ALEXANDER PROPERTIES GROUP, INC. v. DOE

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Docket Number

S05A1992.

Attorney(S)

Hawkins Parnell, T. Ryan Mock, Jr., Christopher S. Keith, for appellant. Andrew H. Agatston, Robertson, Bodoh Nasrallah, Matthew G. Nasrallah, Hugh W. Rowling, Jr., Thurbert E. Baker, Attorney General, for appellees.

Judges

Robert Benham

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Smart Summary

Factual and Procedural Background

Alexander Properties Group, Inc., which manages an apartment complex, was sued in a premises liability civil action by Jane Doe's mother after Jane Doe was the victim of a gang rape and sexual molestation at age 13 on the property. During the criminal investigation, a videotape made by the assailants depicting the assaults was seized and turned over to the Cobb County District Attorney (DA), who prosecuted the perpetrators successfully. After the civil suit was filed, Alexander Properties sought a copy of the videotape from the DA, who refused to produce it. Upon Alexander Properties serving a request for production of documents under OCGA § 9-11-34(c), the DA moved for a protective order under OCGA § 9-11-26(c), arguing that providing the videotape to Alexander Properties' attorneys would constitute a felony under OCGA § 16-12-100(b)(5) and (b)(8). Alexander Properties challenged the constitutionality of these statutory subsections. The trial court granted the protective order, holding the statutes constitutional and finding the DA would face criminal liability if required to produce the tape. The trial court certified the matter for immediate review, leading to this interlocutory appeal before the Supreme Court of Georgia.

Legal Issues Presented

Whether OCGA § 16-12-100(b)(5) criminalizes the act of producing a videotape depicting a minor engaged in sexually explicit conduct in response to a court order or discovery request in a civil case.
Whether the trial court erred in granting a protective order shielding the Cobb County District Attorney from producing the videotape based on alleged criminal liability.
Whether constitutional challenges to OCGA § 16-12-100(b)(5) and (b)(8) should be addressed by the Court.

Arguments of the Parties

Appellant's Arguments

Alexander Properties contended that OCGA § 16-12-100(b)(5) and (b)(8) violate constitutional guarantees of due process, equal protection, trial by jury, and access to the courts.
They argued that the statute does not criminalize the production of the videotape in response to a discovery request or court order in civil litigation.

Appellees' Arguments

The Cobb County District Attorney asserted that producing the videotape to Alexander Properties' attorneys would constitute a felony under OCGA § 16-12-100(b)(5) and (b)(8), justifying the protective order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bridges v. 20th Century Travel, 149 Ga. App. 837 (1979)	Discretionary standard for granting or denying protective orders in discovery.	Established that trial courts have broad discretion in granting protective orders, reviewed on appeal for abuse of discretion.
Fulton County Bd. of Assessors v. Saks Fifth Avenue, 248 Ga. App. 836 (2001)	Review standard for discretionary rulings on protective orders.	Reinforced that appellate review of protective orders is for abuse of discretion.
Williams v. State, 277 Ga. 598 (2004)	Deference to trial court discretion diminished where law is misapplied or facts clearly erroneous.	Applied to conclude trial court abused discretion by misapplying OCGA § 16-12-100(b)(5) to production of videotape under discovery.
Perkins v. State, 277 Ga. 323 (2003)	Criminal statutes must be strictly construed against the State.	Applied strict construction to OCGA § 16-12-100(b)(5), limiting its scope to express statutory terms.
Fleet Finance, Inc. of Ga. v. Jones, 263 Ga. 228 (1993)	Strict construction of criminal statutes applies even in civil contexts.	Supported applying strict construction to OCGA § 16-12-100(b)(5) in civil discovery context.
Bankwest v. Oxendine, 266 Ga. App. 771 (2004)	Expressio unius est exclusio alterius: express mention of one thing excludes others.	Used to interpret the omission of "produce" from OCGA § 16-12-100(b)(5) as deliberate exclusion.
C. Brown Trucking v. Rushing, 265 Ga. App. 676 (2004)	Reinforcement of expressio unius est exclusio alterius in statutory interpretation.	Supported the court's interpretation that "produce" is excluded from the statute's prohibitions.
CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236 (2002)	Statutory interpretation principles regarding express terms.	Further supported the exclusion of "produce" from the criminal statute's prohibitions.
Tennille v. State, 279 Ga. 884 (2005)	Noted methods in other jurisdictions to ensure access to contraband evidence by defense counsel under similar statutes.	Referenced to highlight the trial court's discretion to fashion protective orders allowing limited access.
Jackson County Bd. of Health v. Fugett Constr., 270 Ga. 667 (1999)	Judicial restraint: avoid constitutional rulings if case can be decided otherwise.	Applied to decline addressing constitutional challenges to the statute.
Grantham v. Grantham, 269 Ga. 413 (1998)	Same principle of judicial restraint on constitutional questions.	Supported the court's decision not to address constitutional issues.
Hill v. Busbia, 217 Ga. 781 (1962)	Judicial restraint on constitutional adjudication.	Reinforced the court's refusal to reach constitutional questions.
Taylor v. Flint, 35 Ga. 124 (1866)	Longstanding rule to avoid constitutional rulings when unnecessary.	Further supported the court's procedural approach.

