Geng v. State , 276 Ga. 428 ( 2003 )

Thompson, Justice.

John Geng, Jr., appeals his conviction for speeding, challenging the constitutionality of the statutes upon which the trial court relied in denying his request for a jury trial. Because Geng was entitled to trial by jury in accordance with Art. I, Sec. I, Par. XI of the Georgia Constitution, we reverse the judgment below.

Geng was stopped by a City of Atlanta police officer and was issued a uniform traffic citation for speeding. The citation charged Geng with violating OCGA § 40-6-181 of Georgia’s Motor Vehicle Code in that he was driving his vehicle 80 mph in an area with a posted speed limit of 55 mph. This offense constitutes a misdemeanor under state law. Geng was ordered to appear to answer the charge in the City Court of Atlanta. He filed a proper written demand for jury trial in that court. His demand was denied and his case was transferred to the City Court of Atlanta traffic violations bureau for disposition. Geng moved for reconsideration, asserting that the deprivation of trial by jury violated Art. I, Sec. I, Par. XI of the Georgia Constitution, and denied him equal protection of the law under both the federal and Georgia Constitutions; reconsideration was denied. Geng was tried before a judge in the traffic violations bureau, was found guilty of speeding, and was fined $315. The sentencing order contained in the record on appeal also specified that upon default of such payment, a six-month period of incarceration is to be imposed.

1. Traffic violations bureau.

The traffic violations bureau was established in the City Court of Atlanta, pursuant to the authority of OCGA § 40-13-50 et seq. Under that statutory scheme, the judges of a court of this state having jurisdiction over the violation of traffic laws or ordinances, may provide for the establishment of a traffic violations bureau for the disposition of certain traffic offenses, a list of which is to be determined by those judges. OCGA § 40-13-50. It is further provided that a charge brought in the traffic violations bureau is to be “classified as a traffic violation and shall not be considered as a misdemeanor,” and “[w]here a defendant demands a trial on a traffic violation, it shall be tried before a judge of the court which established the traffic violations bureau.” OCGA § 40-13-60. Finally, if a person cited for a traffic violation under the statute fails to appear in court as ordered, the traffic violations bureau loses jurisdiction and the case is forwarded to the prosecuting attorney of the court who shall have an accusation issued against that person, and the case will thereafter be “handled as all other misdemeanors.” OCGA § 40-13-62. Geng’s demand for a jury trial was denied based on the language of OCGA § 40-13-60.

2. Constitutional right to trial by jury.

Article I, Section I, Paragraph XI of the Georgia Constitution of 1983 guarantees a defendant in a criminal case the “inviolate” right to a “public and speedy trial by an impartial jury.”

OCGA § 40-13-60 restricts an offender whose case is disposed of in the traffic violations bureau to trial before a judge.¹ Geng was initially charged with the misdemeanor offense of speeding and those charges were not transferred to the traffic violations bureau until after Geng’s demand for a jury trial was filed. Thus, until the transfer, the case proceeded as a routine misdemeanor speeding offense and the right to jury trial attached when Geng filed his timely written demand.² See Gregg v. State, 253 Ga. App. 243 (2) (a) (558 SE2d 729) (2001) (in a jurisdiction without a traffic violations bureau, the offense of speeding is treated as a misdemeanor).

According to the sentencing order, Geng faced the risk of six months incarceration should he fail to pay the ordered fine. The statute also requires referral to the prosecuting attorney for issuance of an accusation and prosecution as a misdemeanor offense should one fail to appear to answer the charges.³ OCGA § 40-13-62.

It is of no consequence that OCGA § 40-13-60 characterizes the offense as a “traffic violation” rather than a “misdemeanor,” when in fact the potential exists for prosecution as a misdemeanor under the statute. The offense of speeding is a misdemeanor under state law, and we do not believe the constitutional right to a jury trial can be eradicated simply by allowing the judges of the City Court of Atlanta to give it another designation. See generally Clark v. State, 157 Ga. App. 486 (277 SE2d 738) (1981) (a jury trial is required for violation of a county ordinance which is also a misdemeanor under state law).

We agree with the State that the general statutory scheme creating and implementing traffic violations bureaus (OCGA § 40-13-50 et seq.) benefits our judicial system by allowing summary disposition of certain offenses thus freeing up resources in an overcrowded court system, and also benefits traffic violators by reducing the severity of their offenses. Nonetheless, we hold that OCGA § 40-13-60 manifestly infringes on Art. I, Sec. I, Par. XI of the Georgia Constitution, insofar as it denies a criminal defendant who is subject to potential punishment as a misdemeanant the right to trial by jury. Our ruling today extends only to those offenses which are charged as misdemeanors under our State Code; it does not encompass crimes which are solely violations of local or municipal ordinances. The distinction was made in Giles v. Gibson, 208 Ga. 850 (69 SE2d 774) (1952). See also Dollar v. State, 160 Ga. App. 759 (288 SE2d 42) (1981); Evans v. City of Tifton, 138 Ga. App. 374 (226 SE2d 471) (1976). Compare Clark, supra (where offense is a violation of a county ordinance as well as a misdemeanor under state law there is concurrent jurisdiction).

That is not to say that the remainder of the statutory scheme must be invalidated.

If the statute is in part constitutional and valid, and in part unconstitutional and invalid . . . the courts will uphold it in part, when it is reasonably certain that to do so would correspond with the main intent and purpose which the legislature sought to accomplish by its enactment, if, after the unconstitutional part is stricken, there remains enough to accomplish that purpose.

Rich v. State of Ga., 237 Ga. 291, 303 (7) (227 SE2d 761) (1976). See also Maples v. City of Varnell, 244 Ga. 163, 164 (259 SE2d 94) (1979) (“legislative intent should be effectuated rather than declare the Act as a whole inoperative”). We do not believe that eliminating the language in OCGA § 40-13-60 which seemingly restricts a traffic violator to a bench trial would undermine the general intent and overall scheme of this Act. An offender may elect to have his case summarily disposed of in the traffic violations bureau; but one who files a proper demand for jury trial is guaranteed that right under our constitution. We therefore conclude that the offensive portion of OCGA § 40-13-60 may be severed, and the remainder of the Act (OCGA § 40-13-50 et seq.) as a whole is not void for any of the reasons urged by Geng.

3. We need not address Geng’s remaining grounds for reversal.

Judgment reversed.

All the Justices concur, except Benham, Carley and Hines, JJ., who dissent.

1 We note that OCGA § 40-13-60 is somewhat ambiguous in that it does not specifically exclude trial by jury. At oral argument, appellant offered documentation that another defendant in the City of Atlanta traffic violations bureau was granted a jury trial by another judge. However, for purposes of this appeal, we will assume that the statute entitles a violator to trial before a judge only.

2 The City Court of Atlanta is a state court of limited jurisdiction and is authorized to conduct jury trials pursuant to Ga. Laws 1996, p. 627 et seq.

3 It is anomalous indeed that Geng could insure his right to a jury trial by failing to appear in the traffic violations bureau to answer the charges.