kind of business, 43 A.L.R. 592; 99 A.L.R. 703.

Constitutionality of statute in relation to secret societies, 43 A.L.R. 914; 62 A.L.R. 798.

Population as basis of classification or discrimination in legislation respecting water companies, 45 A.L.R. 1170.

Constitutionality of discrimination by Sunday law or ordinance as between different kinds of business, 46 A.L.R. 290; 119 A.L.R. 752.

Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, 51 A.L.R. 1139, 86 A.L.R. 179, 162 A.L.R. 495.

Power to impose tax on estate in respect to property transferred in contemplation of death or by a conveyance intended to take effect in possession or enjoyment at death, 52 A.L.R. 1091.

Constitutionality of statute in relation to oleomargarine or other substitute for butter, 53 A.L.R. 474.

Constitutionality of statutes imposing absolute liability on private persons or corporations, irrespective of negligence or breach of a specific statutory duty, for injury to person or property, 53 A.L.R. 875.

Constitutionality of provisions of workmen's compensation law applicable to public officers or employees, 53 A.L.R. 1290.

Constitutionality of statute prescribing conditions of practicing medicine or surgery as affected by question of discrimination against particular school or method, 54 A.L.R. 600.

Validity of public regulations as to garages, 55 A.L.R. 372; 84 A.L.R. 1147.

Constitutionality of statute providing for substituted or constructive service upon nonresident in action for tort in connection with operation of automobile, 57 A.L.R. 1239; 99 A.L.R. 130.

Constitutionality of legislation which varies punishment for same offense according to the county or district within state in which the offense is committed, 59 A.L.R. 433.

Constitutionality of statutes imposing duty on borrower to collect and pay over the tax imposed on the lender or owner of the obligations, 60 A.L.R. 742.

Constitutionality of statutes requiring payment to state of fee on appointment of agent by foreign insurance company, 60 A.L.R. 1172, 64 A.L.R. 1434.

Validity of license statute or ordinance which discriminates against nonresidents, 61 A.L.R. 337; 112 A.L.R. 63.

Constitutionality of statutes providing for lien on motor vehicles inflicting damage to person or property, 61 A.L.R. 655.

Right of exclusion from or discrimination against patrons of library, 64 A.L.R. 304.

Validity of special statute authorizing exemption of industrial concern from taxation, 64 A.L.R. 1217.

Tax on automobile, or on its use, for cost of road or street construction, improvement, or maintenance, 68 A.L.R. 200.

Constitutionality of statute which permits consideration of enhanced value of lands not taken, in fixing compensation for property taken or damaged in exercise of eminent domain, 68 A.L.R. 734; 99 A.L.R. 486.

Constitutionality of chain store tax, 73 A.L.R. 1481, 85 A.L.R. 736, 112 A.L.R. 305.

Constitutionality of statute conferring on chancery courts power to abate public nuisances, 75 A.L.R. 1298.

Constitutionality, construction, and applicability of statute making refusal to pay for commodities a criminal offense, 76 A.L.R. 1338.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Constitutionality, construction, and effect of legislation for protection of bank depositors or relief of banks or building and loan associations in need of cash or cash resources, 82 A.L.R. 1025.

Validity of license law which requires security for payment of debts by licensee, 84 A.L.R. 640; 101 A.L.R. 827.

Blue Sky Laws, 87 A.L.R. 42.

Constitutionality, construction, and effect of statute relating specifically to rights, remedies, and obligations of parties to sale of farm machinery, 87 A.L.R. 290.

Power to require filing of schedule of prices as a condition of license for a business or profession, 87 A.L.R. 519.

Constitutionality, construction, application, and effect of statute requiring judicial approval before issuance or sale of municipal or county bonds or obligations, 87 A.L.R. 706; 102 A.L.R. 90.

Conflict of Laws, § 11 - Judgment, § 374 - warrant of attorney to confess judgment -- validity and effect, 89 A.L.R. 1495.

Constitutionality of statute which predicates criminality upon repute or reputation, 92 A.L.R. 1228.

Constitutionality of statute changing rights of withdrawing members of building and loan association, 98 A.L.R. 82; 133 A.L.R. 1493.

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284.

Unfairness or corruption of officers in performance of administrative functions in civil or criminal cases in state court as in violation of the Fourteenth Amendment, 98 A.L.R. 411.

Validity of statute or ordinance regulating barbers, 98 A.L.R. 1088.

Power of state to extend its taxing power by its definition of residence or its declared policy of domesticating foreign corporations, 100 A.L.R. 1216.

Constitutionality and construction of statute imposing upon public service corporation expense of investigation of its affairs, 101 A.L.R. 197.

Statute regulating banks and trust companies as special or class legislation, or as denying the equal protection of the laws, 111 A.L.R. 140.

Constitutionality of statute fixing or regulating (or authorizing the fixing or regulating) of prices for personal services, 111 A.L.R. 353; 119 A.L.R. 1481.

Constitutionality of crop insurance statutes, 113 A.L.R. 739.

Constitutionality of statutory provisions relating to current taxes on tax delinquent property, 113 A.L.R. 1092.

Taxation in same state of real property and debt secured by mortgage or other lien thereon as double taxation, 122 A.L.R. 742.

Constitutionality, construction, and application of statutes or governmental projects for improvement of housing conditions (slum clearance), 130 A.L.R. 1069; 172 A.L.R. 966.

