La transcripción de los argumentos orales aparece en inglés porque el procedimiento se llevó a cabo en ese idioma ante la Corte Suprema de Georgia. El expediente oficial de la corte está en inglés.
COURT OFFICER: S25G1209, Carl Gardei versus Keybo Taylor. Mark Yurachek for appellant. Thomas Mitchell for appellee.
CHIEF JUSTICE PETERSON: When you’re ready. Actually, Mr. Yurachek, let’s just give them a second to get settled.
MR. YURACHEK: They’re my opponents, Judge.
CHIEF JUSTICE PETERSON: OK. Fire away. [LAUGHTER]
JUSTICE COLVIN: “Civility.” [CHUCKLES]
Argument for Appellant — Mark Yurachek
MR. YURACHEK: May it please the court. My name is Mark Yurachek. And for the second time, I have the great privilege of representing Carl Gardei before the court today. The easiest thing I can say is that, I hope the court says they meant what they said they said in the first case. We are in no different posture procedurally than the case was four years ago, when the case was argued to the court for the first time. The last argument was a bit chaotic, and I blame myself for that. So I want to try to clarify a couple of points right off the bat. Every year since 2009, Carl Gardei has been compelled to register, then re-register as a sex offender in the state of Georgia. Today, as in 2018, when this petition was originally filed, the sheriff of Gwinnett County and the GBI are applying the registry in a scheme in a way that violates Gardei’s rights in order to compel him to continue to re-register. So he is being unconstitutionally forced to re-register. The simplest of these constitutional violations is the fact that Mr. Gardei, per our complaint, does not fit any of the statutory definitions of a sexual offender that would cause him to register. Both of the appellees, the only entities that are given any responsibility for curating the registry by the code, have refused to remove him, in spite of his request that they do so. Gardei has sought a declaration as to whether or not he can appropriately stop registering, in lieu of violating the statute by not registering at the risk of 30 years imprisonment. That’s my opening, Justices. I’ll be happy to entertain any of your questions concerning–
JUSTICE LAND: Mr. Yurachek, I have a question. First of all, we’re not here today on the merits of whether your client is required to register, correct?
MR. YURACHEK: No, sir.
JUSTICE LAND: We’re here simply on the procedural question of whether your client is entitled to a declaratory judgment.
MR. YURACHEK: We’re here on the procedural question of whether the sua sponte dismissal of Mr. Gardei’s complaint, the second dismissal, was appropriate. And then the Court of Appeals affirmance of that sua sponte dismissal, by the way, on right for any reason doctrine is appropriate. And may I note, Justice Land, on that point that everybody has abandoned the original reason that this got dismissed and this case is up here.
JUSTICE LAND: Just so I’m clear on the basic facts that will guide our decision, your client contends that under the registry requirements, he is not required to register. Correct?
MR. YURACHEK: Yes, sir.
JUSTICE LAND: And the other side contends that he is.
MR. YURACHEK: The other side, I believe, contends that it’s a settled fact that he’s registered, and thus he has to register.
JUSTICE LAND: You got one party, the plaintiff saying, I don’t think I have to register. We got the other party saying, I think you do. And your client sought a declaratory judgment in order to guide him as to his future conduct. Is that correct?
MR. YURACHEK: That’s right. The holding in Gardei II was essentially Groundhog Day. Every year is another chance to re-register, but also an opportunity for the respondents to take him off the registry when he’s not appropriately on there, or if application of the registry statute in some way violated his constitutional rights. So our position is that there is nothing that compels his registration in the statutory scheme as it stands today.
JUSTICE LAND: And if your client didn’t rely on the declaratory judgment procedure and just took a chance and just said, I don’t think I have to register, so I’m not going to do that– and he ends up being declared later to be wrong about that. What’s the consequence to him?
MR. YURACHEK: 30 years in prison. OCGA 42-1-12, subsection n.
JUSTICE LAND: So he filed this action to avoid that, and to seek guidance of the Superior Court.
MR. YURACHEK: To avoid uncertainty and to clarify his status under the law, per the declaratory judgment statute. Yes, sir.
