306 Ga. 171 FINAL COPY
S19M0969. DUKE v. THE STATE.
BETHEL, Justice.
On April 12, 2017, Ryan Alexander Duke was indicted for
malice murder, felony murder, aggravated assault, burglary, and
concealing the death of another in connection with the October 23,
2005, death of Tara Grinstead. Duke was initially provided counsel
through the Tifton Judicial Circuit Public Defender’s office, but, in
September 2018, he obtained pro bono private counsel. The case was
set for trial in Irwin County Superior Court, and, in the lead-up to
trial, Duke filed a series of motions in the trial court seeking public
funding for expert witnesses and investigators to aid his defense.
Notwithstanding the trial court’s finding that Duke is indigent
and that the assistance of experts is necessary to mount a proper
defense, his motions were denied, and the trial court did not grant
Duke’s request for a certificate of immediate review pursuant to
OCGA § 5-6-34 (b). In the absence of a certificate from the trial court, Duke filed both a motion asking this Court to stay the proceedings
below and an application asking the Court to exercise discretion to
allow an interlocutory appeal pursuant to the analysis set forth in
Waldrip v. Head, 272 Ga. 572, 574-577 (1) (532 SE2d 380) (2000).
This Court granted Duke’s request for supersedeas and stay, but we
held Duke’s application to appeal in abeyance pending consideration
of whether Waldrip should be overruled. Briefing and oral argument
proceeded on that issue.
For the reasons set forth below, we overrule Waldrip to the
extent it permits this Court to disregard the requirement set forth
in OCGA § 5-6-34 (b) that a party must obtain a certificate of
immediate review from the trial court before pursuing an
interlocutory appeal not otherwise authorized by OCGA § 5-6-34 (a).
Because the trial court did not issue a certificate of immediate
review in this case, this Court is without jurisdiction to consider
Duke’s application for interlocutory appeal. His application is
therefore dismissed. The stay we previously issued in this case will
dissolve when our remittitur is received by and filed in the trial
2 court.
1. Statutory Requirements for Interlocutory Review are Jurisdictional.
“The solemn duty devolves upon this [C]ourt to inquire into its
jurisdiction to entertain each appeal and review the alleged errors
of the trial court.” Gibson v. Hodges, 221 Ga. 779, 780 (1) (147 SE2d
329) (1966), citing Byrd v. Goodman, 192 Ga. 466 (1) (15 SE2d 619)
(1941). “Georgia law is well settled that the right to appeal is not
constitutional, but instead depends on statutory authority.” Jones v.
Peach Trader, Inc., 302 Ga. 504, 511 (III) (807 SE2d 840) (2017).
“The provisions of the law respecting the procedure to be followed in
perfecting appeals to this [C]ourt are jurisdictional, and unless this
[C]ourt has jurisdiction of a case, it is without power or authority to
render a judgment upon review.” Spivey v. Nalley, 212 Ga. 810, 810
(96 SE2d 260) (1957). “The jurisdiction of an appellate court to
consider an appeal depends upon whether the appeal is taken in
substantial compliance with the rules of appellate procedure
prescribing the conditions under which the judgment of the trial
3 court may be considered appealable.” (Citation omitted.) Fulton
County v. State, 282 Ga. 570, 570 (1) (651 SE2d 679) (2007).
OCGA § 5-6-34 governs what trial court orders may be
reviewed immediately by an appellate court. Specifically, subsection
(a) of the statute lists the trial court judgments and orders that may
be appealed immediately. This list includes “[a]ll final judgments . . .
where the case is no longer pending in the court below.” OCGA § 5-
6-34 (a) (1).1
Other cases can be appealed immediately only with permission
from both the trial court and the appellate court. OCGA § 5-6-34 (b).
When a trial court enters an order, decision, or judgment not
otherwise subject to immediate appeal under OCGA § 5-6-34 (a),
appeal from that order may be had only “[w]here the trial
judge . . . certifies within ten days of entry thereof that the order,
decision, or judgment is of such importance to the case that
1 Certain types of orders, though immediately appealable, must be appealed by following the discretionary application procedure set forth in OCGA § 5-6-35. See Grogan v. City of Dawsonville, 305 Ga. 79, 82 (2) (823 SE2d 763) (2019). 4 immediate review should be had.” OCGA § 5-6-34 (b). Upon such
certification, “the Supreme Court or the Court of Appeals may
thereupon, in their respective discretions, permit an appeal to be
taken from the order, decision or judgment. . . .” Id.
Through the collateral order doctrine, we have also recognized
that “a very small class of interlocutory rulings are effectively final
in that they finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is
adjudicated.” (Citations and punctuation omitted.) State v. Cash,
298 Ga. 90, 92-93 (1) (b) (779 SE2d 603) (2015). Thus, “an order that
satisfies the requirements of the collateral order doctrine is
considered to be effectively final and would be appealable because it
comes within the terms of a relevant statutory right to appeal final
judgments,” namely the right prescribed in OCGA § 5-6-34 (a) (1).
