FIFTH DIVISION MCFADDEN, P. J., GOBEIL and LAND, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 22, 2023
In the Court of Appeals of Georgia A22A1537. ARMSTRONG et al. v. SOLICITOR GENERAL OF GWINNETT COUNTY.
MCFADDEN, Presiding Judge.
This case involves a dispute between the judges of the Gwinnett County
Recorder’s Court and the Gwinnett County Solicitor General1 regarding the scope of
a solicitor general’s authority to select the court in which certain cases are to be tried.
With exceptions not relevant here, a violation of a state traffic law that is also a
violation of a local ordinance may, “at the discretion of the local law enforcement
1 Since the filing of the petition, a new solicitor general was elected. She was substituted as the petitioner and appellee in this case by operation of law. OCGA § 9-11-25 (d) (1) (“When a public officer is a party to an action in his official capacity and during its pendency . . . ceases to hold office, . . . his successor is automatically substituted as a party.”); Davenport v. Ward, 313 Ga. 603, 605 n.3 (1) (872 SE2d 281) (2022). officer or prosecutor,” be charged as a violation of either the state statute or the local
ordinance. OCGA § 40-6-376 (a).
At issue are a set of cases which, if charged under state statutes, would be tried
in Gwinnett State Court but, if charged as ordinance violations, would be tried in
Gwinnett Recorder’s Court. The solicitor general asserts the authority to direct that
cases initially charged as ordinance violations be transferred to state court.
To that end, the solicitor general petitioned for a writ of mandamus and a
declaratory judgment directing the recorder’s court judges to execute certain
documents. The superior court granted the writ and declaratory relief, and the judges
have appealed. We hold that the underlying subject matter concerns rulings in
criminal prosecutions from which the state has no ability to appeal. So the superior
court erred by entertaining the solicitor general’s petition, and we reverse.
1. Background.
The petition for a writ of mandamus and declaratory judgment alleged that the
judges of the recorder’s court are not respecting the solicitor general’s decisions to
remove contested cases involving charges of driving under the influence from
recorder’s court to state court. Specifically, the petition alleged that in 30 cases, the
judges had refused to sign documents that it refers to as “notices of intent to proceed
2 on state charges and remove the case to state court” or “bind over elections” or
“solicitor’s election under OCGA § 40-6-376.” It alleged that their refusal to sign
prevents the “original bond paperwork” from being transferred from recorder’s court
to state court. It alleged that the judges “continued to conduct hearings and issue
rulings” in the cases. It alleged that the judges are forcing the state to file dismissals
in the recorder’s court and begin the prosecutions anew in state court and that
beginning prosecutions anew: terminates the bond, depriving the state court of the
ability to ensure that the defendant will appear; creates discrepancies between a
defendant’s criminal history and driving history; and creates issues with
administrative license suspensions.
The solicitor general asked the court to issue a mandamus requiring the judges
to sign the state’s elections to proceed on state charges; to sign the state’s bind over
requests; and to release original bond paperwork. The solicitor general also asked the
court to declare: that the state has the right under OCGA § 40-6-376 (a) to prosecute
certain traffic offenses as state statute offenses instead of ordinance violations; that
by refusing to sign the “Solicitor’s Election Under OCGA § 40-6-376” in all cases in
which one has been filed, the judges interfere with the state’s right to proceed on state
offenses; that the recorder’s court lacks jurisdiction over cases in which the state has
3 filed a “Solicitor’s Election Under OCGA § 40-6-376”; and that by failing to sign
bind over requests on demands for jury trials, the judges unnecessarily delay criminal
defendants’ right to jury trials.
The superior court conducted a hearing and entered an order granting the
solicitor general’s petition. The order declared that the solicitor general’s election to
transfer a case from recorder’s court to state court is not subject to the recorder’s
court judge’s discretion; that refusing to bind over a case in which the solicitor
general has filed a notice of election to try the case as a state offense interferes with
the state’s right to proceed in state court; that once the case is bound over upon the
state’s election, the recorder’s court loses jurisdiction; and that defendants are not
required to make new bonds once their cases are bound over. . The order directed the
recorder’s court judges to timely bind over and transfer cases for prosecution in state
court upon the solicitor general’s election to pursue prosecutions as state offenses.
The recorder’s court judges filed a motion for reconsideration and a motion for
new trial, arguing that under section 23 of the 1972 local act that established the
Gwinnett County Recorder’s Court, they have the discretion to grant or deny the
solicitor general’s request to transfer a case to state court. That section of the local act
does provide that the recorder’s court judge “on his own motion and within his sole
4 discretion may bind over any case for trial and disposition, after first setting bond, to
the State or Superior Court of Gwinnett County where the offense would constitute
a violation of a [s]tate law.” Ga. L. 1972, p. 3133, § 23. The superior court denied the
judges’ motions and this appeal followed.