Legality of combination among farmers, 130 A.L.R. 1326.

Discrimination because of race, color, or creed in respect of appointment, duties, compensation, etc., of schoolteachers or other public officers or employees, 130 A.L.R. 1512.

Injunction against picketing per se, where past picketing has been accompanied by violence or other improper conduct, 132 A.L.R. 1218.

Federal Constitution and conflict of laws as to rights not based on judgments, 134 A.L.R. 1472.

Exception of existing buildings or businesses from statute or ordinance enacted in exercise of police or license taxing power, as unconstitutional discrimination, 136 A.L.R. 207.

Constitutionality, construction, and application of statutes designed to prevent or limit control of retail liquor dealers by manufacturers, wholesalers, or importers, 136 A.L.R. 1238.

Statutes or ordinances which apply to railroads, but not to carriers on public highways, or vice versa, as denying equal protection, 139 A.L.R. 977.

Power of legislature or school authorities to prescribe and enforce oath of allegiance, salute to flag, or other ritual of a patriotic character, 141 A.L.R. 1030; 147 A.L.R. 698.

Sectarianism in schools, 141 A.L.R. 1144.

Admissibility of plea of guilty at preliminary hearing, 141 A.L.R. 1335.

Constitutionality of provisions of workmen's compensation acts which are limited to residents of state, 147 A.L.R. 925.

Retrospective statute subjecting interests of trust beneficiaries to claims of creditors, 151 A.L.R. 1417.

Constitutionality, construction, and application of general use tax or other compensating tax designed to complement state sales tax, 153 A.L.R. 609.

Validity of provision of statute or ordinance that requires vacation of premises which do not comply with building or sanitary regulations, upon notice to that effect, without judicial proceeding, 153 A.L.R. 849.

Constitutionality, construction, and application of statute or contract regarding deduction from, or adjustment of, wages in respect of defective workmanship, 153 A.L.R. 866.

Validity of commercial rent control legislation as applied to pre-existing leases, 162 A.L.R. 202.

Constitutionality of statutes or ordinances making one fact presumptive or prima-facie evidence of another, 162 A.L.R. 495.

Validity and construction of statutes making conspiracy to deprive or deprivation of constitutional right a federal offense, 162 A.L.R. 1373.

Requiring submission to physical examination or test as violation of constitutional rights, 164 A.L.R. 967; 25 A.L.R.2d 1407.

Applicability (constitutional or otherwise) to interstate passengers of statute requiring segregation of passengers according to race or color, 165 A.L.R. 589.

Validity of zoning law as affected by limitation of area zoned (partial or "piece-meal " zoning), 165 A.L.R. 823.

Effect of, and remedies for, exclusion of eligible class of persons from jury list in civil case, 166 A.L.R. 1422.

Duty in instructing jury in criminal prosecution to explain and define offense charged, 169 A.L.R. 315.

Constitutionality of discrimination in favor of war veterans as regards qualifications or conditions of right to licenses to practice private profession or trade, 175 A.L.R. 260.

Governing law as to existence or character of offense for which one has been convicted in a federal court, or court of another state, as bearing upon disqualification to vote, hold office, practice profession, sit on jury, or the like, 175 A.L.R. 784.

Restrictive covenants, conditions, or agreements in respect of real property discriminating against persons on account of race, color, or religion, 3 A.L.R.2d 466.

Discrimination between property within and that outside municipality or other governmental district as to public service or utility rates, 4 A.L.R.2d 595.

Constitutionality, construction, and application of statute respecting sale, assignment, or transfer of retail instalment contracts, 10 A.L.R.2d 447.

Constitutionality, construction, and application of statutory provisions respecting persons who may prepare tax returns for others, 10 A.L.R.2d 1443.

Race or religious belief as permissible consideration in choosing tenants or purchasers of real estate, 14 A.L.R.2d 153.

Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemner, 14 A.L.R.2d 580.

Absence of accused during making of tests or experiments as affecting admissibility of testimony concerning them, 17 A.L.R.2d 1078.

Pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional rights, 18 A.L.R.2d 796.

Immunity of nonresident defendant in criminal case from service of process, 20 A.L.R.2d 163.

Right to cut off water supply because of failure to pay sewer service charge, 26 A.L.R.2d 1359.

Validity of municipal ordinance prohibiting house-to-house soliciting and peddling without invitation, 35 A.L.R.2d 355.

Racial segregation, 38 A.L.R.2d 1188.

Venue of action against nonresident motorist served constructively under statute, 38 A.L.R.2d 1198.

Prejudicial effect of trial court's denial, or equivalent, of counsel's right to argue case, 38 A.L.R.2d 1396.

Validity of minimum wage statutes relating to private employment, 39 A.L.R.2d 740.

Foreign insurance company as subject to service of process in action on policy, 44 A.L.R.2d 416.

Assertion of immunity as ground for removing or discharging public officer or employee, 44 A.L.R.2d 789.

Prejudicial effect of argument or comment that accused, if acquitted on ground of insanity, would be released from institution to which committed, 44 A.L.R.2d 978.

Conviction of lesser offense as bar to prosecution far greater on new trial, 61 A.L.R.2d 1141.

Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.

Continuance of criminal case because of illness of accused, 66 A.L.R.2d 232.

Validity, under federal Constitution, of state tax on, or measured by, income of foreign corporation, 67 A.L.R.2d 1322.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Right of accused to have his witnesses free from handcuffs, manacles, shackles, or the like, 75 A.L.R.2d 762.

