NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 2, 2023
S23A0022, S23A0023. SESSION v. THE STATE.
PETERSON, Presiding Justice.
In these companion appeals, Derrick Session challenges his
convictions for failure to register as a sex offender in Georgia based
on a conviction he received in Louisiana. He argues that the
evidence was insufficient to support his Georgia convictions. He also
argues that the Georgia registration statute as applied to him
violates his federal rights to travel and equal protection, and he
raises a facial challenge to the registration statute under the
Georgia constitutional prohibition against legislation regarding the
social status of citizens.
After thorough consideration, we reject those arguments. First,
Session has not shown that the evidence was insufficient to support
his convictions, because he has conceded that the only argument as
to sufficiency that he made in his primary appellate brief — that the
convictions violated ex post facto principles — is at odds with
controlling case law. Next, his arguments that the registration
statute violated his federal rights to travel and to equal protection
fail because they are based on the unduly speculative assumption
that if he had committed the underlying sexual offense in Georgia,
he would have been convicted of only a misdemeanor and thus not
subject to registration. And finally, although Session makes an
interesting argument that Georgia’s constitutional prohibition
against legislation regarding citizens’ social status must mean
something different than the repugnantly racist — and patently
unconstitutional — meaning that this Court ascribed to it shortly
after its first adoption in 1868, he has not shown that any different
meaning that provision has today is inconsistent with the
requirements of the Georgia sexual offender registry. We therefore
affirm.
1. Background.
Viewed in the light most favorable to the verdicts, the evidence
2
admitted at trial — much of which came from Louisiana court
documents or stipulated facts — was as follows. In May 1994,
Session was indicted in Louisiana for the aggravated rape of a fouryear-old child. Session was 15 years old at the time of the alleged
offense. On May 18, 1995, Session entered a plea of guilty to an
amended charge of sexual battery. The Louisiana trial court
accepted that plea and, at a hearing on August 15, 1995, sentenced
Session to ten years to serve at hard labor. In 2004, after completing
his sentence, Session received a first-offender pardon pursuant to
Louisiana R.S. 15:572.
At some point, Session moved to Texas. Session later moved to
Paulding County and registered on the Georgia sex offender registry
(“the Registry”) with the Paulding County Sheriff’s Office in April
2017. In March 2019, a detective conducted a residence check at a
Dallas, Georgia, address that Session had provided to the Paulding
County Sheriff’s Office, and was told that Session was not living
there. Session, who was living in Kennesaw at the time, was
arrested for failure to register. He appeared at the Paulding County
3
Sheriff’s Office in March 2020 to update his registration; he
apparently was arrested while completing his paperwork.
On October 28, 2020, a Paulding County grand jury returned
two separate indictments against Session, each charging him with
two counts of failure to register as a sex offender under OCGA § 42-1-12, with one indictment alleging violations in March 2019 and the
other alleging violations in February and/or March 2020. Session
filed an identical general demurrer and plea in bar in each case. In
those filings, Session demurred generally to all counts in the
indictments as failing to charge him with a crime and argued that
his prior first-offender pardon barred the Paulding County
prosecution. 1 He also “demur[red] to the Registry as-applied to his
case” on three federal constitutional grounds. First, he argued that
the Registry violated his fundamental right to travel under the
Privileges and Immunities Clause by treating him worse than a
native Georgian, because the conduct that was the basis for his
1 On appeal, Session does not rely on the first-offender pardon received
from Louisiana in seeking reversal of his Georgia convictions.
4
underlying offense would have constituted a misdemeanor not
subject to registration if committed in Georgia. Second, he argued
that the application of the Registry to him violated the Equal
Protection Clause by distinguishing between in-state and out-ofstate convictions. Third, he argued that his due process rights had
been violated by lack of notice that he would have to register, given
that he was a minor at the time of the offense, was convicted of
something that would be a misdemeanor in Georgia, and was
pardoned by Louisiana. Apart from his as-applied federal
constitutional challenges, Session also raised facial and as-applied
challenges to the Registry under Paragraph XXV of the Georgia Bill
of Rights, which provides, “The social status of a citizen shall never
be the subject of legislation.” Ga. Const. of 1983, Art. I, Sec. I, Par.
XXV.
The case proceeded to a bench trial of both cases in July 2022;
the trial court received both stipulated facts and evidence. In his
closing argument, Session argued that OCGA § 42-1-12 violated the
United States Constitution, as applied to him, and the Georgia
5
Constitution, both facially and as applied. The trial court orally
denied Session’s demurrer and plea in bar in each case and
adjudicated him guilty on all counts (except for one count that the
State nolle prossed). The court imposed an aggregate sentence of 20
years, to serve five in confinement, with the incarceration time to be
suspended, conditioned upon Session paying $6,000 in fines within
six months and fully complying with the registration requirements
of the sex offender statute. Session filed timely notices of appeal.
2. Session has not shown that the evidence is insufficient to
support his convictions.
