June 2007 Vanguard The A Publication of the Council of State Court Judges Volume 13, Issue 1 Impartial Courts - Judicial Excellence - Accessible and Efficient Justice President's Message Stronger Relationships - Better Vision Judge Brenda Cole, President As a judge, nothing is more humbling than putting on my robe each day before court. This simple first act allows me to reflect upon the trust and confidence that the community has placed on my shoulders to sit in judgment of their legal matters. After all, in many respects judges are no different than most of the people in our towns or cities, but somehow we are deemed to be wise and just with a penchant to do the right thing. In most instances, my job is to allow people to tell their side of a story, and for me to actively listen. When an atmosphere free from preju- dice and bias is assured, along with treating individuals with courtesy and respect; justice appropriate to that case can be crafted. Not only do I cherish those professional moments, but I am ever cognizant of the fragile nature of the trust and confidence the public places upon my shoulders. In this same way, I am humbled by the trust and confidence you have placed in me to lead the Council this year. Without your support and participation it would be difficult to consider. Fortunately, our immediate past president, Ben Studdard, has blazed a trail that I intend to carry on to further our mission and vision. I pledge to insure that we work together to achieve our goals of improving our relationships with our communities, our sister courts, our cross-branch agencies, and our- Council Leadership Changes Hands Judge Ben W. Studdard, III, State Court of Henry County, recently concluded his tenure as President of the Council of State Court Judges. At the Council's semi-annual meeting held May 16-18 in Young Harris, GA, Judge Studdard handed over the reins of the Council to Judge Brenda Cole, State Court of Fulton County. Judge John C. Carbo, III, State Court of Clayton County, was elected by the Council as President-Elect. "I am honored to pass the gavel to a judge of the caliber of Brenda Cole. Judge Cole and I have worked closely together for the past twelve months, and I know she will guide our Council with utmost wisdom and integrity," Judge Studdard said. Judge Cole, a native of Texas, attended Spelman College, Atlanta University, and Emory University School of Law. Prior to her appointment in 1998 to the State Court of Fulton County, she served as Assistant Attorney General in both West Virginia and Georgia. Judge Cole is active in a continued pg 3 selves. Our mission to further the improvement of the state court and the quality and expertise of its judges, to maintain the impartiality of the judiciary and to ensure the fair, efficient administration of justice is achieved. When all of us participate and reach this goal together, our vision of impartial courts judicial excellence - accessible and efficient justice moves beyond mere aspiration to significantly improving the quality of justice our state courts deliver to the citizens of our communities. It is an honor and privilege to serve as your President this year and I sincerely look forward to meeting and talking with each of you about our Council of State Court Judges' mission and vision and how we can strengthen our relationships. I look forward to seeing you soon! What's Inside Pioneer Left Us Pristine Marshlands . . . . . . . . . . . . . .pg 2 2007 Enacted Legislation . . . . .pg 4 Keeping the Courts Open . . . . . .pg 5 Council Adopts Strategic Plan . .pg 6 Special Thanks to Judge Purdom .pg7 Pictures . . . . . . . . . . . . . . . . . .pg 8 Federal Law Restricts Firearms After Convictions . . . . . . . . . .pg 10 DDS Notification . . . . . . . . . . .pg 12 The Vanguard Pioneer Left Us Pristine Marshlands June 2007 Former judge and environmentalist Ogden Doremus fought tooth and nail to protect Georgia's coastal marshlands Reprinted with permission from Daily Report By Stephen E. O'Day, Special to the Daily Report THE PECULIAR TILT of his head, the way his eyes sized you up and that slow coastal drawl you rarely hear anymore let you know Ogden Doremus was an unusual character and therefore someone worth listening to. His impact on Georgia was, and is, profound. You can see it firsthand. Just drive along Interstate 95 and enjoy the natural beauty of our state's pristine coastal marshlands, knowing that this treasure survives because of his efforts. Doremus, who protected law first in Atlanta and then in Savannah before becoming a state court judge in Candler County in 1985, died April 4. Georgians will benefit from his words and actions for years. And the good fight he championed will continue, as it should. Judge Doremus had the foresight to help draft the strongest coastal marshlands protection act in America and the tenacity to push it through the state Legislature 37 years ago. So, what is lost to most of the East Coast continues to live in Georgia, providing one of the most productive ecosystems on the planet. Those marshlands nourish our recreational and commercial fisheries, harbor dozens of endangered