JUSTICE LAND: Thank you.
MR. YURACHEK: Yes.
CHIEF JUSTICE PETERSON: Mr. Yurachek, let’s explore why this is so important. The new paragraph 5 waiver of sovereign immunity, you are not traveling under that in this case, because you brought individual capacity claims against the defendants, because your case was filed well before that ever went into effect.
MR. YURACHEK: Correct.
CHIEF JUSTICE PETERSON: But that waiver, which really is designed to be the principal way that constitutional claims against the state and against counties and cities are litigated, that is wholly dependent on the availability of declaratory judgment relief, right?
MR. YURACHEK: That’s my understanding, yes.
CHIEF JUSTICE PETERSON: If the Court of Appeals’ appeals decision below, which says there’s no Declaratory Judgment Act standing here stands, in what sort of case would a constitutional claim be able to be brought against the state?
MR. YURACHEK: Justice Peterson, I have a hard time answering that question. I can’t really come up off the top of my head with a–
CHIEF JUSTICE PETERSON: Part of the reason I’m asking you is to give your counsel some time to think about the answer to that question.
MR. YURACHEK: I’m more than happy to give my colleagues the first shot at coming up with something, while I continue to answer the court’s inquisitive questions. Honestly–
PRESIDING JUSTICE WARREN: Along the same lines, isn’t it so that declaratory relief often is prospective in nature to some degree? I mean, if you’re seeking a declaration, you’re asking for a declaration of something before the thing has happened.
MR. YURACHEK: That’s right. And I believe there’s a law that says– I think it’s Lathrop versus Deal that actually almost word-for-word states that declaratory relief is prospective in nature. It’s a declaration of rights, guides me in my actions before I act, lest I risk going to prison for 30 years. So it’s purely prospective. I would concede to this court today that any claim we have with respect to what’s happened in the past has either been abandoned or can no longer be pressed. We can’t go back and ask for money or anything like that–
CHIEF JUSTICE PETERSON: But we held in the first Gardei– the first time your case was here, that your declaratory judgment relief cause of action had not even yet accrued, right? “Ish.”
MR. YURACHEK: “Ish,” that’s exactly right. Justice Peterson, I actually was hoping I could quote you today, because at the oral argument, you gave a term–
CHIEF JUSTICE PETERSON: That’s always dangerous.
MR. YURACHEK: That’s right. Less dangerous than quoting myself. But you gave a term– a continuing annual violation. I’ve searched for a better term, and I think that’s the term. It’s a continuing annual violation. So in June, which is his birth month, he has to register within 72 hours of his birthday. So he declines to register, and he gets arrested three days past his birthday. Or he complies with a statute that he believes is unconstitutional and he should not have to comply with. Those are his choices. So in lieu–
PRESIDING JUSTICE WARREN: It’s not just that he doesn’t think he should have to comply. His contention is that it is unconstitutional as applied to him.
MR. YURACHEK: Yes, ma’am. In many ways, we’ve asserted a lot of constitutional violations in the complaint. We would love the opportunity to litigate those actual issues, rather than keep coming up and bothering you guys with motions to dismiss. But as it stands, the claim is that he is unconstitutionally being compelled to register one way or another. And I think it’s inherent that if he doesn’t fit the definition of a sex offender as being made to register, that is a violation of his constitutional rights as well.
CHIEF JUSTICE PETERSON: Is it a violation of his constitutional rights? Or is it he’s not required to do it under the statute?
MR. YURACHEK: It’s a liberty deprivation, and thus a taking of liberty without due process, in my opinion.
CHIEF JUSTICE PETERSON: If the statute doesn’t apply to him– and that question isn’t before us. But if the statute doesn’t apply to him to begin with, what is it about the law that is depriving him of liberty.
MR. YURACHEK: It’s compelling him to register–
CHIEF JUSTICE PETERSON: Well, but if it doesn’t apply to him, it isn’t compelling him to register.