Id. at 93 (1) (b). Both before and after Waldrip, this Court has
characterized the statutory requirements for bringing an
5 interlocutory appeal as jurisdictional in nature — that is, if a
requirement is not satisfied, the appellate court is without
jurisdiction to consider the case. See, e.g., Jones, 302 Ga. at 510 (II)
(“[A]n attempt to appeal an interlocutory order without following the
procedures statutorily mandated is ineffective in conferring
jurisdiction on the appellate court.” (citation and punctuation
omitted)); Islamkhan v. Khan, 299 Ga. 548, 551 (2) (787 SE2d 731)
(2016) (because appellant failed to “follow the required procedures
for obtaining appellate review” of interlocutory order “his attempted
appeal was a nullity and incapable of activating the appellate
jurisdiction of this Court”); Cherry v. Coast House, Ltd., 257 Ga. 403,
404 (2) (359 SE2d 904) (1987) (“[W]hen the order appealed from is
an interlocutory order, the appellate court does not acquire
jurisdiction unless the procedure of OCGA § 5-6-34 (b) for
interlocutory appeal is followed.”); Fife v. Johnston, 225 Ga. 447, 447
(169 SE2d 167) (1969) (“[T]he right of appeal is not absolute, but is
one based upon the conditions imposed by the General Assembly for
bringing cases to the appellate courts.”).
6 We have said the same about many other statutory
requirements for appeal. See, e.g., Crosson v. Conway, 291 Ga. 220,
221-222 (2) (728 SE2d 617) (2012) (noting that both a timely notice
of appeal filed in the trial court and a timely application for
certificate of probable cause filed in this Court are necessary to
invoke this Court’s jurisdiction over an appeal from the denial of a
petition for habeas corpus pursuant to OCGA § 9-14-52 (b)); Cody v.
State, 277 Ga. 553, 553 (592 SE2d 419) (2004) (holding that
compliance with the deadline for filing a notice of appeal set forth in
OCGA § 5-6-38 (a) is an “absolute requirement” to confer jurisdiction
on an appellate court); State of Ga. v. Intl. Keystone Knights of the
Ku Klux Klan, 299 Ga. 392, 399 (4) (788 SE2d 455) (2016) (“Appeals
in cases to which OCGA § 5-6-35 (a) (1) applies must come by timely
application, and if they come instead by a notice of appeal, the
appellate court is without jurisdiction and must dismiss the
appeal.”).
The order at issue in this case is clearly not a final judgment,
as Duke’s case remains pending in the court below. Duke has also
7 made no argument before this Court that the trial court order is
otherwise immediately appealable under OCGA § 5-6-34 (a).
Moreover, despite his counsel’s eleventh-hour efforts at oral
argument to characterize the order at issue as a collateral order,
that argument plainly fails. Under the collateral order doctrine, an
order that does not resolve the entire case in the trial court may be
appealed immediately if it “(1) resolves an issue that is
‘substantially separate’ from the basic issues to be decided at trial,
(2) would result in the loss of an important right if review had to
await final judgment, and (3) completely and conclusively decides
the issue on appeal such that nothing in the underlying action can
affect it.” Fulton County, 282 Ga. at 571 (1). Duke has acknowledged
that his opportunity for appellate review of the order will not be lost
if his appeal must await final judgment. Indeed, in his application
before this Court, Duke argued that, should he be found guilty, the
jury’s verdict would likely be set aside on appeal given the
importance of expert assistance to the presentation of his defense.
Thus, he will not be left without a remedy in the absence of
8 immediate review of the trial court’s order by this Court.
Accordingly, the trial court’s order is not a collateral order.2
Because the trial court’s order denying Duke’s requests for
funding was not immediately appealable as a final judgment or as a
collateral order, Duke’s only option for seeking review of that order
was to pursue an interlocutory appeal. Because the trial court did
not issue a certificate of immediate review, Duke did not satisfy that
statutory requirement for bringing such an appeal. Nevertheless,
Duke invoked this Court’s ruling in Waldrip, asking this Court to
allow his interlocutory appeal notwithstanding the fact that no
certificate of immediate review was issued by the trial court. It is
against this statutory and decisional backdrop and the procedural
history of this case that we reconsider our holding in Waldrip.
2. Waldrip Created a Judicial Exception to the Statutory Requirements for Bringing an Interlocutory Appeal.
In Waldrip, the petitioner, who had been convicted of murder,
filed a habeas corpus petition alleging ineffective assistance of
2 Because failure to satisfy any of the three prongs of the test is fatal, we
need not consider whether Duke has met the first or third prong. 9 counsel. 272 Ga. at 572. The warden against whom the petition was
filed sought the litigation files of the petitioner’s trial and appellate
counsel. Id. Through a series of orders, the habeas court granted the
warden’s motion to compel access to the litigation files. Id. The
petitioner requested a certificate of immediate review, which the
habeas court did not grant. Id. at 573. The petitioner then filed with
this Court both an application for interlocutory appeal and a notice
of appeal directed to this Court. Id. This Court concluded that the
habeas court’s order was not immediately appealable under the
collateral order doctrine. Id. at 574 (1). As to the petitioner’s
application for interlocutory review, this Court recognized that,
because “discovery orders generally are interlocutory, our appellate
courts ordinarily obtain jurisdiction over them through the
application process . . . [which] requires the trial court to certify that
its order is ‘of such importance to the case that immediate review
should be had.’” Id. at 574-575 (1) (quoting OCGA § 5-6-34 (b)). We
noted that “[t]he purpose of the certificate requirement is to permit
trial courts, rather than parties, to regulate the litigation.” Id. at 575
10 (1) (citing Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587
(408 SE2d 103) (1991)).
