Notice of Appeal

Gay Marriage Amendment Arguments

Judge Larry Salmon, a Floyd County Superior Court judge, is sitting in for Justice Harold Melton, who worked as executive counsel for Governor Perdue when the amendment was drafted and passed. (Judge Salmon ruled in 2001 that a consent decree in a divorce that allowed custody to the wife so long as she was not cohabiting with someone to whom she was not married did not apply when the wife was living with her partner with whom she had celebrated a civil union. The ruling was premised simply on an interpretation of the terms of the existing consent decree, however, and was not a ruling about whether a same-sex couple should have custody.)

The Court interrupts the assistant AG (Stefan Ritter) as he begins his argument to ask whether there was overwhelming support for the ballot, and also whether the language on the ballot could have confused the voters. Ritter says that the trial court found it was not confusing. The Court queries whether the "right for any reason" rule should apply. Ritter says that the cases support the trial court's ruling.

The Court asks Ritter if the amendment is clear, what does it say?  And, would it not have been more clear to simply mimic the state statute that already limits marriage to heterosexual couples? Ritter said they did not want to leave any question how other states' "unions" would be treated. What about same-sex benefits from other states that are not exactly the same as marriage? Ritter says that the amendment does not cover this -- it only covers proxies for actual marriage with all of the same benefits as marriage. (Notably, this would narrow the potential reach of part (b) significantly, because few states actually provide all of the same benefits as marriage to same-sex couples.)

The Court turns to the single-subject rule's requirement that the treatment of "unions" be "germane" to the accomplishment of a single objective. Ritter says the objective or purpose of the amendment is to limit unions between couples to those between a man and a woman, and he goes through each sentence of the amendment to explain how the sentence is germane. The sentence that troubled the trial court was the first sentence of part (b) regarding unions. Ritter says that the language limits its reach to unions that provide the same benefits as marriage. Thus, there is no single subject problem.

When the Court asks whether, if the amendment isn't limited as Ritter suggests, then wouldn't there be single-subject problems? Ritter does not quite answer this, and seems to back off of his position on the amendment as being limited to proxies for marriage, saying that the limits of the amendment may have to be tested later.

The Court asks how many states have struck down the plethora of similar amendments based on a single-subject violation. Georgia is the only one.

Does the fact that it was a well-publicized and litigated amendment and overwhelmingly approved by the voters change the burden of proof? Ritter says that he doesn't think so. (I think this was intended to be a softball for Ritter to talk about how much public information and support there was for the amendment, so that the Court should worry less that the voters were uninformed. However, Ritter missed that opportunity.)

Johnny Stephenson of Alston & Bird LLP argues for the plaintiffs-appellees. He contends that the amendment should have been presented as two separate amendments, because it forced the voters to vote all-or-nothing: either no measure regarding same-sex marriage, or a measure that not only prohibits same-sex marriage but enacts a number of additional limitations that the voters may not have chosen if had a choice.

The Court asks about whether the ballot provision was "misleading" or whether he contends it was "coercive"? Stephenson acknowledges that the standard for the language on the ballot provision is low, although this Court could certainly overrule that line of cases, but he points out that the bigger picture and the context of the single-subject issue is that the voters were stuck with voting on a single amendment that may not have expressed what they really wanted.

The Court asks whether it is significant that they used the word "union" instead of "relationship" in the first sentence of part (b) -- i.e. that "union" really does only refer to marriages or proxies for marriage, so there is no single subject problem. Stephenson says that actually, the word "union" is significant but for a different reason -- because the preexisting statute (which is otherwise identically worded) uses the word "marriage" where the amendment uses the word "union," we should assume the legislature intended something different from "marriage."

Part (b) is not merely a "full-faith-and-credit" provision? Stephenson says it is not -- future legislatures would be prohibited from affording any of the benefits of marriage to same sex couples. If that's the case, that is a different subject. The Court points out that the state just conceded that the amendment is only limited to relationships that are "tantamount to a marriage." Stephenson says he is troubled by the AG's position because what does it mean to be tantamount to marriage? What about a civil union that grants all benefits of marriage but one? There are difficulties in enforcement. (The subtext of his argument is that courts might push the line of "tantamount to marriage" back to "sort of like marriage" rather than being so all-or-nothing as Ritter suggests.)