species, buffer our coast from the devastating effects of hurricanes and provide incomparable beauty that draws thousands of tourists and millions of tourist dollars to the Georgia coast annually. The Coastal Marshlands Protection Act declared some 400,000 acres of salt marsh to be state property. Ten years ago, on Doremus' 75th birthday, the General Assembly honored him for his role in its passage, calling it his "crowning glory." His example is testimony that an individual really can make a difference and that one's own unique personality, quirks and all, can be a catalyst for a world of good. In the case of Judge Doremus, an intricate blend of contradictions gave him a larger-than-life presence, and he used that to great advantage. He was a born fighter, but he did not make enemies. He was as cantankerous as he was passionate. Calling this pioneer of Georgia's environmental movement a radical visionary would not be a stretch, yet he could rub shoulders with the power brokers as well as any old-school Southern politician. Conservation was his calling, and he was the right person at the right time. "Somehow, sometime, deep in his soul, Ogden had experienced a stirring of the spirit, an epiphany, that made him understand the overarching importance of the natural world," former Lt. Gov. Pierre Howard said in remembrance. I first met Doremus around 1981 when, as a young lawyer with an environmental passion of my own, I was asked to join the Georgia Conservancy board. Doremus was well into a legal career that began in 1949, and was a founding member of the Conservancy. He was always outspoken, and I remember him pushing the board to do what it was supposed to do. Georgia environmental groups had a propensity to deliberate and move slowly. Doremus on the other hand pretty much knew how he felt about things and called for quick, decisive action. He was often frustrated. Eventually, Doremus moved on from that board and set out to increase the firepower available to a growing number of grass-roots conservation groups in Georgia. In 1992, he co-founded the Georgia Center for Law in the Public Interest, which is a major source of pro bono legal help to environmental causes across the state. "What set Ogden apart from others was not the laws he passed or the cases he brought but the people he inspired who would not be as committed or as effective without him," said my friend Justine Thompson, the Center's executive director. "That will be his legacy, the countless individuals in Georgia who are continuing down the path made by Ogden." In the mid-90s, as an environmental advisor to Lt. Gov. Howard, I often turned to Doremus for strategic advice. Around that time, developers began pushing to relax hard-fought court victories controlling storm-water runoff from construction sites. The lieutenant governor felt strongly about protecting those regulations. Doremus knew how to work the General Assembly and was a close friend of House Speaker Tom Murphy. Doremus was a great behindthe-scenes ally. We pushed back and actually strengthened those rules and eventually forged a cooperative relationship with the development community. As a result, Georgia's protections against pollution caused by storm-water runoff from construction sites are among the strongest in the nation. "Whenever there was a crisis on the environmental front, in the General Assembly, in the attorney general's office or in the courts, Ogden got the continued pg 3 2 June 2007 The Vanguard Leadership continued number of professional organizations and boards; has served as a panelist or featured speaker for various programs; and has earned recognition from civic, legal, and educational groups. She is the founder of the Clark Atlanta University Guild, an organization which provides scholarships for arts and humanities students at Clark Atlanta University. Judge Cole is married to Dr. Thomas W. Cole, Jr., President Emeritus of Clark Atlanta University. They have two children, Kelley Susann and Thomas III. "Judge Studdard's shoes will be hard to fill," Judge Cole said. "His energetic and dynamic leadership have increased the visibility and focus of the Council to carry out our mission of building relationships between Council members, other courts, other branches Incoming President Cole thanks Judge Studdard for his work as president. of government and the public." Strategic Plan During his year as President, Judge Studdard was instrumental in the Council's development of a strategic plan. "The development of a strategic plan has been a benchmark in the Council's history." Judge Melodie Clayton, State Court of Cobb County, notes. "Judge Studdard has worked to put into place a strategic plan to carry out the Council's vision. More importantly, however, he has put action behind that vision. The future implementation of our strategic plan will insure that Judge Studdard's influence will extend far into the future of the State Courts of Georgia." Judge Ben Studdard serves as the Chief Judge of the State Court of Henry County. He was elected in 1998 after the Georgia General Assembly created the state court. Judge Studdard earned his law