However, without reference to any authority, this Court went
on to state that the purpose of the certificate requirement “is not to
permit trial courts to deprive appellate courts of their jurisdiction.”
Waldrip, 272 Ga. at 575 (1). And thence this Court stepped off the
solid stone path of the statutory text. Noting that “[u]nder our
present rules, strict adherence to the certificate requirement
provides no alternative procedure in the event that the appellate
court disagrees with the trial court’s decision that ‘immediate review
should be had,’” id., the Court set about inventing a rule permitting
deviation from such strict adherence:
Because of this defect in the interlocutory review process, this Court on rare occasions has assumed jurisdiction to consider an appeal despite the absence of a final judgment or a certificate of immediate review from the trial court. We have chosen to bypass the statutory requirements for interlocutory review and address the substantive issues raised on appeal when the case presented an important issue of first impression concerning a recently enacted statute for which a precedent was desirable, dismissal would deny the litigant the right of appellate review in this state, or
11 consideration of the trial court order as “final” served the interest of judicial economy. In effect, this Court has granted the application for interlocutory review in those exceptional cases that involve an issue of great concern, gravity, and importance to the public and no timely opportunity for appellate review.
(Citations omitted.) Id. at 575 (1).
The Court went on to assert that
both the state constitution and code give this Court authority to establish rules of appellate procedure for this state. The constitution states that each court may exercise the powers “necessary in aid of its jurisdiction” and gives the Supreme Court express responsibility for administering the entire judicial system. The code gives this Court authority to “establish, amend, and alter its own rules of practice.” Even if the legislature had not expressly provided this authority, this Court has the inherent power to maintain a court system that provides for the administration of justice in an orderly and efficient manner.
(Citations omitted.) Id. at 575-576 (1).
The Court announced that we have “the power to consider
appeals of interlocutory orders when we disagree with the trial court
concerning the need for immediate appellate review of an
interlocutory order.” Waldrip, 272 Ga. at 576 (1). We justified this
action by noting that the adoption of this “rule” was consistent with
12 a precedent of the North Carolina Supreme Court and national
standards developed by the American Bar Association, which had
recommended that “appellate courts retain the discretion of
interlocutory review when it would materially advance the end of
the litigation, protect a party from irreparable harm, or clarify an
issue of public importance.” (Citation omitted.) Id.
The Court went on to express its disagreement with the trial
court’s decision not to grant the petitioner’s request for a certificate
of immediate review in that case. Further, we explained that we
granted the petitioner’s interlocutory application because the
circumstances presented “one of those rare cases in which we
exercise our discretion to review an interlocutory order without a
trial court certificate because the appeal presents a legal issue of
great concern and importance and rights may be lost if review is
delayed until a final judgment is entered.” Waldrip, 272 Ga. at 577
(1).
The opinion in Waldrip was embraced by a bare majority of the
Court. The majority opinion drew a sharp dissent authored by
13 Justice Carley and joined by Justices Thompson and Hines, who
argued, among other things, that the Court lacked the authority to
bypass the statutory prerequisites for an interlocutory appeal. Id.
at 580-583 (Carley, J., dissenting). Justice Carley continued his
criticism of the decision and the broad discretion it vested in the
Court in a dissent in Hicks v. Scott, 273 Ga. 358 (541 SE2d 27)
(2001).3
3. The Rationales Articulated in Waldrip are Unpersuasive.
We now examine in turn the various rationales articulated by
the Waldrip majority in support of its decision. Through such
examination, we discover that Waldrip rests on an unsturdy
3 Hicks was a habeas corpus case in which this Court granted the appellant’s application for a certificate of probable cause despite the fact that the application was not timely filed because “the habeas court failed to correctly inform petitioner of the proper procedure for obtaining appellate review of its order.” (Citation and punctuation omitted.) 273 Ga. at 359. In dissent, Justice Carley argued that, under Fullwood v. Sivley, 271 Ga. 248, 250-251 (517 SE2d 511) (1999), the Court lacked jurisdiction over the petition because of the appellant’s failure to comply with the statutory requirement. Hicks, 273 Ga. at 360 (Carley, J., dissenting). This Court later explicitly overruled Hicks, holding that an appellant’s failure to comply with the statutory requirement for obtaining a certificate of probable cause deprived this Court of jurisdiction and could not be excused due to a trial court’s failure to inform the appellant of such requirements. Crosson, 291 Ga. at 221-222 (2). 14 foundation.
(a) Appellate Court Jurisdiction is Established by the Georgia Constitution and Statutes.