Stephenson emphasizes that they have data showing the public has widely varying views on the extent to which benefits should be available to same-sex couples, and yet the public was left with a Hobson's choice on voting on this amendment as a single amendment.

Stephenson adds as an alternative that severability is an option. The portions of the amendment that are not central to the single objective could be severed. The Court points out that the trial court didn't do that, and this Court has not previously done so. Stephenson says the trial court may have felt constrained precisely because this Court had not previously struck parts of a provision violating the single subject rule.

The Court asks whether, if the amendment was read narrowly (i.e. reaching only unions that grant all of the benefits of marriage), then there would be no problem. Stephenson says if you read into the amendment words that aren't there, then yes.

Ritter in rebuttal goes back to a case relied on by plaintiffs regarding the single subject rule. He contends there was no coercion here.

And so concludes the argument.

Perdue v. O'Kelley Oral Argument

Arguments at the Georgia Supreme Court this morning, June 27, in Perdue v. O'Kelley, the gay marriage amendment case, will be webcast live via RealPlayer. Watch the webcast, and read the briefs. (Disclaimer: BME represented plaintiff-appellee Senator David Adelman on appeal.)

For those unfamiliar with the case, the amendment has two parts: one declares "marriage" to be "only the union of man and woman" and prohibits same-sex marriage, while the second goes further and declares that no "union" between two persons of the same sex will be "entitled to the benefits of marriage" and no "any public act, record, or judicial proceeding" of any other state "respecting a relationship between persons of the same sex" will be recognized, nor divorces from those unions granted. The ballot provision read: "Proposing an amendment to the Constitution so as to provide that this state shall recognize as marriage only the union of man and woman; to provide for submission of this amendment for ratification or rejection; and for other purposes."

The trial court found, over the plaintiffs' objections that the ballot provision misleadingly left out a description of the second part of the amendment, that this language was within the legislature's discretion to draft ballot language. However, the trial court also found that the amendment violated the single subject rule by addressing both same-sex "marriage" and the treatment of all other "unions" in the same provision. The state appealed, and the Georgia Supreme Court granted the state's request for expedited arguments.

This is an especially dicey argument because this amendment passed by an overwhelming margin in 2004, and four of the seven Georgia Supreme Court Justices are up for election this year.
We'll have more on the arguments as they proceed...

How Appealing covers these arguments and related news here.

Georgia Supreme Court: Corporations Are “Persons” Under Georgia RICO

Williams General Corp. v. Stone, --- S.E.2d ----, 2006 WL 1584434 (Ga. Jun 12, 2006) (NO. S06G0006)

    In a unanimous opinion released on June 12, 2006, the Georgia Supreme Court held that corporations are considered “persons” under the Georgia RICO Act. Williams General Corp. v. Stone, --- S.E.2d ----, 2006 WL 1584434 (Ga. Jun 12, 2006) (NO. S06G0006). (Disclosure: BME represented plaintiff-appellant Williams General.)

    Last August, in Stone v. Williams General Corp., 275 Ga. App. 33 (2005), the Georgia Court of Appeals held that, because corporations are not a “person[s]” within the meaning of the Georgia RICO statute, they cannot be directly liable for conspiring to violate Georgia RICO because Georgia RICO’s conspiracy provision, O.C.G.A. § 16-14-4(c), prohibits only “persons” from conspiring to violate one of the two other RICO subsections. Id. at 34. In doing so, that Court of Appeals overturned a Gwinnett County jury’s verdict against Stone Cold Chemical for conspiring with one of its officers and directors, Thomas D. Stone, to violate Georgia’s RICO statute and steal Plaintiff Williams General Corp.’s trade secrets. In December, the Supreme Court granted certiorari to review whether “a corporation [is] a ‘person’ for purposes of the Georgia RICO Act, O.C.G.A. §§ 16-14-1 et seq.?” Williams General Corporation d/b/a Buck Head Products v. Thomas D. Stone et al., S06G0006 (letter to counsel attached to Writ of Certiorari).