Criminal trial of deaf, mute, or blind person, 80 A.L.R.2d 1084.

Conviction of criminal offense without evidence as denial of due process of law, 80 A.L.R.2d 1362.

Constitutionality and construction of statute or court rule relating to alternate or additional jurors or substitution of jurors during trial, 84 A.L.R.2d 1288; 15 A.L.R.4th 1127; 88 A.L.R.4th 711; 10 A.L.R. Fed. 185; 115 A.L.R. Fed. 381; 119 A.L.R. Fed. 589.

Delay between filing of complaint or other charge and arrest of accused as violation of right to speedy trial, 85 A.L.R.2d 980.

Propriety and prejudicial effect of showing, in criminal case, withdrawn guilty plea, 86 A.L.R.2d 326.

Transiently occupied room in hotel, motel, or roominghouse as within provision forbidding unreasonable searches and seizures, 86 A.L.R.2d 984.

Prayers in public schools, 86 A.L.R.2d 1304.

What businesses or establishments fall within state civil rights statute provisions prohibiting discrimination, 87 A.L.R.2d 120.

Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950.

Admissibility, in contempt proceeding against witness, of evidence of incriminating nature of question as to which he invoked privilege against self-incrimination, 88 A.L.R.2d 463.

Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price of commodity or services, 89 A.L.R.2d 901; 80 A.L.R.3d 740.

Right, without judicial proceeding, to arrest and detain one who is, or is suspected of being, mentally deranged, 92 A.L.R.2d 570.

Power of municipal corporation to enact civil rights ordinance, 93 A.L.R.2d 1028.

Validity of absentee voters' laws, 97 A.L.R.2d 218.

Inheritance by illegitimate from or through mother's ancestors or collateral kindred, 97 A.L.R.2d 1101.

Constitutional aspects of procedure for determining voluntariness of pretrial confession, 1 A.L.R.3d 1251, 132 A.L.R. Fed. 415.

Procedural due process requirements in proceedings involving applications for admission to bar, 2 A.L.R.3d 1266.

Preconviction procedure for raising contention that enforcement of penal statute or law is unconstitutionally discriminatory, 4 A.L.R.3d 404.

Admissibility, in civil case, of evidence obtained by unlawful search and seizure, 5 A.L.R.3d 670.

Modern concept of obscenity, 5 A.L.R.3d 1158.

Validity of procedures designed to protect the public against obscenity, 5 A.L.R.3d 1214; 93 A.L.R.3d 297.

Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.

Scope and extent and remedy or sanctions for infringement, of accused's right to communicate with his attorney, 5 A.L.R.3d 1360.

Indefiniteness of automobile speed regulations as affecting validity, 6 A.L.R.3d 1326.

Anticipatory relief in federal courts against state criminal prosecutions growing out of civil rights activities, 8 A.L.R.3d 301.

Modern status of doctrine of res judicata in criminal cases, 9 A.L.R.3d 203.

Validity of consent to search given by one in custody of officers, 9 A.L.R.3d 858.

De facto segregation of races in public schools, 11 A.L.R.3d 780.

Vagueness as invalidating statutes or ordinances dealing with disorderly persons or conduct, 12 A.L.R.3d 1448.

Constitutionality of statute imposing liability upon estate or relatives of insane person for his support in asylum, 20 A.L.R.3d 363.

Regulation of private employment agencies, 20 A.L.R.3d 599.

Validity, as a matter of due process, of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated business transacted within state, 20 A.L.R.3d 1201.

Right of attorney appointed by court for indigent accused to, and court's power to award, compensation by public, in absence of statute or court rule, 21 A.L.R.3d 819.

What absence from United States constitutes interruption of permanent residence so as to subject alien to exclusion or deportation on reentry, 22 A.L.R.3d 749.

Violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused's failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093; 32 A.L.R.4th 774.

Absence of judge from courtroom during trial of civil case, 25 A.L.R.3d 637.

Validity and effect of gift for charitable purposes which excludes otherwise qualified beneficiaries because of their race or religion, 25 A.L.R.3d 736.

Validity of vagrancy statutes and ordinances, 25 A.L.R.3d 792.

Validity of loitering statutes and ordinances, 25 A.L.R.3d 836.

Construction and application, as to isolated acts or transactions, of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations upon the doing of an act, or upon doing or transacting business or "any" business, within the state, 27 A.L.R.3d 397.

Indigency of offender as affecting validity of imprisonment as alternative to payment of fine, 31 A.L.R.3d 926.

Participation of student in demonstration on or near campus as warranting expulsion or suspension from school or college, 32 A.L.R.3d 864.

Right to assistance by counsel in administrative proceedings, 33 A.L.R.3d 229.

Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction, 34 A.L.R.3d 16.

Prejudicial effect of trial judge's remarks, during criminal trial, disparaging accused, 34 A.L.R.3d 1313.

Civil rights: actionability under state statutes of discrimination because of complaining party's association with persons of different race, color, or the like, 35 A.L.R.3d 859.

Free exercise of religion as defense to prosecution for narcotic or psychedelic drug offense, 35 A.L.R.3d 939.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Validity and construction of statutes or ordinances regulating telephone answering services, 35 A.L.R.3d 1430.

Legality of voluntary nontherapeutic sterilization, 35 A.L.R.3d 1444.

