Whatley v. State ( 2015 )

297 Ga. 399FINAL COPY
S15A0032. WHATLEY v. THE STATE.
MELTON, Justice.
On March 28, 2013, Bernadette Bowie Whatley was indicted for
withholding information from a practitioner pursuant to OCGA § 16-13-43 (a)
(6). That statute deals with the distribution of controlled substances by
prescription and provides that it is unlawful to "withhold information from a
practitioner that such person has obtained a controlled substance of a similar
therapeutic use in a concurrent time period from another practitioner." On April
24, 2013, Whatley filed a general demurrer, contending among other things that
the statute was unconstitutionally vague. The trial court ruled that OCGA §
16-13-43 (a) (6) was not unconstitutionally vague on its face, and we granted
Whatley’s application for an interlocutory appeal to consider the propriety of
this ruling. As set forth below, we affirm the denial of Whatley’s general
demurrer under the right-for-any-reason doctrine.
It is well settled that the
void for vagueness doctrine of the due process clause requires that
a challenged statute or ordinance give a person of ordinary
intelligence fair warning that specific conduct is forbidden or
mandated and provide sufficient specificity so as not to encourage
arbitrary and discriminatory enforcement. Vagueness challenges .
. . that do not implicate First Amendment freedoms must be
examined in the light of the facts of the case to be decided.
(Emphasis supplied.) Parker v. City of Glennville, 288 Ga. 34, 35 (1) (701 SE2d
182) (2010). “[A] person ‘who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the
conduct of others.’ [Cits.]” Izzo v. State, 257 Ga. 109, 110 (1) (356 SE2d 204)
(1987). “ ‘A court should therefore examine the complainant's conduct before
analyzing other hypothetical applications of the law.’ [Cits.]” Catoosa County
v. R.N. Talley Properties, 282 Ga. 373, 375 (651 SE2d 7) (2007). “[W]hen a
statute or ordinance does not implicate a substantial amount of constitutionally
protected conduct, a facial vagueness challenge will be upheld only if the
enactment is impermissibly vague in all of its applications.” (Citations and
punctuation omitted.) Id. at 374.
Whatley does not argue that OCGA § 16-13-43 (a) (6) violates her First
Amendment freedoms, so Whatley would necessarily have to challenge the
constitutionality of the statute as applied to the specific facts of her case. A
review of the record, however, indicates that Whatley challenged OCGA §
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16-13-43 (a) (6) on its face, not as applied. The trial court noted in its order that
“[n]either party has presented any facts . . . beyond the indictment.” The
indictment, in turn, merely tracks the language of the statute, supplying the
names of the doctors involved, the drugs prescribed, and a general period of
time during which the statute was allegedly violated. There is no indication
anywhere in the record that Whatley raised an argument with regard to the facts
of her specific case, much less the application of OCGA § 16-13-43 (a) (6) to
her specific facts. Only a facial challenge to the statute was raised, and, as a
facial challenge was not warranted, the trial court should have denied Whatley’s
general demurrer for this reason rather than considering the merits of Whatley’s
constitutional claim. See State v. Hudson, 247 Ga. 36 (273 SE2d 616) (1981).
Nonetheless, since Whatley’s general demurrer was properly denied, we affirm
the judgment of the trial court under the right-for-any-reason rule.
Judgment affirmed. All the Justices concur.
Decided June 29, 2015.
OCGA § 16-13-43 (a) (6); constitutional question. Whitfield Superior
Court. Before Judge Blevins.
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The Secret Firm, Akil K. Secret, for appellant.
Herbert M. Poston, Jr., District Attorney, John S. Helton, Susan L.
Franklin, Assistant District Attorneys, for appellee.
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