    In reversing this decision, the Supreme Court made the following two important determinations: (1) corporations are “persons” for purposes of Georgia RICO; and (2) O.C.G.A. § 16-2-22(a), which determines the standards under which a “corporation may be prosecuted for an act or omission constituting a crime,” does not apply to private civil RICO damage actions.

    First, the Supreme Court concluded that corporations are “persons” under Georgia RICO because: (1) the Georgia Criminal Code defines “persons” as including “public or private corporation[s],” O.C.G.A. § 16-1-3(12); (2) the Georgia Code’s general definitional provisions define “persons” as including “corporations,” O.C.G.A. § 1-3-3(14); and (3) Georgia RICO contains a liberal construction mandate dictating that the Act “be liberally construed to effectuate the remedial purposes embodied in its operative provisions,” O.C.G.A. § 16-14-2(b), and, therefore, “it would be error to give a more restrictive meaning to the [person] term, thus limiting the remedial purposes of the Act and violating the liberal construction imperative of the legislature.” Williams General, 2006 WL 1584434 at * 1.

      In reaching its conclusion, the Georgia Supreme Court recognized and overruled language in a footnote from a prior Supreme Court decisions, Clark v. Security Life Ins. Co. of America, 509 S.E.2d 602, 605, n.11 (Ga. 1998). The Clark footnote suggested, without any analysis, that Georgia RICO “prohibits only ‘persons’ from engaging in racketeering activity” and does not “indicate[] a legislative purpose to impose liability on a corporation."  Id.  Concluding that “[t]his language . . . adds confusion to a straightforward interpretation of the RICO statute,” the Supreme Court expressly “disapprove[d]” the footnote’s language.

    Second, the Supreme Court overruled another important portion of the Clark decision. In Clark, the Court applied O.C.G.A. § 16-2-22(a), which provides the standards under which corporations may be criminally prosecuted in Georgia, to a civil RICO case because “RICO is directed to ‘organized criminal elements’.” 509 S.E.2d at 604-05. In Williams General, the Supreme Court found that this approach was flawed and threatened to cause unintended consequences. According to the Court, “to construe the statute” in this manner “would mandate that O.C.G.A. § 16-2-22 and other criminal statues that limit imposition of corporation criminal liability would now be applied to civil suits which stem from criminal law violations. We have not previously applied O.C.G.A. § 16-2--22 or any other criminal statutes to civil suits brought by individuals, and we decline to do so here.” Williams General, 2006 WL 1584434 at * 2 (footnote omitted).

Georgia Court of Appeals: Long Arm Statute Reaches Large Internet Transactions

    The Georgia Court of Appeals made headlines on May 23 when it ruled that a Georgia court has jurisdiction over a foreign company that sold and delivered a $31,000 BMW to a Georgia resident through Ebay, an internet auction website.  Judge Phipps, writing for the court in Aero Toy Store LLC v. Grieves, #A06A0741, held that Gordon Grieves' Georgia grievance was proper because Ebay is an "interactive website," the transaction was "worth thousands of dollars," and the transaction "involv[ed] shipment of an automobile to be operated in Georgia."  Gone are the days when telephone, mail, and Internet contacts are insufficient in Georgia to confer jurisdiction over a non-resident.  At least under Section 1 of the Georgia Long-Arm statute (authorizing jurisdiction over a foreign company that "transacts any business" within the state so long as the claim arises out of those business transactions), foreign companies may be haled into Georgia's courts even if they've limited their contacts with Georgia residents to interstate phone, fax, and internet communications.

    Aero is a much-welcomed (or, for out-of-state defendants, much-feared) application of the Georgia Supreme Court's 2005 decision in Innovative Clinical & Consulting Services v. First National Bank of Ames, Iowa, which held that Section 1 of Georgia's Long-Arm Statute applies to the maximum extent allowed by the Due Process clause of the U.S. Constitution.  Innovative Clinical held that internet, mail, and fax communications should be considered in Georgia's minimum-contacts analysis, effectively overruling a long line of cases holding the opposite.  The result in Mayacamas Corp. v. Gulfstream Aerospace Corp., for example, which declined jurisdiction over a dispute arising out of a Georgia resident's purchase of a private jet after a series of telephone and fax communications and partial performance of the purchase agreement, would likely be different today.