degree from the Walter F. George School of Law at Mercer University. Doremus continued first call," Howard recalled. Up to the end, at age 85, Doremus was still actively fighting to protect Georgia's environment. I'd still be receiving direct help from him today if he were here. Doremus had offered to write an amicus curiae brief in our Cumberland Harbour case now pending before the Georgia Court of Appeals. Doremus' precious coastal marshlands are under attack from intense development pressure. Efforts are under way to weaken the Marshland Act's strong shield of protection against pollution caused by runoff from careless developments along the coast. The Cumberland Harbour case will be the first higher court interpretation of the scope of the law Doremus coauthored in 1970. He planned to explain in his brief the importance of the law and what the state legislature's intent was in passing it. We definitely thought it would be helpful to the case. He never got to write that brief. But Doremus knew his life's work was under attack, and his passion never waned. Doremus' passing made me pause to consider how much impact one committed person can have and to rededicate myself, as I hope many others will, to follow his lead and persevere in the endless fight to exercise wise stewardship of the wonderful natural resources with which God blessed this state. STEPHEN E. O'DAY is the partner in charge of the environmental law practice of Smith, Gambrell & Russell. State Court Directory Update How can your fellow judges contact you? Why, the State Court Judge's Pictorial Directory, of course! The new Directory will be available in October at theFall Conference. Check your entry today to make sure the Council has your updated information. Tired of that old picture? No problem. E-mail your new picture to Ashley Stollar at stollara@gaaoc.us For more information, contact Bob Bray at brayb@gaaoc.us 3 The Vanguard June 2007 2007 Enacted Legislation Affecting State Court Judges Prepared by Administrative Office of the Courts, Governmental Affairs Division HB 190 - State Court of Mitchell County; full-time judge; provide This bill provides that the state court judge of Mitchell County shall be full time paid at 60% of the superior court judge's salary provided by the state. Effective Date: July 1, 2007 Signed by the Governor on May 30, 2007 HB 215 - State Court of Athens-Clarke County; second state court judgeship; provide This bill adds a second state court judge in Athens-Clarke County state court. The current judge will become the Chief Judge. The Chief Judge shall be paid 90% of the superior court judge's salary provided by the state and 90% of any supplement provided by the county. The additional judge shall be paid 90% of the superior court judge's salary provided by the state and 50% of any supplement provided by the county. Effective Date: July 1, 2007 Signed by the Governor on May 30, 2007 HB 349 - Colquitt County; judge; State Court judge; practice of law; prohibit This bill makes the State Court of Colquitt County judgeship a full time position. The judge shall be paid 70% of the superior court judge's salary. Effective Date: July 1, 2007 Signed by the Governor on May 21, 2007 HB 527 - Probation; private supervision services; minimum fee; establish This bill precludes the requirement of a registration fee for private or governmental probation services registering with the County and Municipal Probation Advisory Council. Effective Date: July 1, 2007 Signed by the Governor on May 24, 2007 SB 15 - Drivers' Licenses; suspended/revoke; change certain provisions This bill sets forth the following: Upon the first conviction of driving while license suspended or revoked shall be guilty of a misdemeanor (unless HV) and imprisonment (may also impose a fine). Court may suspend the conviction due to residency considerations Upon the second or third conviction within five years of driving while license is suspended or revoked a person shall be guilty of a high and aggravated misdemeanor and shall be punished by imprisonment (may also impose a fine). Upon a fourth or subsequent violation within five years, a person shall be guilty of a felony and punished by imprisonment (may also impose a fine). Upon DDS' receipt of a conviction for driving while license suspended, disqualified, or revoked the department shall impose a six month extension to the period of suspension or disqualification. Court shall be required to confiscate the license and remit to the Department within 10 days of conviction 4 One nolo contendere plea shall be accepted to a charge of driving while license suspended, disqualified or revoked within a five year period (all other nolo pleas in this time period will be considered convictions). Municipal courts have the authority to impose punishment on persons charged with a misdemeanor or a misdemeanor of a high and aggravated nature. This bill also provides for the determination of nationality of persons convicted of driving without being licensed, DUI, and felony. Effective Date: July 1, 2007 Vetoed by the Governor on May 30, 2007 Governor Perdue's Press Release: VETO NUMBER 32 - SB 15 