author: McFADDEN, Presiding Judge.

text:
    A16A1709.
    A16A1710.
    EVERSON et al. v. PHOEBE SUMTER MEDICAL CENTER, INC. et al. JORDAN v. EVERSON et al.
    (798 SE2d 667)
   McFADDEN, Presiding Judge.

These related appeals arise from the tragic death of 27-year-old Benjamin Everson. On April 29, 2008, Everson went to Sumter Regional Hospital, Inc., now known as Phoebe Sumter Medical Center, Inc. (“the hospital”), complaining that he was hallucinating and hearing voices. Dr. Brian Jordan, the emergency room physician who attended to Everson, diagnosed him with obsessive compulsive disorder and discharged him with an appointment to see a mental health care provider two days later at a nearby facility Instead, Everson’s father made an appointment for him with a different facility out of state. On May 1, 2008, en route to that appointment, Everson leapt from a moving car driven by his father and ran in front of another vehicle, which struck and killed him.

Everson’s parents, on behalf of themselves, and Everson’s estate (collectively, “the plaintiffs”) brought this wrongful death action alleging medical malpractice claims against the hospital and Jordan. The trial court granted summary judgment to the hospital and denied summary judgment to Jordan.

In Case No. A16A1709, the plaintiffs appeal from the trial court’s order granting summary judgment to the hospital. The plaintiffs argue that the trial court erred in denying their motion to strike the hospital’s answer and enter a default judgment against it as a sanction for alleged discovery abuses, but the trial court was authorized to find that the sanction was not appropriate because the hospital did not intentionally falsify its discovery response. The plaintiffs argue that the trial court erred in excluding the opinion testimony of an expert witness, but the trial court did not abuse his discretion in concluding that the expert’s opinion did not satisfy the admissibility requirements of OCGA § 24-7-702 (b). Finally, the plaintiffs argue that the trial court should not have granted summary judgment on their claims for ordinary negligence, but the trial court ruled that the statute of limitation and the statute of repose barred those claims, and the plaintiffs offer no argument or citation to authority to show that the trial court erred in that ruling. Accordingly, we affirm the judgment in Case No. A16A1709.

In Case No. A16A1710, Jordan appeals from the denial of his motion for summary judgment. We find that genuine issues of material fact preclude summary judgment and, accordingly, we affirm the denial of summary judgment to Jordan.

1. Facts and procedural history.

We review a ruling on a summary judgment motion de novo, “construing] the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences.” Doctors Hosp. of Augusta v. Alicea, 299 Ga. 315 (1) (788 SE2d 392) (2016) (citation omitted). Consequently, we construe the evidence in both of these cases in the light most favorable toward the plaintiffs.

So viewed, the evidence showed that in late April 2008, Everson, a law school graduate who had been working as a judicial law clerk in Americus, was preparing to move back to his home state of Connecticut, and his mother had arrived to help him. For some time, Everson had been under a physician’s care for depression and anxiety, for which he sometimes took medication. In the two weeks preceding his death, Everson had begun hallucinating and hearing voices. For several nights in a row, Everson woke his mother in the middle of the night and spoke to her in a rambling, accelerated manner. On the third such occasion, in the early morning of April 29, 2008, Everson’s mother called Everson’s father, a medical doctor, and put Everson on the telephone. Everson’s father was concerned about the way his son sounded and suggested to Everson’s mother that he get a psychiatric evaluation. Everson’s father contacted the hospital and spoke with a person he understood to be the hospital’s on-call psychiatrist, who recommended that Everson go to the hospital’s emergency room to be evaluated. Everson’s father also made plans to travel to Georgia.

Consequently, on April 29, 2008, Everson and his mother went to the hospital’s emergency room. There, Everson told a hospital triage nurse that he had been hearing voices and experiencing hallucinations and that his head felt “heavy,” and the nurse noted much of this information on a triage form. A different emergency room nurse interviewed Everson and made notes in his medical chart about his complaints.

Everson and his mother saw Jordan, a physician who was staffing the emergency room that day as an independent contractor, not a hospital employee. Jordan reviewed the triage form, spoke with Everson, and examined him. Everson appeared somewhat anxious to Jordan, with accelerated, rambling speech, and he had an elevated pulse and blood pressure. Jordan noted Everson’s chief complaint to be hallucinating. Everson told Jordan that he was hearing his own voice “rambling inside his head,” which confused him, and that his symptoms had begun two weeks earlier. Jordan described Everson as fixated on having racing thoughts about himself.

Jordan discharged Everson from the hospital with a diagnosis of obsessive compulsive disorder; he also underlined “psychosis” on Everson’s paperwork. At the request of Everson’s mother, Jordan had another emergency room nurse schedule an appointment for Everson with Middle Flint Behavioral HealthCare (“Middle Flint”), a regional state-run mental health facility The nurse scheduled that appointment for May 1, 2008, two days later.

Everson and his mother returned to Everson’s apartment, and his father arrived later that afternoon. His parents decided that, instead of taking Everson to Middle Flint for treatment, they would arrange to have Everson evaluated at a facility associated with Duke University, where one of Everson’s brothers attended medical school and where Everson’s father had professional connections.

On April 30, Everson and his father began the drive to Duke University, stopping overnight at a hotel near Atlanta and resuming their drive the next morning. While they were traveling on an interstate highway that morning, Everson began fidgeting with the electronic door locks of the car. Then Everson’s father, who was driving, noticed that Everson was not wearing his seat belt. Everson put his seat belt back on at his father’s request but then, suddenly, he took the seat belt off, opened the car door, and leapt out of the moving car. Everson’s father stopped the car and got out to attend to his son, who was lying on the ground, unconscious, next to the highway. Everson regained consciousness, and the two men stood up. At that point, Everson appeared to his father to be in “a totally psychotic state.” Everson began running down the side of the highway He ran approximately half a mile, with his father chasing him. He then stepped into the path of a large vehicle, which struck him, killing him instantly

The plaintiffs brought an action for medical malpractice against the hospital and Jordan, alleging that the defendants failed to properly evaluate and treat Everson’s condition when he went to the emergency room, misdiagnosed him, and failed to recognize that he needed a psychiatric evaluation. In support of their action they provided affidavits from two expert witnesses — a psychiatrist and a physician certified in emergency medicine. These witnesses opined that Jordan and two of the hospital nurses had deviated from the applicable standard of care. On November 25, 2015, the plaintiffs filed an amended complaint adding new claims against the hospital, including claims of ordinary negligence.

Both the hospital and Jordan moved for summary judgment. The hospital also moved for the trial court to exclude the testimony of the plaintiffs’ expert witnesses regarding the emergency room nurses. The plaintiffs moved for the trial court to strike the hospital’s answer and enter a default judgment against it as a sanction for alleged discovery abuses by the hospital. In a series of orders, the trial court denied the plaintiffs’ motion for the discovery sanction, granted the hospital’s motion to exclude the experts’ testimony as to the nurses, granted the hospital’s motion for summary judgment, and denied Jordan’s motion for summary judgment. The plaintiffs appealed from the rulings in the hospital’s favor, and Jordan successfully sought interlocutory review of the ruling in the plaintiffs’ favor. In addition to the parties’ appellate briefs, the Georgia Trial Lawyers Association filed a brief as amicus curiae addressing specific issues relating to the trial court’s discovery sanction and expert witness rulings.

Case No. A16A1709

2. Discovery sanction.

The plaintiffs appeal from the trial court’s denial of their motion to strike the hospital’s answer and enter a default judgment against it for allegedly providing false and misleading responses to some of the plaintiffs’ discovery requests. See generally OCGA § 9-11-37 (setting forth sanctions for discovery abuse). The crux of the parties’ discovery dispute concerned the nature and extent of psychiatric services offered by the hospital following a 2007 tornado in which the hospital was severely damaged. In their argument on appeal, the plaintiffs focus on what they assert was the

falsity and misleading nature of the hospital’s discovery responses concerning: (1) the availability of “on call[”] and/or on-staff psychiatrists and other mental health care providers to evaluate [Everson] at the hospital emergency room on the day in question; as well as (2) the very existence following the tornado of hospital policies and protocols relating to in-patient psychiatric evaluations performed on hospital [emergency room] patients by on-call psychiatrists and [mental health providers] from places such as Middle Flint.

After receiving evidence and argument on the alleged discovery abuses, the trial court found that the “only false discovery response concerned the issue of whether or not there were psychiatrists on staff which all evidence indicates was an unintentional and honest error which would not authorize the drastic sanctions being sought by [p]laintiffs.” Consequently, the trial court denied the motion for sanctions.

“In determining whether a party has abused discovery, the trial court sits as trier of fact, and this [c]ourt will uphold [the trial court’s] finding ... if there is any evidence to support it.” Howard v. Alegria, 321 Ga. App. 178 (1) (739 SE2d 95) (2013) (citation and punctuation omitted). As to the issue of psychiatrists on staff at the hospital, the hospital did not deny that its initial response was incorrect, and it argued that it corrected this response as soon as it realized the problem. The hospital presented evidence to the trial court that the initial, incorrect answer was not intentional. In an affidavit and in comments in open court, the hospital’s counsel stated that he had erroneously believed that no psychiatrists remained on staff at the hospital after the hospital stopped providing in-patient psychiatric services, possibly because he had misunderstood information received from his client. The transcript of a deposition supported the statements made by the hospital’s counsel — it showed that the hospital’s counsel expressed surprise after the witness, a psychiatrist at Middle Flint, testified that she remained on staff at the hospital for a period of time after the tornado. And as to the issue of the hospital’s policies and procedures, the record supports the trial court’s finding that there was no actual misrepresentation.