The Waldrip majority divined the necessity of its holding from
the absence of any mechanism allowing this Court to immediately
review the decision of a trial court in a case that we deem to present
an issue of gravity and concern. Curiously, it stated that its holding
was necessary because the certificate of immediate review
requirement in OCGA § 5-6-34 (b) was not designed to “permit trial
courts to deprive appellate courts of their jurisdiction.” Waldrip, 272
Ga. at 575 (1). In the matter now before us, Duke argues that OCGA
§ 5-6-34 (b)’s requirement that a litigant obtain a timely certificate
of immediate review from the trial court unfairly places control of
the Supreme Court’s jurisdiction in the hands of the trial court.
But the Court’s jurisdiction is not controlled by the trial court;
it is fixed by the Georgia Constitution and the statutory law. As we
noted at the outset, statutory procedural requirements for appeal, if
not complied with, deprive the State’s appellate courts of jurisdiction
15 to consider the case at hand. See, e.g., Jones, 302 Ga. at 510 (II);
Islamkhan, 299 Ga. at 551 (2); Cherry, 257 Ga. at 404 (2); Fife, 225
Ga. at 447. See also American Gen. Fin. Svcs. v. Jape, 291 Ga. 637,
644 (732 SE2d 746) (2012) (Nahmias, J., concurring specially)
(OCGA § 5-6-34 (b) “is a jurisdictional law by which the General
Assembly has limited the authority of Georgia’s appellate courts to
hear certain cases.” (emphasis in original)). That the General
Assembly, in OCGA § 5-6-34 (b), has made the trial court the initial
gatekeeper of interlocutory appeals does not change this analysis.
Moreover, absent any claim by a litigant that adherence to the
procedure for obtaining interlocutory review deprives the litigant of
some right under federal law or the Georgia Constitution, this Court
must adhere to the procedure established by the General Assembly.
See U.S. Const. Art. VI (“This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, Any Thing in the
16 Constitution or Laws of any State to the Contrary
notwithstanding.”); Gable v. State, 290 Ga. 81 (720 SE2d 170) (2011)
(explaining that untimely or “out of time” appeals may be considered
not for equitable reasons but only to avoid or remedy a constitutional
violation concerning the appeal); Fife, 225 Ga. at 447 (“Whether wise
or unwise, as long as the Act does not offend the Constitution, courts
must abide by it.”).
While attempting to remedy one perceived problem, Waldrip
actually created several others. By announcing this Court’s
discretion to override the requirements of OCGA § 5-6-34 (b),
Waldrip injected this Court into a role that the General Assembly
entrusted exclusively to the trial court; namely, deciding whether,
in the first instance, an issue merits interlocutory consideration. By
requiring the prompt, affirmative assent of the trial court before an
interlocutory appeal can proceed, OCGA § 5-6-34 (b) allows the trial
court to manage litigation before it to a conclusion except in those
circumstances in which the trial court believes that the issues
presented by a litigant need clarification by an appellate court before
17 the case proceeds. Aside from cases covered by OCGA § 5-6-34 (a),
absent a timely certificate of immediate review, a litigant’s
opportunity for appellate review arises only once a final order in the
case is issued. See Turner v. Harper, 231 Ga. 175, 175 (200 SE2d
748) (1973). Waldrip upsets this arrangement.
Moreover, despite the claims of Duke and the Waldrip majority
to the contrary, OCGA § 5-6-34 (b) does not bar appellate courts from
deciding any cases for which they have jurisdiction. The statute
merely outlines specific circumstances in which that jurisdiction
may attach before the issuance of an order that is immediately
appealable under OCGA § 5-6-34 (a). A litigant’s opportunity for
appellate review is not denied by this process; it is, at worst, delayed
in a way specifically designed by the General Assembly.
This is unequivocally the scheme adopted by the General
Assembly. As we observed before Waldrip, the General Assembly
placed “unfettered discretion” and “carte blanche authority” in the
trial court to issue or deny a certificate of immediate review, and
“there are no clearly delineated specifications or ascertainable
18 standards [of that exercise of discretion and authority] for appellate
review.” (Citations and punctuation omitted.) Scruggs, 261 Ga. at
588 (1). “For these reasons this Court has held that it will not review
the discretion vested in the trial court in granting or refusing a
certificate for immediate review of interlocutory rulings.” (Citation
and punctuation omitted.) Id.
While, in some cases, the interests of judicial economy may not
be served when a reversible error is addressed by appellate courts
only after the entry of a final judgment, that is not a problem this
Court is empowered to remedy. The General Assembly has
entrusted the first exercise of authority to allow interlocutory review
to trial courts, and it is not for this Court to override that decision.
As this Court has previously noted “the certificate of immediate
review is not ‘surplusage’ but is instead an essential component of a
trial court’s power to control litigation.” (Citation omitted.) Scruggs,
261 Ga. at 589 (1).
(b) Waldrip Cited Unsound and Inapposite Case Law.
The Waldrip majority opinion cited unpersuasive authority in
19 support of its holding. In addition to relying upon standards enacted
by the American Bar Association and a holding of the North
Carolina Supreme Court, neither of which have been granted any
authority under the Georgia Constitution, the key premise of
Waldrip, that this Court has the discretion to “bypass the statutory
requirements for interlocutory review,” was based on a case in which
the Court deviated from its longstanding practice of resolving
jurisdictional matters before proceeding to the merits as well as a
pair of cases with very narrow holdings that Waldrip misapplied.