Court's Reasoning and Analysis

The Court analyzed the statutory language of OCGA § 16-12-100(b)(5), which criminalizes "create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute" certain visual media depicting minors in sexually explicit conduct, but does not include "produce" as an enumerated prohibited act. The Court emphasized the principle of strict construction of criminal statutes against the State, noting that the liberty of citizens cannot be abridged by implication and that criminal statutes are not extended beyond their express terms.

The Court examined the ordinary and statutory meaning of "produce" in judicial contexts, which refers to providing documents or evidence in response to discovery requests or court orders. It found that the General Assembly has repeatedly recognized this distinct meaning of "produce" separate from the criminal acts listed in the statute. Applying the principle expressio unius est exclusio alterius, the Court concluded that the omission of "produce" from the statute's list of criminalized actions was deliberate, and thus producing the videotape pursuant to a discovery request or court order is not criminalized by OCGA § 16-12-100(b)(5).

Because the trial court based its protective order on a misapplication of the statute, the Court held that the trial court abused its discretion in granting the protective order. The Court remanded the case for reconsideration of the protective order in light of its statutory construction, noting the trial court's discretion to fashion a limited protective order if necessary to protect privacy or other interests.

The Court declined to address the constitutional challenges to OCGA § 16-12-100(b)(5) and (b)(8), adhering to the well-established judicial principle of avoiding constitutional questions when the case can be resolved on other grounds.

Holding and Implications

The trial court's grant of a protective order was reversed because the Court held that OCGA § 16-12-100(b)(5) does not criminalize the production of evidence in response to a court order or discovery request in civil litigation.

The case was remanded for further proceedings consistent with the Court's statutory interpretation, allowing the trial court to reconsider the protective order and, if appropriate, craft a limited protective order under OCGA § 9-11-26(c). The Court did not address constitutional issues and set no new precedent beyond its statutory construction and procedural ruling. The direct effect is to permit Alexander Properties access to the videotape under judicial supervision without imposing criminal liability on the DA for producing it.

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ALEXANDER PROPERTIES GROUP, INC. v. DOE et al.

BENHAM, Justice.

We granted the application for interlocutory appeal filed by Alexander Properties Group, Inc., an entity which manages an apartment complex at which appellee Jane Doe was the victim of a gang rape/sexual molestation when she was 13, to review the trial court's grant of a protective order to the Cobb County District Attorney in the premises liability action brought by Doe's mother against Alexander Properties.