The trial court’s findings on these issues are

entitled to substantial deference on appeal. Unlike this [c]ourt . . . , the trial court directly supervised the ebb and flow of the discovery and [proceedings] in this case and had the opportunity to observe and assess the conduct, demeanor, and credibility of the parties and their counsel throughout the proceedings [.]

Ford Motor Co. v. Conley, 294 Ga. 530, 547 (3) (a) (4) (757 SE2d 20) (2014) (citations omitted). Because the record supported the trial court’s findings that the hospital did not intentionally provide incorrect discovery responses, the plaintiffs have not shown reversible error. See Frady v. Irvin, 245 Ga. 307, 308 (2) (264 SE2d 866) (1980) (“to reverse the . . . trial judge’s denial of the appellants’ motion [for discovery sanctions], this court would first have to hold that a finding of wilful failure to respond was demanded by the evidence as a matter of law”). Consequently, we need not address the arguments in the parties’ briefs and the amicus brief concerning whether the plaintiffs were required to take action under OCGA § 9-11-37 or Uniform Superior Court Rule 6.4 (B) before moving for sanctions.

3. Expert opinion.

In his order granting summary judgment to the hospital, the trial court barred the plaintiffs’ two expert witnesses from giving opinion testimony on the standard of care applicable to the hospital’s emergency room nurses on the ground that neither the experts nor their proposed testimony met the requirements of OCGA § 24-7-702 (“Rule 702”). On appeal, however, the plaintiffs offer argument as to only one of the two experts, the physician certified in emergency medicine. That expert testified that the registered nurses deviated from the applicable standard of care by failing to question or challenge the attending physician’s diagnosis of and treatment decisions regarding Everson. He testified that the nurses had a duty to determine that the attending physician’s diagnosis was incorrect and to take any action necessary to prevent Everson from being discharged from the hospital, notwithstanding the attending physician’s decision that he could be discharged.

“Rule 702 concerns the admissibility of opinion testimony by expert witnesses in civil cases. The usual standard for the admissibility of such testimony is found in Rule 702 (b) [.] ” Dubois v. Brantley, 297 Ga. 575, 580 (2) (775 SE2d 512) (2015) (footnote omitted). Rule 702 (b) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

OCGA § 24-7-702 (b). Contrary to the plaintiffs’ assertion, the language in this statute “makes no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge.” Kumho Tire Co. v. Carmichael, 526 U. S. 137, 147 (II) (A) (119 SCt 1167, 143 LE2d 238) (1999). See OCGA § 24-7-702 (f) (expressing legislative intent that courts of this state draw from Kumho Tire Co., among other decisions, in interpreting and applying Rule 702). The premise of the statute “is that a trial court must act as a ‘gatekeeper’ to ensure the relevance and reliability of expert testimony” Scapa Dryer Fabrics v. Knight, 299 Ga. 286, 289 (788 SE2d 421) (2016) (citations and punctuation omitted) (addressing former OCGA § 24-9-67.1, the predecessor to OCGA § 24-7-702). We review the trial court’s decision for abuse of discretion. See Scapa Dryer Fabrics, 299 Ga. at 289-290.

We find no abuse of discretion. In excluding the testimony, the trial court stated “that the deviations from the standard of care alleged by the [plaintiffs’ physician expert[ ] pertain to conduct that is outside and beyond the scope of nursing care allowed by Georgia law.” Compare OCGA § 43-34-21 (3) (defining the practice of medicine to include “the diagnosis or treatment of disease, defects, or injuries of human beings” and the “prescribing of any form of treatment”) with OCGA § 43-26-3 (8) (defining the practice of nursing as a registered professional nurse to include “[establishing a nursing diagnosis,” “[administering, ordering, and dispensing . . . medical treatments authorized by protocol,” and “[administering medications and treatments as prescribed by a physician”). The failure of an expert’s testimony to comport with applicable Georgia law is a ground for exclusion of that testimony under OCGA § 24-7-702 (b). See Scapa Dryer Fabrics, 299 Ga. at 293-294. The expert testimony related to the nurses’ conflicts with the scope of the nursing profession as prescribed by Georgia law, so we find no abuse of discretion in the trial court’s decision to exclude that testimony. In light of this conclusion, we do not address the question of the expert witness’s qualifications under OCGA § 24-7-702 (c), which the parties and the amicus also address in their appellate briefs.

4. Claims for ordinary negligence.

In the summary judgment order, the trial court held that “the only claims filed by the [p]laintiffs against [the hospital] within the statute of limitation[ ] and/or statute of repose are [p] laintiffs’claims alleging professional negligence against [two specific nurses who were hospital] employees.” Having excluded the plaintiffs’ expert witness testimony on the issue of the standard of care applicable to these nurses, the trial court granted summary judgment to the hospital on those claims.

The plaintiffs argue that this was error because they also asserted claims for ordinary negligence. The claims to which the plaintiffs refer in this enumeration of error appear to be those asserted in the amended complaint, which the trial court held were barred by the statutes of limitation and repose. The plaintiffs, however, have offered no argument or citation to authority showing that the trial court erred in his application of the statute of limitation or the statute of repose to bar those claims. And they have offered no argument or citation to authority showing that any other claims concerning the actions of the two named nurses were claims for ordinary rather than professional negligence. Consequently, the plaintiffs have not shown they are entitled to have the judgment reversed on this claim of error. See generally Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

Case No. A16A1710

5. Denial of summary judgment to Jordan .

Jordan appeals from the trial court’s denial of his motion for summary judgment. A defendant such as Jordan is entitled to summary judgment if the evidence shows “that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). The essential elements of a medical malpractice action are: “(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (citations and punctuation omitted). Jordan argues that there is no genuine issue of material fact either as to his breach of a duty to Everson or as to causation. We disagree.

(a) Breach of a duty.

Jordan argues that he was subject only to the “gross negligence” standard of care governing emergency medical care under OCGA § 51-1-29.5 (c), and he argues that there was no evidence that he breached that standard. But factual questions exist as to whether Jordan provided Everson with “emergency medical care,” which the statute defines as

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

OCGA § 51-1-29.5 (a) (5).

The mere fact that the care was rendered in an emergency room is not dispositive; “the statute provides a definition of ‘emergency medical care’ that requires more than simply ‘care provided in an emergency department.’ ” Nguyen v. Southwestern Emergency Physicians, 298 Ga. 75, 79 (2) (a) (779 SE2d 334) (2015). The patient’s actual medical or traumatic condition, as revealed by the patient’s symptoms, determines whether his condition meets the requirements of the definition of “emergency medical care,” id. at 81 (2) (c), and “the health care provider’s subjective opinion about the patient’s condition ... is relevant as evidence of the patient’s condition.” Id. (citations omitted).

The evidence in this case, viewed in the light most favorable to the plaintiffs, creates a jury question about whether Everson’s condition met the requirements of the definition of “emergency medical care.” The triage nurse placed him in the “least critical” category of patients. The plaintiffs’ expert witness opined that Everson’s medical records showed he was medically stable when he presented to Jordan at the emergency room. And Jordan’s act of discharging Everson with an appointment two days later indicated that Jordan viewed Everson to be “capable of receiving medical treatment as a nonemergency patient[.]” OCGA § 51-1-29.5 (a) (5). Jordan argues that the plaintiffs’ position that Everson’s condition did not meet the requirements of the definition of “emergency medical care” is inconsistent with their position that he needed immediate psychiatric evaluation. This argument is one to be made at trial, not at summary judgment. See Nguyen, 298 Ga. at 85 (3), n. 3 (noting, in reversing grant of summary judgment, that at trial plaintiffs will have the difficult task of arguing that patient’s “symptoms were serious enough that the [medical pjroviders were negligent in failing to recognize the need for more tests and treatment — but not severe enough to require ‘emergency medical care’ ”).

Jury questions also exist as to whether Jordan breached the applicable standard of care in his treatment of Everson. The plaintiffs’ expert witness, a psychiatrist, opined that Jordan deviated from the standard of care, among other ways, by failing to obtain a psychiatric consultation, by concluding that Everson suffered from obsessive compulsive disorder, and by failing to request that an appropriate mental health professional come to the hospital to evaluate Everson’s complaints of “confusion, hearing voices, and hallucinations.”

For these reasons we are not persuaded by Jordan’s argument that he is entitled to summary judgment because there is no genuine issue of material fact that he breached his duty of care to Everson.

(b) Causation.

A plaintiff in an action for medical malpractice “cannot recover for medical malpractice, even where there is evidence of negligence, unless the plaintiff establishes by a preponderance of the evidence that the negligence either proximately caused or contributed to cause plaintiff harm.” Zwiren, 276 Ga. at 500 (citations and punctuation omitted). Such a plaintiff also must prove that the defendant’s negligence was the cause in fact of his injury. Moore v. Singh, 326 Ga. App. 805, 808-809 (1) (755 SE2d 319) (2014). Jordan argues that no genuine issue of material fact exists as to either aspect of causation. We disagree.