MR. YURACHEK: Well, that’s the box I’m in, because my client–
CHIEF JUSTICE PETERSON: Would it be fair to say you have two buckets of claims? You have a statutory construction claim that says, I don’t have to register, and then if I do, it’s still unconstitutional.
MR. YURACHEK: I 100% agree with that. But the point is that if he’s being made to register, then all of a sudden he has all the obligations of a registered sex offender, including have his name published, and not being able to live and work in certain places, and so on and so forth. In Mr. Gardei’s case, most urgently, he is trying to emigrate out of the United States and leave this country forever. He wants to live in some property he owns in a foreign country. He’s done very well for himself since his incarceration. He’s the poster child for rehabilitation, frankly. And he can’t leave because the country where he wants to go won’t take him as a registered sex offender. That happens. There’s a lot of foreign countries where that’s the case. So that does constitute a liberty deprivation brought on by his being compelled to register. So that’s my logic, at least. The court cited two cases in its grant of cert. And I was struck by one of those cases– Republican National Committee, and in particular, one passage in Republican National Committee, which addressed the propriety of a dec judgment action for voters. The logic of the parties opposing the dec judgment action, or opposing the propriety of dec judgment action, was that they’d already voted, and so the rights had accrued, and you couldn’t give a dec judgment. The court’s response was, well, that’s a never-ending cycle. You either have a situation where the voters have voted, and the rights of accrued and dec judgment wouldn’t be appropriate. Or you have a situation where the voters haven’t voted yet and the rights have not accrued, and that should be– the voters have not voted yet and they know they’re going to vote. I’ll analogize it to this in that neither of the respondents has attempted to argue that Mr. Gardei may one day not have to register, that they may not make him register, or may not enforce the law if he didn’t register. So we know we’re going to have to keep registering, as long as there’s not a declaration that he doesn’t have to. 42-1-19 is not available to us. And that’s a point worth making to the court. I think both the trial court and the Court of Appeals kind of slid over deference to the complaint. And that was a big thing with the court the first time around in this case. I mean, the complaint is not a work of art. But I believe it was sufficient for the court the first time around. I think it should be sufficient this time. And what the complaint says is 42-1-19 cannot apply to Mr. Gardei. And I’ll get into that if you want me to. One of his convictions in the case that landed him on the registry was a kidnapping case. And so transportation of the victim disqualifies him from being able to seek relief under 42-1-19, which is what the trial court told him to do. And then the Court of Appeals kind of tossed the trial court’s ruling to the side and said, well, no, we’re not going to worry about that. But this is an advisory opinion. And I’ve really struggled that the paragraph leading up to the advisory opinion language in the Court of Appeals order discusses 42-1-19 and the availability of it. And I’m not criticizing the Court of Appeals’ writing. I’m just saying I had difficulty connecting the two, and I can’t make the connection. What I understand the Court of Appeals is saying is that there’s no justiciable controversy here. I would point out that there’s an actual controversy. We wrote to both of these entities before we filed suit. And we explained our reasons and asked that they not make us continue to register.
JUSTICE LAND: I have a question about the Court of Appeals’ handling of the claim against the GBI director. As I understand it, they said the claims against the defendant, who was the former GBI director, Mr. Register, were moot because he was no longer the GBI director. Is it clear beyond any dispute that you had moved to substitute Mr. Hosey for Mr. Register, and the trial court never ruled on that before dismissing the whole case?
MR. YURACHEK: Is it clear that we didn’t? It’s the opposite–
JUSTICE LAND: Is it clear that you had moved to substitute Mr. Hosey for Mr. Register. But the trial court never ruled on that.
MR. YURACHEK: I’m careful not to say clearly at this podium, but I do–
JUSTICE LAND: Is that what happened?
MR. YURACHEK: Yes, it is what happened. Yes. We made a motion almost a year before the sua sponte dismissal to substitute the appropriate party, because we were stuck in pre-amendment land where–
JUSTICE LAND: We agree with your primary argument, which is maybe a big if. But if we agree with your primary argument, and we were to vacate the trial court’s order and direct it to proceed with the declaratory judgment action, what do we do with the Register / Hosey problem?
