HB 62 Would Send Certain Appeals Directly to the Georgia Supreme Court

Update 2/20/2017: It appears that HB 62 will not move forward. The House instead passed a similar bill, HB 61, which does not contain the provision for direct appeal to the Georgia Supreme Court. Thanks to everyone who responded.

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Last year’s Appellate Jurisdiction Reform Act moved several categories of appeals from the Georgia Supreme Court’s direct jurisdiction to that of the Court of Appeals. Now, a bill pending in the General Assembly would shift jurisdiction the other way, sending a new category of appeal directly to the Supreme Court.

House Bill 62 would amend the tax code to define certain out-of-state retailers who deliver property into Georgia for sale as “dealers.” It would allow the Department of Revenue to bring a declaratory judgment action in Superior Court to establish whether a dealer is or is not subject to collection of sales and use tax. The bill relates primarily to efforts to collect tax on sales through online merchants.

So far so good. What makes the bill unusual is that it would add a new subsection (14) to OCGA § 5-6-34(a), which would make judgments or orders entered in one of the newly-created declaratory judgment actions “directly appealable to the Supreme Court.” This would be unique among the § 5-6-34(a) subparts, which otherwise don’t send appeals to any particular court. There would also be a line in OCGA § 48-8-30 providing that “[a]ny appeal from such a final decision [in the new declaratory judgment action] shall be made by direct appeal to the Supreme Court as provided in Code Section 5-6-34.”

There are a few reasons to be concerned. For one, every category of case that goes directly to the Supreme Court weakens that court’s ability to function as a certiorari court. It took decades for the legislature to come around to the idea of realigning Georgia’s appellate courts into a proper two-level system. It’s worrying that, only weeks into the new system, the General Assembly is already considering undermining it.

It may be that there’s something uniquely important about the new declaratory judgment actions that would justify direct appeals to the Supreme Court (as in cases involving murder, a constitutional question, or an election contest). But I’d expect that if these cases get special treatment, lots of other interests will want the same, and the Supreme Court might end up with piecemeal direct jurisdiction again.

Another issue to consider is whether OCGA § 5-6-34(a) is the best place to put a direct appeal provision. It might more logically go in Title 15, which is where the Appellate Jurisdiction Reform Act put the provision sending divorce cases, etc., to the Court of Appeals. See OCGA § 15-3-3.1.

I’m chair of the State Practice and Legislation Committee of the State Bar’s Appellate Practice Section. I’d appreciate hearing from anyone with thoughts on HB 62 as we consider taking a position on it. This blog post represents my own views, not necessarily those of the Committee. Thanks to Margaret Heinen, Sharon Hopkins, and Charles Cork for their input.