If You Don't Know What Hurt You, You Cannot Sue

Yesterday the Court of Appeals affirmed 6 more criminal convictions.  But that's not today's subject.  Today's subject is tort reform, sort of.  We hear anecdotal evidence that plaintiff's personal injury cases are out of control, and that "the government" (see, first post) isn't doing anything about it.  In this sense, "the government" is identified as the legislative branch, who is implored to pass one statute or another to stop the purported madness.  That's where knowing what the branch of government that deals with lawsuits on a daily basis is doing can add something to the debate.  The judicial branch took some action yesterday, but darned if you will read about it anywhere.

In Anderson v. Canup, the plaintiff slipped and fell while exiting the defendant's place of business.  Plaintiff sued defendant to recover for the injuries she suffered as a result of this fall.  However, when asked how she fell, what caused her to fall, she testified that she was "not sure" and she "did not remember" what happened. The trial court threw her case out of court before it even reached the jury, and the Court of Appeals affirmed.  The Court of Appeals explained that the "mere possibility" that this may have been defendant's fault was not enough to justify the suit proceeding.

This result is not shocking.  I am sure that future posts will point out results like this one.  Because it is the government controlling lawsuits, which apparently is what some are clamoring for.

Your Government Is Tough on Crime

Seven new decisions were issued by the Court of Appeals yesterday.  (An eighth was also issued, but was not a "new" decision, rather, it implemented a Supreme Court ruling in an older case.)  All seven decisions were criminal cases.  All seven decisions affirmed convictions.  Contrast this to the State v. Hamby decision discussed yesterday, which excluded evidence against the criminal defendants which evidence was likely to prove guilt. A day like yesterday should drive home to anyone concerned that Georgia's courts just find reasons to let guilty parties go free that there is no such pattern.  

Sticking with the theme of "news you can use," the case that probably impacts the largest number of people is Miller v. State, a DUI case.  The issue in Miller was whether the the police officer who arrested the driver coerced the driver into taking a breathalyzer test, which test showed a blood alcohol content of .124 or .129.  Particularly, the defendant contended that when the police officer told him “[A]s long as you continue to be cool or whatever and be cooperative, what I'll do is, is I'll make the process go by real quick”, he (the defendant) felt that the police officer was threatening him.

The trial court disagreed, and so did the Court of Appeals, finding that those words were not threatening, and not deceptive.  In a past case, the words “if you blow under the legal limit I can let you go home to your son, and everything will be fine” were viewed as too deceptive, and resulted in exclusion of the test.

No pithy lesson here.  Safest way to avoid a DUI arrest and conviction has been, and always will be, not to drink and drive.

"Georgia Frees Lying Druggies" or "Fascist Police Put in Their Place"

Neither Court posted any decisions yesterday (8/28/2012) so I went back one day to 8/24/2012, last Friday.  Came across State v. Hamby, which contains a result that could be sensationalized in either direction, depending on your view on these particular kind of things.  It's one of those cases that makes some people say "these people were plainly guilty and got off on a technicality" and others say "I'd rather see 100 guilty go free than one innocent get convicted."  

Back in 2008, a police officer was patrolling the "highest crime area" in his jurisdiction, when he encountered Ms. Hamby.  Except that when he asked her for her name, she said it was Smith.  After establishing that no such Smith actually existed, he asked her again who she was, and she said she had ID in her hotel room.  By that point, two other officers joined the investigation, and they went to her hotel room.  They knocked and the door was opened by her husband. Without getting into detail, the officers observed much evidence of drug use.   There was some back and forth, and then the key facts unfolded as follows:

"Orrick had noticed three zipper bags on the kitchen table and he pointed to them and asked if Hamby's identification could be in any of those. Both Hamby and Smith said they had no knowledge of those bags and they were not theirs. Regarding the bags as abandoned, Orrick began walking across the room to retrieve them, when he spotted a sandwich bag on the floor which contained marijuana. In one of the bags on the table, Orrick found five more bags of marijuana and in another he found a red glass smoking pipe commonly used for smoking methamphetamine. As he was walking back toward his sergeant, Orrick noticed an open bag on the bed with a lot of prescription bottles in it. When asked, Smith claimed the bag and consented to Orrick's search of it. Orrick found an STP oil can in the bag and noticed that its false bottom was partly unscrewed. Inside, he found three packages of cocaine."

Let's assume for the moment that such evidence, if put before a jury, would result in a criminal conviction for some form of controlled substance violation.  That's not the issue in this case.  The issue in this case is whether this evidence can get before a Jury.  And when the State tried to convince the trial court that the evidence should go before a Jury, the trial court said no.  Last Friday, the Court of Appeals agreed.  Why?  The issue is whether the police had any right to be in the room and look through the items which caused them to find the controlled substances.  As the Court explained:

"the State overlooks the issue of the entry of the three officers into the occupied hotel room without either probable cause, exigent circumstances, or consent. At the time Orrick went across the room to retrieve what he deemed to be abandoned three bags on the kitchen table, the most he had was a reasonable suspicion that Hamby had given a false name and that Smith might be under the influence of cocaine. At that point, no illegal substances had been seen by the officers, nor had any consent been given for their entry into the hotel room, as conceded by Orrick. Orrick acknowledged that he had not asked Smith or Hamby if they had had visitors to their room before retrieving the bags. He further acknowledged that “I don't know if he [Smith] ever gave us permission to go into the room.” It was on his way to retrieve the bags that he noticed the baggie containing marijuana on the floor of the room."