The Waldrip majority opinion first cited In re Bd. of Twiggs
County Commrs., 249 Ga. 642, 643 (292 SE2d 673) (1982), for the
proposition that, despite procedural defects, review is necessary
“when the case present[s] an important issue of first impression
concerning a recently enacted statute for which a precedent [is]
desirable.” Waldrip, 272 Ga. at 575 (1). In that case, it was not clear
that the appellant had complied with the statutory requirements for
appeal. Twiggs County Commrs., 249 Ga. at 642 (1). Even though
that issue called into question the Court’s jurisdiction over the case,
20 the Court ultimately elected to pretermit those issues and to decide
the appeal on the merits. Id. at 643 (1).
Twiggs County Commrs. cited the provisions of former Code
Ann. § 6-905 (Ga. L. 1965, pp. 18, 40) for the proposition that it
should reach the merits of the case without resolving the
jurisdictional issue. That Code section provided that the act relating
to appellate procedures “shall be liberally construed so as to bring
about a decision on the merits of every case appealed, and to avoid
dismissal of any case or refusal to consider any points raised therein,
except as may be specifically referred to herein.” Id. This language
essentially mirrors the language of current OCGA § 5-6-30.
Former Code Ann. § 6-905 was enacted as part of the Appellate
Practice Act of 1965. Shortly after its enactment, we noted that the
Act “prescribes the conditions as to the right of a party litigant to
have his case reviewed. We view these prescribed conditions as
jurisdictional.” (Punctuation omitted.) Wood v. Atkinson, 229 Ga.
179, 180 (190 SE2d 46) (1972). More recently, we have noted that,
although the Act requires certain filings to be made in order to
21 invoke the Court’s jurisdiction, “this Court alone has the authority
to determine whether such filing is sufficient to invoke its
jurisdiction.” Hughes v. Sikes, 273 Ga. 804, 805 (1) (546 SE2d 518)
(2001) (interpreting current OCGA § 5-6-30). Such authority has
been used to determine, for instance, that an appellant need not list
in his notice of appeal every order being challenged on appeal in
order to comply with the requirements of OCGA §§ 5-6-34 (d) and 5-
6-37. See Mateen v. Dicus, 281 Ga. 455, 456 (637 SE2d 377) (2006)
(construing the language of OCGA § 5-6-37 to mean that an
appellant need only include in the notice of appeal the single
judgment that entitles the appellant to take an appeal).
But the language of former Code Ann. § 6-905 (and current
OCGA § 5-6-30) does not mean that an appellate court can simply
bypass the statutory requirements for bringing an appeal in order
to reach the merits — if it did, every statute creating a requirement
for bringing an appeal would be nothing more than a legislative
suggestion. As we have discussed above, we have many precedents
holding to the contrary. See, e.g., Crosson, 291 Ga. at 221 (2) (“[T]his
22 Court cannot denigrate the General Assembly’s determination by
considering either a timely notice of appeal or a timely application
as a mere procedural nicety.” (citation and punctuation omitted)).
Instead, this Code section instructs the Court to ensure that
meaningful appellate review is available where an appellant has
substantially complied with the statutory requirements for appeal.
In Twiggs County Commrs., this Court made no attempt to
discern whether those requirements were met. We instead
pretermitted the jurisdictional issue and moved straight to the
merits of the case. This was error. As this Court has held numerous
times before and since it decided Twiggs County Commrs., this
Court must satisfy itself that it has jurisdiction before deciding the
merits of a case. See, e.g., Brock v. Hardman, 303 Ga. 729, 729 (1)
(814 SE2d 736) (2018); State of Ga. v. Singh, 291 Ga. 525, 526 (731
SE2d 649) (2012); Arrington v. Reynolds, 274 Ga. 114, 114 (549 SE2d
401) (2001); Collins v. American Tel. & Telegraph Co., 265 Ga. 37
(456 SE2d 50) (1995); Collins v. State, 239 Ga. 400, 401 (1) (236 SE2d
759) (1977); Carparking, Inc. v. Chappell’s Inc., 213 Ga. 637 (100
23 SE2d 896) (1957); Dade County v. State of Ga., 201 Ga. 241 (39 SE2d
473) (1946); Welborne v. State, 114 Ga. 793 (40 SE 857) (1902).
Questions pertaining to an appellate court’s jurisdiction cannot be
sidestepped or pretermitted, as they go to the threshold question of
whether the appellate court has the authority to decide the merits
of the case. See McConnell v. Dept. of Labor, 302 Ga. 18, 18-19 (805
SE2d 79) (2017) (holding that applicability of sovereign immunity to
claims brought against the State is a threshold jurisdictional issue
that must be resolved before reaching the merits). Where an
appellate court does not have jurisdiction because the appellant has
not complied with the statutory requirements for bringing the
appeal, the appellate court must dismiss the appeal.