    While Aero provides fertile ground for Georgia consumers to bring claims for interstate transactions gone awry, it left some questions unanswered.  Aero emphasized the high value of the transaction at issue, for example.  Will a court entertain a significantly less valuable claim?

    Aero also emphasized that that the defendant itself delivered the good (a fact which the defendant has apparently disputed after the appeal).  Can companies avoid Georgia's long arm by requiring the purchaser to arrange for delivery?  What if they outsource delivery?      

Cobb County Evolution Sticker Case remanded for further findings

            On May 25, 2006, the Eleventh Circuit issued its opinion in Selman et al v. Cobb County School District et al, 2006 WL 1428822, known informally as the “Cobb County evolution sticker case.”  In an opinion written by Judge Carnes (with Judges Hull and Pryor on the panel), the Court remanded the case to the district court for further factual findings, in light of the significant problems with the state of the evidentiary record that were brought to light on appeal. (Disclaimer: BME represented the plaintiffs on appeal, although not at trial.)

            This case was a test of whether the school district’s placement of stickers inside the front cover of biology textbooks stating that “[e]volution is a theory, not a fact, regarding the origin of living things” as an accommodation to parents who objected to teaching evolution on religious grounds was a violation of the 1^st Amendment’s Establishment Clause.  The district court, after a four-day bench trial, concluded that the sticker did violate the Establishment Clause and the Georgia Constitution, and issued a permanent injunction against the use of the stickers.

            The stickers grew out of the official policies of Cobb County to plan its curriculum “with respect for” the “family teachings” of Cobb County citizens.  In particular, the school system’s regulations in 1995 stated that evolution would not be taught until high school, at which point it would not be mandatory. At the same time, elective courses on alternative theories such as creation theory would be available.  The evolution sections of science textbooks were torn out before the texts were provided to the students.

            By 2001, the State of Georgia mandated teaching of evolution, but Cobb County’s 1995 policy remained in place. In 2002, it was time for the school district to adopt new science textbooks. In spite of the school district's policy, the school district’s textbook review committee recommended a text that contained an entire unit on evolution.  The school board, based on comments from parents about the text, believed its constituents wanted a text that presented alternative theories of the origin of life, including intelligent design, creation science, and creationism.  The board’s counsel advised that intelligent design could not constitutionally be included in a science textbook, but, to address the parents’ concerns, drafted language to place on stickers in the textbooks indicating that evolution was a “theory, not a fact,” and that it should be “approached with an open mind, studied carefully, and critically considered.”  The issues surrounding adoption of the science texts apparently prompted a review of the 1995 policy, and in 2002 and 2003, Cobb County revised its policy, providing that evolution would be taught in Cobb County science classrooms, and religion would not be.

            The district court viewed the essence of the dispute as whether seeking to accommodate the parents’ religious beliefs and reduce offense was a “secular purpose” or was in fact an intent to promote religion.  The court concluded on summary judgment that the board’s purpose was secular, but the case went to trial on the effect and entanglement prongs of the Lemon test because, the district court observed, the sticker arguably disavows evolution and encourages discussion of religious theories in the science classroom.

            After the bench trial, the court credited the testimony of board members who, the district court believed, were not trying to disclaim evolution.  Rather, the district court found the board had two secular purposes: (1) encouraging students to analyze evolution and make their own decision regarding its merit, and (2) attempting to placate constituents by showing them that students’ personal beliefs would be respected in the classroom. The district court again found the board’s purpose was secular, satisfying the first prong of the Lemon test.  However, the district court found that the sticker communicated an endorsement of religion by isolating evolution for special consideration (and a misleading description of its standing in the scientific community), which a reasonable observer would interpret, in light of the history of the issue in Cobb County, to be motivated by the fact that evolution does not acknowledge a creator. Likewise, because the district court believed the board had sent a message that it agreed with the religious beliefs of the Christian fundamentalists and creationists, it found the board had impermissibly entangled itself with religion.