MR. YURACHEK: I quoted language in my brief that stated that it can be error for a court not to afford a party that– I see I’m running out of time, but I can expound on this in my extra time if you’d like. Or would you like me to finish?
CHIEF JUSTICE PETERSON: No, please, go ahead.
JUSTICE LAND: We’ll allow you to continue–
MR. YURACHEK: Finish my answer. In my brief, I quoted language from this court the year I was born, 1975, that said that a court risks error if it does not afford a party the opportunity to amend its complaint. I feel like that’s where we are. Because the court had the motion sitting in front of it, the least it could have done was grant the motion, so we had a clean record going up to the Court of Appeal.
JUSTICE LAND: Thank you.
MR. YURACHEK: I’ll give you that [INAUDIBLE].
CHIEF JUSTICE PETERSON: Thank you.
MR. YURACHEK: Thank you.
Alegato del apelado – Thomas Mitchell
MR. MITCHELL: Good morning. May it please the court. For my opening, I’m going to remind– and I’m sure the court’s reread its previous opinion. But based on the questions I anticipate getting from the bench, I want to remind the court where this starts. The court said, “Assuming for purposes of the appeal, that application of the Registry Act violated Gardei’s constitutional rights since 2009, or became a violation at some point in the interim, a wrongful act occurred each time Gardei was required to register in violation of his rights.” And what the court then goes on towards the end to say, before footnote number 12, that when he’s required to comply in the future, his causes of action have not yet accrued until he’s required to comply. Then the court drops footnote number 11. And I think this is going to be the answer to probably the first question I’m going to get from the bench. The court said that this re-registration requirement is akin to or like an abateable permanent nuisance. And so I anticipate the question is going to be, what kind of relief would he be entitled to in the pre-amendment era before the waiver of sovereign immunity? And my answer to that question would be that he litigate the constitutionality of the re registration requirement in the event that a court were to conclude that it did become unconstitutional somewhere along the way. I’m not going to concede that if he wants to litigate the issue of the initial registration requirement, those claims aren’t barred. It’s going to have to be the re-registration. Otherwise, you’re in the position that the City of Atlanta Public Schools were in in City of Atlanta versus APS when the court said, you don’t really want to litigate about this particular ordinance, you want this–
JUSTICE COLVIN: But you’re saying there could never be a declaratory action in a matter like this, for him to figure out his rights and whether or not he’s required to register.
MR. MITCHELL: I think if you look at the two cases cited in the cert order, Hotels.com and Republican National Committee, that would give you– when a declaratory judgment may be appropriate if they do it at the beginning. If he had filed this–
PRESIDING JUSTICE WARREN: But the case that you cited to us, I think, says that every time he has to re-register, which is every year, that the concern arises. And if he’s seeking an answer as to whether it’s unconstitutional or inapplicable as to him, how is that hypothetical?
MR. MITCHELL: And I think that the part of the answer to that question is why the trial court and the Court of Appeals may have tied the petition requirement or the petition opportunity to this justiciability argument.
PRESIDING JUSTICE WARREN: It was almost like an administrative exhaustion type argument that I’m confused by. But it seems like, the kind of advisory opinion you’re talking about would seem to potentially arise in a scenario where someone has committed no crime ever for any reason– but looks at a statute and says, I think if this statute ever were to apply to me in the future, based on all these things that haven’t happened, that might be unconstitutional, court, would you tell me?
MR. MITCHELL: In thinking about the argument, and thinking about why the courts may have the courts may have talked about that legislative amendment is that’s part of the environment in which the Sex Registry Act exists. There is a legislative discretion as to when somebody has to register, and that can change each year,
CHIEF JUSTICE PETERSON: But the only question actually before us presently is whether he has standing to assert a claim under the Declaratory Judgment Act. We held in the first iteration of this case that his complaint articulates claims for each new year of re-registering. And so the statute of limitations does not bar, yet, any claim for registering in a future year. And so he has to register for this next year. He doesn’t want to register. He thinks he’s not legally required to register. And he’s subject potentially to 30 years in prison if he is legally required and doesn’t. Why isn’t that quintessentially the kind of claim that you can get a declaratory judgment for?