“Questions regarding causation are peculiarly questions for the jury except in clear, plain, palpable[,] and undisputed cases.” Moore, 326 Ga. App. at 809 (1) (citation and punctuation omitted). This is not such a case. In affidavit and deposition testimony, the plaintiffs’ expert witness opined that, to a reasonable degree of medical certainty or probability, Jordan’s breaches of the standard of care proximately caused Everson’s death and that, had Everson received proper evaluation and treatment, he would be alive and mentally stable today The expert witness, in his deposition, explained the basis for his opinion. His opinion satisfied the requirements for medical causation testimony articulated by our Supreme Court in Zwiren, 276 Ga. at 501-502. See also Wasdin v. Mager, 274 Ga. App. 885, 889 (2) (619 SE2d 384) (2005) (expert witness’s testimony, “much of which was couched in terms of reasonable medical probabilities and certainties,” was sufficient evidence of causation to survive summary judgment). The expert witness’s opinion also distinguishes this case from decisions cited by Jordan in which the plaintiffs offered expert testimony on causation that was speculative at best. See, e.g., Miranda v. Fulton DeKalb Hosp. Auth., 284 Ga. App. 203, 207 (644 SE2d 164) (2007) (plaintiff’s expert testified that, even if defendant hospital’s employees had met standard of care, patient’s suicide “could have been unpreventable”); King v. Zakaria, 280 Ga. App. 570, 577 (4) (b) (634 SE2d 444) (2006) (plaintiff’s expert testified that it did not matter that defendant deviated from standard of care because patient’s condition was unsalvageable); Berrell v. Hamilton, 260 Ga. App. 892, 896 (581 SE2d 398) (2003) (plaintiff’s expert “admitted that he did not know whether earlier treatment [which plaintiff argued he would have obtained had defendant detected plaintiff’s condition] wouldhave made any difference”); Ermutlu v. McCorkle, 203 Ga. App. 335, 338 (2) (416 SE2d 792) (1992) (plaintiffs’ expert “could not state with any degree of medical certainty that [patient’s] mental disorder [for which she allegedly had received improper care] caused the accident [that killed plaintiffs’ daughter]”).

Jordan argues that he is entitled to summary judgment because it was not reasonably foreseeable that Everson would harm himself. But the plaintiffs’ expert witness testified that Everson displayed signs of psychosis when Jordan saw him in the emergency room, and that an acute onset of psychosis carries a risk of self-harm. Under some circumstances, a mentally ill patient’s suicide can be a reasonably foreseeable consequence of a medical provider’s negligent conduct, even if the death occurs well after the negligent act. See Purcell v. Breese, 250 Ga. App. 472, 475 (1) (552 SE2d 865) (2001); Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 116 (3) (b) (372 SE2d 265) (1988). It is for the jury to determine whether Everson’s behavior on May 1, which resulted in his death, was a reasonably foreseeable consequence of Jordan’s alleged failure two days earlier to properly diagnose and treat his psychosis. See Brandvain, 188 Ga. App. at 115 (3) (b) (if varying inferences regarding reasonable apprehension of harm are possible, question is for jury).

Jordan also argues that the decision by Everson’s parents to take him to Duke University rather than Middle Flint for treatment intervened to break the causal connection. But “an intervening act does not break the causal connection between the defendant’s conduct and the plaintiff’s injury, if the intervening act was triggered by the defendant’s conduct or could have reasonably been anticipated or foreseen by the defendant.” Textile Rubber & Chemical Co. v. Thermo-Flex Technologies, 308 Ga. App. 89, 98 (2) (c) (706 SE2d 728) (2011). A jury could find that Jordan reasonably could have anticipated or foreseen that Everson, having been discharged from the hospital with a follow-up appointment with a mental health provider, would travel to see either the recommended provider or another provider. And a jury could find that Jordan’s alleged negligence in misdiagnosing Everson and discharging him from the hospital triggered his parents’ act of seeking mental health services elsewhere.

Moreover, when a defendant claims

that its negligence is not the proximate cause of the plaintiff’s injuries, but that an act of a third party intervened to cause those injuries, the rule is that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant.

Goldstein Garber & Salama, LLC v. J. B., 300 Ga. 840, 841 (1) (797 SE2d 87) (2017) (citation and punctuation omitted; emphasis supplied). This principle applies to the claims against Jordan brought by Everson’s estate, to which Everson’s parents are third parties. Jordan has offered nothing — no argument, citation to authority, or citation to the record — to support the proposition that the decision by Everson’s parents to take him to Duke University rather than Middle Flint for further evaluation was a wrongful or negligent act.

Decided March 14, 2017

Reconsideration denied March 31, 2017

Simon Weinstein; Neal H. Howard & Associates, Neal H. Howard, for Everson et al.

Watson Spence, C. Richard Langley, Charles K. Wainright II, for Phoebe Sumter Medical Center et al.

Carlock, Copeland & Stair, EricJ. Frisch, John C. Rogers, Claire A. Sumner, for Jordan.

Gautreaux & Sizemore, Jarome E. Gautreaux, amicus curiae.

For these reasons, we are not persuaded by Jordan’s argument that he is entitled to summary judgment because there is no genuine issue of material fact as to causation.

Judgments affirmed.

Miller, P. J., concurs. McMillian, J., concurs fully in Divisions 1, 2, 4 and 5 and in judgment only in Division 3.


source: Caselaw Access Project

author: DOYLE, Chief Judge. RAY, Judge, McFADDEN, Presiding Judge, SELF, Judge,

license: Public Domain

text:
    A16A2147.
    A16A2148.
    CLAYTON v. THE STATE. MINOR v. THE STATE.
    (797 SE2d 639)
   DOYLE, Chief Judge.

Duvalle Rene Minor and Robert Anthony Clayton were jointly indicted, tried, and convicted of armed robbery and criminal attempt to commit armed robbery Following the denial of their motions for a new trial, they appealed their convictions to this Court, and in a consolidated opinion in Minor v. State (“Minor I”), the Court affirmed the judgments of conviction but remanded the cases for a new hearing to determine whether the State violated Batson v. Kentucky when it peremptorily struck Juror No. 31 from the venire. On remand, the trial court held a hearing and found that no Batson violation had occurred. In Case No. A16A2147, Clayton appeals that ruling, and in Case No. A16A2148, Minor does the same. We have consolidated the appeals for review, and for the reasons that follow, we reverse.

Relevant Facts

As noted in the earlier appeal, the voir dire was not transcribed, but the record reflects that the State exercised nine strikes, six against African-American people and three against white people, and the resulting jury was composed of two African-American jurors and nine white jurors. After defense counsel raised the Batson issue on this ground, the trial court “require[d] the State to articulate its reasons for the peremptory strikes, rendering moot the issue of whether [defense counsel] had established a prima facie case.”

The State gave as its reasons for striking Juror No. 31 as follows:

[The juror] has a conviction for theft by receiving. This is a theft-related case. [The juror] also has gold teeth. Now, that’s not a definitive factor, but the fact of the matter is, in general, when I see jurors who have gold teeth that’s — I just don’t like that so I don’t think that’s race. If they were white and had gold teeth I would have the same reaction. But it’s primarily the theft, the fact that he has a theft of a motorcycle, that charge.

Defense counsel then countered that the alleged theft charge was actually a misdemeanor criminal damage charge, and he began to challenge the State’s proffered gold-teeth rationale when the trial court cut him off:

DEFENSE COUNSEL: Your Honor, I believe it was clear that it wasn’t a theft.... He was charged with misdemeanor criminal damage. It wasn’t a felony that was knocked down to a misdemeanor. It started as a misdemeanor, and I don’t see the issue there. Regarding gold teeth —
TRIAL COURT: I’m not impressed by the gold[-]teeth argument. I’m not impressed by his gold[-]teeth argument.
DEFENSE COUNSEL: Neither am I, and neither was — I believe his name was David, on record. It was a case I tried with Mr. Knighton —
TRIAL COURT: Okay. Let’s not go there. I said I’m not going to accept the [State’s] gold[-]teeth argument.[] Do you want to talk me out of it?
DEFENSE COUNSEL: You say you’re not impressed with it. I’m good with that.
TRIAL COURT: No, he was charged with a theft. This was an interesting jury, quite frankly. An interesting jury panel — and we do have some folks on there who have had some charges, because there just wasn’t any way for everybody — to get everybody off. But I do find it to be race neutral. And the last strike was of a white female. So I deny the Batson [cjhallenge.

In Minor I, this Court held that the above colloquy showed that the trial court failed to allow defense counsel to fully articulate “that the prosecution’s strike based on Juror No. 3 l’s gold teeth arose from a racial stereotype,” so the record was incomplete with respect to the requisite findings under Batson. Having so found, this Court

remand[ed] the case in order to permit the defense to [fully explain its argument that the strike was racially discriminatory] and to allow the trial court to make findings under Batson . Should the trial court determine that the State did not fulfill its burden to provide racially-neutral reasons, a new trial is in order. Should the trial court determine that no Batson violation occurred, appellant’s convictions will remain in effect.

On remand, the trial court held a hearing in which she limited the argument to address only the gold-teeth rationale as to Juror No. 31, and defense counsel outlined their objections. Defense counsel explained that the State’s gold-teeth rationale was a race-based stereotype of African-American culture, and the State’s reliance on Juror No. 31’s alleged involvement in the theft of a motorcycle was merely a pretext for the State’s explicitly race-based strike. The State responded by restating that its rationale was based on both the juror’s criminal history and the fact that he had gold teeth. The prosecutor explained:

My recollection is actually... it was actually gold teeth. I think it was his entire mouth. I don’t believe that is race related. I think it’s something that you choose. You go to the dentist. You decide what you want. You get that cosmetic.
I think around the time period of this trial... there [was] Ryan Lochte at the Olympics put on the gold teeth[,] and there was this attitude or there were these other people who were wearing this. I don’t think it’s race related. I don’t consider it race related.
And for me, the gold[-]teeth issue is similar — there are a lot of people who have a, I guess, an interest^] and they’ll [dye] their hair blue or they’ll [dye] their hair red. There are people who wear nose rings or have eyebrow rings. I don’t think that. . . makes them a bad person, but I think what it says to them is they are purposely setting themselves apart. They’re being iconoclastic. They want to look different from the normal per son_[T]hat is telling me ... a little bit about the thinking of that person. . . . And that, in combination with the fact that he was arrested for felony theft of a motorcycle and was pled down to theft by receiving of a motorcycle, forms a picture for me of that juror and what is going on in his mind. ... It has nothing to do with race.