Notably, Twiggs County Commrs. has been cited for this
proposition only once — by the Waldrip majority. Because Twiggs
County Commrs. deviated so sharply from the Court’s longstanding
precedents, including in cases decided after Twiggs County
Commrs., the Waldrip majority should not have relied upon it.
Indeed, Twiggs County Commrs. stands far afield from our
24 body of cases requiring this Court and the Court of Appeals to
inquire into our respective jurisdictions, even if the issue is not
raised by the parties. In light of our case law to the contrary,
especially cases decided by this Court after Twiggs County Commrs.,
it is clear that Twiggs County Commrs. is not good law to the extent
it suggests that jurisdictional issues need not be resolved by an
appellate court before it considers the merits of an appeal. See White
v. State, 305 Ga. 111, 122 (3) n.10 (823 SE2d 794) (2019) (noting that
a high court generally follows its decision in the most recent case
“which must have tacitly overruled any truly inconsistent holding”
(citation and punctuation omitted)); Houston v. Lowes of Savannah,
Inc., 235 Ga. 201, 203 (219 SE2d 115) (1975) (holding that, in the
event two precedents of the Supreme Court conflict, the more recent
case is controlling, because the case decided by this Court “later in
time is the more persuasive decision”).
The Waldrip majority opinion also cited G. W. v. State of Ga.,
233 Ga. 274 (210 SE2d 805) (1974), for the proposition that review
is necessary when “dismissal would deny the litigant the right of
25 appellate review in this state.” Waldrip, 272 Ga. at 575 (1). That
case concerned an order transferring a juvenile to law enforcement
authorities of another state. This Court held that, unlike a transfer
order between juvenile authorities of different counties in Georgia
(an interim order), an order transferring a juvenile out of state was
the final judgment to be entered in a case by a Georgia court. Thus,
such an order should be deemed a final order and subject to
appellate review.
Waldrip’s reliance on G. W. was misplaced. G. W. did not
dispense with the certificate requirement of OCGA § 5-6-34 (b), nor
did it dispense with any statutory requirement for appeal. The
Waldrip court was correct that G. W. preserved a right for the
litigant to pursue an appeal in Georgia, but in doing so, it found only
that an immediate appeal could be brought because the order in
question was properly construed as a final judgment within the
existing statutory framework, namely OCGA § 5-6-34 (a) (1). G. W.,
233 Ga. at 275.
Finally, the Waldrip majority opinion relied upon this Court’s
26 decision in Isaacs v. State, 257 Ga. 798 (364 SE2d 567) (1988), for
the proposition that review was necessary when “consideration of
the trial court order as ‘final’ served the interest of judicial
economy.” Waldrip, 272 Ga. at 575 (1). As with G. W., the Waldrip
majority’s reliance on this case was misplaced. While Waldrip
correctly noted that, in Isaacs, this Court considered the interests of
judicial economy in treating the order at issue as final, nowhere in
Isaacs does the Court suggest that a statutory requirement can be
bypassed in order to reach the merits of an appeal. Isaacs instead
deemed the order at issue to be a final order under the collateral
order doctrine. See Waldrip, 272 Ga. at 581 (Carley, J., dissenting).
As it did in G. W., this Court applied an existing statutory
framework to the jurisdictional question before reaching the merits
of the appeal. The Waldrip majority did not follow the example of G.
W. or Isaacs.
(c) Waldrip Relies on Inapplicable Constitutional and Statutory Authority.
Waldrip also stated that the Court’s authority under the
27 Georgia Constitution and various statutes permits it to accept an
interlocutory appeal in the absence of a certificate of immediate
review. This claim fails even a cursory examination.
The Waldrip majority noted that, under Article VI, Section I,
Paragraph IV and Article VI, Section IX, Paragraph I of the Georgia
Constitution, this Court is empowered to exercise powers “necessary
in aid of its jurisdiction” and to administer the entire state judicial
system. The Waldrip majority attempted to buttress its argument
by also citing OCGA § 15-2-8 (5)’s grant of authority to the Court to
“establish, amend, and alter its own rules of practice.”
Outside of Waldrip, we have not had many occasions to
examine the contours of these grants of judicial authority. However,
although this Court is empowered to establish rules of appellate
practice for itself and, to some extent, for the other courts of this
State, we do not have the authority to create our own jurisdiction.
As we held in Gable, 290 Ga. at 85 (2) (b), “courts have no authority
to create equitable exceptions to jurisdictional requirements
imposed by statute.” (Citation and punctuation omitted.) Our
28 appellate courts “may excuse compliance with a statutory
requirement for appeal only where necessary to avoid or remedy” a
violation of federal law or the Georgia Constitution concerning the
appeal, such as when a criminal defendant does not file a timely
notice of his first appeal from a conviction due to counsel’s ineffective
assistance. Id. (citing Rowland v. State, 264 Ga. 872 (452 SE2d 756)
(1995)). See also Crosson, 291 Ga. at 222 (explaining that “we are
wholly without any constitutional or other authority to waive
compliance with this [statutory] jurisdictional mandate”).
