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A Fulton, Ga., judge has ended the brief ban on electrocutions in Georgia by tossing out a bid by 40 religious leaders to bar the state from executing prisoners in the electric chair. Claiming “citizen standing” under Georgia Code 9-6-24, the plaintiffs had filed a petition for mandamus, asking the Department of Corrections to comply with the “cruel and unusual punishment” provision of the Georgia State and U.S. Constitutions. Adams v. Georgia Department of Corrections, No. 01CV35277 (Fult. Super. March 19, 2001). Judge Wendy L. Shoob, presiding judge the week the plaintiffs filed, issued a temporary restraining order in the case March 21, effective until a full hearing could be held on the merits. In court Thursday, however, Judge Isaac Jenrette never reached the merits of the mandamus petition. Rather, he granted the state’s motion to dismiss, saying the plaintiffs lacked any standing to bring the claim. The plaintiffs specified no clear legal duty for the department to stop electrocuting people condemned to death for crimes committed before May 1, 2000, Jenrette explained. The Legislature passed a law last year ordering death by lethal injection for those sentenced to death for crimes committed after May 1, 2000. “The public officer must carry out the law as it clearly appears on the face of the law,” Jenrette said. To find for the plaintiffs on this claim would be “confusing” and “a dangerous move,” he said. Jenrette asked no questions of either party during the arguments, and then explained his ruling from the bench. “There’s a lot of things I want to say, but I won’t, and there are a lot of things that I could say, but I won’t,” the judge said. “I am going to try to stick as close as I can to what I need to say.” Bondurant, Mixson & Elmore’s Emmet J. Bondurant, who argued on behalf of the plaintiffs, said he would file a notice of appeal immediately. Jenrette agreed to order the clerk’s office to expedite preparation of the record for the appeal. The case, plaintiffs’ lawyers said after the hearing, was likely bound for the state supreme court from the start. ‘ADAMS’ CASE CHALLENGES The Adams case � the Rev. Ann Clay Adams is one of several name plaintiffs — is the latest challenge to electrocution the courts have heard in the past three months. Earlier this year, Shoob became the first Georgia judge to declare the death penalty cruel and unusual. Dawson v. State, No. Y11554 (Fult. Super. Feb. 2, 2001). The state supreme court also has issued stays of execution, pending its ruling on the “cruel and unusual punishment” issue, in State v. Spivey, No. S01A0837 (Sup. Ct. Ga. March 6, 2001) and State v. High, No. S01M0934 (Sup. Ct. Ga. March 21, 2001). Jenrette’s ruling closely mirrors the arguments that assistant attorneys general Christopher S. Brasher and J. Jayson Phillips made in the state’s motion to dismiss. In its original motion, the state claimed that the plaintiffs were using a mandamus petition to seek a declaratory judgment. “In fact, Plaintiffs’ counsel asserted in the hearing for injunctive relief on March 21, 2001, that Plaintiffs seek a ‘declaration by mandamus,’ a heretofore-unidentified form of relief in Georgia law,” Brasher and Phillips wrote. Statutory law, state supreme court rulings and Superior Court orders all direct the department to carry out electrocutions, the state’s motion says. “Plaintiffs rely on no provision of the Georgia or United States Constitution, no provision of law and no holding of any Court to establish the duty upon which the Defendants have failed to act,” the state’s lawyers wrote. “Indeed it appears that the Plaintiffs’ claims that the use of electrocution as the means of execution is unconstitutional are nothing more than ipse dixit; they claim it is so merely because they claim it.” NO STANDING FOR PLAINTIFFS In its amended motion filed April 3, the state also charges that the plaintiffs lack the standing to bring the complaint, because none are under a death sentence. Plaintiffs who would strike down a state law as unconstitutional has to show that they are within the class of persons the act affects, and that the act’s unconstitutionality would injure them, the state argued. The motion makes special reference to Catchings v. State, 256 Ga. 241, 243 (2), 347 S.E. 2D 572 (1986), in which the appellant, who had been sentenced to life in prison, challenged the validity of electrocution as “cruel and unusual.” However, the court dismissed his claim, saying he lacked standing to bring the challenge because he had not been sentenced to death. “The necessary implication from this holding then is that while OCGA 9-6-24 confers standing in certain situations, it does not extend to constitutional attacks by persons who have not received the punishment which they allege is cruel and unusual,” the state’s motion says. Phillips, with the public safety division of the attorney general’s office, voiced those arguments during Thursday’s hearing. “None of these folks here today are under a death sentence in the State of Georgia,” he said. “Their lives are not in jeopardy of being subjected to electrocution.” He also noted that the state supreme court has repeatedly ruled that execution using the electric chair is constitutional. “That has been their holding every single time they have examined the merits of such a claim,” he said. OPENING THE FLOODGATES Further, Phillips told the judge, ruling for the plaintiffs would open the floodgates to all manner of challenges to state statutes. Convicts could “challenge every single criminal statute in the State of Georgia, whether they were convicted under it or not,” he said. Phillips closed with a hypothetical situation in which the officials at the Department of Corrections unilaterally decided to stop electrocuting those eligible for the penalty under state law. In that instance, he said, the family of a victim in such a case could file a petition for mandamus compelling the department to electrocute the condemned. Following the hearing plaintiffs’ lawyer Michael B. Terry, of Bondurant, Mixson & Elmore, said he found that argument intriguing, considering the state’s challenge to his clients’ standing to bring their petition. “If we’re right [on the standing issue] then [the victim's family] would have standing,” he said. “If they’re right then they wouldn’t.” In his response to the ruling, Bondurant admitted that his clients “are not, and are not ever likely to be, on death row.” But that doesn’t obviate their standing to bring their claim, he says. “What could be clearer than the right of the people to keep the government within its constitutional boundaries?” he said. Bondurant told the judge that his clients have an interest in seeing that “the society in which we are all involved conducts itself in a civilized, decent manner.” The law exists not only to protect the rights of the condemned, but also to “protect the dignity of society from the barbarity of mindless vengeance,” he said. The standing issue, he said, is “a quarrel with the Legislature, not with the plaintiffs.” Bondurant dismissed any concern that granting mandamus would open the courts to a flood of litigation. The statutes have been on the books for 100 years, he said. “I find myself amused at the so-called ‘floodgates’ argument,” he said. If private citizens bring a lot of litigation to get misbehaving officials to comply with the law, that’s what they’re supposed to be doing, he said. “My answer to that is, ‘That’s good.’ ” If people abuse the statute, he said, the Legislature has 40 days every year to fix it. Bondurant said last year’s legislative action is the “highest and best evidence” that public attitudes toward electrocution have changed. The courts, he said, should ensure public officials recognize that. The Department of Corrections may be operating under a statute, Bondurant told Jenrette, but when such statutes conflict with the Georgia and U.S. Constitutions, the public official’s duty is to the Constitution first.

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