MAGISTRATE COURT DEKALB COUNTY v. Fleming

667 S.E.2d 356, 284 Ga. 457

• Court: Supreme Court of Georgia
• Decided: September 22, 2008
• Docket: S08A1060
• Status: Published

Opinions

HUNSTEIN, Presiding Justice.

Gwendolyn Keyes Fleming, District Attorney for the Stone Mountain Judicial Circuit, filed a petition for mandamus and prohibition against the DeKalb County Magistrate Court ¹ and selected magistrate judges (collectively, “DCMC”) on July 2, 2007, challenging DCMC’s alleged policy of finding hearsay evidence alone insufficient to establish probable cause at preliminary hearings.² The Rockdale County superior court judge to whom the action was assigned held a hearing on October 9, 2007 and entered an order on January 8, 2008, finding that “at a preliminary hearing a magistrate judge does not have the discretion to refuse to admit hearsay evidence or to require evidence in addition to hearsay evidence, if such hearsay evidence by itself establishes probable cause.” The order directed that a final judgment be entered as to this finding pursuant to OCGA § 9-11-54 (b), but the issue of a remedy was held in abeyance for six months to allow DCMC to pursue a new policy in voluntary compliance with the order. DCMC’s notice of appeal from this order was filed on January 31, 2008. ³

The dismissal of charges by a magistrate judge at a preliminary hearing is not subject to challenge by the State.⁴ See OCGA § 5-7-1 et seq. (authorizing appeal and certiorari by State in criminal cases only under specified circumstances); State v. Ware, 282 Ga. 676, 677 (653 SE2d 21) (2007) (statute must be strictly construed against State). Here, the State, in the person of the District Attorney, has attempted to avoid this restriction by attacking the alleged DCMC policy resulting in such dismissals through the device of a writ of mandamus and prohibition. See Howard v. Lane, 276 Ga. 688, 689 (581 SE2d 1) (2003). However, as the underlying subject matter concerns rulings allegedly made in criminal prosecutions, and from which the State has no ability to appeal, the trial court erred by considering the petition for mandamus and prohibition, id., and its ruling thereon must be reversed.⁵

Any attempt to recast Fleming’s action as one for a declaratory judgment is belied by the substance of the pleadings. Rather than merely seeking guidance regarding the proper evidentiary standards for preliminary hearings, Fleming sought an order prohibiting DCMC from applying its hearsay evidentiary rule and mandating that the interpretation of the rule set forth by Fleming be used. This is not a declaratory judgment action. Compare OCGA § 9-4-1 (purpose of Declaratory Judgment Act is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations”) with OCGA § 9-6-20 (mandamus may issue to compel performance) and OCGA § 9-6-40 (prohibition may issue to restrain subordinate court from exceeding its jurisdiction).

The cases cited by the dissent in support of its argument that the trial court properly considered Fleming’s claims are not controlling. The State was not a party in either Smith & Wesson Corp. v. City of Atlanta, 273 Ga. 431 (543 SE2d 16) (2001) or Jersawitz v. Riley, 269 Ga. 546 (500 SE2d 579) (1998), cited for the proposition that the absence of an adequate remedy by appeal is a prerequisite to relief via mandamus or prohibition, and thus its limited right of appeal in criminal matters was not implicated. Benefield v. State of Ga., 276 Ga. 100 (1) (575 SE2d 453) (2003), held that the Attorney General, the Department of Corrections, and the Board of Pardons and Paroles were authorized to petition for prohibition on the ground that the trial judge lacked jurisdiction, which is a basis for appeal specifically granted to the State pursuant to OCGA § 5-7-1 (a) (5); no such basis exists here. The statements referenced in State v. Morrell, 281 Ga. 152 (2) (635 SE2d 716) (2006) and Moseley v. Sentence Review Panel, 280 Ga. 646 (1) (631 SE2d 704) (2006) are dicta and thus not dispositive of any issue in this case. Finally, and perhaps most importantly, the merits of Fleming’s claims for mandamus and prohibition cannot be reached by this Court, as the trial court has yet to rule on these remedies. See Bush v. State, 273 Ga. 861 (548 SE2d 302) (2001).

Judgment reversed.

All the Justices concur, except Sears, C. J., and Carley and Melton, JJ., who dissent.

1 We note that mandamus is a personal action against a public officer, not against the office, Hall v. Nelson, 282 Ga. 441 (4) (651 SE2d 72) (2007), and that prohibition is the counterpart of mandamus. OCGA § 9-6-40.

2 Although Fleming’s petition set forth facts pertaining to a May 2007 case in which charges were dismissed by DCMC because only hearsay evidence was presented at the preliminary hearing, no specific dismissal was challenged. We note that mandamus will not lie to compel a general course of conduct or the performance of continuous duties. Dean v. Gober, 272 Ga. 20 (2) (524 SE2d 722) (1999).

3 For OCGA § 9-11-54 (b) to apply, the order must be a decision upon a cognizable claim for relief and the ultimate disposition of an individual claim in a multiple claim action. Keck v. Harris, 277 Ga. 667 (1) (594 SE2d 367) (2004). Although the order at issue does not meet this standard, the OCGA § 9-11-54 (b) certification may be treated by this Court as one entered pursuant to OCGA § 5-6-34 (b), i.e., as an interlocutory appeal that has been certified for immediate review. Keck, supra. Accordingly, we hereby grant the application for interlocutory appeal and proceed to consider the propriety of the trial court’s ruling. See Ga. Farm Bureau Mut. Ins. Co. v. Wall, 242 Ga. 176 (1) (249 SE2d 588) (1978).

4 The record indicates that the State filed a petition for writ of certiorari related to this action in the superior court as part of a “three-pronged attack” against the alleged DCMC policy; it appears that the petition was dismissed.

5 That the matter is before this Court on an appeal ultimately brought by a party other than the State does not require a different result.