Because “[w]e do not unnecessarily decide the constitutionality
of statutes,” In the Interest of C.C., 314 Ga.446, 451 (2) (a) (877 SE2d
555) (2022), we consider first Session’s argument that the evidence
was insufficient to support his convictions. We conclude that Session
has not shown that the evidence was insufficient to support his
convictions.
When evaluating the sufficiency of evidence, “the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
6
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d
560) (1979) (emphasis omitted).
Similar to appeals from a jury trial resulting in a criminal
conviction, on appeal from a bench trial, we view all
evidence in the light most favorable to the trial court’s
verdict, and the defendant no longer enjoys the
presumption of innocence. We do not re-weigh testimony,
determine witness credibility, or address assertions of
conflicting evidence.
Jones v. State, 307 Ga. 505, 506 (1) (837 SE2d 288) (2019) (citation
and punctuation omitted). “On appeal, it is the defendant’s burden
to show that the trial evidence was insufficient as a matter of
constitutional due process to support his convictions.” Charles v.
State, 315 Ga. 651, 653 (2) (884 SE2d 363) (2023); see also Davis v.
State, 312 Ga. 870, 873 (1) n.2 (866 SE2d 390) (2021) (affirming a
defendant’s convictions where his “only” sufficiency argument
lacked merit and he “ha[d] not otherwise shown that the evidence
supporting the child cruelty convictions was insufficient as a matter
of constitutional due process”).
[T]he provisions of OCGA § 42-1-12 require that
7
convicted sex offenders falling within its purview provide
a substantial amount of personal information, including
name, social security number, age, detailed physical
description, fingerprints, photograph, date and place of
employment, and vehicle identification, to the sheriff of
the county of his residence. OCGA § 42-1-12 (a) (16); (f)
(2). After initially registering in person, the offender must
renew registration in person once a year, OCGA § 42-1-12
(f) (4), and update the sheriff within 72 hours of any
change to the required information. OCGA § 42-1-12 (f)
(5). These requirements must be complied with until
death, except for periods of subsequent incarceration.
OCGA § 42-1-12 (f) (6). This information is maintained
and made accessible to the public by the Georgia Bureau
of Investigation and the relevant county sheriff, OCGA §
42-1-12 (h), (i), and submitted to “each school in this
state.” OCGA § 42-1-12 (l). And violation of the
requirements of this Code section constitutes a felony
punishable by up to 30 years imprisonment. OCGA § 42-1-12 (n) (1).
State v. Davis, 303 Ga. 684, 690 (2) (814 SE2d 701) (2018).
The State in this case charged Session with failing to register
in violation of OCGA § 42-1-12 (n). The indictments of Session
alleged that he was required to register “pursuant to the provisions
of OCGA 42-1-12 (e) by virtue of having previously been convicted of
the offense of Sexual Battery on August 15, 1995 in the Parish of
Franklin, Louisiana, said offense being a criminal offense against a
victim who is a minor and having been placed on supervised release
8
on August 15, 1995[.]” OCGA § 42-1-12 (e) lists several categories of
persons for whom registration is required. The State provides two
alternative bases on which Session was required to register: the
registration requirement for any individual who “[h]as previously
been convicted of a criminal offense against a victim who is a minor
and may be released from prison or placed on parole, supervised
release, or probation on or after July 1, 1996[,]” OCGA § 42-1-12 (e)
(3), and the registration requirement for any individual who “is a
nonresident who changes residence from another state . . . to Georgia
who is required to register as a sexual offender under the laws of
another state or territory[,]” OCGA § 42-1-12 (e) (6). Whether or not
the evidence supports a conclusion that Session was required to
register pursuant to OCGA § 42-1-12 (e) (3), we conclude that
Session has not shown that the evidence was insufficient to support
a conclusion that he was required to register pursuant to OCGA §
42-1-12 (e) (6).
Louisiana law requires (and required at the time that Session
allegedly failed to register in Georgia, as well as at the time of
9
Session’s underlying offense) registration by any adult residing in
the state who had been convicted of a “sex offense.” La. R.S. 15:542
(A) (1) (a); La. R.S. 15:542 (A) (1992). The statute explicitly defines
“sex offense” as including the crime of sexual battery, and it did so
at the time that Session allegedly failed to register in Georgia. See
La. R.S. 15:541 (24) (a) (2018). The crime of sexual battery also fell
within the Louisiana registration statute’s definition of a “sex
offense” at the time of the underlying crime and at the time of
sentencing for sexual battery in Louisiana. See La. R.S. 15:542 (E)
(1995); La. R.S. 15:544 (E) (1992). At the time of Session’s
underlying offense, as well as when he was sentenced for sexual
battery, the Louisiana registration statute required those subject to
the statute to register for ten years after their release from prison.