MR. MITCHELL: Because whether or not he has to– the claim for this June’s registration, or June of ’27’s registration, as I read the language of this court’s initial opinion, that claim hasn’t accrued. What’s accrued and what we didn’t–
CHIEF JUSTICE PETERSON: So I don’t think we should misread what that’s saying. What that’s really saying is, the statute of limitations period hasn’t yet begun to run. I think the moment that the registration deadline comes, that statute of limitation begins to run. That’s a completely separate question from whether you can seek a declaratory judgment. Inevitably, because a declaratory judgment has to be about future uncertainty, you’re always going to have to bring it before the thing really starts.
MR. MITCHELL: But what’s not uncertain– there’s no uncertainty as to whether he has to register.
CHIEF JUSTICE PETERSON: He’s uncertain.
MR. MITCHELL: In 2009, because he was required to register in another state under the law of Georgia at the time, he was required to.
JUSTICE LAND: He contends he doesn’t have to because that’s unconstitutional.
MR. MITCHELL: Well, then–
JUSTICE LAND: So there is a dispute.
MR. MITCHELL: Then he should have litigated that. If you want–
JUSTICE BETHEL: Let’s imagine a world where June is your registration timeline. So in July of ’26, I have not registered back in June. When you come pick me up and charge me and pursue a claim against me for 30 years in prison, what will the allegation be? That I didn’t register when?
MR. MITCHELL: The allegation, then, would be that you didn’t register in June of ’26. What I’m contending, based on the court’s own footnote, is the way to litigate this particular claim under this particular statute is you challenge as unconstitutional the requirement to re-register in June of ’25, just like you would a nuisance. Can you establish a nuisance? Can you establish that it’s unconstitutional? If you establish that re-registration requirement is unconstitutional, then you enjoin as long as–
JUSTICE LAND: But how does he litigate that without a declaratory judgment?
MR. MITCHELL: The way I argue– my briefing in the trial court was a merits argument. We argued that the re-registration requirement was constitutional, didn’t violate.
JUSTICE LAND: That’s not my question. My question is, what procedural vehicle can he use to challenge the 2025 registration, which you contend is a registration requirement? How can he challenge that without filing a dec action.
MR. MITCHELL: He files it as an injunction action, that it’s unconstitutional.
JUSTICE LAND: After he’s already stepped into the darkness and registered?
MR. MITCHELL: No, he’s challenging– what he has– what is within the statute of limitations, as I read the court’s opinion, are the last two years of re-registration.
CHIEF JUSTICE PETERSON: So let’s assume he could bring an action for injunction. Why can’t he also bring an action for declaratory judgment?
MR. MITCHELL: Because the Declaratory Judgment Act– I guess the language in Floam is really my best answer to that question, where you said that it doesn’t apply when it doesn’t direct the plaintiff’s future conduct, or involves only a determination of rights that have already accrued.
CHIEF JUSTICE PETERSON: But here, the whole claim is, I don’t want to register the next time the requirement arises.
JUSTICE BETHEL: And I don’t want to go to prison for failing to do that.
MR. MITCHELL: Then you argue the merits of whether the re-registration requirement–
CHIEF JUSTICE PETERSON: That’s what he’s trying to do in his declaratory judgment.
MR. MITCHELL: –the ones that have already accrued. Was it unconstitutional for me to have to re-register as the statue requires?
PRESIDING JUSTICE WARREN: What the procedural mechanism through which a person could do that?
MR. MITCHELL: He files a complaint for injunctive relief and says that it’s unconstitutional.
PRESIDING JUSTICE WARREN: Well, I mean, at that point, you’re subject to criminal penalties. Is there any mechanism in Georgia law that allows a declaration when someone could be subject to something like criminal penalties?
MR. MITCHELL: Well, I’m not suggesting that he wouldn’t have to re-register during the course of the litigation, just as he has for the last 16 years.
JUSTICE COLVIN: You’re just saying he could never file a dec action.
