Magistrate Court Dekalb County v. Fleming

• Decision Date: 22 September 2008
• Docket Number: No. S08A1060.,S08A1060.
• Citation: 667 S.E.2d 356,284 Ga. 457
• Parties: MAGISTRATE COURT OF DEKALB COUNTY et al. v. FLEMING.
• Court: Georgia Supreme Court

667 S.E.2d 356

284 Ga. 457

MAGISTRATE COURT OF DEKALB COUNTY et al. v. FLEMING.

No. S08A1060.

Supreme Court of Georgia.

September 22, 2008.

Reconsideration Denied October 27, 2008.

Howard W. Indermark, Duluth, for appellants.

Gwendolyn Keyes Fleming, Dist. Atty., Barbara B. Conroy, Leonora Grant, Asst. Dist. Attys., for appellee.

Gerard B. Kleinrock, Tommy K. Floyd, Dist. Atty., Lalaine A. Briones, Asst. Dist. Atty., Charles C. Olson, amici curiae.

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 Court¹ 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 S.E.2d 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 S.E.2d 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 S.E.2d 16 (2001) or Jersawitz v. Riley, 269 Ga. 546, 500 S.E.2d 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 S.E.2d 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 S.E.2d 716 (2006) and Moseley v. Sentence Review Panel, 280 Ga. 646(1), 631 S.E.2d 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 S.E.2d 302 (2001).

Judgment reversed.

All the Justices concur, except SEARS, C.J., and CARLEY and MELTON, JJ., who dissent.

SEARS, Chief Justice, dissenting.

For the reasons that follow, I agree with the majority's conclusion that the appellee's claims for mandamus and prohibition relief must fail, but I believe that, properly construed, the appellee asserted an appropriate claim for declaratory judgment relief and that the trial court properly granted that relief. Accordingly, I dissent to the majority's reversal of the trial court's judgment.

In substance, the appellee's complaint alleged that the DeKalb County Magistrate Court, as a whole, has adopted an evidentiary policy that hearsay evidence is illegal evidence and is thus alone an insufficient basis on which to find probable cause and bind a case over to superior court, and the appellee sought relief from uncertainty as to her future obligations under that policy. In construing pleadings, it is a fundamental rule that substance, not nomenclature, controls.⁶ We have also held "that the pleadings are not an end in themselves but only a method to assist in reaching the merits of the case. The courts shall construe the pleadings `as to do substantial justice.'"⁷

Because mandamus and prohibition are personal actions against a public officer and not against an office and because the appellee's complaint asserted a claim against the magistrate court as a whole, I agree with the majority's conclusion that the appellee's claims for mandamus and prohibition relief cannot stand.⁸ However, looking to the substance of the appellee's complaint and construing it to do substantial justice, I believe that the appellee asserted a claim for declaratory judgment relief.

The purpose of the Declaratory Judgment Act is "`to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.'"⁹ The superior court is authorized to enter a declaratory judgment upon petition therefor in cases of actual controversy [under OCGA § 9-4-2(a)], and

"to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations.'"¹⁰

Because the appellee's complaint showed that she faced uncertainty and insecurity as to her ability to rely on hearsay evidence alone as a basis on which to establish probable cause in order to have a case bound over to an appropriate court, I believe that the appellee properly asserted a claim for declaratory relief.

Moreover, the record shows that the trial court properly found that the magistrate court has a policy that precludes the binding of cases over to the appropriate court based on hearsay evidence alone on the ground that hearsay evidence is always illegal evidence. Such an evidentiary policy is contrary to longstanding evidentiary rules that hearsay is legal evidence at a preliminary hearing and is, by itself, a sufficient basis on which to bind a case over to the appropriate superior or state court.¹¹

Accordingly, the trial court did not err in declaring the appellants' evidentiary policy to be invalid. I therefore dissent to the majority opinion.

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 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 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.

6. State v. Smith, 276 Ga. 14, 14-15, 573 S.E.2d 64 (2002); Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539, 314 S.E.2d 903 (1984).

7. Block v. Voyager Life Ins. Co., 251 Ga. 162, 163, 303 S.E.2d 742 (1983) (citations omitted).

8. Hall v. Nelson, 282 Ga....