See La. R.S. 15:544 (A) (1995); La. R.S. 15:544 (A) (1992). The
Louisiana legislature in 2007 extended that requirement to 15
years, with a 25-year registration requirement for those “convicted
of a sexual offense of a victim who is a minor” and a lifetime
registration requirement for certain other offenders. See 2007 La.
10
Acts, No. 460, § 2 (effective Jan. 1, 2008). Under this amendment,
sexual battery was (and is) generally included in the definition of
“sexual offense against a victim who is a minor” when the victim is
under the age of 18. See id.; see also La. R.S. 15:541 (25) (a). The
State takes the position here that because Louisiana required
Session to register for 25 years, he thus has been required to register
in Louisiana (were he to move back to that state) since the time that
he moved to Georgia, and so he has been required to register in
Georgia pursuant to OCGA § 42-1-12 (e) (6).
On appeal, Session argues that he was not required to register
pursuant to OCGA § 42-1-12 (e) (6) because extending his Louisiana
registration requirement via an enactment after the commission of
his underlying offense would constitute an impermissible ex post
facto law. But the Louisiana Supreme Court has rejected the notion
that lengthening a registrant’s registration period violates ex post
facto principles as a matter of both federal and Louisiana
constitutional law, at least where the change was made during the
registrant’s original reporting period. See Smith v. State, 84 S3d
11
487, 497-499 (La. 2012); see also State v. Clark, 117 S3d 1246, 1248
(La. 2013) (noting Section 6 of 2007 La. Acts 460 specifically
provided that “[t]he provisions of this Act shall apply to all persons
convicted of a sex offense or a criminal offense against a victim who
is a minor . . . regardless of the date of conviction, with the exception
of those persons required to register under previous provisions of
law whose obligations to register have been fulfilled and
extinguished by operation of law”). This is consistent with similar
rulings by this Court and the United States Supreme Court. See
Smith v. Doe, 538 U.S. 84, 105-106 (123 SCt 1140, 155 LE2d 164)
(2003) (statutory requirement for retroactive registration of sex
offenders was “nonpunitive” and did not itself constitute an ex post
facto law); Frazier v. State, 284 Ga. 638, 640 (1) (668 SE2d 646)
(2008) (rejecting argument that sexual offender registration
requirement in conjunction with criminal penalty provision enacted
after appellant’s underlying conviction violates state and federal
prohibitions of ex post facto laws). Session’s counsel conceded at oral
argument that Session’s ex post facto argument cannot succeed.
12
Except to say that he could not alternatively be required to
register in Georgia by virtue of a requirement that he register in
Texas, this ex post facto argument about the Louisiana statutory
change was the only argument that Session raised in his primary
appellate brief as to why the State had not shown that he was
required to register under OCGA § 42-1-12 (e) (6). And the only
argument that Session made as to why the evidence was insufficient
to support his failure-to-register convictions was that the State had
not shown that he was required to register under either OCGA § 42-1-12 (e) (3) or OCGA § 42-1-12 (e) (6).
At oral argument before this Court, Session tried to pivot to an
argument different from that which he made in his brief, arguing
that the State had not presented sufficient evidence that he was still
required to register in Louisiana when he moved to Georgia, even
assuming that the 2007 legislative change could apply to him
consistent with ex post facto principles. Session expounds on that
argument in a supplemental brief filed after oral argument. But this
argument is nowhere contained in Session’s primary brief before
13
this Court. And “[i]t is improper to use a supplemental brief to
expand upon the issues to be decided by this Court.” Saint v.
Williams, 287 Ga. 746, 747 (2) (699 SE2d 312) (2010).
And even if the tack that Session took at oral argument and
the brief that followed is theoretically within the bounds of the
(rather broad) enumeration of error stated in his brief — “The Trial
Court Erred in Convicting Session because the Registry Statute did
not Apply to Him” — it is not reasonably so. The argument Session
made at oral argument as to why the State had not proven that he
was required to register under OCGA § 42-1-12 (e) (6) raises at least
one question (whether his Louisiana conviction constitutes a “sexual
offense against a victim who is a minor” triggering Louisiana’s 25-year registration term) that is nowhere addressed in Session’s
primary appellate brief. We require appellants to file a principal
brief by a certain date, and we dismiss appeals of appellants who fail
to file briefs. See Supreme Court Rule 10. And we require all
enumerated errors to be supported by argument or citation of
authority; otherwise, the enumeration will be deemed abandoned.
14
See Supreme Court Rule 22.
Here, Session timely filed a brief containing enumerations of
error supported by argument and citation of authorities. But his
brief contained no argument or citation of authority in support of the
argument that he makes now. To consider this completely different
issue, raised at oral argument for the first time, would render our
rules a dead letter, and we will not allow that. Cf. Cox v. U.S.
Markets, Inc., 278 Ga. App. 287, 291 (4) (628 SE2d 701) (2006) (“One
cannot expand the scope of review or supply additional issues
through a process of switching, shifting, and mending your hold.”