Permitting documents or tape recordings containing confessions of guilt or incriminating admissions to be taken into jury room in criminal case, 37 A.L.R.3d 238.

Rights between landlord and tenant as affected by zoning regulations restricting contemplated use of premises, 37 A.L.R.3d 1018.

Student organization registration statement, filed with public school or state university or college, as open to inspection by public, 37 A.L.R.3d 1311.

Discrimination on basis of illegitimacy as denial of constitutional rights, 38 A.L.R.3d 613.

Admissibility of evidence of lineup identification as affected by allegedly suggestive lineup procedures, 39 A.L.R.3d 487.

Beliefs regarding capital punishment as disqualifying juror in capital case-post-Witherspoon cases, 39 A.L.R.3d 550.

Admissibility of evidence of showup identification as affected by allegedly suggestive showup procedures, 39 A.L.R.3d 791.

Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures, 39 A.L.R.3d 1000.

Racial discrimination in punishment for crime, 40 A.L.R.3d 227.

Prosecution of chronic alcoholic for drunkenness offenses, 40 A.L.R.3d 321.

"Fruit of the poisonous tree" doctrine excluding evidence derived from information gained in illegal search, 43 A.L.R.3d 385.

Propriety of requiring accused to give handwriting exemplar, 43 A.L.R.3d 653.

Validity and construction of statute or ordinance requiring land developer to dedicate portion of land for recreational purposes, or make payment in lieu thereof, 43 A.L.R.3d 862.

Construction and operation of "equal opportunities clause" requiring pledge against racial discrimination in hiring under construction contract, 44 A.L.R.3d 1283.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

Validity and construction of statute or ordinance respecting employment of women in places where intoxicating liquors are sold, 46 A.L.R.3d 369.

Sufficiency of notice or hearing required prior to termination of welfare benefits, 47 A.L.R.3d 277.

Censorship of convicted prisoners' "legal" mail, 47 A.L.R.3d 1150.

Censorship of convicted prisoners' "nonlegal" mail, 47 A.L.R.3d 1192.

Validity of municipal ordinance imposing income tax or license upon nonresident in taxing jurisdiction (commuter tax), 48 A.L.R.3d 343.

Exclusionary zoning, 48 A.L.R.3d 1210.

Operation of nude-model photographic studio as offense, 48 A.L.R.3d 1313.

Retroactive effect of zoning regulation, in absence of saving clause, on validly issued building permit, 49 A.L.R.3d 13.

Residential swimming pool as nuisance, 49 A.L.R.3d 545.

When does jeopardy attach in a nonjury trial?, 49 A.L.R.3d 1039.

Zoning provisions protecting landowners who applied for or received building permit prior to change in zoning, 49 A.L.R.3d 1150.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

Relief to owner of motor vehicle subject to state forfeiture for use in violation of narcotics laws, 50 A.L.R.3d 172.

Validity and construction of statute or ordinance forbidding unauthorized persons to enter upon or remain in school building or premises, 50 A.L.R.3d 340.

Discrimination in provision of municipal services or facilities as civil rights violation, 51 A.L.R.3d 950.

Necessity of alleging in indictment or information limitation-tolling facts, 52 A.L.R.3d 922.

Civil rights: racial or religious discrimination in furnishing of public utilities services or facilities, 53 A.L.R.3d 1027.

Validity of statute establishing or authorizing minimum price schedules for barbers, 54 A.L.R.3d 916.

Validity and application of provisions governing determination of residency for purpose of fixing fee differential for out-of-state students in public college, 56 A.L.R.3d 641.

Validity of regulations restricting size of free standing advertising signs, 56 A.L.R.3d 1207.

Zoning: changes, repairs, or replacements in continuation of nonconforming use, 57 A.L.R.3d 419.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Validity and construction of curfew statute, ordinance, or proclamation, 59 A.L.R.3d 321; 83 A.L.R.4th 1056.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337.

Necessity of notice and hearing before revocation or suspension of motor vehicle driver's license, 60 A.L.R.3d 361.

Sufficiency of notice and hearing before revocation or suspension of motor vehicle driver's license, 60 A.L.R.3d 427.

Garageman's lien: modern view as to validity of statute permitting sale of vehicle without hearing, 64 A.L.R.3d 814.

Court's presentence inquiry as to, or consideration of, accused's intention to appeal, as error, 64 A.L.R.3d 1226.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.

Validity of requirement that candidate or public officer have been resident of governmental unit for specified period, 65 A.L.R.3d 1048.

Post-Sniadach status of banker's right to set off bank's claim against depositor's funds, 65 A.L.R.3d 1284.

Constitutionality of automobile and aviation guest statutes, 66 A.L.R.3d 532.

Construction and effect of tenure provisions of contract or statute governing employment of college or university faculty member, 66 A.L.R.3d 1018.

Application of state law to sex discrimination in sports, 66 A.L.R.3d 1262.

Validity and construction of covenant restricting occupancy of premises to person over or under specified age, 68 A.L.R.3d 1239.

Validity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties, 71 A.L.R.3d 90.

Constitutional restrictions on nonattorney acting as judge in criminal proceeding, 71 A.L.R.3d 562.

Disqualification of judge, justice of the peace, or similar judicial officer for pecuniary interest in fines, forfeitures, or fees payable by litigants, 72 A.L.R.3d 375.

Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.