SB 15 seeks to increase the penalties for driving without a valid license. In addition to other punishments, it provides that a first offense would result in a misdemeanor to be punished by imprisonment of at least two days and not more than twelve days. It also authorizes a $500 to $1,000 fine for first offenses. This broad provision would catch not only those who willfully drive without any valid license, but also persons who move into the State with a valid out-of-state driver's license that have not obtained a Georgia driver's license within 30 days of establishing residency. Though judges may suspend the period of imprisonment if the new resident had a valid driver's license from another state and had good cause for not yet obtaining a Georgia one, SB 15 does not prevent that new resident from being booked and fingerprinted. I fear an unintended consequence of this legislation, as drafted, would subject persons with valid out-of-state driver's licenses to stout criminal penalties even absent the commission of a willful act. Thus, although I support the intent of continued pg 5 June 2007 The Vanguard KEEPING THE COURTS OPEN DURING A PUBLIC HEALTH EMERGENCY How will Courts be operating during an influenza pandemic? Bob Bray, Associate Director of Planning and Research Administrative Office of the Courts Unlike most natural disasters, where an emergency may arise in a particular community or local area and mutual aid pours in from surrounding counties or states; a public health emergency presents an entirely different scenario. The main difference between a public health emergency and natural or man-made disaster is that it will severely impact every community and every state. More importantly, we will not be able to rely on the federal government or our neighbors to come to our rescue - there will be no mutual aid. Legislation cont. tracking persons that possess no valid driver's license, the potential harms of this legislation cause me to VETO SB 15. SB 107 - Richmond County, City of; change second division's jurisdiction; create third division of state court This bill changes the second division's jurisdiction to make the second division judge coequal with those judges of Division 1 and to create a third division of the State Court of Richmond County. The chief judge shall receive additional compensation. Effective Date: May 21, 2007 Signed by the Governor on May 21, 2007 For more detailed information on the above bills, please visit www.georgiacourts.org and click on "Legislation affecting Georgia's Judiciary." The World Health Organization (WHO), the United States Center for Disease Control (CDC) and the Georgia Department of Human Resources Division of Public Health are alerting businesses and governments that we are overdue for a worldwide outbreak of potentially deadly influenza. These organizations predict that it is not a matter of "if", but of "when" a pandemic virus outbreak will occur. The world is currently focusing on the eruptions of Avian Flu that are occurring on the other side of the world, primarily in Indonesia. Technically, the avian flu is an agricultural event: wild birds infecting domestic fowl, which has not mutated to the point of becoming transmitted between humans. So far, there have been 252 instances where infected domestic birds have infected humans in the past few years. Of those humans infected by avian flu, 159 have died. So far the avian flu virus has not mutated to the point where it can be passed on from human to human, however, this particular strain of flu virus, H5N1, can mutate often and rapidly with each infection and the WHO, CDC and the Georgia Division of Public Health are watching this particular strain of influenza very closely. Utilizing history as a predictor, the last deadly pandemic in the United States occurred in 1917 - 1918. The Spanish Flu Pandemic gives the experts insights on how serious the next Influenza Pandemic could be and why we need to be prepared for the arrival of the next one. Here are some of the published predictions made by the World Health Organization should the avian flu mutate to human-to-human transmission: The virus will spread rapidly before a vaccine can be produced; The pandemic will last between 18 months and 3 years; The pandemic will occur in two or three waves; Each episode will last from 6 - 8 weeks; The virus is infectious without the person showing any symptoms; Once symptoms occur, an infected person may die within 48 hours; Possibly 40 % of the population will either die or contract the disease; There is no way to produce adequate supplies of vaccine until the virus has mutated; It takes time for the vaccines to be produced, and the first wave of influenza will be ending; Limited supplies of Tami flu vaccine are available and will be rationed according to a must-need, basis; No mutual aid will be available from other states or the federal government; the emergency must be handled at the local level; Emergency measures will include isolation, quarantine, cessation of all public gatherings; There is much more that can be added to this list. The question then is how will the courts remain