But Waldrip permits this Court to intervene in a far wider
range of cases than that. Although “cases that involve an issue of
great concern, gravity, and importance to the public,” Waldrip, 272
Ga. at 575 (1), may sometimes involve questions of an appellant’s
rights under federal law or the Georgia Constitution, those
questions rarely turn on whether the litigant will face the denial of
any such rights merely by deferring appellate review until after the
entry of a final judgment in the case. In such cases, as we discussed
in Gable, statutory strictures must give way to constitutional
29 guarantees. But in the absence of a colorable claim that a litigant’s
rights are at risk in the face of adherence to statutory appellate
requirements, such requirements must be adhered to by this Court.
Nothing in the constitutional or statutory provisions establishing
this Court’s rule-making and administrative authority suggests
otherwise. In short, Waldrip “constitutes blatant judicial usurpation
of the legislative function, and cannot be considered to be the
legitimate exercise of inherent judicial authority.” Waldrip, 272 Ga.
at 582 (Carley, J., dissenting).
(d) Waldrip Was Wrongly Decided.
As the above review of Waldrip’s holding and stated reasoning
demonstrates, the Waldrip majority’s efforts to correct a perceived
“defect” in the statutory interlocutory review process extended
beyond the Court’s constitutional and statutory authority and were
based on unsound and inapposite precedents. In handing down
Waldrip, this Court enlarged its own power at the expense of the
power the General Assembly vested in trial courts to determine
when an interlocutory appeal should be permitted. Thus, we
30 determine today that Waldrip was wrongly decided. However,
because Waldrip remains binding precedent, we must decide
whether the doctrine of stare decisis counsels against overruling
Waldrip even though we have determined that its reasoning was
unsound.
4. Stare Decisis Does Not Support Upholding Waldrip.
Under the doctrine of stare decisis, courts generally stand by
their prior decisions, because doing so “promotes the evenhanded,
predictable, and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” (Citation and
punctuation omitted.) State v. Hudson, 293 Ga. 656, 661 (748 SE2d
910) (2013). Stare decisis, however, is not an “inexorable command.”
Id. “Courts, like individuals, but with more caution and deliberation,
must sometimes reconsider what has been already carefully
considered, and rectify their own mistakes.” City of Atlanta v. First
Presbyterian Church, 86 Ga. 730, 733 (13 SE 252) (1891). In
reconsidering our prior decisions, “we must balance the importance
31 of having the question decided against the importance of having it
decided right.” (Emphasis in original.) State v. Jackson, 287 Ga. 646,
658 (5) (697 SE2d 757) (2010). To that end, we have developed a test
that considers “the age of the precedent, the reliance interests at
stake, the workability of the decision, and, most importantly, the
soundness of its reasoning.” (Emphasis supplied.) Id.
The stare decisis factors counsel that Waldrip should be
overruled. We have already established that the Waldrip majority’s
reasoning was unsound and unmoored from this Court’s consistent
and longstanding application of statutory appeal requirements
enacted by the General Assembly. In short, Waldrip was very wrong.
Such significant unsoundness cuts “heavily in favor of overruling
[Waldrip].” Olevik v. State, 302 Ga. 228, 245 (2) (c) (iv) (806 SE2d
505) (2017). As for the age factor, Waldrip was decided 19 years ago,
“and we have overruled decisions older than that.” Id.
Likewise, Waldrip does not involve substantial reliance
interests. The issue addressed by Waldrip “is one of appellate
procedure, not contract, property, or other substantive rights in
32 which anyone has a significant reliance interest.” (Citation and
punctuation omitted.) Southall v. State, 300 Ga. 462, 467 (1) (796
SE2d 261) (2017).
Moreover, Waldrip is “neither ancient nor entrenched” within
our judicial system. Southall, 300 Ga. at 468 (1). Although Waldrip
potentially expands the opportunity for a litigant to bring an
interlocutory appeal, the authority this Court claimed for itself in
Waldrip has very rarely been cited in the years since Waldrip was
decided. See, e.g., Bunn v. State, 284 Ga. 410, 411 (667 SE2d 605)
(2008) (declining to grant interlocutory review and noting that
Waldrip factors had not been satisfied); Smith & Wesson Corp. v.
City of Atlanta, 273 Ga. 431, 435 (3) (543 SE2d 16) (2001) (noting
appellant’s citation of Waldrip but stating that, contrary to Waldrip,
“[t]his Court has clearly stated that in reviewing cases on appeal it
will not pass upon questions on which no final ruling has ever been
made by the trial judge or where there is no compliance with the
requirement of OCGA § 5-6-34 (b) that the trial court certify its order
for immediate review”). Indeed, in the thousands of cases involving
33 interlocutory applications and appeals over the past two decades, it
appears that Waldrip was invoked by this Court only once to allow
an appeal. See Williams v. State, Case No. S05M0071, 2004 Ga.
LEXIS 826 (2004) (unpublished order, over dissent of Justices
Carley and Hines, granting emergency interlocutory appeal under
Waldrip in the absence of a timely certificate of immediate review to
consider trial court’s appointment of counsel in death penalty case).