Power of court to impose standard of personal appearance or attire, 73 A.L.R.3d 353.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 A.L.R.3d 431.

Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance, 73 A.L.R.3d 725.

Validity and construction of statute or ordinance requiring return deposits on soft drink or similar containers, 73 A.L.R.3d 1105.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Pretrial preventive detention by state court, 75 A.L.R.3d 956.

Validity, under state law, of self-help repossession of goods pursuant to UCC § 9-503, 75 A.L.R.3d 1061.

Constitutionality of statutory provision requiring reimbursement of public by child for financial assistance to aged parents, 75 A.L.R.3d 1159.

Propriety and prejudicial effect of trial court's inquiry as to numerical division of jury, 77 A.L.R.3d 769.

Former jeopardy: propriety of trial court's declaration of mistrial or discharge of jury, without accused's consent, on ground of prosecution's disclosure of prejudicial matter to, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.

Validity of requirement that, as condition of probation, indigent defendant reimburse defense costs, 79 A.L.R.3d 1025.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Validity and construction of state or local regulation prohibiting off-premises advertising structures, 81 A.L.R.3d 486.

Validity and construction of state or local regulation prohibiting the erection or maintenance of advertising structures within a specified distance of street or highway, 81 A.L.R.3d 564.

Validity of state or local regulation dealing with resale of tickets to theatrical or sporting events, 81 A.L.R.3d 655.

Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.

Validity, construction, and application of statutes making it a criminal offense to mistreat or wrongfully dispose of dead body, 81 A.L.R.3d 1071.

Validity of a state statute imposing mandatory sentence or prohibiting granting of probation or suspension of sentence for narcotics offenses, 81 A.L.R.3d 1192.

Validity of state statutory provision permitting administrative agency to impose monetary penalties for violation of environmental pollution statute, 81 A.L.R.3d 1258.

Modern status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 A.L.R.3d 174.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 A.L.R.3d 199.

Validity, construction, and effect of Uniform Alcoholism and Intoxication Treatment Act, 85 A.L.R.3d 701.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination, 85 A.L.R.3d 940.

Appointment of counsel for indigent husband or wife in action for divorce or separation, 85 A.L.R.3d 983.

Regulation of private detectives, private investigators, and security agencies, 86 A.L.R.3d 691.

Accused's right to discovery or inspection of records of prior complaints against, or similar personnel records of, peace officer involved in the case, 86 A.L.R.3d 1170.

Unemployment compensation: eligibility as affected by claimant's refusal to comply with requirements as to dress, grooming, or hygiene, 88 A.L.R.3d 150.

Modern status: instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant's privilege against self-incrimination, 88 A.L.R.3d 1178.

Validity and effect of criminal defendant's express waiver of right to appeal as part of negotiated plea agreement, 89 A.L.R.3d 864.

Disruptive conduct of accused in presence of jury as ground for mistrial or discharge of jury, 89 A.L.R.3d 960.

Construction and application of state equal rights amendments forbidding determination of rights based on sex, 90 A.L.R.3d 158.

Validity of age requirement for state public office, 90 A.L.R.3d 900.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15.

Necessity of trial or proceeding, separate from main condemnation trial or proceeding, to determine divided interest in state condemnation award, 94 A.L.R.3d 696.

Propriety of conditioning probation on defendant's remaining childless or having no additional children during probationary period, 94 A.L.R.3d 1218.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

Validity of zoning ordinances prohibiting or regulating outside storage of house trailers, motor homes, campers, vans, and the like, in residential neighborhoods, 95 A.L.R.3d 378.

Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property, 96 A.L.R.3d 497.

Validity of statutory classification based on population - governmental employee salary or pension statutes, 96 A.L.R.3d 538.

Validity of state statute or regulation fixing minimum prices at which alcoholic beverages may be sold at retail, 96 A.L.R.3d 639.

Zoning regulations in relation to cemeteries, 96 A.L.R.3d 921.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Validity and efficacy of accused's waiver of unanimous verdict, 97 A.L.R.3d 1253.

Validity, construction, and application of interstate agreement on detainers, 98 A.L.R.3d 160.

Validity of statutory classifications based on population - zoning, building, and land use statutes, 98 A.L.R.3d 679.

Validity, construction, and effect of state statutes affording preferential property tax treatment to land used for agricultural purposes, 98 A.L.R.3d 916.

Double jeopardy as bar to retrial after grant of defendant's motion for mistrial, 98 A.L.R.3d 997.

Validity of statutory classifications based on population - tax statutes, 98 A.L.R.3d 1083.

Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.

Identification of jobseeker by race, religion, national origin, sex, or age, in "Situation Wanted" employment advertising as violation of state civil rights laws, 99 A.L.R.3d 154.

Enforceability of bylaw or other rule of condominium or cooperative association restricting occupancy by children, 100 A.L.R.3d 241.

Zoning regulations prohibiting or limiting fences, hedges, or walls, 1 A.L.R.4th 373.

Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity, 2 A.L.R.4th 934.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.

Modern status of law regarding solicitation of business by or for attorney, 5 A.L.R.4th 866.

Validity of state statute prohibiting award of government contract to person or business entity previously convicted of bribery or attempting to bribe state public employee, 7 A.L.R.4th 1202.

Propriety of hospital's conditioning physician's staff privileges on his carrying professional liability or malpractice insurance, 7 A.L.R.4th 1238.