On rebuttal, defense counsel reiterated the argument that gold teeth are a stereotype associated with the African-American community.

Based on the State’s explanation, the trial court held that the State’s reasons for striking Juror No. 31 were race neutral. With respect to the gold-teeth argument, the trial court made no express findings as to whether having gold teeth was a race-based stereotype, but accepted the State’s explanation that it would strike a juror with gold teeth regardless of race: “The Court finds that this is a race[-] neutral explanation. Jurors who want to be different [in] such an obvious way do not usually make good jurors, they tend to not want to go along with the majority in reaching a verdict. They want to be different.” Thus, the court held that no Batson violation had occurred. Minor and Clayton now appeal from that ruling.

Legal Analysis

The analysis of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent’s] discriminatory intent.

The focus of this case is on step two of the Batson process. Rulings made at this step

are entitled to no deference [on appeal]. There are numerous appellate decisions ruling as a matter of law that proffered explanations were or were not race-neutral. Therefore, in practice, appellate review after a step two ruling is de novo.. .. [0]ur review of rulings at stage two is analogous to our rulings on motions for summary judgment or to our former rulings on demurrers in common law.

With respect to the State’s burden at step two as the proponent of the strike, the State

need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.

It is well settled that, at least in the context of a criminal trial, “[a] prospective juror’s criminal history is an adequate race-neutral reason to” exercise a peremptory strike. “A reasonable suspicion about a prospective juror’s impartiality [toward the State] that falls short of justifying an excusal for cause might well justify the exercise of a peremptory strike.” Thus, the State’s reliance on Juror No. 31’s criminal history was a valid, race-neutral reason to exercise the strike.

Nevertheless, also at step two of the Batson process, the State explicitly relied on the fact that Juror No. 31 had gold teeth in his “entire mouth.” “Our precedent states that an explanation is not racially neutral if it is based upon either a characteristic that is specific to a racial group or a stereotypical belief that is imputed to a particular race.” Thus, although the State argued otherwise, we cannot ignore the fact that having a full mouth of gold teeth is a cultural proxy stereotypically associated with African-Americans. As with most stereotypes, this characteristic is not couched in terms that explicitly reference race — nothing about having gold teeth describes skin tone in a literal sense — but it has widely operated as a proxy for the African-American race (or a subset ofthat race). The dissent by Judge McFadden points out that having gold teeth is iconoclastic, which could be a valid objection to a juror if it were a race-neutral iconoclasm such as dying hair unnatural colors or having unusual visible tattoos. But the potential iconoclasm of having gold teeth does not negate its usage in American culture as a stereotypical proxy for (or association with) the African-American race. Under these circumstances, striking the African-American juror because he had a full set of gold teeth cannot be said to be race neutral.

Because articulating a racial stereotype is not facially race-neutral, the State failed to meet its burden at Batson step two to articulate a facially race-neutral reason for the strike, even if the State attempted to rationalize its reason in purportedly race-neutral terms. As stated by the United States Supreme Court in Burkett v. Elem, “[i]t is not until the third step that the persuasiveness of the [race-neutral] justification [given at step two] becomes relevant. . . .” This contemplates that a race-neutral reason was given at step two. Here, because the State failed to meet its burden in step two, the prosecutor’s justification for offering a facially discriminatory rationale is not relevant, and we need not reach step three of the Batson analysis, as the dissents do.

Having determined that the State’s reliance on the juror’s gold teeth did not satisfy its burden at step two of Batson , we next look at whether having an alternative reason for the strike (the juror’s criminal history) saves the strike. In this circumstance, Georgia law holds that a Batson violation results from a race-based reason even if it is accompanied by a race-neutral reason. In Rector v. State, the prosecutor justified his strike of an African-American juror based in part on her “big gold tooth with a pattern on it right in the front of her mouth.” The State also articulated other ostensibly race-neutral bases, such as having only a high school education, exhibiting a lack of general intelligence, not knowing where her sons worked as janitors, and having a meager employment history. After hearing from counsel, the trial court ruled that the gold-tooth explanation “in and of itself” would not be accepted due to its stereotypical nature, but the other stated reasons properly justified the strike as race-neutral. On appeal, this Court reversed and held that the trial court “erred in ruling that other purportedly race[-]neutral explanations cured the element of the stereotypical reasoning employed by the State’s attorney in exercising a peremptory strike.” The Court explained that “[ejven though the State’s attorney may have given other racially neutral explanations, the trial court’s finding of one racially motivated explanation vitiates the legitimacy of the entire jury selection procedure.” As noted by the Supreme Court of Georgia in Lingo v. State, if “racially-neutral and neutrally applied reasons are given for a strike, the simultaneous existence of any [facially] racially motivated explanation results in a Batson violation.” In short, under current Georgia law, an alternative race-neutral basis does not cure the facially race-based reason given by the State.

Accordingly, the trial court erred by finding there was no Batson violation, and we therefore reverse the trial court’s judgment denying the motions for new trial filed by Minor and Clayton.

Judgments reversed.

Barnes, P. J., Miller, P. J., and McMillian, J., concur. Andrews, J., concurs in judgment only. McFadden, P. J., Ray, Rickman, and Self, JJ., dissent.

RAY, Judge,

dissenting.

Like the majority, when I read the briefs in this case and began to study the case file, I was uneasy with the decision of the State to strike the prospective juror based, in part, on the fact that he had gold teeth. In our racially diverse society, I understand the value in having juries which are selected to settle our civil and criminal matters reflect the diversity of their communities. Thus, I understand why these cases landed in the Court of Appeals to examine whether the State violated Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 39) (1986) in striking Juror No. 31.

Yet, unlike the majority which finds that the State impermissibly relied on a racial stereotype in striking Juror No. 31,1 do not believe that the State’s motivation in striking this juror is so clear-cut. Juror No. 31 had previously been charged with a felony theft, such charge which had been negotiated down to a misdemeanor criminal damage charge to which he pled guilty. During my nearly 11 years on the trial bench, I don’t believe that I ever presided over a case where the State allowed anyone who had a conviction for anything more than a routine traffic offense to be seated on the jury. As I understand it, prosecutors are afraid to allow a person who has previously been charged with a crime, much less convicted of one, to serve on a jury, as such individual might be mad at the authorities due to his or her own experience in the criminal justice system or might be more sympathetic with or identify with the accused.

In its opinion, the majority concludes that the State’s decision to strike Juror No. 31 was, essentially, illegal per se. However, that is not what the trial court concluded upon remand. And, while I certainly agree that the striking of an African-American juror because he or she has gold teeth might be discriminatory, I do not believe that to be automatically so. Specifically, the trial court found that the State proffered a race neutral explanation for the strike, that is, that a person who has the entirety of his teeth encased in gold crowns, whatever his or her race, seeks “to look different from the rest of the world, and be different, from everyone else,” much like “people who [have] dyed their hair blue, or [have] nose rings and so forth.” The trial court concluded that potential jurors “who want to be different, [in] such an obvious way do not usually make good jurors, they tend to not want to go along with the majority in reaching a verdict. They want to be different.” In accepting this basis for the strike, the trial court concluded that the Defendants did not prove discriminatory intent. Of course, a “trial court’s finding as to whether the opponent of a strike has proven discriminatory intent is entitled to great deference and will not be disturbed unless clearly erroneous.” Woodall v. State, 294 Ga 624, 627 (3) (754 SE2d 335) (2014) (citation and punctuation omitted).

Had I been the presiding judge in this case, I may very well have not accepted the State’s rationale for exercising this strike. Yet, the trial court judge who both presided at the original jury selection and conducted the hearing on this issue upon remand believed that the State did not discriminate and had a legitimate purpose in striking this juror. Indeed, even the majority concludes in its opinion that the transcript does not reveal any actual racial animosity on the part of the prosecutor.

Let me state clearly that I agree that the use of a racial stereotype to eliminate a potential juror is wrong and, indeed, prohibited by our law. However, I am not prepared to say that such was the situation here under the totality of the circumstances and in light of the trial court’s decision after carefully considering the facts of this case, listening to the prosecutor and his rationale, evaluating his demeanor and his credibility, and considering the genuineness of his character.

Accordingly, I believe that as a court for the correction of errors of law and not for deciding disputed issues of fact, we are bound to accept the conclusion of the trial court that the defendants have not proven a discriminatory intent in the striking of Juror No. 31 and believe that the trial court did not clearly err. I recognize that other trial judges may have reached a different conclusion if faced with these facts at trial; yet, I do not believe that these facts demand a conclusion as a matter of law that the State violated Batson with its use of a peremptory strike to remove this juror.

Accordingly, I hereby dissent.

I am authorized to state that Presiding Judge McFadden, Judge Rickman, and Judge Self join in this dissent.

McFADDEN, Presiding Judge,

dissenting.

I respectfully dissent. I join fully in Judge Ray’s dissent and expressly associate myself with his reaffirmation of the importance of diverse juries. I write separately to identify what I see as the flaw in the majority’s analysis.

