301 Ga. 391 FINAL COPY
S17A0082. SEXUAL OFFENDER REGISTRATION REVIEW BOARD v. BERZETT.
HINES, Chief Justice.
This is an appeal by the Sexual Offender Registration Review Board from
a final order of the Superior Court of Fulton County declaring that OCGA § 42-
1-14, which sets forth a procedure for the classification of sexual offenders
according to their recidivism risks and in subsection (e) requires any “sexually
dangerous predator” to wear and pay for an electronic GPS monitor for the rest
of his life,1 violates several provisions of the United States and Georgia
1 OCGA § 42-1-14 (e) provides: (e) Any sexually dangerous predator shall be required to wear an electronic monitoring system that shall have, at a minimum: (1) The capacity to locate and record the location of a sexually dangerous predator by a link to a global positioning satellite system; (2) The capacity to timely report or record a sexually dangerous predator’s presence near or within a crime scene or in a prohibited area or the sexually dangerous predator’s departure from specific geographic locations; and (3) An alarm that is automatically activated and broadcasts the sexually dangerous predator’s location if the global positioning satellite monitor is removed or tampered with by anyone other than a law enforcement official designated to maintain and remove or replace the equipment. Such electronic monitoring system shall be worn by a sexually dangerous predator for Constitutions. In that order, the superior court also issued a writ of prohibition
against the Board. For the reasons that follow, we vacate the superior court’s
judgment and remand the case with direction that it be dismissed.
On April 5, 2006, Kenneth Berzett pled guilty to child molestation, and
in 2009, the Board classified him as a sexually dangerous predator. See OCGA
§ 42-1-14 (a). In 2014, the Board granted Berzett’s request for an out-of-time
reevaluation of his classification, but ultimately upheld its classification
decision. See OCGA § 42-1-14 (b). Berzett then petitioned the superior court
for judicial review of his classification, see OCGA § 42-1-14 (c), and, in a
separate action, he simultaneously filed a petition for declaratory judgment,
alleging that OCGA § 42-1-14 is unconstitutional and also seeking injunctive
relief against enforcement or application of the electronic monitoring
the remainder of his or her natural life. The sexually dangerous predator shall pay the cost of such system to the Department of Community Supervision if the sexually dangerous predator is under probation or parole supervision and to the sheriff after the sexually dangerous predator completes his or her term of probation and parole or if the sexually dangerous predator has moved to this state from another state, territory, or country. The electronic monitoring system shall be placed upon the sexually dangerous predator prior to his or her release from confinement. If the sexual offender is not in custody, within 72 hours of the decision classifying the sexual offender as a sexually dangerous predator in accordance with subsection (b) of this Code section, the sexually dangerous predator shall report to the sheriff of the county of his or her residence for purposes of having the electronic monitoring system placed on the sexually dangerous predator.
2 requirement. As to the petition for judicial review, the superior court affirmed
the Board’s classification of Berzett and denied his request for relief, and
Berzett did not appeal the superior court’s decision.
Meanwhile, the Board filed a motion to dismiss the declaratory judgment
action. After the final decision on the petition for judicial review, the Board
asserted in a supplement to its motion to dismiss that Berzett’s request for
declaratory judgment had become moot because there was no longer an active
controversy between Berzett and the Board, any ruling on the constitutionality
of OCGA § 42-1-14 would have no practical effect on Berzett, and he no longer
faces uncertainty as to any future undirected action. Although the superior court
dismissed one of Berzett’s constitutional claims, it denied the Board’s motion
to dismiss as to all other claims, deciding that, inter alia, those claims are not
moot and a petition for declaratory judgment is a proper vehicle for raising
them. On subsequent cross-motions for summary judgment, the superior court
granted summary judgment to the Board on one constitutional claim but granted
summary judgment to Berzett on all of his other constitutional claims. The
superior court held that Berzett is not subject to the electronic monitoring
obligations imposed on sexually dangerous predators and issued a writ of
3 prohibition against the Board and its officers and agents that prohibited them
from requiring Berzett to wear or pay for GPS monitoring pursuant to OCGA
§ 42-1-14 (e), from gathering, storing, or distributing any data regarding his
movements obtained as a result of such monitoring, and from otherwise
enforcing any provision of OCGA § 42-1-14 (e) as to Berzett.
On appeal, the Board contends that the trial court lacked subject matter
jurisdiction over this petition for declaratory relief because no actual
controversy existed between the Board and Berzett. Indeed, this issue is
jurisdictional. See Fulton County v. City of Atlanta, 299 Ga. 676, 676, n. 2 (791
SE2d 821) (2016). The Declaratory Judgment Act, OCGA § 9-4-1 et seq.,
“gives superior courts the power to declare rights and other legal relations of
any interested party in ‘cases of actual controversy’ under OCGA § 9-4-2 (a)
and ‘in any civil case in which it appears to the court that the ends of justice
require that the declaration should be made.’ OCGA § 9-4-2 (b).”2 Walker v.
