Georgia Appeals Law Guide / Appellate Law Treatise

Constitution

The Constitution is the fundamental law that establishes Georgia’s court system. Georgia adopted its current constitution in 1983. Article VI of the 1983 Constitution governs the judicial branch.

Judicial Power of the State

Article VI, Section I, Paragraph I of the Georgia Constitution states that “[t]he judicial power of the state shall be vested exclusively” in the courts. “The judicial power ‘is that which declares what law is, and applies it to past transactions and existing cases; … [it] expounds and judicially administers [the law]….’” Judicial Council of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 297 (702 SE2d 894) (2010) (quoting Thompson v. Talmadge, 201 Ga. 867, 874 (41 SE2d 883) (1947)). The Constitution “provides the courts with inherent powers,” such that “[t]he proper exercise of judicial authority may not be limited by the legislative branch.” Id. at 298.

Necessary in aid of jurisdiction or to protect or effectuate judgments

Article VI, Section I, Paragraph IV of the Georgia Constitution provides in part that “[e]ach court may exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments.” This clause “enables a court to take action to protect the efficacy of its judgment from a party’s actions that endanger that judgment.” Felix v. State, 271 Ga. 534, 536-37 (523 SE2d 1) (1999).

Appellate jurisdiction of superior courts

Article VI, Section IV, Paragraph I of the Georgia Constitution states, “The superior courts shall have such appellate jurisdiction, either alone or by circuit or district, as may be provided by law.” The appellate jurisdiction of the Georgia superior courts, governed by OCGA § 5-3-1 et seq., is discussed under Foundations > Statutes. Note that prior Georgia constitutions specifically provided certiorari jurisdiction to the superior courts. See Ga. Const. of 1976, Art. VI, Sec. IV, Para. V (“[Superior courts] shall have power to correct errors in inferior judicatories by writ of certiorari, which shall only issue on the sanction of the Judge….”). Today, that jurisdiction is provided by statute. See OCGA § 5-4-1 et seq.

Courts of Review

The Constitution provides that both the Supreme Court and the Court of Appeals are “court[s] of review.” Ga. Const. Art VI, Sec. I, Para. II; Art. VI, Sec. V, Para. III. A court of review does not consider new issues of fact or law; it only re-considers issues previously considered. See Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm’n, 212 Ga. App. 575, 577 (442 SE2d 860) (1994) (“As a court of review, this court does not decide questions which were not raised and ruled on and preserved in the record below.”). This has sometimes been interpreted as a limitation upon the Georgia appeals courts’ jurisdiction or scope of review. See State v. Ellison, 271 Ga. App. 898, 902 (611 SE2d 129) (2005) (“We are ‘a court of review’ and lack jurisdiction to decide disputed issues of fact.”); Mitchell v. State, 214 Ga. App. 69, 71 (447 SE2d 140) (1994) (Beasley, P.J., dissenting) (“It is not our office, as a court of review of alleged error brought before it, to investigate the cause of the absence of alleged error.”). The “court of review” language was a change from the 1976 Georgia Constitution, which provided that the appeals courts were “for the trial and correction of errors of law.” Ga. Const. of 1976, Art. VI, Sec. II, Paras. IV, VIII.

Equal Division of Court

Article VI, Section V, Paragraph V of the Georgia Constitution states, “In the event of an equal division of the Judges [of the Georgia Court of Appeals] when sitting as a body, the case shall be immediately transmitted to the Supreme Court.” In Rodriguez v. State, S13G1167 (June 30, 2014), the Georgia Supreme Court unanimously held that the Court of Appeals, where six judges voted to affirm and six to reverse or vacate, should have transmitted the case to the Supreme Court rather than rendering a decision. Although the opinions of the judges of the Court of Appeals were fractured (two joining a per curiam opinion, two concurring in part and in the judgment, two concurring in the judgment only, and six dissenting in three different categories), the Supreme Court reasoned that their equal division as to the ultimate result required transmittal under the Constitution.

Construction of Constitution

The Georgia Supreme Court’s appellate jurisdiction over questions of constitutional construction, Ga. Const. Art. VI, Sec. VI, Para. II, is only invoked when the issue was raised and specifically addressed in the trial court. “When the appellate record fails to show that the trial court ruled on the constitutional question, this Court is without jurisdiction of an appeal in which this Court’s exclusive appellate jurisdiction of constitutional issues is invoked, and the appeal is transferred to the Court of Appeals.” City of Decatur v. Dekalb Cnty., 284 Ga. 434 (668 SE2d 247, 250) (2008).