(citation and punctuation omitted)). 2 Having conceded the only basis
on which he made a claim supported by argument and citation of
authority in his primary appellate brief as to why he did not need to
register pursuant to OCGA § 42-1-12 (e) (6), Session has not shown
that the evidence was insufficient to support his Georgia
convictions.
2 Apparently, the phrase “mend the hold” is a nineteenth-century
wrestling term, meaning to get a better grip on one’s opponent. See Harbor Ins.
Co. v. Continental Bank Corp., 922 F2d 357, 362 (7th Cir. 1990).
15
3. Session has not shown that requiring him to register
violates his federal rights to travel and equal protection.
Session raises two federal constitutional arguments, arguing
that applying the registration requirement to him violates his right
to travel and his equal protection rights. We conclude that Session
has not shown a violation of these federal rights.
(a) Right to travel.
The Privileges and Immunities Clause of the Fourteenth
Amendment protects the right to travel, which includes “the right of
a citizen of one State to enter and leave another State . . . , and, for
those travelers who elect to become permanent residents, the right
to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S.
489, 500-504 (119 SCt 1518, 143 LE2d 689) (1999).
Session argues that requiring him to register violates his right
to travel because he is being treated differently than he would be
had the underlying crime in question been committed in Georgia, as
he would not have been required to register had he been convicted
of sexual battery in Georgia. The Registry statute exempts “a
conviction for a misdemeanor” from the definition of “a criminal
16
offense against a victim who is a minor.” OCGA § 42-1-12 (a) (9) (C).
The Louisiana offense of which Session was convicted, sexual
battery, is a felony. See La. R.S. 14:43.1 (C) (1991); see also La. R.S.
14:2 (4) (1992) (defining “felony” as “any crime for which an offender
may be sentenced to death or imprisonment at hard labor”). But at
the time that Session committed his underlying offense in
Louisiana, Georgia treated sexual battery as a misdemeanor. See
OCGA § 16-6-22.1 (c) (1990).3
None of the United States Supreme Court decisions on which
Session relies for his right-to-travel claim involved an argument
that a new state resident’s right to travel is being burdened by a sex
offender registration requirement on the basis that, if he had
committed the crime in his new state, he would have been treated
differently in the underlying criminal case, and thereby not be
required to register. Rather, these cases involved public benefits
schemes that allocated benefits differently depending on how long a
3 Today, by contrast, the statute provides that a person convicted of the
offense of sexual battery of a child under the age of 16 years is guilty of a felony. See OCGA § 16-6-22.1 (d).
17
person had been residing in the state. See Saenz, 526 U.S. at 500-507 (state statute limiting welfare benefits through recipient’s first
year of residency to the amount payable by the State of the
recipient’s prior residence violated Fourteenth Amendment right to
travel); Hooper v. Bernalilo County Assessor, 472 U.S. 612, 618 n.6,
622-623 (105 SCt 2862, 86 LE2d 487) (1985) (applying equalprotection analysis to conclude that state statute that granted tax
exemption limited to those Vietnam veterans who resided in the
state before a certain date violated newer residents’ right to travel);
see also Williams v. Vermont, 472 U.S. 14, 27 (105 SCt 2465, 86
LE2d 11) (1985) (finding it unnecessary to consider appellants’
arguments based on right to travel).
Here, the Registry does distinguish between “residents” and
“nonresidents.” See OCGA § 42-1-12 (e). It treats persons with
foreign convictions differently depending on whether the convict is
a Georgia resident, a new resident, or a nonresident who enters the
state for significant periods of time for employment, schooling, or
other purposes. See id. In particular, the statute requires
18
registration by those convicted of certain crimes on or after July 1,
1996, or those who are convicted of such crimes and who “may be
released from prison or placed on parole, supervised release, or
probation on or after July 1, 1996.” OCGA § 42-1-12 (e) (1)-(4). A
resident of Georgia convicted of certain crimes under the laws of
another jurisdiction on or after certain dates is required to register.
See OCGA § 42-1-12 (e) (5). On the other hand, a nonresident who
moves to Georgia who is required to register in another jurisdiction,
as well as “a nonresident sexual offender” who visits the state for
certain purposes for certain lengths of time, may be required to
register, irrespective of when the underlying conviction was entered,
or when the person was released or placed on parole, supervised
release, or probation. See OCGA § 42-1-12 (e) (6)-(8). 4
4 The statute requires registration by a resident of Georgia “who intends
to reside in this state” if that person “is convicted under the laws of another
state or the United States, under the Uniform Code of Military Justice, or in a
tribal court of a sexually violent offense, a criminal offense against a victim
who is a minor on or after July 1, 1999, or a dangerous sexual offense on or
after July 1, 1996[.]” OCGA § 42-1-12 (e) (5). For a nonresident who moves to
Georgia, registration is required if the person “is required to register as a
sexual offender under federal law, military law, tribal law, or the laws of
another state or territory or who has been convicted in this state of a criminal
19
But Session does not ground his right-to-travel claim in the
Registry’s different treatment of residents, new residents, and
nonresidents generally. His as-applied right-to-travel challenge to
the statute is very specific to him. He claims that “the Registry
imposes disabilities on Session for a conviction that, if occurring
simultaneously in Georgia, would not require registration[,]” with
“[t]he only reason for the differential treatment” being that
“Louisiana punished Session for a felony, even though the same
crime in Georgia at the time was only a high and aggravated
misdemeanor.” This, Session argues, quoting a separate writing in
Hope v. Comm’r of Ind. Dept. of Corr., 9 F4th 513 (7th Cir. 2021) (en
banc), amounts to “assign[ing] different obligations to Georgians
‘based not on what they have done but where they have been. It is
relying on another state’s handling of a particular criminal history
offense against a victim who is a minor or any dangerous sexual offense.”
