CourtListener 10680213

Gesamter Gesetzestext

320 Ga. 426
FINAL COPY

S24A1161. GARCIA v. THE STATE.

ORDER OF THE COURT.

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.

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 §

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

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

2
As explained more below, we cannot reach that 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

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
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).
3
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

[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
4
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

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 Bd. 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);

5
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

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

6
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

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 Bd. 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

7
by more effective means, such as mailed notice).3

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

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
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 noting 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

8
only by publication under OCGA § 9-16-12 (b) (3) violates due-

process 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

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
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.
9
question the constitutionality of OCGA § 9-16-12 (b) (3), we should

consider addressing that issue in a case where it is properly

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.

Ordered November 19, 2024.

OCGA § 9-16-12 (b) (3); constitutional question. Dooly Superior

Court. Before Judge Chasteen.

McDonald & Cody, Samuel J. Sliger; Charles M. Cork III, for

appellant.

Bradford L. Rigby, District Attorney, Lauren W. Fletcher,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.

Malcolm, Senior Assistant Attorneys General, for appellee.

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.

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.

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 §

2
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

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

3
significant question in this case, although it appears that the answer

may well be “yes.”