The majority errs in equating a characteristic “specific to” a group with a stereotype about that group. The Oxford University Press dictionary defines “stereotype” in this sense to mean “a preconceived and over-simplified idea of the characteristics which typify a person or thing.” So if an individual prospective juror has a trait about which a party has a genuine non-discriminatory concern, a concern not founded on a stereotype, then a strike is not discriminatory — even if the characteristic is “specific to,” or even part of a stereotype about, a class of which the prospective juror is a member.

For example, assume a hypothetical protected class whose members are stereotyped as belligerent drunkards. Striking a prospective juror for being a member of that class would be discriminatory; but striking a prospective juror for being a belligerent drunkard would not — whether or not the prospective juror is a member of that class.

In the case before us today, the trial court was authorized to find, as the prosecution argued, that gold teeth — like nose rings, eyebrow rings, and bright blue hair — are a statement of iconoclasm. Conversely, I agree that she would have been authorized to find, as the defense argued, that gold teeth are “commonly associated” with “the black community” See Rector v. State, 213 Ga. App. 450, 454 (2) (444 SE2d 862) (1994) (finding no abuse of discretion in trial court’s refusal to accept prosecutor’s explanation that striking a juror with a gold tooth, “in and of itself,” was a racially neutral reason). And I assume, as the majority holds, that she was required to find that they are “specific to” that community.

So the trial court was authorized to find — and did find — that, in striking a prospective juror because of his gold teeth, the prosecutor was trying to avoid seating iconoclasts, a race-neutral reason unexceptionable under Batson . She would also have been authorized to find that the prosecutor had a discriminatory motive prohibited by Batson . And she would have been authorized to find both motivations mixed together, which, as the majority explains, would also have been a violation of Batson, as it has been construed in Georgia.

Each of those findings would have been sustainable. We remanded so that the trial court could make that determination. She has done so. She accepted the prosecution’s race-neutral explanation, rejected the defense’s claim of a discriminatory intent, and so upheld the strike. And contrary to the majority, she made clear her understanding that in Georgia a mixed motive is a discriminatory motive.

I would affirm.

SELF, Judge,

dissenting.

I join fully with Judge Ray’s dissent and his view that our previous decision in Rector v. State, 213 Ga. App. 450 (444 SE2d 862) (1994) can be distinguished based upon the procedural posture of the case on appeal and its facts. I write separately to point out that our decision in Rector has been disapproved by the Supreme Court of Georgia in Toomer v. State, 292 Ga. 49 (734 SE2d 333) (2012) and was decided before a seminal United States Supreme Court decision clarifying step two of the Batson v. Kentucky analysis. Purkett v. Elem, 514 U. S. 765 (115 SCt 1769, 131 LE2d 834) (1995). Because Rector has such limited precedential value, I cannot agree with the majority’s decision to so heavily rely upon it in reversing the trial court.

At the time Rector was decided in 1994, the Supreme Court of Georgia required the proponent of a strike to state a “racially neutral, case-related, explanation of the exercise of the challenged strikes” in step two of the Batson analysis. (Emphasis supplied.) Congdon v. State, 262 Ga. 683, 684 (424 SE2d 630) (1993). Following the United States Supreme Court’s decision in Purkett, however, the Supreme Court of Georgia disapproved statements “in some of our older cases suggesting that at Batson step two, the proponent of the challenged strike can carry his burden of production only by offering an explanation that is ‘case-related’ and ‘specific’ in addition to being race-neutral.” Toomer, supra, 292 Ga. at 54 (2) (b). Instead, our Supreme Court clarified:

At step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.

(Citations and punctuation omitted; emphasis supplied.) Id.

Keeping in mind the state of the law at the time Rector was decided, an examination of our holding in that case reveals that it turned upon the prosecutor’s failure “to explain how the prospective juror’s gold tooth related in any way to the outcome of the case sub judice and the trial court ruled that she would not accept that explanation in and of itself.” (Punctuation omitted; emphasis supplied.) Rector, 213 Ga. App. at 454 (2). We found “no abuse of discretion in this ruling.” Id. Based upon the State’s failure to make any case-related showing in connection with its gold-tooth explanation for the strike, the trial court’s decision not to accept it “in and of itself” was consistent with then-existing law. Given the State’s failure to proffer a case-related reason for its strike, our conclusion that the trial court had not abused its discretion in so holding was also consistent with the law in effect at that time.

We nonetheless reversed the trial court in Rector, because it “erred in ruling that other purportedly race neutral explanations cured the element of the stereotypical reasoning employed by the State’s attorney in exercising a peremptory strike.” Rector, supra, 213 Ga. App. at 454 (2). Our shorthand reference of “stereotypical reasoning” to our previous analysis of step two should not, however, be interpreted asa holding that a gold tooth equates with a stereotypical belief as a matter of law. See George v. State, 263 Ga. App. 541, 545 (2) (b) n. 13 (588 SE2d 312) (2003) (summarizing our holding in Rector as “improper stereotyping where state failed to explain how prospective juror’s gold tooth related to case”), disapproved on other grounds, Littlejohn v. State, 320 Ga. App. 197, 202 (1) (c) n. 3 (739 SE2d 682) (2013) (noting that George is overruled to the extent it was based upon standard disapproved in Toomer, supra). Clearly, our decision in Rector rested upon the State’s failure to provide a case-related explanation for its peremptory strike. But the Supreme Court of Georgia has now expressly disapproved of that portion of the decision. Toomer, supra, 292 Ga. at 54 (2) (b) (holding “explanation need not even be ‘case-related’ ” and stating “[a]ny statements to the contrary in [four identified cases] and any other Georgia case are hereby disapproved”) (footnote omitted; emphasis supplied).

After the Supreme Court’s decision in Purkett, supra, “facial neutrality became paramount.” (Emphasis supplied.) Page, “Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge,” 85 Boston Univ. L. Rev. 155,167 (I) (C) (2) (2005). But nowhere in Rector did we consider, much less definitively decide, whether striking an African-American juror based upon gold teeth is facially race-neutral. Instead, we straightforwardly applied the law in effect at the time of our decision. With regard to step two, we summarized the State’s obligation as follows: “ ‘In order for the State to carry its Batson burden, the prosecutor (must) explain his striking of the jurors at issue by articulating a racially-neutral reason related to the particular case.’ [Cit.]” (Citation omitted; emphasis supplied.) 213 Ga. App. at 451 (2). This standard intertwined case-relatedness with racially-neutral reasons for a strike and made no mention of facial neutrality Based upon the law at the time Rector was decided and the particular language used in our decision to explain both the legal standard and our holding, we simply cannot disentangle any statements about “stereotypical reasoning” in that case from portions of the analysis resting upon prior law. And this loose and inartful language should certainly not be equated with a ruling on whether a gold tooth constitutes a facially race-neutral explanation for a peremptory jury strike.

Notwithstanding Rector’s limited precedential value, the majority relies upon this disapproved case to stake out its position and hold for the first time that any party who strikes an African-American juror because he or she has gold teeth can never provide a race-neutral explanation and will always fail the second step of the Batson analysis. According to the majority, the State’s explanation was not facially race-neutral because “having a full mouth of gold teeth is a cultural proxy stereotypically associated with African-Americans” as a matter of law. Maj. op., p. 198. I respectfully disagree.

The standard for step two of the Batson analysis is not whether an explanation “is a cultural proxy stereotypically associated with [a race].” Instead, “the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory in ten t is inheren t in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (Citation and punctuation omitted; emphasis supplied.) Toomer, supra, 292 Ga. at 54 (2) (b). In Purkett, the United States Supreme Court examined this question and concluded that the growing of long, unkempt hair “is not a characteristic that is peculiar to any race.” (Punctuation omitted.) 514 U. S. at 769. And in Hernandez v. New York, it explained that a “neutral explanation . . . means an explanation based on something other than the race of the juror.” 500 U. S. 352, 360 (II) (B) (111 SCt 1859, 114 LE2d 395) (1991) (plurality opinion). See also Willis v. State, 287 Ga. 703, 708 (6) (699 SE2d 1) (2010) (finding “State’s tendered reasons were ‘based on something other than the race of the juror’ and, thus, were facially race-neutral,” citing Hernandez, supra). After Purkett, our courts began analyzing the explanation offered at step two of the Batson analysis to determine whether a proffered reason was “based on a stereotypical belief or a characteristic peculiar to any race.” Barnes v. State, 269 Ga. 345, 350 (6) (496 SE2d 674) (1998). See also Wheeler v. State, 249 Ga.App. 116, 117 (1) (547 SE2d 746) (2001) (explanationfor strike is “notrace-neutral if it is based on a characteristic peculiar to any race or on a stereotypical belief”). As we explained in Knuckles v. State:

[Ujnusual way[s] to wear jewelry, as well as other unconventional methods of self-adornment in attire, hair style, hair color, shaving the head, jewelry, tattoos, or scarification, may indicate youthful rebellion against authority and convention, or anti-social attitudes, or identification that would extend across gender and racial lines. Such may constitute a race/gender-neutral reason to strike. However, if such matters were shown to be unique to a racial or gender identification, then it could constitute an impermissible explanation. However, such exclusive identification with race or gender would be part of the movant’s ultimate burden of persuasion.

(Emphasis in original.) 236 Ga. App. 449, 452-453 (1) (b) (512 SE2d 333) (1999).