OCGA § 42-1-12 (e) (6). Nonresidents who enter the state for schooling or some
purpose such as employment for a period exceeding 14 consecutive days or an
aggregate of 30 days during any calendar year must register if they fit the
definition of a “sexual offender” — defined as anyone who “is convicted of a
criminal offense against a victim who is a minor or any dangerous sexual
offense” or who is otherwise required to register under the statute. OCGA § 42-1-12 (a) (20), (e) (7)-(8).
20
to determine how that individual will be treated in’ Georgia.” Id. at
536 (Rovner, J., concurring in part and dissenting in part).
But this argument depends on the highly speculative
assumption that if Session had engaged in the underlying conduct
in Georgia, he would be have been convicted of a mere misdemeanor
and thus not required to register. The Louisiana sexual battery
crime of which Session was convicted and the Georgia crime of
sexual battery that existed in 1994 are not identical. The Louisiana
sexual battery statute under which Session was convicted defined
the offense as follows:
Sexual battery is the intentional engaging in any of the
following acts with another person, who is not the spouse
of the offender, where the offender acts without the
consent of the victim, or where the other person has not
yet attained fifteen years of age and is at least three years
younger than the offender:
(1) The touching of the anus or genitals of the victim
by the offender using any instrumentality or any part of
the body of the offender; or
(2) The touching of the anus or genitals of the
offender by the victim using any instrumentality or any
part of the body of the victim.
La. R.S. 14:43.1 (A) (1991). At the time of Session’s Louisiana
21
offense, Georgia’s crime of sexual battery was defined as
“intentionally mak[ing] physical contact with the intimate body
parts of the body of another person without the consent of that
person.” OCGA § 16-6-22.1 (b). Perhaps most notably, the range of
body parts the touching of which could bring an action within the
ambit of the offense was broader in the Georgia offense; the Georgia
statute defined “intimate parts” as “the primary genital area, anus,
groin, inner thighs, or buttocks of a male or female and the breasts
of a female.” OCGA § 16-6-22.1 (a) (1990). 5
But apart from any particular differences, it is pure
speculation to say of what particular crime Session would have been
convicted, let alone to say that it would have been a misdemeanor,
had he engaged in the same conduct in Georgia. Session’s argument
assumes that, notwithstanding the differences in the elements and
punishment accompanying the Louisiana and Georgia sexual
battery offenses at the time, a Georgia prosecutor would have offered
5 These definitions remain the same under the current Code. See OCGA
§ 16-6-22.1.
22
a plea deal in which Session would have pleaded guilty to a
misdemeanor sexual battery offense, and the trial court would have
accepted such a bargain. The limited factual record regarding the
underlying crime makes engaging in such speculation particularly
difficult. And such a speculative argument is not nearly as strong as
the argument rejected by the Seventh Circuit sitting en banc in
Hope; in that case, all of the plaintiffs committed their crimes before
Indiana enacted its registration statute, such that registration for
any in-state offense was prohibited under the Indiana Supreme
Court’s interpretation of the state’s own ex post facto clause. See 9
F4th at 522, 525-526; see also Hope, 9 F4th at 538 (Rovner, J.,
concurring in part and dissenting in part). It is also no stronger than
other right-to-travel challenges to other sex offender statutes that
appellate courts have rejected. See Doe v. Peterson, 43 F4th 838, 841-842 (8th Cir. 2022) (rejecting federal right-to-travel challenge to
Nebraska sex offender law that required registration by those
obligated to register in another state, even if the offense was
committed as a juvenile, but did not require registration for those
23
who committed offenses in Nebraska as juveniles); State v. Yeoman,
236 P3d 1265, 1268-1269 (Idaho 2010) (rejecting federal right-totravel challenge to Idaho sex offender statute that required
registration for out-of-state convictions regardless of when they
occurred, but only those in-state convictions that occurred after a
certain date, given that registration based on out-of-state
convictions also depended upon being required to register in the
state of conviction at the time of relocation to Idaho).6 Session has
not shown that requiring him to register violated his right to travel
under the federal Constitution.
(b) Equal protection.