The superior court was without jurisdiction and should have dismissed the
petition without reaching the merits. So we reverse. “The [s]tate is permitted to take
appeals in criminal cases only to the extent expressly authorized by statute.” State v.
Andrade, 298 Ga. 464 (782 SE2d 665) (2016). A recorder’s court judge’s refusal to
sign a document reflecting the solicitor general’s election to prosecute a case as a
state offense and to transfer a case from recorder’s court to state court is not subject
to challenge by the state because there is no provision for appeals from such rulings
in OCGA § 5-7-1. Gardhigh v. State, 309 Ga. 153, 162 (5) (b) (844 SE2d 821) (2020)
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FIFTH DIVISION MCFADDEN, P. J., GOBEIL and LAND, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 22, 2023
In the Court of Appeals of Georgia A22A1537. ARMSTRONG et al. v. SOLICITOR GENERAL OF GWINNETT COUNTY.
MCFADDEN, Presiding Judge.
This case involves a dispute between the judges of the Gwinnett County
Recorder’s Court and the Gwinnett County Solicitor General1 regarding the scope of
a solicitor general’s authority to select the court in which certain cases are to be tried.
With exceptions not relevant here, a violation of a state traffic law that is also a
violation of a local ordinance may, “at the discretion of the local law enforcement
1 Since the filing of the petition, a new solicitor general was elected. She was substituted as the petitioner and appellee in this case by operation of law. OCGA § 9-11-25 (d) (1) (“When a public officer is a party to an action in his official capacity and during its pendency . . . ceases to hold office, . . . his successor is automatically substituted as a party.”); Davenport v. Ward, 313 Ga. 603, 605 n.3 (1) (872 SE2d 281) (2022). officer or prosecutor,” be charged as a violation of either the state statute or the local
ordinance. OCGA § 40-6-376 (a).
At issue are a set of cases which, if charged under state statutes, would be tried
in Gwinnett State Court but, if charged as ordinance violations, would be tried in
Gwinnett Recorder’s Court. The solicitor general asserts the authority to direct that
cases initially charged as ordinance violations be transferred to state court.
To that end, the solicitor general petitioned for a writ of mandamus and a
declaratory judgment directing the recorder’s court judges to execute certain
documents. The superior court granted the writ and declaratory relief, and the judges
have appealed. We hold that the underlying subject matter concerns rulings in
criminal prosecutions from which the state has no ability to appeal. So the superior
court erred by entertaining the solicitor general’s petition, and we reverse.
1. Background.
The petition for a writ of mandamus and declaratory judgment alleged that the
judges of the recorder’s court are not respecting the solicitor general’s decisions to
remove contested cases involving charges of driving under the influence from
recorder’s court to state court. Specifically, the petition alleged that in 30 cases, the
judges had refused to sign documents that it refers to as “notices of intent to proceed
2 on state charges and remove the case to state court” or “bind over elections” or
“solicitor’s election under OCGA § 40-6-376.” It alleged that their refusal to sign
prevents the “original bond paperwork” from being transferred from recorder’s court
to state court. It alleged that the judges “continued to conduct hearings and issue
rulings” in the cases. It alleged that the judges are forcing the state to file dismissals
in the recorder’s court and begin the prosecutions anew in state court and that
beginning prosecutions anew: terminates the bond, depriving the state court of the
ability to ensure that the defendant will appear; creates discrepancies between a
defendant’s criminal history and driving history; and creates issues with
administrative license suspensions.
The solicitor general asked the court to issue a mandamus requiring the judges
to sign the state’s elections to proceed on state charges; to sign the state’s bind over
requests; and to release original bond paperwork. The solicitor general also asked the
court to declare: that the state has the right under OCGA § 40-6-376 (a) to prosecute
certain traffic offenses as state statute offenses instead of ordinance violations; that
by refusing to sign the “Solicitor’s Election Under OCGA § 40-6-376” in all cases in
which one has been filed, the judges interfere with the state’s right to proceed on state
offenses; that the recorder’s court lacks jurisdiction over cases in which the state has
3 filed a “Solicitor’s Election Under OCGA § 40-6-376”; and that by failing to sign
bind over requests on demands for jury trials, the judges unnecessarily delay criminal
defendants’ right to jury trials.