During the investigation of the criminal acts, a videotape made by the assailants of a significant portion of the assaults was seized and turned over to the Cobb County District Attorney, who successfully prosecuted the perpetrators. After Jane Doe filed this premises liability civil action, Alexander Properties sought a copy of the videotape from the DA and was refused. When Alexander Properties served the DA with a request for production of documents by a non-party under OCGA § 9-11-34 (c), the DA sought a protective order pursuant to OCGA § 9-11-26 (c), asserting, among other things, that giving to attorneys for Alexander Properties the requested material depicting a minor engaged in sexually-explicit conduct is a felony under OCGA § 16-12-100 (b) (5), and the mere possession of the videotape by attorneys for Alexander Properties is a felony under OCGA § 16-12-100 (b) (8). In response to the DA's motion, Alexander Properties filed a challenge to the constitutionality of OCGA § 16-12-100 (b) (5) and (b) (8), contending the subsections violated the constitutional guarantees of due process, equal protection, trial by jury, and access to the courts. The trial court granted the DA's motion for a protective order after holding that the statutory subsections did not violate constitutional rights and concluding the DA would be subject to criminal liability should he be required to produce the tape. The trial court also issued a certificate of immediate review which Alexander Properties used to apply successfully to this Court for interlocutory review, which application we granted.

OCGA § 16-12-100 (b) (5) makes it unlawful for "any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct." OCGA § 16-12-100 (b) (8) makes it unlawful for "any person knowingly to possess or control any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct." OCGA § 16-12-100 (d) provides that subsection (b) does not apply "to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities."

1. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. . . ." OCGA § 9-11-26 (b) (1). OCGA § 9-11-26 (c) authorizes the trial court in which an action is pending, "[u]pon motion by a party or by the person from whom discovery is sought and for good cause shown, . . . [to] make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . ." The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court ( Bridges v. 20th Century Travel, 149 Ga. App. 837, 839 ( 256 SE2d 102) (1979)), and the exercise of that discretion is reviewed on appeal for abuse. Fulton County Bd. of Assessors v. Saks Fifth Avenue, 248 Ga. App. 836, 842 ( 547 SE2d 620) (2001).

In the case at bar, the trial court ruled a protective order was necessary to protect the DA from being subjected to criminal liability under OCGA § 16-12-100 (b) (5) for producing the videotape in response to the request for discovery from Alexander Properties. Because we conclude that OCGA § 16-12-100 (b) (5) does not make criminal the act of producing the videotape in response to a court order or a request for discovery, we conclude the trial court abused its discretion when it misapplied the law to this case. See Williams V. State, 277 Ga. 598 (1) (e) ( 592 SE2d 848) (2004) (deference owed the trial court's exercise of discretion is diminished when the trial court has misapplied the law to some degree or has clearly erred in its finding of facts).

We do not address arguments based on OCGA § 16-12-100 (b) (8) made to this Court since the trial court did not address that subsection in making its decision.

OCGA § 16-12-100 (b) (5) makes it unlawful for "any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct." As a criminal statute, OCGA § 16-12-100 (b) (5) must be strictly construed against the State since the liberty of a citizen is not abridged by implication and a statute making an act a crime is not extended beyond its express terms. Perkins v. State, 277 Ga. 323, 326 ( 588 SE2d 719) (2003).

The rule requiring strict construction of criminal statutes is equally applicable where, as here, the criminal statute is being construed in the context of a civil action. Fleet Finance, Inc. of Ga. v. Jones, 263 Ga. 228 (3) ( 430 SE2d 352) (1993).

While the statute expressly prohibits one from creating, reproducing, publishing, promoting, selling, distributing, giving, exhibiting, or possessing with the intent to sell or distribute the videotape at issue, one who receives a request for discovery is asked to produce documents or things, an action not listed in OCGA § 16-12-100 (b) (5). "Produce" is used as a verb throughout the Georgia Code to mean "to provide (a document, witness, etc.) in response to subpoena or discovery request" in a judicial or quasi-judicial setting, or "to bring into existence; to create." Black's Law Dictionary, 7th ed. 1999. "[P]roduction of documents or things" is one of the statutory methods by which discovery in civil litigation is obtained. OCGA § 9-11-26 (a) ("Parties may obtain discovery by one or more of the following methods:. . . production of documents or things. . . ."). A party to a suit may serve on other parties and non-parties a request to produce designated documents (OCGA § 9-11-34 (a) (1), (c) (1)) and, under the Georgia Code, a subpoena can command a person "to produce . . . designated . . . tangible things" (OCGA § 9-11-45 (a) (1) (C)); various bodies are authorized "[t]o issue subpoenas to compel any person to . . . produce documentary or other evidence . . ." (OCGA § 21-5-6 (a) (5)), or to "call for the claimant to produce such reports" (OCGA § 28-5-101 (b)); a commissioner is empowered to "issue an order requiring such person . . . to produce documentary evidence" (OCGA § 26-2-81 (b) (2)); and there are statutory consequences for failure "to produce records, documents or other evidence . . . in obedience to the subpoena" (OCGA § 8-3-212 (c) (1)), or in response to a licensing agency. OCGA § 43-40-25 (b) (27).