Construction of new building or structure on premises devoted to nonconforming use as violation of zoning ordinance, 10 A.L.R.4th 1122.

Sex discrimination in treatment of jail or prison inmates, 12 A.L.R.4th 1219.

Presence of alternate juror in jury room as ground for reversal of state criminal conviction, 15 A.L.R.4th 1127.

Validity and construction of orders and enactments requiring public officers and employees, or candidates for office, to disclose financial condition, interests, or relationships, 22 A.L.R.4th 237.

Modern status of rule relating to jurisdiction of state court to try criminal defendant brought within jurisdiction illegally or as result of fraud or mistake, 25 A.L.R.4th 157.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Validity of state statutes restricting the right of aliens to bear arms, 28 A.L.R.4th 1096.

Refusal to rent residential premises to persons with children as unlawful discrimination, 30 A.L.R.4th 1187.

Failure to object to improper questions or comments as to defendant's pretrial silence or failure to testify as constituting waiver of right to complain of error - modern cases, 32 A.L.R.4th 774.

Applicability and application of zoning regulations to single residences employed for group living of mentally retarded persons, 32 A.L.R.4th 1018.

Propriety of automobile insurer's policy of refusing insurance, or requiring advanced rates, because of age, sex, residence, or handicap, 33 A.L.R.4th 523.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310.

Validity of arrest made in reliance upon outdated warrant list or similar police records, 45 A.L.R.4th 550.

Podiatry or chiropody statutes: validity, construction, and application, 45 A.L.R.4th 888.

Validity and construction of terroristic threat statutes, 45 A.L.R.4th 949.

Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.

Paternity proceedings: right to jury trial, 51 A.L.R.4th 565.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 A.L.R.4th 702.

Sufficiency of notice of intention to discharge or not to rehire teacher, under statutes requiring such notice, 52 A.L.R.4th 301.

Court appointment of attorney to represent, without compensation, indigent in civil action, 52 A.L.R.4th 1063.

Statutes authorizing removal of body parts for transplant: validity and construction, 54 A.L.R.4th 1214.

Validity of Nonclaim Statute or Rule Provision for Notice by Publication to Claimants Against Estate - Post-1950 Cases, 56 A.L.R.4th 458.

Change in area or location of nonconforming use as violation of zoning ordinance, 56 A.L.R.4th 769.

Tax on hotel-motel room occupancy, 58 A.L.R.4th 274.

Local government tort liability: minority as affecting notice of claim requirement, 58 A.L.R.4th 402.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

Addition of another activity to existing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 724.

Change in volume, intensity, or means of performing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 806.

Change in type of activity of nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 902.

Closed-circuit television witness examination, 61 A.L.R.4th 1155.

Civil action for damages under state Racketeer Influenced and Corrupt Organizations Acts (RICO) for losses from racketeering activity, 62 A.L.R.4th 654.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Criminal law: dog scent discrimination lineups, 63 A.L.R.4th 143.

Alteration, extension, reconstruction, or repair of nonconforming structure or structure devoted to nonconforming use as violation of zoning ordinance, 63 A.L.R.4th 275.

Alcohol-related vehicular homicide: nature and elements of offense, 64 A.L.R.4th 166.

Validity and construction of statutes, ordinances, or regulations requiring competency tests of schoolteachers, 64 A.L.R.4th 642.

Nature and elements of offense of conveying contraband to state prisoner, 64 A.L.R.4th 902.

Validity, construction, and effect of statutes establishing shoplifting or its equivalent as separate criminal offense, 64 A.L.R.4th 1088.

Validity, construction, and application of nonsmoking regulations, 65 A.L.R.4th 1205.

Validity and construction of prison regulation of inmates' possession of personal property, 66 A.L.R.4th 800.

Workers' compensation: recovery for home service provided by spouse, 67 A.L.R.4th 765.

Right of indigent defendant in state criminal case to assistance of ballistics experts, 71 A.L.R.4th 638.

"Guilty but mentally ill" statutes: validity and construction, 71 A.L.R.4th 702.

Right of indigent defendant in state criminal case to assistance of fingerprint expert, 72 A.L.R.4th 874.

Validity and construction of state statute abrogating collateral source rules as to medical malpractice actions, 74 A.L.R.4th 32.

Right of indigent defendant in state criminal case to assistance of expert in social attitudes, 74 A.L.R.4th 330.

Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert, or similar nonmedical specialist in substance analysis, 74 A.L.R.4th 388.

Standing of media representatives or organizations to seek review of, or to intervene to oppose, order closing criminal proceedings to public, 74 A.L.R.4th 476.

Validity of state and local air pollution administrative rules, 74 A.L.R.4th 566.

Validity, construction, and effect of municipal residency requirements for teachers, principals, and other school employees, 75 A.L.R.4th 272.

Validity, construction, and effect of body execution statutes allowing imprisonment based on judgment, debt, or the like - modern cases, 79 A.L.R.4th 232.

Right of indigent defendant in state criminal case to assistance of investigators, 81 A.L.R.4th 259.

Validity, construction, and effect of juvenile curfew regulations, 83 A.L.R.4th 1056.

Necessity that waiver of accused's right to testify in own behalf be on the record, 90 A.L.R.4th 586.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R.5th 262.

Propriety of telephone testimony or hearings in prison proceedings, 9 A.L.R.5th 451.

Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties, 18 A.L.R.5th 1.