The Court of Appeals has limited jurisdiction to consider cases involving constitutional issues. “It has jurisdiction over cases ‘that involve the application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.’” Id. (quoting Pollard v. State, 229 Ga. 698, 698 (194 SE2d 107) (1972)).

There is an exception to the general rule requiring that a constitutional challenge be raised and ruled upon in the trial court for constitutional questions of appellate jurisdiction, which are necessarily raised for the first time on appeal. See In re A.C., 285 Ga. 829 (686 SE2d 635, 638) (2009).

Equity Cases

Jurisdiction over “[a]ll equity cases,” Ga. Const. Art. VI, Sec. VI, Para. III, is one of the most frequently litigated issues of the Georgia Supreme Court’s appellate jurisdiction. “[W]hether an action is an equity case for the purpose of invoking appellate jurisdiction in [the Supreme] [C]ourt depends on the issue raised on appeal. ‘Cases in which the grant or denial of [equitable] relief was merely ancillary to underlying issues of law, or would have been a matter of routine once the underlying issues of law were resolved, are not ‘equity cases.’” Pittman v. Harbin Clinic Prof. Ass’n, 263 Ga. 66, 66 (428 SE2d 328) (1993) (quoting Beauchamp v. Knight, 261 Ga. 608, 609 (409 SE2d 208) (1991)).

“For more than two decades, this Court has consistently held that our appellate jurisdiction over ‘equity cases’ is limited to cases in which a specific substantive issue raised on appeal involves equitable relief rather than questions of law.” Durham v. Durham, 291 Ga. 231, 232 (728 SE2d 627) (2012). The fact that a case involves a trust does not mean it automatically comes within the Supreme Court’s equity jurisdiction. Id.

The Georgia Constitution’s provision of jurisdiction in equity cases to the Supreme Court has been the subject of criticism. “Every effort by this court to define the term ‘equity case’ has proven unworkable. Neither our two appellate courts nor even all the justices on this court can agree on a satisfactory definition. This lack of unanimity means that we often spend more time in routine cases deciding which court has jurisdiction than in deciding which party should win on appeal and why.” Redfearn v. Huntcliff Homes Assoc., Inc., 271 Ga. 745, 751 (524 SE2d 464) (1999) (Fletcher, P.J., concurring). See also Kemp v. Neal, 288 Ga. 324 (704 SE2d 175) (2010) (justices divided over whether Court had equity case jurisdiction).

Title to Land

The Georgia Supreme Court’s appellate jurisdiction over “[c]ases involving title to land,” Ga. Const. Art. VI, Sec. VI, Para. III, is interpreted similarly to its jurisdiction over equity cases. “[I]n a purported ‘title to land’ appeal such as this one, ‘[i]t is not what is in the complaint before the trial court that determines this Court’s jurisdiction, but the issues on appeal.’” Boyd v. Johngalt Holdings, LLC, 290 Ga. 658, 659 (724 SE2d 395) (2012) (quoting Smith v. Hobbs, 259 Ga. 88, 88 (380 SE2d 53) (1989)).

Murder cases and Thornton

In State v. Thornton, 253 Ga. 524 (322 SE2d 711) (1984), the Georgia Supreme Court adopted an order directing the Court of Appeals to transfer to the Supreme Court all cases in which either death or life imprisonment had been imposed for murder, and all pre-conviction appeals in murder cases. Although the Court in Thornton did not state the legal basis for its order, Justice Nahmias, dissenting in State v. Murray, 286 Ga. 258 (687 SE2d 790, 795) (2009), argued that the Thornton order could be supported “as a categorical exercise of our longstanding and almost-unlimited certiorari jurisdiction.” See Review & Error > Certiorari. Then in Neal v. State, 290 Ga. 563, 567 (722 SE2d 765) (2012) (Hunstein, C.J., concurring), seven justices agreed that the Thornton order was supportable, but on the grounds that the 1983 Georgia Constitution’s provision of jurisdiction to the Supreme Court in all cases in which death “was imposed or could be imposed” extended jurisdiction to all murder cases. The order in Thornton remains in effect. As a result of Thornton, “non-death penalty murder appeals” constitute “the single largest category of [the Georgia Supreme Court’s] published decisions.” Neal, 290 Ga. at 573 (Nahmias, J., concurring).

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