Georgia State Capitol (Photo: John Disney/ALM)

In the 2018 Georgia legislative session, lawmakers mulled over a variety of proposals—some have succeeded, others have failed, and still others are stuck in limbo, as Gov. Nathan Deal still has a few weeks left to use his veto power.

The Daily Report looked at three bills and how they fared in the latest session: a constitutional referendum that would create a statewide business court; a misdemeanor bail reform bill; and the Hidden Predator Act, which sought to provide greater legal remedies to adult victims of childhood sexual abuse.

Statewide Business Court

By far the least controversial of these measures would let Georgia voters decide in November whether to create a statewide business court. This bill passed on Mar. 29 with broad support in both the House and Senate.

But that may have been the easiest part of the process. Assuming the proposed amendment receives, as experts predict, a two-thirds majority vote, more legislation would be needed.

“If there is [voter] approval, there would have to be enabling legislation, and that is where the sausage will really get made about what this court is going to look like,” said Simon Bloom, a complex business litigator in Atlanta and proponent of the business court.

Advocates, including Deal, have said that business courts improve efficiency and provide more certain outcomes by ensuring that these complex cases are heard by judges who have expertise in the given subject matter and do not have to contend with full dockets that include many criminal matters.

While many issues around the statewide court remain unresolved until enabling legislation is passed, including how it would be funded and where its judges would sit, some details were mandated by the recently passed bill.

For example, like the business court already set up in Fulton County, the statewide courts would have concurrent jurisdiction with the Superior Court, and cases could be transferred to the business court with the parties' consent.

In addition, the governor's picks to be business court judges would have to be confirmed by the House and Senate judiciary committees. The original bill presented by the House vested sole discretion with the governor.

“In order for it to work, you have to have very smart and sophisticated trial judges,” Bloom said. “At bottom, this is about economic development. I think this is a way to tell the Amazons of the world that, if you are headquartered here and therefore get sued here, there will be a blue-ribbon panel of judges that can adjudicate claims against you.”

A Deal spokesperson said the bill will be signed at a future date.

Misdemeanor Bail Reform

Deal's eight-year efforts at turning around the alarming increase in prison population and accompanying costs in Georgia culminated this legislative session with a bill aimed at reforming the misdemeanor bail process.

And it succeeded—in part.

The final version, which passed on Mar. 29, aims to reduce local jail intake by giving law enforcement officers the discretion to make arrests by citations. It also requires judges to consider a defendant's financial circumstances when setting bail—a determination that must be made “as soon as possible.”

“Requiring that people pay for release when charged with minor offenses such as soliciting a ride or for loitering results in the unconstitutional incarceration of people solely because they are low income and is an ineffective use of taxpayer dollars,” said Marissa McCall Dodson, public policy director for the Southern Center for Human Rights, which advocated for reform.

Where advocates were unsuccessful, however, was around the proposed elimination of cash bail for certain low-level offenses.

“All of our considerations were around the money bail,” Dodson said. “We were really hoping to see some reform there, but there was no reform to the use of money bail in a way that would be meaningful.”

Specifically, advocates were hoping the legislation would carve out a list of low-level, nonviolent misdemeanor offenses for which defendants would be released without a bail payment—a provision that passed the House but did not survive the Senate.

Bibb County Solicitor-General Rebecca Grist said opponents of the provision are not against this in theory but felt “there's a lot of heavy lifting to be done in order to make it a viable option.”

Grist, who is also a member of the legislative committee of the Georgia Association of Solicitors General, explained that most states that have a no-bond policy on misdemeanors have, unlike Georgia, classified violations by level of seriousness. And without those distinctions among Georgia's more than 2,000 misdemeanor crimes, what qualifies as a low-level, nonviolent misdemeanor is impossible to determine, Grist said.

She added, however, that her committee and others associated with the Georgia Council on Criminal Justice Reform are willing to enact this type of legislation, but they want to “do it right.”

“We need to step back and put the serious work into classifying misdemeanors, and once we do that, it will be a lot easier to draft legislation dealing with bail reform,” she said.

A Deal spokesperson said the bill will be signed at a future date.

Hidden Predator Act

An attempt to build on a 2015 law of the same name, the Hidden Predator Act received unanimous support in the House, but failed to gain much traction after the Senate gutted it.

As originally drafted, the legislation increased the statute of limitations for lawsuits brought by adults between the ages of 23 and 38 against those they allege molested them when they were younger. It also created a one-year window in which to bring otherwise time-barred complaints.

Arguably the most significant provision, however, allowed the victim-plaintiff to sue an organization if there is proof it concealed evidence of sexual abuse, assuming the entity had a responsibility for the care of the plaintiff and knew or should have known of the alleged misconduct.

The 2015 law does not authorize organizational liability, so in the 14 pending cases brought under that statute, plaintiffs have gone after entities via fraud claims, said Natalie Woodward, a plaintiffs lawyer who, along with co-counsel Esther Panitch, represents several of these victims and is an advocate of the new Hidden Predator Act.

Aside from fraud, Woodward said, these plaintiffs have also brought public nuisance and civil Racketeer Influenced and Corrupt Organizations Act claims against the entities. Given that these claims have not routinely been used in the context of child sexual abuse, litigation could take years to cycle through the appellate courts before ever reaching a jury on any issue, she added.

“The amended statute would have helped move the cases to a jury faster,” Woodward said. “But that does not seem to be the goal of the organizations that lobbied so hard against the bill.”

In addition to lowering the statute of limitations to 30 years of age and eliminating the one-year window to bring suits outside the statute, amendments made by the Senate introduced several additional elements needed for organizational liability.

At least two high-profile groups lobbied the Senate against the bill. The Roman Catholic Archdiocese of Atlanta described the measure as an “extraordinarily unfair bill” that would drastically damage its ability to carry out its mission by allowing lawsuits stemming from incidents that may have occurred many decades ago. And the Boy Scouts of America said the bill passed by the House included provisions that would hinder the ability of youth-serving organizations to protect the children they serve.

The Senate's bill added the requirements of proof of intentional conduct, proof of the specific elements of concealing evidence, as well as a mandate that such evidence pertain to the previous 12 years—requirements that advocates for the House bill said essentially nullified the legislation's intent to hold entities accountable for covering up childhood sex abuse.

The organizational provision “is not an automatic win; it's an issue of, 'Are we allowed to get this to a jury so a jury can decide if the organization has liability?,'” Woodward said. “That's all we've ever wanted. The only goal is to let a jury be able to decide if the organizations were complicit.”

But the vast majority of the Senate found “the language in the House bill [to be] very expansive as to the potential liability of entities,” although the entire body recognized that “this is something of great importance from a public policy standpoint,” said Republican state Sen. John Kennedy, a partner at James-Bates-Brannan-Groover in Macon and member of the Senate Judiciary Committee.

But the policy interest that the lawmakers are interested in protecting, Kennedy said, is the protection of today's children from future abuse. And that end, he added, is not necessarily achieved by a law that would punish entities in cases where, for example, one person engaged in a one-time instance of sexual abuse, which the organization learned of, but could have done nothing about at the time of that instance.

“The question becomes, 'What is the conduct of the entity once they knew about it?,'” Kennedy said. “It starts to beg the question of the equity of holding that entity liable when there was no active concealment.”

Although the Hidden Predator Act did not make it to Deal's desk this year, advocates said they plan to reintroduce it during the next session.

Staff reporter Katheryn Tucker contributed to this report.