Similarly, Session’s equal-protection argument is based on the
assumption that if he had committed the same underlying offense in
6 We observe that the Idaho Supreme Court has reversed on federal
right-to-travel grounds a conviction under a prior Idaho sex offender
registration law that provided that a longer-term resident with a pre-1993
conviction from Idaho or elsewhere did not have to register, while a person with
such a conviction who moved to Idaho after June 1993 was required to do so,
no matter how old the conviction. See State v. Dickerson, 129 P3d 1263, 1266-1271 (Idaho 2006). Nothing in the Georgia registry statute makes such a
distinction, and the sort of distinctions between residents and non-residents
discussed above are, again, not the basis for Session’s argument.
24
Georgia, he would have been convicted of only a misdemeanor.
“[A]n equal protection challenge to a criminal statute is
examined under the rational basis test unless the statute
discriminates on racial grounds or against a suspect class.” State v.
Holland, 308 Ga. 412, 415 (2) (841 SE2d 723) (2020). “An equal
protection claimant must establish that he is similarly situated to
members of the class who are treated differently from him” and that
“there is no rational basis for such different treatment.” Id. at 415-416 (2) (citation and punctuation omitted). “In general, for equal
protection purposes, criminal defendants are similarly situated if
they are charged with the same crime.” Id. at 416 (2) (citation,
punctuation, and emphasis omitted).
Session argues that requiring him to register based on his
Louisiana conviction violates his right to equal protection because
such a requirement distinguishes between persons with a foreign
sexual battery conviction and similarly-situated persons convicted
of sexual battery in Georgia, a distinction that he contends is not
rationally related to achieving the Registry’s (admittedly) legitimate
25
purposes. But, as discussed above, Georgia’s definition of the crime
of sexual battery was similar to, but not the same as, Louisiana’s
definition at the time of the underlying offense. And to the extent
that the underlying substantive Georgia criminal law treats certain
conduct differently than another state does, this is not the sort of
explicit distinction between in-state and out-of-state offenders by a
sex offender registry scheme that other courts have found runs afoul
of the Equal Protection Clause. Compare Doe v. Pa. Bd. of Probation
& Parole, 513 F3d 95, 98, 112 (3d Cir. 2008) (equal protection
violation where state law automatically subjected out-of-state sex
offenders to community notification, while an individual convicted
of same offense in Pennsylvania would be subject to notification only
if particular designation were made after a civil hearing); ACLU of
N.M. v. City of Albuquerque, 137 P3d 1215, 1226-1227 (N.M. Ct.
App. 2006) (equal protection violation where city’s sex offender law
required registration for those with out-of-state convictions who
were in city only three consecutive days, but not for those with instate convictions who were in the city much more often); and
26
Hendricks v. Jones ex rel. State, 349 P3d 531, 536 (Okla. 2013) (equal
protection violation where state’s registration requirement applied
to out-of-state offenders convicted prior to statue’s enactment, but
limiting registration for in-state offenders to those whose conviction
occurred after statute’s effective date); with Morales-Frometa v.
Attorney General United States, 812 Fed. Appx. 95, 99 (3d Cir. 2020)
(“courts have repeatedly recognized the equal protection does not
require uniformity” among jurisdictions); United States v. Titley,
770 F3d 1357, 1362 (10th Cir. 2014) (rejecting equal protection
challenge to Armed Career Criminal Act designation based on two
state drug convictions that the appellant argued “would not qualify
had the predicate offenses been committed in 19 other states or the
District of Columbia”); United States v. Fink, 499 F3d 81, 87 (1st Cir.
2007) (rejecting claim that statutory enhancement dependent upon
states’ variable treatment of drug possession violated right to equal
protection). Session has not shown that requiring him to register in
Georgia violated his federal equal protection rights.
4. Session has not shown that the Georgia Registry violates
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the Georgia Constitution’s Social Status Provision.
Finally, Session argues that the Georgia Registry is
unconstitutional on its face because it violates the Georgia
Constitution’s Social Status Provision. We reject this claim.
As noted above, Paragraph XXV of the Georgia Bill of Rights
provides that “[t]he social status of a citizen shall never be the
subject of legislation.” Ga. Const. of 1983, Art. I, Sec. I, Par. XXV
(the “Provision”). This Provision has been construed only rarely by
Georgia’s appellate courts, and most of those cases have involved the
patently racist applications of the Provision in the decades following
its adoption into the Georgia Constitution in 1868. In those cases,
we apparently held that the Provision prohibited any attempts by
the General Assembly to remove barriers to racial integration.
Session argues that the Provision cannot have that meaning
anymore, that it nevertheless must still have some meaning, and
thus this provision now “prohibits the State from creating favored
or disfavored classes of citizens.” He argues that the Registry
therefore violates this Provision because it “serves to create a lower28
tier citizen[.]” As we explain below, regardless of whether Session is
correct that the Provision must mean something different than the
meaning this Court initially ascribed to it, his claim ultimately fails
because he has offered no proposed meaning of the Provision that
forecloses requiring him to register.