Validity and application of statute or regulation authorizing revocation or suspension of driver's license for reason unrelated to use of, or ability to operate, motor vehicle, 18 A.L.R.5th 542.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury - post Batson state cases, 20 A.L.R.5th 398.

Validity of state or local enactment regulating sound amplification in public area, 122 A.L.R.5th 593.

Validity, construction, and application of state statutory provisions limiting amount of recovery in medical malpractice claims, 26 A.L.R.5th 245.

Zoning authority as estopped from revoking legally issued building permit, 26 A.L.R.5th 736.

Validity, construction, and application of state statutes prohibiting sale or possession of controlled substances within specified distance of schools, 27 A.L.R.5th 593.

Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision. 31 A.L.R.5th 229.

Right of accused to have evidence or court proceedings interpreted, because accused or other participant in proceedings is not proficient in the language used, 32 A.L.R.5th 149.

Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 A.L.R.5th 767.

Duty of prosecutor to present exculpatory evidence to state grand jury, 49 A.L.R.5th 639.

Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup procedures, 55 A.L.R.5th 423.

Voir dire exclusions of men from state trial jury or jury panel - Post-J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, cases, 88 A.L.R.5th 67.

Failure of state prosecutor to disclose fingerprint evidence as violating due process, 94 A.L.R.5th 393.

Federal and state constitutional provisions as prohibiting discrimination in employment on basis of gay, lesbian, or bisexual sexual orientation or conduct, 96 A.L.R.5th 391.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process, 101 A.L.R.5th 187.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship, 123 A.L.R.5th 411.

Adoption and application of "tainted" approach or "dual motivation" analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated, 15 A.L.R.6th 319.

Construction and application of 18 USCS § 922(e), prohibiting delivery of firearms to common carrier, 125 A.L.R. Fed. 613.

Eligibility for discretionary admission under § 212(c) of Immigration and Nationality Act of 1952 (8 USCS § 1182(c)), of alien returning to unrelinquished domicile after trip abroad, 80 A.L.R. Fed. 8

Validity, under federal constitution, of regulations, rules or statutes allowing drug testing of students, 87 A.L.R. Fed. 148.

Constitutional right of prisoners to abortion services and facilities - federal cases, 90 A.L.R. Fed. 683.

Artist's speech and due process rights in artistic production which has been sold to another, 93 A.L.R. Fed. 912.

Circumstances warranting judicial determination or declaration of unitary status with regard to schools operating under court-ordered or -supervised desegregation plans and the effect of such declarations, 94 A.L.R. Fed. 667.

Availability of qualified immunity defense to private parties in action under 42 USCS § 1983, 95 A.L.R. Fed. 82.

What conduct of federal law enforcement authorities in inducing or co-operating in criminal offense raises due process defense distinct from entrapment, 97 A.L.R. Fed. 273.

Excessiveness or adequacy of awards of compensatory damages in civil actions for deprivation of rights under 42 USCS § 1983 - modern cases, 99 A.L.R. Fed. 501.

Immunity of federal tax agent from suit based upon agent's effort to enforce or collect tax, 99 A.L.R. Fed. 700.

Application of 42 USCS § 1981 to private discrimination against aliens, 99 A.L.R. Fed. 835.

Standing of state, local government, or agency thereof to bring suit under Civil Rights Act of 1871 (41 USCS § 1983), 106 A.L.R. Fed. 586.

Use of peremptory challenges to exclude ethnic and racial groups, other than black americans, from criminal jury - post-Batson federal cases, 110 A.L.R. Fed. 690.

Seeking of variance as prerequisite for ripeness of challenge to zoning ordinance under due process clause of federal constitution's Fifth and Fourteenth Amendments - post-Williamson cases, 111 A.L.R. Fed. 483.

Substitution, under Rule 24c of Federal Rules of Criminal Procedure, of alternate juror for regular juror before jury retires to consider verdict in federal criminal case, 115 A.L.R. Fed. 381.

Eligibility of illegitimate child for survivor's benefits under Social Security Act, pursuant to § 216(h)(2)(A) of Act (42 USCS § 416(h)(2)(A)), where state intestacy law denying inheritance right, or application of that state law to § 216(h)(2)(A), may violate child's right to equal protection of laws, 116 A.L.R. Fed. 121.

Who is "prevailing party" for purposes of awards of attorneys' fees under 42 USCS § 19731(e), providing for such awards to prevailing parties in actions or proceedings to enforce voting guarantees under fourteenth or fifteenth amendment, 127 A.L.R. Fed. 1

When is intervention as matter of right appropriate under Rule 24(a)(2) of Federal Rules of Civil Procedure in civil rights action, 132 A.L.R. Fed. 147.

Duty of court, in federal criminal prosecution, to conduct inquiry into voluntariness of accused's statement - modern cases, 132 A.L.R. Fed. 415.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes - public employment cases, 168 A.L.R. Fed. 1

Construction and application of constitutional rule of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) - United States Supreme Court cases, 8 A.L.R. Fed. 2d 547.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process - evidence other than weapons or personal items, 56 A.L.R. 6th 185.

Class-of-one: equal protection claims based upon real estate development, zoning, and planning, 68 A.L.R.6th 229.

What constitutes "custodial interrogation" within rule of requiring that suspect be informed of his or her federal constitutional rights before custodial interrogation - at border or functional equivalent of border, 68 A.L.R.6th 607.