Whether you agree or disagree with the outcome of the case, wouldn't you like to know about these decisions that are happening in your highest levels of state government?  Rather than being riled up over a candidate being "soft on crime," doesn't it make more sense to know exactly why some seemingly guilty people go free?  Or, looked at from another direction, isn't the result here exactly the kind of result that makes people proud to live in a country where we are free from unreasonable intrusions into our lives by law enforcement?  

One other note:  the underlying events happened in July 2008.  It's been four years.  Consider those sorts of delays when you are pondering whether to cut budgets for the judicial branch.

Statement of Purpose / Chin Pak v. Georgia Department of Behavioral Health

"Did you hear what the government is doing?" comes the question in office hallways, barrooms, ballparks, classrooms, dinner tables, and everywhere else people are talking.  But the question itself carries so much breadth.  There is no "the" government.  Government is local, state, and federal.  Government is executive, legislative and judicial.  So when whatever news provider we happen to choose for our information tells us of "what the government is doing," that news provider has already done some filtering by which branch of what level of government did something "newsworthy" that day.

So if something happens that impacts you, and the news doesn't report it, you don't know about it, unless you are looking for it.  Much of that filtering goes on with respect to court related news.  My perception is that court related news falls into the following categories:  (a) sensationalized trials; (b) United States Supreme Court decisions on issues that can become politicized; and (c) the appointment of judges.  Yet, none of these truly represents a focus on government action that can impact a person on a day to day basis.

What I am going to try to do here, if I can keep up the energy, is to report, perhaps daily on significant decisions made by the Court of Appeals of Georgia and the Supreme Court of Georgia.  These decisions come down throughout the year, and are truly the kind of nuts and bolts decisions that do show up in our daily lives.  Just yesterday (August 27, 2012), the Court of Appeals issued three decisions:

1. In re J.X.B., which concerned a 16 year old who admitted that he brought a baseball bat to school in connection with an assault.  
2. Jinks v. Eastman Enterprises, how long a case can remain inactive before it gets dismissed.
3. Chin Pak v. Georgia Department of Behavioral Health & Developmental Disabilities,  concerning when a party can, and cannot, sue the government. 

Of these three cases, the first can be viewed as a technical case involving the procedures controlling when the government can deprive a minor child of liberty, the second can be viewed as a very technical case involving how court orders are entered, but the third falls into the category of "did you hear what the government is doing?" But I'll venture a guess that the case doesn't garner a word of press coverage (as compared to, say, the Andrea Sneiderman case, about an already solved local murder in which one person has already been convicted).  The headline, if one were to sensationalize, about the Chin Pak case might be "Government Decides It Cannot Be Held Responsible When Government Hospital Releases Psychiatric Patient Against Family's Wishes And Patient Murders Mother After Release."  That's a grabber, isn't it?

So what happened?  As the court itself explained:  "Na Yong Pak had a history of mental illness and was diagnosed with paranoid schizophrenia and hallucinations after being involuntarily committed to Georgia Regional Hospital (“GRH”), a facility run by the DBHDD, in December 2008. Na Yong Pak's medical records at GRH indicate that while she was a patient she did not participate in her scheduled therapy, refused to take her medications, did not attend psychiatric sessions with hospital doctors, and was considered a danger to others. Despite objections from her family, and although she continued to refuse medication or seek treatment, Na Yong Pak was discharged from GRH on January 29, 2009. On February 10, twelve days after being discharged, Na Yong Pak doused her mother in gasoline and set her on fire."  

The Pak family filed suit, and the suit was dismissed under a long-standing principal called "sovereign immunity," which has its roots in the English Law, under the theory that "the King can do no wrong."  Simply put, one is not allowed to sue the government for governing.  And there's good sense to that.  But, what if in the course of "governing," a government employee is driving a car and runs over a mailbox?  There are exceptions to sovereign immunity for such things.  The issue in Pak was whether a particular exception did, or did not, apply.  The Court of Appeals ruled that a lawsuit would not be permitted in this circumstance.  To be clear, the Court of Appeals based its decision on a previous interpretation of an already existing statue -- it did not decide this one on a whim (nor, for that matter, does it ever decide anything on a whim).  But in trying to know what "the government is doing," it's helpful, or so I think, to pick out decisions like Chin Pak and be aware of them.

So, check back here if you are curious about what the Judicial Branch of the State of Georgia is doing.  Certainly I'll still be filtering (I pick the cases to discuss).  I'm not giving legal advice; I'm not writing this as an attorney.  I'm writing this to inform, and, sometimes, to comment.  I do hope you enjoy it.