In Wooten v. Castro, the Ninth Circuit Court of Appeals addressed a similar issue and resolved it as follows:

The prosecutor’s second explanation was [the juror]’s appearance. The California Court of Appeal[s] adopted the trial court’s finding that this reason was race-neutral. Nonetheless, as noted by the district court, certain parts of the description of [the juror]’s appearance could arguably be seen as “proxies” for describing young African-American males. The description of [the juror]’s appearance, however, is not “peculiar” to his race. Purkett v. Elem, 514 U. S. 765, 769 (115 SCt 1769, 131 LE2d 834) (1995) (per curiam) (finding race-neutral an explanation that African-American juror was struck because he had long, curly, unkempt hair, a mustache, and beard) .... Thus, while the appearance-related criteria used by the prosecutor to strike [the juror] may disproportionately apply to young, African-American males, it is race-neutral because it is not unique to this group. See Purkett, 514 U. S. at 769.

(Citation omitted.) 130 Fed. Appx. 106, 107-108 (9th Cir. 2005), cert. denied, 546 U. S. 868 (2005). Other jurisdictions have also concluded that the exercise of peremptory strikes based upon grooming and appearance choices that might be associated with one race more than another do not violate Batson. Lacey v. Kramer, Case No. 2:07-cv-02640-VAP (HC), 2010 U. S. Dist. LEXIS 46603 at **4-7 (I) (A) (2), 15-19 (III) (B) (E.D. Cal. 2010) (dreadlocks); Fields v. State, Case No. 05-02-01665-CR, 2004 Tex. App. LEXIS 340 at *6-7 (Tex. Ct. App. 2004) (gold necklace and gold teeth). See also Brown v. Grounds, Case No. 12-cv-01714-WHO (PR), 2014 U. S. Dist. LEXIS 114795 at *26 (V) (N.D. Cal. 2014) (rejecting habeas claim after state appellate court found that membership in NAACP “not inherently connected to the race of the prospective juror”) (punctuation omitted); Richards v. Relentless, Inc., 341 F3d 35, 45 (II) (C) (1st Cir. 2003) (rejecting argument that city of residence was proxy for striking juror based on race and holding “[tjhis statistical fact alone cannot convert a facially race-neutral explanation into one based on race”). In light of these authorities, I would conclude that a juror’s gold teeth are not a characteristic peculiar to any race for purposes of step two of the Batson analysis.

With regard to the “stereotypical belief” portion of the step two analysis, courts should examine whether the proffered explanation is based upon a stated stereotypical belief about a certain race or gender. “Belief” is defined as “something that is accepted, considered to be true, or held as an opinion.” Merriam-Webster’s Online Dictionary, https://www.merriam-webster.com/dictionary/belief (website last viewed March 28, 2017). In this case, the State’s explanation for the strike cited a race-neutral observable fact and did not express a belief or assumption about members of the juror’s race or even a subgroup of that race. See generally State v. Weaver, 912 SW2d 499, 509 (I) (Mo. 1995) (no Batson violation where prosecutor’s decision to strike was not based upon assumptions about members of the juror’s minority group). Compare State v. Jensen, 76 P3d 188, 193 (II) (Utah App. 2003) (explanation for strike not gender-neutral where prosecutor assumed that men involved in a protective order “would be on the defendant’s side, since more likely than not men are the respondents to protective orders, rather than women”) (punctuation omitted); State v. Lucas, 18 P3d 160, 162-163 (Ariz.App. 2001) (holding explanation that southern men take a negative view of pregnant women who work “wrongfully excludes a subgroup of one gender from participation in the judicial process and reinforces prejudicial views of the relative abilities of men and women”) (citation and punctuation omitted). I therefore disagree with the majority’s conclusion that the explanation in this case was not facially race-neutral because “having a full mouth of gold teeth is a cultural proxy stereotypically associated with African-Americans.” Maj. op., p. 198. The flaw in the majority’s logic is that it equates a facially race-neutral explanation that has a disparate impact upon one race with a stereotypical belief. As outlined above, this is not the proper standard for step two of the Batson analysis.

This disparate impact, however, is relevant to step three of the Batson analysis. As we have already explained in Knuckles, supra, if a facially race or gender-neutral explanation has a disparate impact upon a race or gender “it could constitute an impermissible explanation.” 236 Ga. App. at 453 (1) (b). Convincing the court that the explanation is actually a proxy for race or gender “would be part of the movant’s ultimate burden of persuasion” in step three of the Batson analysis. Id. In step three, the trial court must

decide whether the opponent of the strike has proven the proponent’s discriminatory intent in light of all of the circumstances that bear upon the issue of racial animosity. This involves an evaluation of the credibility of the strike’s proponent, which in turn may depend on the specificity and case-relatedness of the explanation for the strike given at step two. The trial court may conclude that a vague explanation, or one that is in no way case-related, signals an unwillingness by the proponent to provide the real reason for the strike. And the proffer of a pretextual explanation naturally gives rise to an inference of discriminatory intent. At the third stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.

(Citations and punctuation omitted.) Toomer, supra, 292 Ga. at 55 (2) (b).

In this case, the trial court found “that the Defendants did not prove discriminatory intent in the State’s striking of [the juror]. The State provided clear race neutral explanations for the strike.” And in the hearing following this Court’s remand, the trial court acknowledged that it understood that the defense was arguing that the State’s explanation for the strike was pretextual. “Atrial court’s findings on whether the opponent of the strike has met his burden of persuasion is entitled to great deference and will be affirmed unless clearly erroneous.” Barnes, supra, 269 Ga. at 349 (6).

A trial court’s determination of a Batson challenge rests largely on assessing the attorney’s credibility and state of mind and therefore lies peculiarly within the province of the trial judge. Accordingly, where, as here, [race]-neutral reasons are given, the ultimate inquiry for the trial court is not whether counsel’s reasons are suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not [race]-based.

(Punctuation and emphasis omitted.) Henderson v. State, 320 Ga. App. 553, 560 (5) (740 SE2d 280) (2013). In my view, the evidence before the trial court authorized it to conclude that the defendant failed to prove the prosecutor’s discriminatory intent.

While I reach this conclusion based upon existing United States Supreme Court and Supreme Court of Georgia precedent, like Judge Ray, I am “uneasy with the decision of the State to strike the prospective juror based, in part, on the fact that he had gold teeth.” Dissent, p. 201. And also like Judge Ray, I may have made a different, finding in step three of the analysis with regard to discriminatory intent. But unlike the trial judge in this case, I did not witness the prosecutor’s demeanor as he explained his basis for the strike. “As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based upon demeanor and credibility lies peculiarly within a trial judge’s province.” (Citation and punctuation omitted.) Taylor v. State, 279 Ga. 706, 708 (3) (620 SE2d 363) (2005). “To overturn the trial court’s determination in this case would constitute de novo appellate review of a ruling made at stage three,” contrary to the “precedents obliging this Court to accord great deference to the trial court’s findings and to affirm them unless they are clearly erroneous (Citation and punctuation omitted.) Allen v. State, 280 Ga. 678, 682 (2) (b) (631 SE2d 699) (2006). See also Goldberg, supra, 280 Ga. App. at 602 (de novo review oí Batson step two; abuse of discretion review of steps one and three). Given this clear and longstanding precedent, I cannot find that the trial court’s ruling was clearly erroneous. Consequently, I must vote to affirm the trial court.

Decided February 17, 2017

Reconsideration denied March 31, 2017.

Raina J. Nadler, for appellant (case no. A16A2147).

The Merchant Law Firm, Ashleigh B. Merchant, for appellant (case no. A16A2148).

D. Victor Reynolds, District Attorney, Amelia G. Pray, Jason D. Marbutt, Assistant District Attorneys, for appellee.

       328 Ga. App. 128 (761 SE2d 538) (2014).

       476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986).

       This Court held that two other Batson challenges made by Clayton were without merit. See Minor, 328 Ga.App. at 140 (6). The Court also held that the evidence sufficed to support the convictions, the defendants did not receive ineffective assistance of trial counsel, the trial court did not improperly invade the province of the jury, and the trial court did not improperly charge the jury on the burden of proof. See id. at 129-145 (1)-(8).

       The Batson motion was first announced by Clayton’s trial counsel, but Minor’s counsel participated in the argument, and both joined the motion. For purposes of this appeal, we treat their Batson arguments jointly.

        Arrington v. State, 286 Ga. 335, 339 (9) (687 SE2d 438) (2009).

       (Emphasis supplied.)

        Minor, 328 Ga. App. at 138 (4). Another reading of the trial court’s ultimate analysis in Minor I is that the court used a “dual motivation” or “mixed motive” approach and found no Batson violation because the prosecutor would have properly struck the juror even without the stated discriminatory reason. Compare United States v. Tokars, 95 F3d 1520, 1533 (IV) (11th Cir. 1996) (noting adoption by 11th Circuit of the dual motivation analysis); Guzman v. State, 85 SW3d 242, 247 (II) (B) (Tex. Crim. App. 2002) (outlining dual or mixed motivation analysis). As explained below, that approach is not followed under current Georgia law.

       (Punctuation omitted.) Minor, 328 Ga. App. at 139 (4).

       (Punctuation omitted.) Toomer v. State, 292 Ga. 49, 52 (2) (a) (734 SE2d 333) (2012).

       (Punctuation omitted.) Goldberg v. State, 280 Ga. App. 600, 602 (1) (634 SE2d 419) (2006).

       (Punctuation omitted; emphasis supplied.) Toomer, 292 Ga. at 54 (2) (b), quoting Purkett v. Elem, 514 U. S. 765, 768 (115 SCt 1769, 131 LE2d 834) (1995).