open when 40% of the population including those that work or appear in court, are infected and unavailable? How will constitutional and statutory rights be made available? What essential functions must the court handle? How will imposition of social distancing rules affect court operations? In the words of General Tommy Franks, United States Army, Retired: continued pg 6 5 The Vanguard Council Adopts 2008 Strategic Plan June 2007 For the second time, the leaders of the Council of State Court Judges met to discuss and develop a business strategic plan to continue on the successful path established last year. The tasks and objectives were examined, analyzed and assessed to determine the level of success in achieving the goals, vision and mission of the Council. Under Judge Studdard's guidance, the Council accomplished 90% of its 40 tasks. Executive Director Bob Bray commented that executing the plan during the past year kept the Council office focused on the tasks it was assigned and supporting the tasks assigned to others. "It was extremely satisfying and impressive to stop for a minute at the end of the year and look back to see just how far we had come along toward accomplishing our goals." Judge Ben Studdard with the State Court of Henry County most effectively used the strategic business plan as the major influence to guide the meeting agendas all year, keeping everyone focused on the tasks, goals and mission of the Council. This year's meeting was held March 15th and 16th at the just opened Lodge at Callaway Gardens. "This was a beautiful location and facility to hold this type of meeting," commented President Brenda Cole from the State Court of Fulton County. The judges and leaders that participated in this year's plan included: Judge John William "Bill" Bass, Sr. (Grady), Judge Bridgette Jean Campbell (Cobb), Judge John C. Carbo (Clayton), Judge Brenda H. Cole (Fulton), Judge David P. Darden (Cobb), Judge J. Antonio DelCampo (DeKalb), Judge William J. "Sam" Edgar (Bacon), Judge Ronald E. Ginsberg (Chatham), Judge Joseph C. Iannazzone (Gwinnett), Judge Jeannette L. Little (Troup), Judge T. Russell McClelland (Forsyth), Judge Gary L. Mikell (Bulloch), Judge Larry B. Mims (Tift), Judge Wayne M. Purdom (DeKalb), Judge John F. Salter (Dougherty), Judge Richard A. Slaby (Richmond), Judge Ben W. Studdard, III (Henry), Judge Charles S. Wynne (Hall), Bob Bray and Kelly Moody from the Council of State Court Judges and Greg Arnold, Jorge Basto, Vince Harris and Kevin Tolmich with the Administrative Office of the Courts. "I am excited to continue the path that Ben started, and plan on following this plan all year," said Judge Cole, "our goals are certainly within our reach by taking advantage of this positive momentum." "Our vision to promote 'impartial courts; judicial excellence; and accessible and efficient justice' directly improves the experience of our customers and builds up the trust and confidence of the community with their courts," added President Brenda Cole. The Strategic Business Plan has been posted on the Council website for all of the Council members to review. For more information, contact the Council Director's office at 404-6516204. Keeping the Courts Open continued "Hope is not a plan." Take just a quick moment to think about how would initial hearings be held after a person is arrested, how would jurors be summoned or even empanelled? Will there be a surge in Probate Court cases to handle the possible overwhelming number of deaths? How will individuals appeal an order of quarantine? How will warrants be issued? The questions may seem endless. Many businesses, professions and court systems across the country are beginning to develop plans to keep their businesses and courts operating. A Continuity of Operations Plan (COOP) establishes what mission essential functions are critical, identify cross-training needs of personnel, identify the line of succession of leadership in the organization or court, develop and conduct training related to implementation of the plan, and many other important items in preparation for the worst case scenario. Recognizing the importance of keeping the courts open, Chief Justice Leah Ward Sears has asked the Administrative Office of the Courts to assist the Judicial Council to prepare guidelines and resources that will keep the courts open during a public health emergency. Three important items are to be addressed by this Pandemic Emergency Preparedness Committee: Develop Continuity of Operations Plan guidelines for the courts; Develop a Public Health Benchbook for the Judges; and Develop Training Curriculum for the courts and their families. 