Session’s burden on this claim is a difficult one.
We presume that statutes are constitutional, and before
an act of the General Assembly can be declared
unconstitutional, the conflict between it and the
fundamental law must be clear and palpable and this
Court must be clearly satisfied of its unconstitutionality.
Because all presumptions are in favor of the
constitutionality of a statute, the burden is on the party
claiming that is the law is unconstitutional to prove it.
And [Session]’s task is made all the more difficult
because, to make this argument, [he] is asserting a novel
and quite expansive construction of a provision of the
Georgia Constitution that has received little attention
since it was enacted.
Ammons v. State, 315 Ga. 149, 163 (3) (880 SE3d 544) (2022)
(citations and punctuation omitted).
It is well established that “we interpret the Georgia
Constitution according to its original public meaning.” Elliott v.
State, 305 Ga. 179, 181 (II) (824 SE2d 265) (2019). “And, of course,
29
the Georgia Constitution that we interpret today is the Constitution
of 1983; the original public meaning of that Constitution is the
public meaning that it had at the time of its ratification in 1982.” Id.
And when a provision has been “retained from a previous
constitution without material change,” we generally presume that
the provision “has retained the original public meaning that
provision had at the time it first entered a Georgia Constitution,
absent some indication to the contrary.” Id. at 183 (II) (A). In
addition, “[a] constitutional clause that is readopted into a new
constitution and that has received a consistent and definitive
construction is presumed to carry the same meaning as that
consistent construction.” Id. at 184 (II) (B).
The Provision first entered the Georgia Constitution in 1868,
part of the new constitution ratified by Georgians to satisfy the
conditions set by Congress for readmission to the Union. See Ga.
Const. of 1868, Art. I, Sec. XI (“The social status of the citizen shall
never be the subject of legislation.”); see also Ammons, 315 Ga. at
164-165 (3) (discussing context of ratification of 1868 Constitution).
30
That text has remained materially unchanged since its adoption.
See Ga. Const. of 1983, Art. I, Sec. I, Par. XXV (changing “the
citizen” to “a citizen”); Ga. Const. of 1976, Art. I, Sec. I, Par. XXII;
Ga. Const. of 1945, Art. I, Sec. I, Par. XVIII; Ga. Const. of 1877, Art.
I, Sec. I, Par. XVIII.
The 1868 Constitutional Convention’s charge was in part to
advance racial equality. See Ammons, 315 Ga. at 165 (3) (citing First
Reconstruction Act of 1867, § 5 (1867), to note that Congress directed
that Georgia’s 1868 Constitution had to both “conform[] with the
Constitution of the United States in all respects” and ensure “that
the elective franchise shall be enjoyed by all persons [male and at
least 21 years old] of whatever race, color, or previous condition”).
But almost immediately, Georgia courts began interpreting the
Provision in a very different way. The year after the Provision was
ratified, a black woman criminally charged for cohabitating with a
white man argued that the statutory prohibition on interracial
marriage violated the Provision. This Court vehemently rejected
that argument:
31
[T]he very reverse is true. That section of the Constitution
forever prohibits legislation of any character regulating
or interfering with the social status. It leaves social rights
and status where it finds them. It prohibits the
Legislature from repealing any laws in existence, which
protects persons in the free regulation among themselves
of matters properly termed social, and it also prohibits the
enactment of any new laws on that subject in the future.
Scott v. Georgia, 39 Ga. 321, 324 (2) (1869). Noting the various forms
of segregation in effect at the time of the adoption of the new
Constitution, the Court continued: “In all of this they were protected
by the common law of this State. The new Constitution forever
guarantees this protection, by denying to the Legislature the power
to pass any law withdrawing it or regulating the social status in such
assemblages.” Id.
The Georgia Court of Appeals later said that the Provision did
not constrain the judicial branch’s ability to “take judicial notice of
an intrinsic difference between the two races[,]” when it employed
the Provision to allow a white railroad passenger to seek damages
from a railroad company whose conductor mistakenly referred to the
passenger as black:
Our Constitution . . . declares that the social status of the
32
citizen shall never be the subject-matter of legislation. It
has been said that this language was used for the express
purpose of leaving the social status open to judicial
determination. We, however, shall not take any such
fanciful position; for it can not properly be said that that
which can not be the subject-matter of legislation can be
judicially administered. This, however, does not affect the
subject of judicial notice of matters of history, common
knowledge, etc. The sounder view is, that neither
Legislatures nor courts shall grade the citizen according
to this social status, and yet that the courts can and must
notice the meaning of words of opprobrium, as well as the
connection in which these words are used.
See Wolfe v. Ga. Ry. & Electric Co., 2 Ga. App. 499, 504-506 (3) (58
SE 899) (1907). This Court later held that evidence about the race
of a bottling company’s inspectors was not admissible to show the
inspectors’ relative efficiency. See Atlanta Coca-Cola Bottling Co. v.