            The Eleventh Circuit found that there were “serious problems” the factual basis for the court’s findings. The district court found the stickers constituted both endorsement and entanglement “in light of the sequence of events that led to the Sticker’s adoption,” but the Eleventh Circuit was concerned about whether the evidence supported the district court’s view of the “sequence of events.”

            Specifically, the district court believed that the idea of the disclaimer sticker had originated with a parent who both wrote a letter to the Board and submitted a petition requesting such a disclaimer. However, the only petition in the record came well after the board’s decision.  Indeed, this particular problem with the record caused the Court, and Judge Carnes in particular, to question the truthfulness of plaintiffs’ appellate counsel at oral argument. (After counsel submitted supplemental briefing explaining the problems with the record, the Court issued an order finding that plaintiffs’ counsel had not misled the Court, and in light of the heavy press coverage of the oral argument, the Court instructed the clerk’s office to distribute this order to the press in order to remove any such impression.)

            Judge Carnes’s discussion of the problems with the record in the panel opinion reflects the Court’s ongoing concern and frustration with the state of the record on appeal as transmitted from the district court, and the district court’s factual findings based on that record. Exhibits were missing from the record that could not be accurately or confidently recreated, and it could not be determined whether certain documents supplied by the parties in their supplementation of the record had been before the district court. (Importantly, unlike many other circuits, the Eleventh Circuit generally reviews cases on the full, original district court record, which is transmitted directly from the district court, rather than on a joint appendix created by the parties, so the Eleventh Circuit’s inability to locate information in the “record on appeal” means it was missing from the district court’s original record.) Witnesses had testified about documents (including the missing petition) but those documents had not been entered into evidence, or referenced by exhibit number or other foundational information at the time of the testimony.  The Court acknowledged that “[t]he parties have tried diligently but unsuccessfully to correct the record,” but determined that there was nothing the parties or the district court could do to correct the problems pursuant to FRAP 10(e)(2).

            On the other hand, the Court declined to apply the usual rule that absence of evidence to support the appeal requires affirmance of the district court’s opinion.  The Court reasoned that the problem was not a question of the appellants failing to supply evidence to support their position. (And, as noted above, neither party is responsible for supplying the record on appeal.) Rather, the problem was with evidence that may have gone missing from the record, in spite of the good-faith and diligent efforts of the parties on appeal to recover it, and that this evidence was necessary for the Court to review in order to determine whether there was error.  In particular, the Court observed that both parties challenged the district court’s findings (though the defendants did not cross-appeal). Finally, the Court stated that “the issues presented by this case are ones of substantial public importance and need to be resolved on their merits based on the facts instead of based upon mutual mishaps, mistakes, and misunderstandings about the evidence.” 

            To assist the district court in issuing new factual findings and conclusions of law, the Court made a (nonexclusive) list of eighteen suggested issues that the district court “probably will want to address.”  The Court also cautioned that it was not making any implicit rulings on any of the legal issues, nor was it expressing an opinion on how or whether the Georgia constitutional issue should be decided (citing 28 U.S.C. 1367(c) – a reference which, in spite of the disclaimer, actually suggests that the Court is of the opinion it should not have been decided).

            The Eleventh Circuit's opinion – particularly the last half of it – reads something like a “what not to do” critique of the trial court record left by the trial lawyers and the district court.  (In fact, those of us who are former appellate clerks probably recognize and are deeply in touch with the sort of frustration expressed in the opinion regarding the record on appeal.)  But, ironically, the Court’s remand for additional factual findings -- on the ground that the issues raised by the case were of “substantial public importance” and therefore should be decided on the merits -- has the potential to result in the parties declining to pursue the matter further due to the passage of time and the expense of having what will amount to a second trial.  Thus, it remains to be seen whether the issues of “substantial public importance” presented by this case will be finally decided on the merits.