2 OCGA § 9-4-2 provides: (a) In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
4 Owens, 298 Ga. 516, 518 (783 SE2d 114) (2016) (citation omitted). “However,
the presence in the declaratory judgment action of a party with an interest in the
controversy adverse to that of the petitioner is necessary under either subsection
(a) or (b).” Pangle v. Gossett, 261 Ga. 307, 308 (1) (404 SE2d 561) (1991).
Under those subsections, there can be no actual or justiciable controversy if,
among other things, the questions in the case have become moot or there are no
“‘interested parties asserting adverse claims upon a state of facts which have
accrued.’” Fulton County, 299 Ga. at 677 (citation omitted). See also Pilgrim
v. First Nat. Bank of Rome, 235 Ga. 172, 174 (219 SE2d 135) (1975). A
petition for declaratory judgment is moot when the relief, if granted, would have
no practical effect on the underlying controversy. See Babies Right Start v. Ga.
Dept. of Public Health, 293 Ga. 553, 555 (2) (a) (748 SE2d 404) (2013); Pimper
(b) In addition to the cases specified in subsection (a) of this Code section, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such. (c) Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.
5 v. State of Ga., 274 Ga. 624, 626 (555 SE2d 459) (2001). Moreover, “‘“[t]he
proper scope of declaratory judgment is to adjudge those rights among parties
upon which their future conduct depends.”’” GeorgiaCarry.Org v. Atlanta
Botanical Garden, 299 Ga. 26, 28 (1) (785 SE2d 874) (2016) (citation omitted).
The interest of the respondent to the petition for declaratory judgment in
this case is statutorily determined. Under OCGA § 42-1-14 (a) and (b), the
Board is required to make the initial risk assessment and classification of sexual
offenders, to decide on petitions for reevaluation of the classification, and to
make a risk assessment upon request of a superior court that is considering a
petition pursuant to OCGA § 42-1-19 for release from the registration
requirements and residency and employment restrictions placed on certain
sexual offenders. See generally Gregory v. Sexual Offender Registration Review
Bd., 298 Ga. 675, 678-684 (1) (784 SE2d 392) (2016). The Board does not,
however, receive payment for the cost of the electronic monitoring system that
sexually dangerous predators are required to wear, place the monitors on them,
or play any role in the post-classification administration of the monitoring
system or any other requirements and restrictions placed on sexual offenders.
Instead, the cost of the system is paid either to the Department of Community
6 Supervision or to the sheriff; the electronic monitor is placed on the sexually
dangerous predator either prior to his release from confinement or by the sheriff
of the county of his residence, who explains its operation and cost; and a law
enforcement official is designated to maintain and remove or replace the
equipment. See OCGA §§ 42-1-12 (i) (12), 42-1-14 (e). Throughout OCGA §
42-1-12, monitoring of other sexual offender obligations is assigned to the
sheriff or appropriate officials other than the Board. In this case, it is undisputed
that the Washington County Sheriff’s Department placed a GPS monitor onto
Berzett’s ankle, that since then it has received alerts from the device, and that
it continues to monitor Berzett’s sexual offender obligations, including the GPS
device.
In view of the statutory division of duties to classify and monitor sexual
offenders, as implemented with respect to Berzett, once the Board’s
classification duties were complete and its classification decision became final,
the Board no longer had an interest in the controversy adverse to that of Berzett.
To the extent that he raises in this declaratory judgment action any constitutional
challenges to the statutory provisions regarding classification, such as due
process, those challenges could and should have been raised in his petition for
7 judicial review of the Board’s classification decision. Another controversy
between Berzett and the Board could possibly arise in the future if the Board
performs another risk assessment, but that will not occur unless so requested by
a superior court judge in response to a petition for release under OCGA § 42-1-
19, and, moreover, it is unlikely to occur in the case of Berzett (or most other
sexual offenders) unless at least ten years have passed since his completion of
“all prison, parole, supervised release, and probation for the offense which
required registration pursuant to Code Section 42-1-12 . . . .” OCGA § 42-1-19
(c) (2) (A). Furthermore, nothing in OCGA § 42-1-12 et seq. indicates that the
sheriff of the sexual offender’s county of residence functions as an officer or
agent of the Board, and the Washington County Sheriff was not named as a
respondent to Berzett’s petition for declaratory judgment and served as required
by statute. See OCGA § 9-4-5. In short, although there may be some actual or
justiciable controversy between Berzett and the Washington County Sheriff,
there is no present controversy whatsoever between Berzett and the Board. The
relief requested by Berzett, if granted, would have no practical effect on the
controversy between him and the Board that has already been resolved by the
superior court’s decision on Berzett’s separate petition for judicial review.
8 Moreover, the future conduct of the parties toward each other does not depend
on an adjudication of their rights. Again, the statutory scheme, the final
decision on Berzett’s risk classification, and the record in this case already make
clear that the Board has completed its classification duties, that it cannot
perform any further risk assessment unless requested by the superior court at
some future time, and that it is not required or authorized to monitor Berzett’s
GPS device or his other obligations as a sexual offender who has been classified
as a sexually dangerous predator. Conversely, Berzett’s future compliance with
the electronic monitoring and other obligations does not depend on an
adjudication of any right of the Board, as its rights extend only to classification.