Criminal defendant's right to electronic recordation of interrogations and confessions, 69 A.L.R.6th 579.

Adequacy of defense counsel's representation of criminal client regarding search and seizure issues - pretrial motions - suppression motions where no warrant involved, 71 A.L.R.6th 1.

Propriety and prejudicial effect of requiring defendant to wear stun belt or shock belt during course of state criminal trial, 71 A.L.R.6th 625.

Reverse-franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for truth - underlying drug offenses, 73 A.L.R.6th 49.

Reverse-franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth - underlying sexual offenses, 74 A.L.R.6th 69.

Construction and application by state courts of supreme court's ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), That defense counsel has obligation to advise defendant that entering guilty plea could result in deportation, 74 A.L.R.6th 373.

Due process afforded in drug court proceedings, 78 A.L.R.6th 1.

Construction and application of Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004), governing validity of police roadblock, checkpoint, or other detention of vehicle for gathering of information, 78 A.L.R.6th 213.

Reverse-franks claims, where police arguably omit facts from search or arrest warrant theft and burglary offenses, 80 A.L.R.6th 239.

Construction and application of booking question exception to Miranda, 81 A.L.R.6th 505.

Class-of-one equal protection claims based upon law enforcement actions, 86 A.L.R.6th 173.

Validity of state sex offender registration laws under equal protection guarantees, 93 A.L.R.6th 1.

Application of fair warning requirement of due process clause to state death penalty proceedings premised upon retroactive application of case law, 93 A.L.R.6th 391.

Application of stigma-plus due process claims other than education context, 95 A.L.R.6th 341.

Liability of public school or school district under U.S. Constitution for bullying, harassment, or intimidation of student by another student, 98 A.L.R.6th 599.

Comment note: propriety and prejudicial effect of compelling accused to wear prison clothing at jury trial - state cases, 99 A.L.R.6th 295.

Criminal defendant's age or height as factor in determination of whether circumstances of witness's identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 102 A.L.R.6th 365.

Adequacy, under Strickland standard, of defense counsel's representation of client in sentencing phase of state court death penalty case - investigation of, and presentation of evidence regarding, client's brain damage or abnormality, 102 A.L.R.6th 417.

Witness's identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed single witness fewer than six photographs in one session, 1 A.L.R.7th 6.

Adequacy, under Strickland standard, of defense counsel's representation of client in sentencing phase of state court death penalty case - allegedly deficient preparation of witness or presentation of evidence regarding client's mental illness or dysfunction, 2 A.L.R.7th 1.

Clothing worn by criminal defendant in photograph in array shown by police to witness as factor in determination of whether circumstances of witness's identification of defendant, as person in photograph, were impermissibly suggestive as matter of federal constitutional law, 2 A.L.R.7th 2.

Application of Crawford Confrontation Clause rule to alcohol and drug forensic analysis and related documents, 3 A.L.R.7th 4.

Distinctive quality of criminal defendant's photograph in array shown by police to witness as factor in determination of whether circumstances of witness's identification of defendant, as person in photograph, were impermissibly suggestive as matter of federal constitutional law, 3 A.L.R.7th 5.

Criminal defendant's hair color or style as factor in determination of whether circumstances of witness's identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 5 A.L.R.7th 5.

Adequacy under Strickland standard of defense counsel's representation of client in sentencing phase of state court death penalty case - investigation of, and presentation of evidence regarding client's low intelligence or mental retardation, 5 A.L.R.7th 6.

Adequacy, under Strickland standard, of defense counsel's representation of client in sentencing phase of state court death penalty case - counsel's purported complete failure to investigate client's mental illness or dysfunction, 6 A.L.R.7th 3.

Criminal defendant's race or skin color as factor in determination of whether circumstances of witness's identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 6 A.L.R.7th 5.

Adequacy, under Strickland standard, of defense counsel's representation of client in sentencing phase of state court death penalty case - failure to present evidence regarding client's mental illness or dysfunction, other than as result of lack of investigation, 7 A.L.R.7th 3.

Criminal defendant's facial hair as factor in determination of whether circumstances of witness's identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law, 7 A.L.R.7th 4.

Manner in which photographic array shown by police to witness is displayed, or police officer's alleged nonverbal cues, as factor in determination of whether circumstances of witness's identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law, 8 A.L.R.7th 5.

Police statement, other than one that photographic array shown to witness contained or might contain criminal suspect or known criminal, as factor in determination of whether circumstances of witness's identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law, 9 A.L.R.7th 3.

Adequacy, under Strickland standard, of defense counsel's representation of client in sentencing phase of state court death penalty case - allegedly deficient investigation of, other than counsel's purported complete failure to investigate, client's mental illness or dysfunction, 9 A.L.R.7th 4.

Witness's identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed single witness photographs on more than one occasion, 10 A.L.R.7th 5.

Adequacy, under Strickland standard, of defense counsel's representation of client in sentencing phase of state court death penalty case - deficient presentation of evidence, or failure to present evidence, regarding client's drug or alcohol use, other than as result of lack of investigation, 11 A.L.R.7th 4.

Deprivation of due process in connection with veteran's right to disability, medical, or mental health benefits, treatment, or services, 83 A.L.R. Fed. 2d 133.

Propriety of using otherwise inadmissible statement, taken in violation of Miranda Rule, to impeach criminal defendant's credibility - federal cases, 85 A.L.R. Fed. 2d 77.