MR. MITCHELL: I’m just saying that for– again, the question was narrow and my argument is narrow. For this particular statute, under these particular circumstances, declaratory judgment is not the appropriate mechanism.
JUSTICE LAND: So if I understand what you’re arguing, in 2025, for example, he has to register. And then he has to turn around and file for an injunction to contend that his registration really wasn’t required.
MR. MITCHELL: He has to–
JUSTICE LAND: At which point, the state of Georgia could say, well, you waived that, you just registered.
MR. MITCHELL: I don’t– my argument would be that it’s not a question of whether he has to register. I think the statutes require him to register because the re-registration requirement–
CHIEF JUSTICE PETERSON: That’s a merits response. So let’s not get to the merits. Let’s just talk about the procedure.
MR. MITCHELL: The answer to the question is– the claim is that when I was required to re-register in June of 2025, that violated my constitutional rights.
CHIEF JUSTICE PETERSON: If he hasn’t been able to fully litigate that to conclusion by the time the next year;s registration requirement comes around, won’t that claim become moot?
MR. MITCHELL: I don’t believe so, because–
CHIEF JUSTICE PETERSON: I mean, you don’t have a damages claim. This thing that I was required to do was unconstitutional. But if he’s now under the next year’s registration requirement, he’s no longer under the previous year’s constitutional requirement. And rarely do cases like this get litigated to conclusion in one year.
MR. MITCHELL: Well, of course not. But he still has the contention that the requirement to re-register in June of ’25 violated my constitutional rights. If in fact, that’s true, if he’s right on the merits–
CHIEF JUSTICE PETERSON: What is the relief that he would get, then, looking backwards?
MR. MITCHELL: If the trial court says, you’re right, it was unconstitutional, it violated your constitutional rights to require you to re-register in June of 2025, and so long as the statutory context, as long as the legislature doesn’t change the rules again– as long as this context remains in place, they can’t require you to register.
PRESIDING JUSTICE WARREN: But that’s a permanent injunction?
MR. MITCHELL: That becomes– that as long as–
CHIEF JUSTICE PETERSON: It’s a prospective relief about future registration, right?
MR. MITCHELL: Correct
CHIEF JUSTICE PETERSON: Isn’t that what he’s looking for in this case?
MR. MITCHELL: I’m using the same analogy the court used in your first opinion, which is you treat it like a nuisance. First of all, when someone– and I’ve litigated nuisance cases, both road cases and stormwater cases. First, you have to prove to the jury that you’ve got a nuisance. And then after that, there’s a hearing, what are we going to do about it. And sometimes, the court issues injunctive relief, and sometimes it doesn’t.
CHIEF JUSTICE PETERSON: The actual holding from our first case is, there is a new cause of action that arises every year.
MR. MITCHELL: Correct.
CHIEF JUSTICE PETERSON: And the statute of limitations then hadn’t run on the future year causes of action. Given that, why can’t you get a prospective declaratory judgment about the next year’s registration requirement?
MR. MITCHELL: And again, I guess I go back to the language in Floam. Based on the language, that claim hasn’t accrued yet. What has accrued–
JUSTICE BETHEL: Let’s turn it around. No, it’s not the facts of this case in terms of how his argument works on the merits. Let’s imagine a world in which after some period of time– 10 years, you didn’t have to register anymore or that was your understanding. But the state said, no, it’s 12 years or something. That was the argument. The 10th year is happening. And you say, I want to confirm that I don’t have to register next year. And the state says, well, you do have to register next year. Your argument would mean you would have to wait a year. You’d have to register for the next year, and then litigate it, even though you have an argument that you don’t.
MR. MITCHELL: Let me make sure I understand the Justice’s hypothetical, that the statute says that you have to register for 10 years, and you’re relying on what the statute says?
JUSTICE BETHEL: Whether statute, precedent, whatever it is, your legal argument is, this is the last year I have to register, and I want you to confirm that I don’t have to register next year. The way I understand your argument is, everybody would still have to register for one extra year for the privilege of litigating, whether or not they’re covered.
