In a recent decision, the Georgia Court of Appeals reversed a lower court’s ruling, finding that a sex offender’s use of regular mail to serve the Sexual Offender Risk Review Board was sufficient. The case, *Fusco v. Sexual Offender Risk Review Board*, centered on the proper method of serving a petition for judicial review under Georgia law. Let’s break down what happened and why it matters.
The Background of the Case
Daniel Fusco, who had been convicted of child molestation charges in the 1980s, was classified as a “sexually dangerous predator” by the Sexual Offender Risk Review Board in 2023. This classification, as outlined in OCGA § 42-1-14, is the highest risk assessment level. Fusco, wanting to lower his risk assessment classification, petitioned the Board to re-evaluate his status, providing documentation of his good behavior since his release from prison. This included evidence of passing polygraph exams, maintaining employment, and receiving support from his parole officer, employer, and church deacon.
The Board’s Decision and Fusco’s Appeal
Despite Fusco’s efforts, the Board affirmed its original classification. Fusco then filed a petition for judicial review in Fulton County Superior Court in March 2024, as allowed under OCGA § 42-1-14(c). When the Board failed to submit a summary of its findings to the court within the required timeframe, the court ordered it to do so. The Board responded by filing a motion to dismiss Fusco’s petition, arguing that he had failed to properly serve the Board because he used regular mail instead of personal service or a waiver of service. The Superior Court agreed with the Board, dismissing Fusco’s petition and stating it lacked jurisdiction.
The Court of Appeals Weighs In
Fusco appealed the Superior Court’s decision, arguing that service by regular mail was sufficient. The Court of Appeals agreed, reversing the lower court’s ruling. The appeals court’s decision hinged on the interpretation of the law regarding service of petitions for judicial review.
The Relevant Laws: APA vs. SSCAPA
The Court of Appeals analyzed two key pieces of legislation: the Administrative Procedure Act (APA) and the Superior and State Court Appellate Practice Act (SSCAPA). The APA generally governs how state agencies handle administrative proceedings. The SSCAPA, which came into effect in July 2023, provides a “single, modern, and uniform” procedure for appealing decisions to superior or state courts.
The court determined that the APA did not apply in this case because the Board’s risk assessment process under OCGA § 42-1-14(a) and (b) does not involve a hearing at the agency level. Instead, the SSCAPA governed the judicial review of the Board’s decision.
The SSCAPA’s Clear Language
The Court of Appeals emphasized that the SSCAPA, in OCGA § 5-3-10(a)(2), explicitly allows service of a petition for judicial review “in person, by mail, or electronically if consent to electronic service is given.” The court stated it must interpret the statute as written, acknowledging the legislative and executive branches approved the language. Therefore, Fusco’s use of regular mail was a permissible method of service under the law.
Legislative Intent and Future Implications
The court also noted that the SSCAPA was designed to increase access to justice and avoid dismissing cases based on procedural technicalities. The court referenced a bill in the 2025 legislative session that sought to amend the law to require certified mail or overnight delivery for service by mail, but the court stated that as the law currently stands, regular mail is sufficient.
In Conclusion
The Court of Appeals’ decision clarifies that, under current Georgia law, serving a petition for judicial review on the Sexual Offender Risk Review Board by regular mail is acceptable. The ruling highlights the importance of adhering to the specific procedures outlined in the SSCAPA. The court emphasized that it must interpret the law as it is written, and that the Superior Court erred in dismissing Fusco’s petition.