Accordingly, because there is no actual or justiciable controversy between
Berzett and the Board, the superior court erred when it denied the Board’s
motion to dismiss Berzett’s declaratory judgment action.
In his petition for declaratory judgment, Berzett also requested injunctive
relief, but he primarily requested that the superior court declare that OCGA §
42-1-14 is unconstitutional on multiple grounds and that he is not subject to its
obligations. In his response to the Board’s motion to dismiss, Berzett argued the
viability of his constitutional claims, again asked the superior court to declare
9 the statute unconstitutional, and subsequently requested “injunctive relief
consistent with [the court’s] findings.” During the entire course of the parties’
litigation and this appeal regarding the motion to dismiss and the cross-motions
for summary judgment, Berzett has never made any separate argument
concerning, and has barely even mentioned, his request for injunctive relief.
[Such] relief sought is made dependent upon the prayer for declaratory judgment which, under the ruling [above], fails. . . . [W]ithout the declaratory judgment as its foundation, the [request for injunctive relief] fails. In this connection we are not unmindful of [OCGA § 9-4-3 (a)], to the effect that further plenary relief, including [injunction], may be sought in a petition seeking declaratory judgment, and that “the failure of [the] petition to state a cause of action for declaratory relief shall not affect the right of [the petitioning] party to any other relief, legal or equitable, to which he may be entitled.” But that section relates to the right to relief which is independent of declaratory judgment, not that specifically bottomed on the declaratory judgment sought, as here.
Gay v. Hunt, 221 Ga. 841, 846 (2) (b) (148 SE2d 310) (1966) (emphasis
omitted). Because Berzett’s cause of action for declaratory judgment should
have been dismissed, his request for injunctive relief also should have been
10 dismissed.3 See Richardson v. Phillips, 302 Ga. App. 305, 310 (2), n. 4 (690
SE2d 918) (2010).
Moreover, regardless of whether declaratory relief is sought, “[i]t is a
settled principle of Georgia law that the jurisdiction of the courts is confined to
justiciable controversies,” and “[w]e will not decide the constitutionality of a
law where no justiciable case or controversy is presented.” Fulton County, 299
Ga. at 677 (citation and punctuation omitted). Thus, a claim for injunctive relief
“is moot when its resolution would amount to the determination of an abstract
question not arising upon existing facts or rights,” as when the act that is the
subject of the claim has been completed. City of Comer v. Seymour, 283 Ga.
536, 537 (661 SE2d 539) (2008) (citation and punctuation omitted). As a result,
Berzett’s claim for injunctive relief should have been dismissed for the same
reasons as his request for declaratory relief, even if the former were independent
3 Assuming that the superior court otherwise was authorized to consider the remedy of prohibition in response to Berzett’s petition, that remedy, like injunctive relief, was dependent on its grant of declaratory judgment, and a writ of prohibition could not have been entered independently of a proper declaratory judgment. This is true because, if for no other reason, Berzett’s entire case depended on a determination of the constitutionality of OCGA § 42-1-14, and the writ of prohibition itself “is not an appropriate remedy for testing the constitutionality of a law.” Buie v. Buie, 175 Ga. 27, 32 (2) (165 SE 15) (1932) (punctuation omitted).
11 of the latter. As previously discussed, there simply remains no justiciable
controversy of any sort between Berzett and the Board, and neither form of
relief requested by Berzett could have any effect either on the Board’s already
final and completed act of the risk classification of Berzett or on any other right
or responsibility of the Board toward him.4 Accordingly, the judgment of the
superior court must be vacated, and the case remanded with direction that the
court dismiss Berzett’s petition in its entirety.
Judgment vacated and case remanded with direction. All the Justices
concur, except Grant, J., disqualified.
4 For the same reasons, again assuming that the superior court otherwise could have considered the remedy of prohibition in response to Berzett’s petition, that petition still should have been dismissed even if a writ of prohibition were independent of the request for declaratory relief and somehow could have been considered in lieu of injunctive relief. “Before the writ of prohibition should issue, there must be some pending action or proceeding upon which the writ could apply and prohibit some act of a judicial tribunal . . . .” Martin v. Crawford, 199 Ga. 497, 497 (1) (34 SE2d 699) (1945) (emphasis supplied). “[A] writ of prohibition will not lie after the judgment sought to be restrained has been issued.” Almand v. Brock, 227 Ga. 586, 587 (182 SE2d 97) (1971).
12 Decided June 19, 2017.
Declaratory judgment. Fulton Superior Court. Before Judge Bedford.
Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Joseph J. Drolet, Senior Assistant Attorney General,
Rebecca J. Dobras, Assistant Attorney General, for appellant.
McMillan & Rawlings, Thomas C. Rawlings; Mark A. Yurachek, for
appellee.