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SUPREME COURT OF GEORGIA
Case No. S24A1161, S24I0777
November 19, 2024
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
MANUEL GARCIA v. THE STATE.
This Court granted Garcia’s application for interlocutory
appeal in Case No. S24I0777, and this appeal followed. Upon
review of the full record and the briefs of the parties, this Court
has determined that the application for interlocutory appeal in this
case was improvidently granted. Accordingly, the order granting
the application is vacated, the application is denied, and the appeal
is dismissed.
All the Justices concur.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from
the minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk
In the Supreme Court of Georgia
Decided: November 19, 2024
S24A1161. GARCIA v. THE STATE.
WARREN, Justice, concurring.
In August 2023, law enforcement officers seized from Manuel
Garcia $236,350 in cash and a handgun they characterized as
contraband related to drug and firearm offenses. The State filed an
in rem complaint for civil forfeiture against the property, naming
Garcia as an owner or interest holder and listing his address in
Florida. The State later obtained an order for service by publication
under OCGA § 9-16-12 (b) (3), which says, in pertinent part, that if
an “owner or interest holder is unknown or resides out of this state
. . . , a copy of the notice of the complaint for forfeiture shall be
published once a week for two consecutive weeks in the legal organ
of the county in which the complaint for forfeiture is pending.”
Garcia filed in the trial court a constitutional challenge to OCGA §
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9-16-12 (b) (3), contending that it violates due process by permitting
service of process by publication in the first instance, even when a
person’s address is known, and the trial court summarily denied
that claim. 1 We granted Garcia’s application for interlocutory
appeal primarily to decide whether OCGA § 9-16-12 (b) (3) violates
due-process principles to the extent it allows service only by
publication when an owner or interest holder’s out-of-state address
is known. 2 As explained more below, we cannot reach that
1 Garcia did not specify whether his claim is that the statute is facially
unconstitutional or unconstitutional as applied to him or whether the claim
arises under the United States or Georgia Constitution, or both. In his
interlocutory application, he clarified that he challenges the statute facially
and as applied, but he cited no specific provisions of the United States or
Georgia Constitution; nor did he allege whether his claim arises under the
federal or state Constitution, or both.
2 In addition, we asked whether Garcia was also served by certified mail
because we recognized that this factual issue might prevent us from reaching
the merits of the constitutional question, and as discussed more below, it in
fact does. And we asked whether the trial court erred by denying Garcia’s
motion for the immediate return of his property under OCGA § 9-16-7 (c),
which says that if the state attorney fails to file a complaint for forfeiture
within 60 days from the date of seizure, “the property shall be released on the
request of an owner or interest holder, pending a complaint for forfeiture
pursuant to Code Section 9-16-12 or 9-16-13, unless the property is being held
as evidence. . . .” But the text of OCGA § 9-16-7 (c) and the record in this case
support the trial court’s determination that Garcia was not entitled to the
return of his property, so that ground, by itself, does not warrant interlocutory
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significant question in this case, although it appears that the answer
may well be “yes.”
Indeed, we suggested as much four years ago in a case in which
the same question was raised. In Crowder v. State, 309 Ga. 66 (844
SE2d 806) (2020), we addressed whether OCGA § 9-16-12 (b) (3)
permits service of process by publication in the first instance on
owners or interest holders who reside out of state. There, after
construing the text, context, and structure of the statute, we
concluded that it does. See id. at 69-73. We noted, however, that
OCGA § 9-16-12 (b) (3) “may well implicate constitutional concerns
regarding due process,” which “requires every method of service to
provide notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Id. at 73 (citations
and punctuation omitted). We explained that
review. See Supreme Court Rule 31 (explaining that an application for
interlocutory appeal will be granted only when the issue to be decided appears
to be dispositive of the case, the order appears erroneous and will probably
cause a substantial error at trial, or the establishment of precedent is
desirable).
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[b]ecause notice by publication is a notoriously unreliable
means of actually informing interested parties about
pending suits, the constitutional prerequisite for allowing
such service when the addresses of those parties are
unknown is a showing that reasonable diligence has been
exercised in attempting to ascertain their whereabouts.
Id. at 74 (citations and punctuation omitted). But we did not decide
in that case whether notice by publication under OCGA § 9-16-12 (b)
(3) violates due-process principles; the trial court had not ruled on
that issue, so we remanded the case with the direction that the trial
court consider the claim in the first instance. See id.
In this case, by contrast, Garcia raised, and the trial court
ruled on, the same sort of due-process challenge to OCGA § 9-16-12
(b) (3) that was implicated in Crowder. And it appears that such a
challenge would have merit, because as we noted in Crowder, service
only by publication on an interested party whose name and address
is known generally does not comport with due-process requirements.
See, e.g., Mullane v. Central Hanover Bank & Trust Company, 339
U.S. 306, 317-318 (70 SCt 652, 94 LE 865) (1950) (explaining that
the United States Supreme Court “has not hesitated to approve of
resort to [notice by] publication . . . where it is not reasonably
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possible or practicable to give more adequate warning,” such as
when a person’s “whereabouts could not with due diligence be
ascertained,” but that notice by publication to people whose names
and addresses are known does not satisfy due process); Schroeder v.