Shipp, 170 Ga. 817, 820 (2) (154 SE 243) (1930). But the Chief
Justice felt compelled in his concurrence to distinguish the case from
the Court of Appeals’ prior ruling in Wolfe, which he characterized
as remaining good law. See id. at 824 (Russell, C.J., concurring).
So what to make of such a provision now? Cases like this serve
as a reminder that we focus on history not because it is always good,
but because the rule of law requires it. To discern the meaning of
33
legal text, we must determine its original public meaning — what
the language meant at the time and place in history when it was
enacted. Original public meaning is an interpretive methodology
that promotes the rule of law by, among other things, constraining
judges. By its application, we limit ourselves to only those
interpretations of legal text that can be supported by text, history,
and context. The meaning produced by those interpretations can
only be as good as our history.
And there is much in our history that is shameful. The racist
history of this Court’s interpretation of the Provision reminds us of
this truth once again. But a proper application of our interpretive
methodology requires honest grappling with that history; we cannot
wish it away. 7
7 The drafters of the 1983 Constitution appear not to have grappled with
the history of the Provision. See Committee to Revise Article I, Subcommittee
to Revise Section I, Oct. 4, 1979, meeting, at pp. 120-121; Committee to Revise
Article I, Subcommittee on Rights of Persons, Oct. 25, 1979, meeting, at pp.
109-111. Justice Jesse Bowles informed confused committee members that this
provision meant that the legislature could not create formal classes of persons:
“They can’t name you a king or a queen to the exclusion of your neighbor or a
prince or a lord.” Committee to Revise Article I, Subcommittee to Revise
Section I, Oct. 4, 1979, meeting, at pp. 120; see also Committee to Revise Article
34
Here, however, that shameful history is just that — history. To
the extent that the Provision’s language prohibiting legislation with
respect to “social status” was thinly veiled code for preserving racial
discrimination, including segregation, any such application of the
Provision squarely violated the Fourteenth Amendment to the
United States Constitution. See, e.g., Loving v. Virginia, 388 U.S. 1
(87 SCt 1817, 18 LE2d 1010) (1967); Brown v. Board of Education,
347 U.S. 483 (74 SCt 686, 98 LE 873) (1954). Any such meaning thus
has no effect whatsoever.
Session thus argues that the Provision must mean something
else today, and that such an alternative meaning renders the
Registry unconstitutional. Whether or not the Provision has an
alternative meaning is a question we need not decide today,8
I, Subcommittee on Rights of Persons, Oct. 25, 1979, meeting, at pp. 109
(Justice Bowles: “It has to do with classes of individuals. You can’t be a lord or a duke or earl or duchess.”).
8 So far as we can tell, other than in Scott, we have referenced this
Provision explicitly in only three other majority opinions throughout our
history, and each of those only in passing. See Clark v. Wade, 273 Ga. 587, 598
(IV) & n.57 (544 SE2d 99) (2001) (citing the Provision without analysis as a
“see also” in a footnote in support of the textual statement that by harm to a
child for purposes of application of the best-interest-of-the-child standard, “we
35
because Session does not show that he would prevail under any such
meaning.
As alluded to above, Session contends that the Provision now
“can be interpreted as barring the legislature from creating
preferred or reviled classes of citizens.” Session says that “society”
aims “visceral animus” toward sex offenders and that “[e]ven other
prisoners loathe” them. But Session fails to show how the
registration requirement and related provisions, rather than the
fact of being convicted of a sex offense, “created” a particular class of
citizens — people convicted of sex offenses — or caused “society” to
mean either physical harm or significant, long-term emotional harm; we do not
mean merely social or economic disadvantages”); Livingston v. State, 264 Ga.
402, 404 & n.5 (444 SE2d 748) (1994) (citing the Provision as a “see also” in
support of the phrase “we have held that it would be constitutionally
impermissible for a jury to base its death penalty recommendation on the
victim’s class or wealth”; a footnote stated that the Provision “was added to the
Georgia Constitution in 1868 to promote equality in the eyes of the law
amongst people of all races and classes” and that the principle underlying the
Provision was “that an individual’s social status is not relevant to the
evenhanded administration of justice,” a proposition for which we inexplicably
cited Scott); State ex rel. Waring v. Ga. Med. Soc’y, 38 Ga. 608, 627-630 (1869)
(leaving unaddressed argument that corporate bylaw adopted under a
legislatively approved corporate charter and prohibiting “ungentlemanly
conduct” violated the Provision, given there was no evidence of ungentlemanly
conduct).
36
treat that class of persons differently. And Session has offered no
proposed plausible construction of the Provision that would prohibit
criminalizing certain types of conduct on the theory that it would
create a disfavored class comprising those convicted of such crimes.
Accordingly, Session’s argument fails.
Judgment affirmed. All the Justices concur.
37