MR. MITCHELL: Again– as I understand your hypothetical, that’s a different factual context than what we have in the current case.
JUSTICE BETHEL: I understand.
MR. MITCHELL: So if in fact, you have a statutory termination period of 10 years, or there is some case law that says that it terminates after 10 years, then it seems to me that that claim would accrue at that point in time. And then you’re under Hotels.com and National Republican Committee, and you can bring that claim.
CHIEF JUSTICE PETERSON: So let me pivot back to the question that I asked Mr. Yurachek.
MR. MITCHELL: Certainly.
CHIEF JUSTICE PETERSON: If we were to hold that a declaratory judgment claim like this that is seeking solely prospective relief about an obligation that has not yet occurred, but that if he doesn’t follow through, may potentially subject him to 30 years in prison. If you can’t get a declaratory judgment action for that, but you also can’t get a declaratory judgment action regarding any of the previous years that he had to register– because those are things that already happened, and all of the rights or responsibilities have accrued. And our case law is pretty clear. You can’t get dec judgments for that. If this had been brought as a paragraph 5 case, when could you ever bring a case like this under paragraph 5 Because you can only seek declaratory judgment relief in a paragraph 5 case.
MR. MITCHELL: I think that if we were in paragraph 5 context from the beginning, it seems to me that he would have had to have brought that case within two years of when he was first required to register. And it’s just–
PRESIDING JUSTICE WARREN: Can you explain that part to me? I’m struggling, because I thought we had been talking about how the concept is that each year, there is a renewal of the requirement, and therefore an ability to bring a claim within the statute of limitations. You seem to be putting a hard two-year cap from the first re-registration.
MR. MITCHELL: The question I got asked was if we’re in, if we’re in paragraph 5 land what happens? One of my primary areas of practice of zoning. And so if you’re going to challenge zoning these days under paragraph 5, you still got to do it within 30 days. And if you don’t do it within the 30 days, you don’t have a claim.
CHIEF JUSTICE PETERSON: But those are zoning-specific procedural requirements.
MR. MITCHELL: Well, the court said that the 30 days is like a statute of limitations.
PRESIDING JUSTICE WARREN: For zoning.
MR. MITCHELL: And what have you. So that’s the analogy that I’m drawing. If we’re in paragraph 5 land–
CHIEF JUSTICE PETERSON: So let me direct you away from zoning in answering that question. The application by the state of a law against someone in an unconstitutional manner is a new violation. Regardless of when that law was originally passed, whenever the facts were that arose that led to the application, the future application of a law in an unconstitutional manner is a new violation. And if you want relief from a future new violation, that seems like the core of what the Declaratory Judgment Act is there for. And if it’s not, then the paragraph 5 waiver is going to be wholly illusory.
SR. MITCHELL: Bueno, de nuevo, estoy luchando con esa pregunta en el contexto de los hechos que tenemos en este caso, en el que cuando se trasladó a Georgia en 2009, estaba obligado a registrarse en virtud de los estatutos que estaban en vigor en ese momento. Y lo que el tribunal dijo es que puede haber llegado un período de tiempo en el que, debido a los requisitos constitucionales, el debido proceso, la igualdad de protección, eso ya no era legal.
CHIEF JUSTICE PETERSON: All of its merits.
MR. MITCHELL: Exactly
CHIEF JUSTICE PETERSON: And he just wants to get to the merits and to get a court to get to decide the merits. I get that you may have good arguments on the merits. Our question is, assuming he’s right on the merits, what is the right procedure for him to litigate that in? And it’s kind of a big deal for Georgia law if the answer is not a declaratory judgment.
MR. MITCHELL: Well, my contention is, again, in this context, with the facts that we’re dealing with, I go back to what the court said in footnote 11 on, you treat it like a nuisance. You prove the merits. And then if you prove the merits, then you can get an injunction from having to do it in the–
JUSTICE McMILLAN: Counsel, let me just correct you on that.
MR. MITCHELL: OK.