City of New York, 371 U.S. 208, 212-213 (83 SCt 279, 9 LE2d 255)
(1962) (“The general rule that emerges from the Mullane case is that
notice by publication is not enough with respect to a person whose
name and address are known or very easily ascertainable and whose
legally protected interests are directly affected by the proceedings in
question.”); Mennonite Board of Missions v. Adams, 462 U.S. 791,
797-800 (103 SCt 2706, 77 LE2d 180) (1983) (reiterating the
principle in Mullane, collecting cases following it, and holding that
a state statute that allowed notice by publication and posting did not
provide a mortgagee of property, who was readily identifiable,
adequate notice of a sale of the property for nonpayment of taxes);
Hamilton v. Renewed Hope, Inc., 277 Ga. 465, 466 (589 SE2d 81)
(2003) (“If the name and address of an interested party can be
reasonably ascertained, notice of a tax sale by publication does not
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meet the requirements of due process.”); Funderburke v. Kellet, 257
Ga. 822, 822-824 (364 SE2d 845) (1988) (holding that a statute
authorizing the publication of notice of foreclosure of the right to
redeem property did “not satisfy the requirements of due process
under Mennonite”); Abba Gana v. Abba Gana, 251 Ga. 340, 341-344
(304 SE2d 909) (1983) (concluding that the trial court in a divorce
proceeding erred by authorizing service of process by publication,
which did not meet the constitutional requirement of due process
because the wife testified that she knew locations where the
husband might be found but could not pinpoint his current
residence, such that she “was not reasonably diligent” in seeking his
whereabouts).
Unfortunately, though, we cannot reach the issue of whether
OCGA § 9-16-12 (b) (3) violates due process in this case. The record
shows that the trial court’s order authorizing service of process by
publication pursuant to OCGA § 9-16-12 (b) (3) also directed service
by certified mail sent to Garcia’s Florida address, and the State
properly followed that direction. Service by certified mail generally
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satisfies due process. See, e.g., Dusenbery v. United States, 534 U.S.
161, 168-169 (122 SCt 694, 151 LE2d 597) (2002) (explaining that a
statute that required the FBI to publish notice of an impending
forfeiture proceeding and to provide notice by certified mail, which
the FBI sent to the purported owner at the correctional facility
where he was incarcerated, did not violate due-process
requirements, and noting that service by certified mail is “a method
our cases have recognized as adequate for known addressees when
we have found notice by publication insufficient”); Mennonite Board
of Missions, 462 U.S. at 800 (noting that “[n]otice by mail or other
means as certain to ensure actual notice is a minimum
constitutional precondition to a proceeding which will adversely
affect the liberty or property interests of any party”) (emphasis
omitted); Mullane, 339 U.S. at 317 (explaining that notice by
publication was inadequate to inform people who could be notified
by more effective means, such as mailed notice).3
3 In his brief, Garcia raises several challenges related to the statutory
sufficiency of the service by certified mail in this case—but he did not raise
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And that is so here. Under all the circumstances, I am
comfortable concluding that service to Garcia’s address by certified
mail provided notice reasonably calculated to apprise him of the
forfeiture proceeding, such that his right to due process was not
violated.4 We therefore cannot reach the question of whether service
those arguments in the trial court, and the court did not rule on them. And in
any event, whether service in this case was sufficient as a matter of statutory
law is an issue that is distinct from the question of whether service satisfied
constitutional due process. See Reliance Equities, LLC v. Lanier 5, LLC, 299
Ga. 891, 893-894 (792 SE2d 680) (2016) (explaining that statutory notice
requirements are distinct from constitutional notice requirements). See also,
e.g., United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (130 SCt
1367, 176 LE2d 158) (2010) (holding that although a debtor’s failure to serve
process pursuant to the federal Bankruptcy Code violated a procedural rule, it
“did not amount to a violation of [the creditor’s] constitutional right to due
process”).
4 I also note that the record shows that Garcia made several filings in the
forfeiture case before he was served by certified mail, indicating that he had
actual notice of the proceeding. In this respect, although we mentioned in
Crowder (in dicta in a footnote) that a “‘defect in service [i]s not cured by the
fact that defendants had actual knowledge that the [proceeding] had been filed
against them,’” 309 Ga. at 74 n.10 (citation omitted), it is worth nothing that
it appears that “the constitutional requirement of adequate notice can under
proper circumstances be fulfilled by actual notice.” Abba Gana, 251 Ga. at 345.
See also, e.g., United Student Aid Funds, Inc., 559 U.S. at 272 (holding that
even though a debtor failed to serve process on a creditor, the creditor “received actual notice” of the bankruptcy proceeding, which “more than satisfied [the
creditor’s] due process rights”) (emphasis in original); United States v. One Star Class Sloop Sailboat, 458 F3d 16, 22 (1st Cir. 2006) (“A putative claimant’s
actual knowledge of a forfeiture proceeding can defeat a subsequent due
process challenge, even if the government botches its obligation to furnish him
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only by publication under OCGA § 9-16-12 (b) (3) violates dueprocess principles. See, e.g., State v. Randall, 318 Ga. 79, 82-83 (897
SE2d 444) (2024) (explaining that when there is a basis on which to
resolve a claim without reaching a novel constitutional argument,
courts generally should do so).
I therefore agree that the proper course of action in this case is
to dismiss the appeal as improvidently granted. See, e.g., Monroe v.
State, 313 Ga. 458, 458-459 (870 SE2d 404) (2022) (Peterson, J.,
concurring) (agreeing with the dismissal of an appeal on the ground
that the underlying interlocutory application was improvidently
granted, despite the fact that the appeal presented an important
question, due to a defect in the case that prevented the Court from
reaching the merits of that question). But because the authority
from the United States Supreme Court cited above calls into serious
question the constitutionality of OCGA § 9-16-12 (b) (3), we should
consider addressing that issue in a case where it is properly
with notice.”). But because the certified mailing to Garcia’s address clearly
met the requirements of due process, there is no need to determine whether
due process was also satisfied by actual notice in this case.
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presented. And because such a case may not arise soon enough, I
encourage the General Assembly to consider amending OCGA § 9-16-12 (b) (3) to ensure that it comports with due-process principles.
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