The superior court conducted a hearing and entered an order granting the
solicitor general’s petition. The order declared that the solicitor general’s election to
transfer a case from recorder’s court to state court is not subject to the recorder’s
court judge’s discretion; that refusing to bind over a case in which the solicitor
general has filed a notice of election to try the case as a state offense interferes with
the state’s right to proceed in state court; that once the case is bound over upon the
state’s election, the recorder’s court loses jurisdiction; and that defendants are not
required to make new bonds once their cases are bound over. . The order directed the
recorder’s court judges to timely bind over and transfer cases for prosecution in state
court upon the solicitor general’s election to pursue prosecutions as state offenses.
The recorder’s court judges filed a motion for reconsideration and a motion for
new trial, arguing that under section 23 of the 1972 local act that established the
Gwinnett County Recorder’s Court, they have the discretion to grant or deny the
solicitor general’s request to transfer a case to state court. That section of the local act
does provide that the recorder’s court judge “on his own motion and within his sole
4 discretion may bind over any case for trial and disposition, after first setting bond, to
the State or Superior Court of Gwinnett County where the offense would constitute
a violation of a [s]tate law.” Ga. L. 1972, p. 3133, § 23. The superior court denied the
judges’ motions and this appeal followed.
The superior court was without jurisdiction and should have dismissed the
petition without reaching the merits. So we reverse. “The [s]tate is permitted to take
appeals in criminal cases only to the extent expressly authorized by statute.” State v.
Andrade, 298 Ga. 464 (782 SE2d 665) (2016). A recorder’s court judge’s refusal to
sign a document reflecting the solicitor general’s election to prosecute a case as a
state offense and to transfer a case from recorder’s court to state court is not subject
to challenge by the state because there is no provision for appeals from such rulings
in OCGA § 5-7-1. Gardhigh v. State, 309 Ga. 153, 162 (5) (b) (844 SE2d 821) (2020)
(state is only authorized to appeal in circumstances listed in OCGA § 5-7-1). See also
State v. Tyson, 273 Ga. 690, 693 (1) (544 SE2d 444) (2001) (state’s right of certiorari
under OCGA § 5-7-3 is limited to situations specified in OCGA § 5-7-1); Smith v.
Gwinnett County, 246 Ga. App. 865, 867 (1) (b) (542 SE2d 616) (2000) (“proper
procedure for appealing decisions from a county’s recorder’s court is by certiorari to
5 the superior court”). Cf. OCGA §§ 5-7-1 (a), (c) (granting the state the right to appeal
a superior court order transferring a case to the juvenile court under certain statutes).
Prosecutors may not circumvent those limitations on their statutory right to
appeal.
Here, the [s]tate, in the person of the [solicitor general], has attempted to avoid this restriction by attacking the alleged [recorder’s court] policy . . . through the device of a writ of mandamus . . . . However, as the underlying subject matter concerns rulings allegedly made in criminal prosecutions, and from which the [s]tate has no ability to appeal, the trial court erred by considering the petition for mandamus and . . . its ruling thereon must be reversed.
Magistrate Court v. Fleming, 284 Ga. 457, 458 (667 SE2d 356) (2008). Moreover,
the solicitor general is not seeking to challenge any specific ruling in a particular
case, but rather an alleged policy of the recorder’s court judges. “While a writ of
mandamus will issue to compel a due performance of specific official duties, it will
not lie to compel a general course of conduct or the performance of continuous duties
. . . .” Dean v. Gober, 272 Ga. 20, 23 (2) (524 SE2d 722) (1999) (citation and
punctuation omitted).
The petition is not saved by its prayer for declaratory relief. Under the
Declaratory Judgment Act, OCGA § 9-4-1 et seq., a superior court may declare rights
6 where there is a justiciable controversy between interested parties asserting adverse
claims on an accrued set of facts. Leitch v. Fleming, 291 Ga. 669, 670 (1) (732 SE2d
401) (2012). The dispute between the solicitor general and the recorder’s court judges
“is not a controversy between two adverse parties [because a] judge acting in an
official capacity in a criminal case is not an adverse party with interests antagonistic
to those of the [s]tate or the defendant, but instead serves in the role of a neutral
decision maker.” Id.
“Besides cases involving actual controversies, the superior courts have the
power to settle justiciable controversies of a civil nature when it appears that the ends
of justice require that a declaration be made.” Leitch, 291 Ga. at 671 (2). But here, the
underlying decisions that the solicitor general challenges arise in criminal cases. Id.
at 671-672 (2) (a). So the request for declaratory relief fails. Id. at 671 (2).
For these reasons, we reverse the superior court order granting the solicitor
general mandamus and declaratory relief.
Judgment reversed. Gobeil and Land, JJ., concur.