JUSTICE McMILLAN: Footnote 11, which I’m looking at right now, says, “In this way the renewal requirement is like an abating a continuing nuisance.” “In this way” refers to the fact that there is a new injury every year that starts the statute of limitations. That footnote has nothing to do with the kinds of remedies you get, whether you can have a declaratory judgment action, whether an injunction is a proper way to litigate this claim. It has nothing to do with that. So with that in mind, can you answer the Chief’s questions
MR. MITCHELL: Then– I mean, if that becomes this court’s interpretation of what that footnote says, then I suppose that if that’s not what the court meant, then I don’t have an answer, other than declaratory judgment.
CHIEF JUSTICE PETERSON: If we were to reverse the Court of Appeals decision and hold that there is declaratory judgment standing, should the case go back to the trial court? Or would we need to remand for the Court of Appeals then to consider the actual basis on which the trial court ruled?
MR. MITCHELL: That is a difficult question for me to answer for another reason, because if the court’s reviewed my briefs that I argued right for any reason, not for the argument or not for the conclusion the Court of Appeals actually, but I argued merits again.
CHIEF JUSTICE PETERSON: Right.
MR. MITCHELL: I mean, if the court does that, that’s still going to be my argument when we go back. That’s, frankly, the best answer I can give you.
CHIEF JUSTICE PETERSON: OK. Thank you.
MR. MITCHELL: Appreciate the court’s attention.
CHIEF JUSTICE PETERSON: Thank you. Mr. Yurachek, I believe you have five minutes left.
Rebuttal for Appellant — Mark Yurachek
MR. YURACHEK: Thank you. I want to clean up a couple of things from my argument, Justice Land. I mentioned that there was a case from 1975 that said– and the quote is, “To sustain a motion to dismiss before allowing Amendment to the complaint could be reversible error.” And that’s the best I’ve got for you. I mean, I can’t talk too tough about this with the current posture.
JUSTICE LAND: In other words, if we send it back, the trial court needs to rule on the motion to substitute Mr. Hosey.
MR. YURACHEK: If you were to send it back to the trial court, I would ask politely for an order directing the court to rule on the motions pending before it. Which, by the way, there’s summary judgment motions in front of the court. That brings me to another point. My colleague argues that there’s a Section 1983 suit here. So register on your birthday. Go in the next day, file suit to challenge the compelled registration. I have an injury, I have a concrete injury, and I now want to file suit. But as Justice Peterson was saying this, I was writing down that what happens in a year is it moots because of this court’s ruling. I mean, you go to federal court, but the Georgia Supreme Court’s the final order on Georgia law. That case moots on his birthday the next year because he’s re-registered, and there’s a new injury, and on and on it goes. Now, we’ve waited nearly, I believe, over a year for motions for summary judgment to be ruled on. We’ve waited eight months for a motion to substitute to be ruled on. I don’t have any confidence that– and no slight on the trial court. It’s a busy court. It’s DeKalb County. I don’t have any confidence that the court could get a ruling on an injunction motion. And I would note for the court also that, in our prayer for relief in the most recent amended complaint, we do request an injunction. I also want to address something that there may be a little confusion to this. And if it is, it may be attributable to me. But let me be clear about this. As we answer the question about whether or not Mr. Gardei is compelled to register in the future, constitutional violations or not, it will incidentally answer the question of whether or not he should have been compelled in the past. But as I said to you, Justice Peterson, I don’t have that claim anymore. I mean, I can try to find a way around it. But as it stands on the surface, I agree. There’s a two-year statute of limitation. That was the last time we were here, Gardei II. So there’s not a damages claim. It’s an evergreen injury that just pops back up every year on his birthday. I also agree with you that the quintessential way of addressing, do I conform to the law or do I not? Not nonconforming means the potential of arrest and conviction. That’s what dec judgments are for. So that would be our position. I’ll reserve my time for the next time I argue here. [LAUGHTER]
CHIEF JUSTICE PETERSON: I’m not sure that’s how it works, but we’ll see. Well, thank you, counsel, for both sides. Well argued. We will get you a decision within the time required by the constitution. And with that, Justice–