6 Are we prepared for such a public health disaster? An attorney just used a hand to cover their mouth when they coughed and a minute later shook your hand in greeting. If you would like more information on developing a Continuity of Operations Plan for your court or have other Pandemic Influenza questions, please contact the Administrative Office of the Courts at brayb@gaaoc.us or 404-651-6204. For more information, visit: www.pandemicflu.gov; www.whitehouse.gov/homeland/pandemic-influenza-implementation.html; www.cdc.gov/flu/avian/outbreaks/current.htm; http://health.state.ga.us/pandemicflu/index.asp; georgiacourts.org/aoc/research_planning.php June 2007 The Vanguard Special Thanks to Judge Wayne Purdom for our Benchbook Supplements Every year we receive a blessing because one of our own is committed to making all of us the most knowledgeable judges on the bench anywhere in Georgia. Judge Wayne Purdom from the State Court of DeKalb County has updated the 2006 State Court Benchbook and published the 2007 amendments which have already been distributed to all of our members. Paper versions of these updates are accompanied by a letter indicating the pages that need to be replaced from the 2006 Benchbook revision that was distributed last year. Along with the hardcopy updates, each member also received a CD which includes the entire benchbook along with the 2007 updates incorporated in to it. Judge Purdom and his assistants have worked very hard to make the electronic version easy to use and move around within this reference resource. Besides its distribution on CD, the Benchbook is posted on the Council of State Court Judges website at www.georgiacourts.org/councils and you can download it to as many computers as you desire. The cost of providing the paper versions and updates to the State Court Benchbook is much more expensive than burning the entire updated reference on compact disc. The most economical way to publish this valuable resource is to download it from our website. Although Judge Purdom would never protest, it doesn't take much thinking to realize that it is much easier to update the electronic version than to also configure new instructions, create insert pages, and cross-check the table of contents and index references with new pagination a second time for printing and distributing the paper replacement amendments. Please consider trying and using the electronic versions and see how "user friendly" it has been designed for your convenience. It doesn't seem long ago that all of us were moved to utilize electronic versions of the Georgia Code, Georgia Appeals and Georgia Reports. It was an uncomfortable feeling for many of us, but once we got used to the new format, its advantages in researching law became quickly noticed and accepted. Granted, there are still a few times that having the paper version available is quicker than scanning the electronic resources. Would it be unreasonable to eliminate the paper version in two years? Judge Purdom has graciously provided us with both methods, but it might be nice to give him a much deserved break. The next time you see Judge Purdom - let him know how much you appreciate his efforts to make us all more efficient and effective for the citizens we serve in our courts and communities. Drug Court Conferences... Near And Far Judge Kent Lawrence, Clarke County, speaks at the Georgia Conference. Judge Greg Fowler, Chatham County, in Washington, DC. 7 The Vanguard June 2007 Jekyll is Just Around the Corner A Look Back to October 2006 The Spouses' Luncheon was a Success! Judges Watkins, Mims, and Slaby Discuss Issues on a Break. Judge Folsom Demonstrates Correct Form on the Golf Course. And Judge Jordan Demonstrates the Correct Way to Hold a CD 8 The Gwinnett Contingent: Judge Mock, Court Administrator Philip Boudewyns, and Judges Iannazzone and Rich. "I Might Not Always Be Right, But I'll Always Be Wong," Judge Al Wong June 2007 The Vanguard Look at the Fun We Had in Brasstown! May 2007 Between the Classes and the Entertainment, We Had a Great Time!! A Perfect Shot. Judge Ginsberg presents Bob Bray with the Publisher's Clearinghouse Grand Prize!! Judge Cranford waves Hello! 9 An Old Friend Stopped by The Vanguard June 2007 Federal Law Restricts Firearms After Convictions By Intimate Partners It should come as no surprise that domestic abuse is a serious problem in the United States and in Georgia. In Georgia v. Randolph,1 the Supreme Court noted that 5.3 million victimizations resulting in nearly 2 million injuries and 1300 deaths occur each year among women in this country.2 There were 372 family violence homicides in Georgia alone from 2003-2005.3 The Violence Against Women Act addressed this serious safety threat by restricting abusers' access to firearms after they were convicted of misdemeanors involving intimate partners and other family members. Federal law requires that any person subject to a "misdemeanor crime of domestic violence" shall not receive or possess firearms or ammunition.4 This is true regardless of state law, case precedent, or state judicial order. This article will review the federal law and identify ways that state court judges can use the federal restrictions to promote victim safety. Federal Law on Firearms If a defendant is convicted of a misdemeanor of domestic violence, he or she is restricted thereafter from possessing or transporting a firearm or ammunition unless the conviction is set aside, expunged, or pardoned. To be a "misdemeanor crime of domestic violence," the offense must: Be a misdemeanor under state or federal law; Have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; Be committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situ- ated to a spouse, parent, or guardian of the victim; and Incorporate certain procedural safeguards.5 18 U.S.C. 921(a)(33)(A). The Eleventh Circuit Court of Appeals recently provided answers to several questions about how these requirements apply to criminal actions in Georgia.6 The Court held that "under the plain meaning rule, the 'physical contact of an insulting or provoking nature' made illegal by the Georgia battery statute satisfies the 'physical force' requirement of 921(a)(33)(A)(ii), which is defined into 922(g)(9)." Or more simply stated, the Georgia simple battery statute meets the federal statute's standard of "physical force." This opinion also addressed the issue of whether the relationship between the defendant and the victim must be an element of the crime for the federal restrictions to apply. The Court of Appeals held that "a domestic relationship must exist as part of the facts giving rise to the prior offense, but it need not be an element of that offense." Id. at 1346. In short, any simple battery misdemeanor in Georgia which has been committed against an intimate partner, whether or not the misdemeanor has been categorized or prosecuted as a "DV battery," is subject to the federal gun restrictions. These defendants have lost the privilege of possessing a firearm or ammunition. What does this mean for a sentencing judge? Determine which cases are subject to federal firearms restrictions. Any case where the defendant is related to the victim in one of the categories of "intimate partner" listed above may be a case involving a "misdemeanor of domestic violence." Once the court determines that the parties are "intimate partners," any battery, simple battery, DV battery, assault, simple assault, stalking, pointing a pistol at another, or other related charges could fall within the firearms restrictions.7 The title of the misdemeanor is not important as long as one of the elements of the crime is the use or attempted use of physical force or threatened use of a deadly weapon.8 At sentencing, verbally advise defendants of the federal firearms restrictions. If the federal restrictions apply to a particular case, the defendant is restricted thereafter from receiving, possessing, or transporting firearms. Any violation can result in prison for up to ten years and a fine.9 This is true regardless of whether the defendant has notice of the federal law. However, common sense suggests that instructing the defendant about the prohibition on owning or possessing firearms or ammunition will not only help the defendant comply with the law but could also keep the abused family member safer. Gunshot is by far the most common cause of intimate partner homicide in Georgia.10 Research indicates that an abuser's ownership of a gun increases the victim's chance of being murdered by over five times.11 Judicial initiatives to insure that abusers do not have guns will reduce the chance of serious injury and death to victims. Document the relationship between the defendant and the victim on the sentencing sheets. Addressing the relationship between the defendant and the victim is important to streamline the application of the law. To protect victims after misdemeanor convictions involving physical force, the sentencing sheet should show on its face that the parties were related.[1] This will make it easier to continued pg 11 10 June 2007 Federal Law Restricts Firearms continued The Vanguard Checklist for Judges: Have I questioned the defendant about ownership of guns under oath to help determine any specific restrictions I feel are necessary to protect the victim? Is notice of the federal firearms restriction in all bail, bond, plea, probation, and sentencing forms used by my court? Have I informed the defendant of these restrictions in open court? Have I documented that the relationship between the defendant and the victim meets the federal definition of an "intimate partner" relationship? Have I taken steps to insure that the law is complied with? Do court officials in my judicial circuit take the steps necessary to have any convictions involving domestic violence registered with state and federal clearinghouses to prevent subsequent firearms purchases? determine that the case is subject to federal firearms restrictions and to list it in the national registries that purchasers must clear before buying a gun.. Specifically incorporate the language of the federal law into any sentencing orders and waiver of rights forms. Putting the federal restrictions on firearms possession in writing on any sentencing order or waiver of rights form will make enforcement of the prohibition easier. State courts are more nimble than federal enforcement in insuring that firearms stay out of the hands of those who have misused them. With restrictions in state courts orders, the court can revoke probation or charge the abuser with an additional criminal violation if domestic violence continues to occur. It also makes federal prosecution easier by providing a written record that the defendant was notified of the restriction. The addition of this