        Jackson v. State, 288 Ga. App. 339, 344 (1) (b) (ii) (654 SE2d 137) (2007), citing Dukes v. State, 273 Ga. 890, 891-892 (2) (548 SE2d 328) (2001); Williams v. State, 271 Ga. 323, 325 (2), n. 3 (519 SE2d 232) (1999). See also Alexander v. State, 273 Ga. 311, 312 (2) (540 SE2d 196) (2001) (holding that the criminal arrest history even of a juror’s family members “is a sufficiently race-neutral reason to satisfy the dictates of Batson’).

       (Punctuation omitted.) Floyd v. State, 272 Ga. 65, 68 (3) (525 SE2d 683) (2000).

        Dukes, 273 Ga. at 891 (2). See also Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993) (“The exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party.”) (punctuation omitted).

       As noted above, the State argued in part that Olympic swimmer Ryan Lochte’s notorious display of a “grill” during the 2016 Summer Olympics shows that white people also have gold teeth because Lochte is white. But the fact that afashion idiom has developed in popular culture does not negate its stereotypical nature, even when applied with an ostensibly positive or celebratory intent. The State also argues that the gold teeth were comparable to unusual adornment, such as an eyebrow ring, citing Chandler v. State, 281 Ga. 712, 716-717 (3) (642 SE2d 646) (2007), 6which deemed having such “body art” to be race neutral. But the Chandler opinion notes that an eyebrow ring does not implicate a racial stereotype, citing by comparison Rector v. State, 213 Ga. App. 450, 454 (2) (444 SE2d 862) (1994), which, as more fully explained below, adopted atrial court’s findingthat having a gold tooth was not an acceptable race-neutral rationale for striking a juror. See Chandler, 281 Ga. at 717 (3), citing Rector, 213 Ga. App. at 454 (2).

        See Rector, 213 Ga.App. at 454(2) (no abuse of discretion in ruling that having gold teeth is a racial stereotype under Batson). See also January v. Outokumpu Stainless USA, No. 15-00040 (S.D. Ala. Jul. 28, 2016) (memorandum opinion in an employment discrimination case recounting a fellow employee’s bigoted comment “that only black people wear gold teeth and if a white employee spent too much time around the [African-American] Plaintiff, he would begin wearing gold teeth also”); Medina v. Secretary, Dept. of Corrections, No. 11-20907 (S.D. Fla. Nov. 24, 2015) (prosecutor criticized the defendant’s allegedly fabricated defense as a “racist stereotype” implicating “some young black guy [with] gold teeth”); Sears v. Home Depot, USA, 943 S2d 1219, 1231-1232 (La. Ct.App. 2006) (noting in an employment discrimination case that a fellow employee’s comment that “he would have to buy sunglasses because [an] African-American [co-worker] had so many gold teeth” was part of a series of racially “insensitive [remarks] reflecting profound ignorance on the part of the speaker”); Yancey v. Sheriff of Jefferson County, No. 2002-CA-000229 (Ky. Ct.App. Feb. 20, 2004) (unpublished) (noting in an employment discrimination case brought by an African-American plaintiff that a comment that “everybody down there had gold teeth in their mouth” was “mildly offensive”) (punctuation omitted). See also Urban Dictionary, http://www.urbandictionary.com/define.php?term= gold+teeth (retrieved Jan. 4, 2017) (noting the origin of obtaining gold teeth as a sign of freedom and wealth among emancipated slaves as well as general contemporary adaptation in hip hop culture). Compare Fields v. State, No. 05-02-01665-CR (Tex. Crim. App. Jan. 14, 2004) (unpublished) (employing mixed motive analysis and finding no Batson violation based on a stated gold-teeth rationale because “there was no statistical information presented to show whether African)-] Americans have more gold teeth . . . [and] the prosecutor stated that [if the juror] had been white, he would have struck him” for the same reason) (punctuation omitted); Hayes v. State, 2003 Tex.App. LEXIS 3827 (Tex. Ct.App. May 1, 2003) (unpublished) (employing mixed motive analysis and listing gold teeth along with other race-neutral reasons such as “body language”). Although a number of the above cases are unpublished, we do not rely on their precedential value in articulating a legal rule. Instead, these cases demonstrate the use of gold teeth as a racial stereotype in American culture.

       The fact that a racial stereotype is intended to describe only a subgroup of a particular race does not make it permissible under Batson. See, e.g., Payton v. Kearse, 329 S.C. 51, 56 (I) (495 SE2d 205) (1998) (granting a new trial based on a party’s strike of a “redneck,” noting that the term “stereotypes a subgroup of the white race”).

       The existence of this stereotype was explicitly identified by defense counsel at the original hearing and on remand, and it was implicitly noted by the trial court during the Batson challenge when she immediately interrupted defense counsel as he began to address the State’s gold-teeth rationale and said, “I’m not impressed by the [State’s] gold[-]teeth argument. I’m not impressed by his gold[-]teeth argument .... I’m not going to accept the gold[-]teeth" rationale from the State. (Emphasis supplied.)

       See Toomer, 292 Ga. 49, 54 (2) (b) (“The explanation for the strike ... needs to be facially race-neutral.”). We note that nothing in the record demonstrates any actual racial animosity on the part of the prosecutor in justifying his strike. But this does not relieve the State of its burden to articulate a race-neutral basis for the strike. See generally Toomer, 292 Ga. at 55 (2) (b) (stating that the overarching goal of Batson is ensuring that considerations of “race and gender (have) no place in the administration of justice”).

       (Emphasis omitted.) Purkett, 514 U. S. at 768.

       213 Ga. App. 450 (444 SE2d 862) (1994). We respectfully disagree with Judge Self’s characterization that Rector was disapproved by the Supreme Court of Georgia in Toomer. While Toomer does disapprove of any requirement for case-relatedness in step two of Batson, Rector was focused on the existence of race neutrality, not case-relatedness. As this Court explained in Rector, “[i]n the case sub judice, the trial court was concerned ‘about the gold tooth and the gold in the mouth explanation given by the State and she questioned whether that is a racially neutral reason or whether that’s a stereotype.’ ” (Punctuation omitted; emphasis supplied.) Rector, 213 Ga.App. at 454 (2). Thus, this Court did not reverse in Rector because the State failed to meet a case-relatedness requirement; the Court reversed because the State failed to meet the race-neutral requirement. Put another way, no longer requiring parties to articulate reasons related to the case does not relieve them of their obligation to justify their strikes with race-neutral reasons. That Rector couched its conclusion in terms of case-relatedness merely reflects the terminology applicable at the time, as well as the enduring fact that “race and gender (have) no place in the administration of justice.” Toomer, 292 Ga. at 55 (2) (b). But it remains good law that articulating a race-based reason (also unrelated to the case) is insufficient to meet a party’s burden at step two under Batson . See Toomer, 292 Ga. at 54 (2) (b) (“The [step two] explanation for the strike only needs to be facially race-neutral.”) Nothing in Toomer changed this.

       Id. at 452 (2).

       See id.

       (Punctuation omitted.) Id. at 454 (2).

       Id. This Court reversed in Rector despite the State’s argument that “having a gold tooth in the front of your mouth is almost a kind of a — I don’t know. It’s kind of cool or something like that. It’s almost a thumb your nose at society kind of thing to me.” Id. at 453 (2).

       (Punctuation omitted.) Id. at 454-455 (2). As noted in n. 6, at the initial Batson hearing, the trial court appears to have engaged in an approach adopted in other jurisdictions known as the “dual motivation” or “mixed motivation” analysis. See, e.g., Tokars, 95 F3d at 1533 (IV) (discussing the dual motivation analysis); Guzman, 85 SW3d at 247 (II) (B) (outlining dual or mixed motivation analysis). Under that approach, a strike proponent who articulates a facially discriminatory reason still has an opportunity to prove “by a preponderance of the evidence that the strike would have been exercised even in the absence of the discriminatory motivation.” Tokars, 95 F3d at 1533 (IV) (addressing a facially discriminatory reason but affirming a finding of neutrality because of other concurrent, non-pretextual neutral reasons for the strike). This approach is not consistent with Georgia’s current case law.

       263 Ga. 664 (437 SE2d 463) (1993).

       Id. at 667 (1) (c), 667-668 (1) (c), n. 4 (discussing cases collected in Strozier v. Clark, 206 Ga.App. 85, 88 (5) (424 SE2d 368) (1992)). See, e.g., State v. Tomlin, 299 S.C. 294, 299 (384 SE2d 707) (1989) (reversing and holding that the juror’s demeanor was a permissible basis for a strike under Batson but the prosecutor’s characterization that the African-American juror “shucked and jived” as he walked to the microphone was a racial stereotype that “clearly violates the mandates of Batson’) (punctuation omitted). Compare Knuckles v. State, 236 Ga. App. 449, 451-453 (1) (a), (b) (512 SE2d 333) (1999) (affirming a conviction and finding that no Batson violation occurred despite the trial court’s inferential finding of a pattern of discrimination because a race-neutral reason (nose ring) was given, and there was no facially race-based reason given). In Strozier, the second reason given was facially race-based, so this pervaded the exercise of the strike no matter what other neutral reasons were given. See Strozier, 263 Ga. at 87 (5).

       See Rector, 213 Ga. App. at 455 (2).

       Apparently, the prosecutor and defense counsel cannot agree as to which charge this juror faced before his plea negotiations, and there is no transcript of voir dire to aid us in our review. Thus, I have relied on the trial court’s conclusion as to this point as found in its order dated March 10, 2015.

