Donald Schaeffer, Judge v. Marieo Kearney

• Court: Court of Appeals of Georgia
• Decided: June 10, 2020
• Docket: A20A0264
• Status: Published

Opinion

THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, J.

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June 10, 2020

In the Court of Appeals of Georgia A20A0264. SCHAEFFER v. KEARNEY. HO-009

HODGES, Judge.

Donald Schaeffer, in his capacity as chief judge of the Municipal Court of

Sandy Springs, filed the instant appeal1 after the Superior Court of Fulton County

granted Marieo Kearney’s petition for a writ of mandamus directing that Kearney’s

misdemeanor citations be bound over to the State Court of Fulton County for a jury

trial. For the reasons that follow, we reverse.

The parties’ appellate briefs aver that Kearney was charged with three

violations of the City of Sandy Springs municipal code: disorderly conduct-

1 Schaeffer initially filed this appeal with the Supreme Court of Georgia, which transferred the matter to us. The Court of Appeals has appellate jurisdiction over “[a]ll cases involving extraordinary remedies” except cases involving issues related to a death sentence. OCGA § 15-3-3.1 (a) (4). marijuana; disorderly conduct-obstruction; and loitering and prowling. The criminal

citations are not in the appellate record. On appeal, Kearney asserts that at a

municipal court hearing, he asked that his citations be bound over to state court; after

the matter was continued, he filed a motion raising his right to a jury trial and again

asking that the case be bound over. He contends that instead of filing a responsive

brief, the city solicitor dismissed the obstruction charge. No transcript of the hearing

to which Kearney refers appears in the record. The record also does not contain the

motion or any dismissal or amendment of the charges. The parties both aver that the

municipal court denied Kearney’s motion.2 That denial is not in the appellate record.

Kearney then petitioned for mandamus in the Superior Court of Fulton County.

The superior court granted the petition, reasoning that there was a surviving

municipal citation for disorderly conduct-marijuana governed by OCGA § 36-32-6

(c), which provides that “[a]ny defendant charged with possession of an ounce or less

of marijuana in a municipal court shall be entitled on request to have the case against

him or her transferred to the court having general misdemeanor jurisdiction in the

county wherein the alleged offense occurred.” Schaeffer appealed, arguing that the

grant of the writ of mandamus was error because Kearney had another legal remedy

2 A different municipal court judge, not the appellant herein, issued that denial.

2 available, specifically, a writ of certiorari to the superior court. See OCGA § 5-4-3

(a party to a case in any inferior judicatory may petition for a writ of certiorari by

petition to the superior court for the county where the case was tried).

OCGA § 5-4-1 (a) provides, in relevant part, that “[t]he writ of certiorari shall

lie for the correction of errors committed by any inferior judicatory or any person

exercising judicial powers[.]” (Emphasis supplied.) While a writ of mandamus may

issue to compel a public official to perform a clear legal duty, this is true only if no

other specific legal remedy is available and only if the petitioner has a clear legal

right to the relief sought. OCGA § 9-6-20; Bibb County v. Monroe County, 294 Ga.

730, 734 (2) (755 SE2d 760) (2014). “To preclude mandamus, an alternative legal

remedy must be equally convenient, complete and beneficial to the petitioner. Thus,

for example, where a litigant seeks to compel some action that could be obtained by

pursuing certiorari in superior court . . . mandamus will not lie. (Citations omitted;

emphasis supplied.) Blalock v. Cartwright, 300 Ga. 884, 885-886 (II) (799 SE2d 225)

(2017).

The right that Kearney sought to vindicate through his mandamus petition was

to have his case bound over to state court for a jury trial. Schaeffer disputed below

whether the municipal charge at issue amounted to a charge of possession of

3 marijuana less than an ounce triggering state court jurisdiction. The trial court, citing

Marshall v. City of Griffin, 173 Ga. 782 (161 SE 622) (1931) for the proposition that

the character of an offense is determined by the factual allegations in the accusation

rather than the nomenclature of the offense, reasoned that Kearney’s disorderly

conduct-marijuana citation amounted to a charge of possession of marijuana less than

an ounce, triggering OCGA § 36-32-6 (c).

1. Schaeffer challenges the grant of the writ of mandamus to Kearney, arguing

that mandamus is not an allowable remedy because the opportunity for review via a

writ of certiorari exists. We agree. Indeed, “mandamus is not a vehicle by which a

party may obtain review of a judicial order which is subject to appellate review.”

(Emphasis supplied.) Ford Motor Co. v. Lawrence, 279 Ga. 284 (612 SE2d 301)

(2005). See generally id. at 285-286 (collecting cases where mandamus was and was

not appropriate).

In the instant case, Kearney could have sought review through a writ of

certiorari to the superior court, as outlined in OCGA § 5-4-1 (a). It is well-settled that

certiorari is an appropriate remedy for the correction of errors in decisions by

municipal courts rendered in the exercise of their judicial powers, but is not

appropriate to decisions rendered in the exercise of legislative, executive, or

4 ministerial functions. Smith & Wesson Corp. v. City of Altanta, 273 Ga. 431, 433-434

(1) (543 SE2d 16) (2001); City of Cedartown v. Pickett, 193 Ga. 840, 842 (1) (20

SE2d 263) (1942). While Kearney essentially contends that the municipal court’s duty

under OCGA § 36-32-6 (c) is so plain as to amount to a ministerial duty, we cannot

agree. A ministerial act is “simple, absolute, and definite . . . requiring merely the

execution of a specific duty” whereas a discretionary act “calls for the exercise of

personal deliberation and judgment, which in turn entails examining the facts,

reaching reasoned conclusions, and acting on them in a way not specifically

directed[.]” (Citation omitted.) Banks v. Benham, 270 Ga 91, 92 (510 SE2d 290)

(1998), overruled on other grounds by Clark v. Hunstein, 291 Ga. 646, 649 (2), n. 3

(733 SE2d 259) (2012). In examining the municipal citation and the factual

allegations upon which it was based in order to determine whether the charges should

be bound over pursuant to OCGA § 36-32-6 (c), the municipal court was required to

exercise its “judgment or discretion.” Smith & Wesson Corp., 273 Ga. at 433 (1)

(where the court’s duty “depends upon a statute or statutes the construction or

application of which is not free from doubt, it is regarded as involving the character

of judgment or discretion which cannot be controlled by mandamus”) (citation

omitted).

5 A complaint that a [municipal] court has failed to analyze or apply the law correctly is not the type of grievance which will support the issuance of an extraordinary writ because this remedy cannot act as a substitute for an appeal [or writ of certiorari]. . . . An alleged error in judgment does not constitute an abuse of discretion on the part of the [municipal] court[.] . . . Judicial decisions may be characterized as legally sound or woefully weak. But, whatever the method by which decisions are reached and conveyed, they are judicial decisions not subject to challenge by an action for mandamus[].

(Citation and punctuation omitted.) Smith & Wesson Corp., 273 Ga. at 433-434 (1).

2. Because of our decision in Division 1, we need not consider Schaeffer’s

remaining contention of error.

Judgment reversed. McFadden, C. J., and Doyle, P. J., concur.