language would not create a limitation on possession or ownership of firearms or ammunition, nor does it violate any constitutional rights.12 Rather, it puts the abuser on notice that any violation will result in swift consequences by Georgia officials. Enforce compliance with the law. Talk to the court clerk to insure that information about firearms restrictions is available to firearms licensing authorities. If the defendant owns firearms, order him to surrender them to law enforcement authorities within a specific time period. Then have the defendant return to court with proof of compliance. Punish violators by revoking probation. Conclusion Understanding and applying the federal law against firearms possession when sentencing defendants for misdemeanor offenses involving family abuse will promote the health and safety of victims and their children. Incorporating the federal language into all interlocutory and final orders will not only put the defendant on notice of his obligations under the federal statute but will more effectively protect victims and their children. Karen Henize Geiger is the staff attorney for Georgia Legal Services Program's Family Violence Project. She can be contacted at kgeiger@glsp.org. 1547 U.S. 103(2006). 2U. S. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States 19 (2003) 3Georgia Domestic Violence Fatality Review Project Report (2006). The entire report can be accessed at www.gcfv.org/Fatalityreview2007.pdf. 418 U.S.C. 922(g)(9). 5The following procedural safeguards much have been in place concerning the offense: 1. The person was represented by counsel in the case or knowingly and intelligently waived the right to counsel; and 2. If the person was entitled to a jury trial under the offense, the case must have been tried by a jury or the defendant knowingly and intelligently waived the right to have the case tried by a jury. 18 U.S.C. 921(a)(33)(B)(i) 6U.S. v. Griffith, 455 F. 3d 1339 (2006), cert. den. 2007 U.S. LEXIS 4020 (April 16, 2007). 7Other charges that might fall within the restrictions if physical or attempted physical force are shown or if there is a threat with a deadly weapon are: harassing phone calls, interference with a 911 call, cruelty to children in the third degree, sexual battery, kidnapping, or false imprisonment. 818 U.S.C. 921(a)(33)(A)(ii 918 U.S.C. 924 (a)(2). 10In Georgia, of the 372 people killed in family violence fatalities from 2003-2005, gunshots were three times more likely to be the cause of death than any other weapon. Georgia Domestic Violence Fatality Review Project Annual Report (2006). www.gcfv.org/Fatalityreview2007.pdf . 11 93 Am.J. Public Heath1089 (Jul 2003). [1] The relationship test is met if the defendant is a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim. 18 U.S.C. 921(a)(33)(A)(ii). 12 The VAWA amendment has withstood a plethora of legal challenges throughout the country, including the Eleventh Circuit. In that case, the United States Court of Appeals held that 18 U.S.C. 922(g)(8) was constitutional and upheld an abuser's conviction for illegal gun possession. United States v. Cunningham, 161 F. 3d 1343 (11th Cir. 1998). The Georgia State Constitution and the United States Constitution use similar language giving citizens a right to bear arms. The Georgia Constitution, however, specifically allows reasonable restrictions on gun possession. "The General Assembly shall have power to prescribe the manner in which arms may be borne." GA. CONST., Art. I, Sect. I, Para. VIII. The Georgia Supreme Court has recognized circumstances in which limitation of the right to bears arms is constitutional and appropriate. "The prohibition of keeping and carrying certain kinds of weapons is justified for the purpose of preventing crime, under the general police power of regulation of the states." Carson v. United States, 241 Ga. 622, 627 (1978). 10 DEPARTMENT OF DRIVER SERVICES NOTIFICATION The Georgia Department of Driver Services is pleased to announce the release of Version 2 of the Georgia Electronic Conviction Processing System (GECPS). GECPS 2 allows courts to submit all convictions, court-ordered suspensions, and zero-point orders electronically to DDS. Failure to Appear notices for Georgia and non-Georgia drivers can be submitted and withdrawn electronically (even after the suspension takes effect). For more information, please visit the DDS GECPS website Please Recycle (https://online.dds.ga.gov/gecps) and download the Implementation Guide. Please contact your vendor or I.T. department for details on upgrading to version 2 as well as the new procedures for data entry and transmitting. Also: The 2007 Traffic Court DeKalb County State Court Judge Janis Gordon, and her husband, Bob Myles, hiked the Grand Canyon on a recent vacation. Reference Manual is ready. Please visit the DDS website and click on the "Business Partners" link (www.dds.ga.gov/business) to download a copy for your office. Council of State Court Judges 244 Washington Street, Suite 300 Atlanta, GA 30334 Impartial Courts Judicial Excellence Accessible and Efficient Justice BOB BRAY Executive Director ASHLEY G. STOLLAR Graphic Design