We could locate no published opinion of the Court of Appeals
indicating that it had granted an interlocutory appeal on the basis
of Waldrip, and we were able to find only a single instance in which
the Court of Appeals explicitly declined an appellant’s request to do
so in a published opinion. See Fein v. Chenault, 330 Ga. App. 222,
227 (767 SE2d 766) (2014).
Moreover, Duke has not argued — and we find no independent
basis for concluding — that he would be deprived of his opportunity
for appellate review in the absence of the Waldrip precedent. As we
noted above, a faithful application of the requirements of OCGA § 5-
6-34 (b) at most delays Duke’s opportunity for appellate review in
34 this case; it does not foreclose it.
Finally, Waldrip is unworkable for both appellate and trial
courts. First, the reach of its rationale is limitless, as, contrary to
the express will of the General Assembly, Waldrip places appellate
courts — and only appellate courts — in the position of determining
which cases pending in the trial courts of this State present issues
of such gravity and importance that appellate intervention is
warranted. And, although the Waldrip majority described this
authority as merely “discretionary,” nothing in our law establishes
the outer boundaries of appellate courts’ discretion to exercise this
power or gives litigants or trial courts any meaningful indication of
how and under what circumstances appellate courts will exercise
the power to disregard clear statutory requirements.
Moreover, the discretion this Court claimed for appellate
courts in Waldrip would seem to apply equally with regard to any
statutory requirement for appeal. The presence of such discretion
would require appellate courts, in every instance in which a
statutory requirement has not been complied with by an appellant,
35 to exercise its discretion in determining whether an appeal should
nonetheless be permitted, whether or not the issue is raised by the
parties. Such unfettered discretion would enlarge appellate courts’
power to entertain appeals that they are statutorily barred from
considering while also significantly expanding their workload.
Waldrip presents significant workability problems for trial
courts, as well. Because a trial court has no means of predicting
when a case may be snatched from its docket pursuant to a Waldrip
review, the trial court may find itself (as it did in the matter before
us) with jurors and witnesses summoned for trial but no case to try.
By permitting an interlocutory appeal to proceed in the absence of a
certificate of immediate review, Waldrip thus divests trial courts of
one of their essential tools for controlling litigation before them.
Scruggs, 261 Ga. at 589 (1).4
As this Court has made clear, “[t]he scheme for appellate
4 At oral argument, Duke’s counsel suggested that this case presented an
opportunity for this Court to refine the Waldrip analysis. Of course, this implicit admission that Waldrip is in need of refining only emphasizes the unworkable nature of Waldrip as it was decided. 36 interlocutory review is legislative in nature,” and, “[i]n the event
that the General Assembly determines that the established
framework does not adequately safeguard the interests” of litigants
in particular classes of cases, “it is for that body to change it.” Rivera
v. Washington, 298 Ga. 770, 778 (784 SE2d 775) (2016). We reiterate
this core separation of powers principle today. If and to the extent
the General Assembly determines that requiring a trial court to
issue a timely certificate of immediate review before an interlocutory
appeal may be pursued constitutes a “defect” in the interlocutory
review process or is otherwise contrary to the public interest, then
the General Assembly is free to change or abolish that requirement.
But this Court lacks that authority, and we should never have
claimed it.
Accordingly, we overrule Waldrip to the extent it permits this
Court to disregard the requirement set forth in OCGA § 5-6-34 (b)
that a litigant must obtain a certificate of immediate review from
the trial court before pursuing an interlocutory appeal from an order
not subject to immediate appeal under OCGA § 5-6-34 (a). More
37 broadly, we also disapprove any reading of Waldrip and any other
decision of this Court to the extent such reading suggests that
appellate courts are free to disregard a statutory requirement for
appeal in the absence of an articulated and colorable claim that the
application of such statute will deprive a litigant of a right under
federal law or the Georgia Constitution.
In light of the foregoing, because the trial court did not issue a
certificate of immediate review in this case, this Court is without
jurisdiction to consider Duke’s application for interlocutory appeal.5
His application is therefore dismissed.6
Application dismissed. All the Justices concur.
5 As we noted in our order granting Duke’s request for supersedeas and
stay and directing briefing regarding the viability of Waldrip, the underlying merits of Duke’s application for interlocutory appeal appear to present difficult, complex, and important constitutional questions for which there is no controlling legal precedent. Even though the merits of these issues may be litigated on appeal in the event Duke is convicted, because the trial court did not issue a certificate of immediate review, we are without jurisdiction to consider Duke’s application, and, therefore, we cannot reach any of the merits of the arguments he raises at this time. 6 The stay we previously issued in this case will dissolve when our
remittitur is received by and filed in the trial court. See Green Bull Ga. Partners v. Register, 301 Ga. 472, 475 n.6 (801 SE2d 843) (2017). 38 Decided June 10, 2019.
Murder. Irwin Superior Court. Before Judge Reinhardt.
John S. Gibbs III; The Merchant Law Firm, John B. Merchant
III, Ashleigh B. Merchant, for appellant.
C. Paul Bowden, District Attorney, Bradford L. Rigby, Special
Assistant District Attorney, Jennifer D. Hart, Assistant District
Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith,
Assistant Attorney General, for appellee.