The latter use of the term, exemplified by OCGA § 8-3-11 (" to produce revenues"); OCGA § 12-8-122 ("any person who produces . . . low-level radiation"); OCGA § 16-13-22 ("to produce psychic or physiological dependence liability"); OCGA § 16-11-31 ("conduct which urges . . . others to riot at a time and place and under circumstances which produce a clear and present danger . . ."); OCGA § 16-12-140 ("with intent to produce a miscarriage or abortion"); OCGA § 27-4-200 ("to produce, manufacture, or possess any forged or false documents") is not at issue in this case.

It is clear the verb "produce" has a distinct meaning in judicial and quasi-judicial proceedings that the General Assembly has repeatedly recognized. Pursuant to the principle of statutory construction, "Expressum facit cessare taciturn" (if some things are expressly mentioned, the inference is stronger that those omitted were intended to be excluded) and its companion, the venerable principle, "Expressio unius est exclusio alterius" ("The express mention of one thing implies the exclusion of another"), the list of actions in OCGA § 16-12-100 (b) (5) is presumed to exclude actions not specifically listed (see George L. Smith II Ga. World Congress Center Auth. v. Soft Comdex, 250 Ga. App. 461 (1) (b) ( 550 SE2d 704) (2001)), and the omission of "produce" from OCGA § 16-12-100 (b) (5) is regarded by the courts as deliberate. Bankwest v. Oxendine, 266 Ga. App. 771, 774 ( 598 SE2d 343) (2004); C. Brown Trucking v. Rushing, 265 Ga. App. 676 (1) ( 595 SE2d 346) (2004); CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236 (2) ( 564 SE2d 836) (2002).

In sum, the action taken by the Cobb County DA in lawfully responding to a request for discovery or a court order involving discovery is not an act covered by OCGA § 16-12-100 (b) (5) and the trial court erred when it determined otherwise. In light of the above, we reverse the trial court's grant of a protective order and remand the case to the trial court for consideration of the motion for protective order in light of our construction of OCGA § 16-12-100 (b) (5). Should the trial court, upon further consideration, believe a protective order is necessary, we note the ability of the trial court to exercise its discretion under OCGA § 9-11-26 (c) to fashion a limited protective order, should the trial court determine limitations are necessary. Cf. Tennille v. State, 279 Ga. 884 (1) ( 622 SE2d 346) (2005) (noting the means crafted by appellate courts in Tennessee, Nevada, Arizona and California to ensure criminal defense counsel faced with a statute similar to OCGA § 16-12-100 (b) (5) meaningful access to the contraband at the heart of the criminal prosecution of their client).

2. In keeping with the long-established rule that this Court will never decide a constitutional question if the case can be decided on other grounds ( Jackson County Bd. of Health v. Fugett Constr., 270 Ga. 667 (1) ( 514 SE2d 28) (1999); Grantham v. Grantham, 269 Ga. 413 (2) ( 499 SE2d 67) (1998); Hill v. Busbia, 217 Ga. 781, 782 ( 125 SE2d 34) (1962); Taylor v. Flint, 35 Ga. 124 (3) (1866)), we do not address appellant's constitutional challenges to OCGA § 16-12-100 (b)(5), (8).

Judgment reversed and case remanded with direction. All the Justices concur.