William Dennis McKinney and Nancy Allison Walter “Defendants” were indicted in Gwinnett County for multiple misdemeanor violations of the Georgia Ethics in Government Act Ethics Act. See OCGA § 21-5-9. More specifically, the Defendants were accused of failing to register with the State of Georgia Ethics Commission after they organized an independent committee to oppose the election of Kevin Kenerly as a Gwinnett County Commissioner. See OCGA § 21-5-34 a. The Defendants were also accused of failing to file certain disclosure reports and contribution reports with the Ethics Commission. See OCGA § 21-5-34 f. The Defendants filed general demurrers to the indictment as well as motions to dismiss in which they argued that venue did not lie in Gwinnett County. The trial court denied Defendants’ demurrers and motions, and this Court granted Defendants’ application for an interlocutory appeal to review this decision. Because we now find that Fulton County is the proper venue in this case, we hold that the trial court erred by denying the Defendants motion to dismiss the indictments against them. 1. “Venue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt.” Citation omitted. Graves v. State , 269 Ga. 772, 773 1 504 SE2d 679 1998. To determine venue in this case, one must start with the language of the statute in question. OCGA § 21-5-34 a 1 A provides: The candidate or the chairperson or treasurer of each campaign committee organized to bring about the nomination or election of a candidate for any office except county and municipal offices or the General Assembly and the chairperson or treasurer of every campaign committee designed to bring about the recall of a public officer or to oppose the recall of a public officer or designed to bring about the approval or rejection by the voters of any proposed constitutional amendment, state-wide proposed question, or state-wide referendum shall sign and file with the State Ethics Commission the required campaign contribution disclosure reports. In addition, OCGA § 21-5-34 f 1 mandates that an independent committee “shall file disclosure reports” with the State Ethics Commission regarding contributions and expenditures. OCGA § 21-5-9 criminalizes the failure to file these reports, stating that “except as otherwise provided in this chapter, any person who knowingly fails to comply with or who knowingly violates this chapter shall be guilty of a misdemeanor.”
Though it specifically provides for venue in cases of civil violations see OCGA § 21-5-8 the Ethics Act contains no similar provision regarding venue for criminal violations of its provisions. Article VI, Section II, Paragraph VI of the 1983 Georgia Constitution mandates that “all criminal cases shall be tried in the county where the crime was committed.” This requirement is codified at OCGA § 17-2-2 a. In this case, then, venue is proper in the county where the defendant knowingly fails to file the required reports with the State Ethics Commission. OCGA § 21-5-9. To determine this situs, analogous federal law is instructive. “The Supreme Court has consistently held that ‘where the crime charged is the failure to do a legally required act, the placed fixed for performance fixes the situs of the crime.’ ” DiJames v. United States , 731 F2d 758, 762 11th Cir. 1984, citing Johnston v. United States , 351 U. S. 215, 220 76 SC 739, 100 LE2d 1097 1956.