       The majority cites to this Court’s ruling in Rector v. State, 213 Ga. App. 450 (444 SE2d 862) (1994), to support its holding. However, I point out that the trial court in Rector did not accept the prosecutor’s rationale for why he had struck the juror. We held that there was no abuse of discretion in the trial court’s ruling that the prosecutor’s logic was not race neutral. Of course, in this case, the trial court found that the prosecutor’s reasons for striking the juror were race neutral.

       I note that at no time did the defendants introduce any evidence with regard to the history of gold teeth in the African-American community, discrimination against individuals who have gold teeth, or anything else. The defendants relied solely on their attorneys’ arguments.

       4 76 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986).

       While the abuse of discretion standard of review was correct based upon the State’s failure to offer the case-related reason for the strike, I note that this standard of review is no longer viable for step two of the Batson analysis. As we explained in a case decided after Purkett, “if a trial court ceases its inquiry after step two, the proffering of allegedly race-neutral reasons, its conclusions are entitled to no deference .... [O]ur revie w of rulings at stage two is analogous to our rulings on motions for summary judgment or to our former rulings on demurrers in common law.” (Citation and punctuation omitted.) Goldberg v. State, 280 Ga. App. 600, 602 (1) (634 SE2d 419) (2006).

       Our conclusion in Rector that other race-neutral explanations for a peremptory strike do not cure an improper explanation at step two of the Batson analysis remains valid. 213 Ga. App. at 454 (2).

       In considering this question under Batson, the Supreme Court of Georgia has rejected an argument that Georgia should apply “the Georgia Constitution’s equal protection guarantee differently than the equal protection clause in the Fourteenth Amendment to the United States Constitution. . . .” Toomer, supra, 292 Ga. at 54 (2) (b) n. 3. See Batson, supra, 476 U. S. at 86 (II) (A) (“The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race.”).

       The reasoning of the South Carolina Supreme Court’s decision in Payton v. Kearse, 495 SE2d 205 (S.C. 1998), does not conflict with this conclusion. In Payton, the court concluded that “[t]he term ‘redneck’ is a racially derogatory term applied exclusively to members of the white race),]” relying upon a dictionary definition of the word that indicated it was “often a somewhat derogatory term.” Id. at 208 (I), n. 1. Thus, the term “redneck” was not facially race neutral. In this case, however, the prosecutor did not use a derogatory term or state anything linking gold teeth to members of only a certain race in his explanation for the strike of the juror.

       As the majority acknowledges, the employment discrimination cases cited by it in footnote 16 are inapposite to the issue before us because they do not address the facially race-neutral second step of Batson. While facts excerpted from these opinions by the majority may demonstrate that gold teeth can be associated with African-Americans, that fact is relevant to step three of the Batson analysis, not step two.

       Even the majority acknowledges “that nothing in the record demonstrates any actual racial animosity on the part of the prosecutor in justifying his strike.” Maj. op., p. 199, n. 19.

       I acknowledge that valid and reasonable criticisms of the efficacy of the Batson analysis abound. See, e.g., Page, supra (“the Batson peremptory challenge framework is woefully ill-suited to address the problem of race and gender discrimination in jury selection”). But despite these shortcomings, the Batson framework remains the law of the land, and this Court must faithfully follow the guidance of the United States Supreme Court and the Supreme Court of Georgia with regard to its application and resist the urge to reformulate the standard despite the best of intentions. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”).


author: MILLER, Presiding Judge.

text:
    A17A0565.
    HOECHSTETTER et al. v. PICKENS COUNTY.
    (799 SE2d 352)
   MILLER, Presiding Judge.

This appeal presents us with a narrow issue of law: specifically, what notice is required prior to a hearing that ultimately results in a zoning decision — in this case the grant of a conditional use permit. Under OCGA § 36-66-4 (a), notice must be given at least 15 days but not more than 45 days before the hearing. In this interlocutory appeal, we must determine whether OCGA § 36-66-4 (a) requires publication of notice of a hearing at every stage of the permitting process. The trial court concluded that the notice given prior to the planning commission’s meeting was sufficient and that additional notice was not required before the Board of Commissioners (“the Board”) voted on the permit application three months later. As a result, the trial court denied the appellants’ motion for summary judgment seeking to invalidate the conditional use permit. For the reasons that follow, we affirm.

“We review the grant or denial of a motion for summary judgment de novo, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the non-movant.” Camden County v. Lewis, 298 Ga. App. 594, 595 (680 SE2d 621) (2009). We review questions of law, such as the interpretation of a statute, de novo. Joe Ray Bonding Co. v. State of Ga., 284 Ga. App. 687, 688 (644 SE2d 501) (2007).

The facts in this case are undisputed. Doug and Lynda Tatum own about 75 acres of property in Pickens County. In August 2015, they submitted a zoning request, seeking approval of a conditional use permit that would allow them to use their property for special events. Around October 15, 2015, the Pickens County Planning Commission held a public hearing on the permit application. The parties agree that the notice of the hearing before the planning commission complied with OCGA § 36-66-4 (a). Following the hearing, the planning commission recommended that the Board grant the permit with conditions.

On January 7, 2016, the Board held a work session, during which it considered the Tatums’ request without taking a vote. The Board then considered and granted the permit application at its J anuary 21, 2016 meeting. The only notice given prior to the Board’s January 21 meeting was a publication in the county’s legal paper that appeared the same day as the meeting.

The plaintiffs, all neighbors of the Tatums’ property, appealed the Board’s decision to the Pickens County Superior Court, arguing that the permit was invalid because the Board failed to provide sufficient notice of the January 21 meeting under OCGA § 36-66-4 (a). The trial court found that the notice provided was sufficient because the planning commission hearing and Board meeting constituted a “continuous course of a zoning matter,” which required only a single hearing to meet the minimum due process requirements. The trial court granted a certificate of immediate review, and this Court granted interlocutory review. The plaintiffs now appeal.

The sole issue on appeal is whether the notice of the October 15, 2015 planning commission hearing was sufficient under OCGA § 36-66-4 (a) to allow the Board to approve the permit at its January 21, 2016 meeting without an additional notice within the statutorily prescribed time period.

The Zoning Procedures Law (the “ZPL”), specifically OCGA § 36-66-4 (a), provides:

A local government taking action resulting in a zoning decision shall provide for a hearing on the proposed action. At least 15 but not more than 45 days prior to the date of the hearing, the local government shall cause to be published... a notice of the hearing. The notice shall state the time, place, and purpose of the hearing.

A “zoning decision” means a “final legislative action by a local government which results in . . . [t]he grant of a permit relating to a special use of property.” OCGA § 36-66-3 (4) (E). “Local government” includes any county, and counties are authorized to set their own policies and procedures for conducting hearings under the ZPL. OCGA §§ 36-66-3 (1); 36-66-5 (a). A failure to adhere to the notice requirements of OCGA § 36-66-4 (a) renders the zoning decision invalid. McClure v. Davidson, 258 Ga. 706, 709-710 (3) (373 SE2d 617) (1988); C & H Dev. v. Franklin County, 294 Ga. App. 792, 794 (1) (670 SE2d 491) (2008).

In analyzing notice and hearing requirements under the ZPL, the Supreme Court of Georgia has interpreted the phrase “taking action resulting in a zoning decision” as set forth in OCGA § 36-66-4 (a) to mean the “entire process of changing or adopting a zoning ordinance.” City of Cumming v. Realty Dev. Corp., 268 Ga. 461, 463 (3) (491 SE2d 60) (1997). Under this interpretation, a hearing is required at only one point during the process but not at every stage. Id. See also City of Roswell v. Outdoor Systems, 274 Ga. 130, 131 (2) (549 SE2d 90) (2001) (reiterating that notice requirements do not apply to every step of the zoning process and only one hearing during the continuous course of zoning matter is required). The Supreme Court of Georgia has also found notice sufficient where there was notice of the county commission’s meeting in which the permits were initially considered, even though the commission did not take any final action until a month later. See Powers Ferry Civic Assn. v. Life Ins. Co. of Ga., 250 Ga. 419, 421 (2) (297 SE2d 477) (1982).

In Pickens County, the planning commission has the authority to conduct public hearings on applications for conditional use permits, and there must be adequate notice of this hearing, in accordance with OCGA § 36-66-4 (a). See Pickens County Code of Ordinances § 67-15, Appendix A, §§ 9.0, 14.

Here, the Pickens County Planning Commission published notice of a hearing after the Tatums filed their conditional use application, and the parties stipulated that this notice complied with OCGA § 36-66-4 (a). After the planning commission recommended granting the permit, the Board considered the request at its subsequent work meeting but did not vote on the request until three months later.

This entire process undoubtedly constituted a “continuous course of a zoning matter.” City of Cumming, supra, 268 Ga. at 463 (3). Under the relevant precedent, notice was not required at every stage of the process. City of Roswell, supra, 274 Ga. at 131 (2); City of Cumming, supra, 268 Ga. at 463 (3). Moreover, the fact that the final vote did not take place until three months after the hearing did not render the otherwise sufficient notice invalid. Powers Ferry Civic Assn., supra, 250 Ga. at 421 (2).

Decided April 5, 2017

John J. Capo, for appellants.

Hall Booth Smith, Phillip E. Friduss, for appellees.

Accordingly, we conclude that the trial court correctly found that the notice given before the planning commission hearing was sufficient under OCGA § 36-66-4 (a). As such, the plaintiffs were not entitled to relief, and the trial court properly denied their motion for summary judgment.

Judgment affirmed.

Doyle, C. J., and Reese, J., concur.

       The parties stipulated that the only issue before the trial court at summary judgment was the issue of sufficient notice under OCGA § 36-66-4 (a).