Waldrip v. Head

• Decision Date: 12 June 2000
• Docket Number: No. S00A0383.,S00A0383.
• Parties: WALDRIP v. HEAD.
• Court: Georgia Supreme Court

532 S.E.2d 380

272 Ga. 572

WALDRIP v. HEAD.

No. S00A0383.

Supreme Court of Georgia.

June 12, 2000.

Reconsideration Denied July 7, 2000.

Drinker, Biddle & Reath, Lawrence J. Fox, David J. Kessler, Philadelphia, PA, for appellant.

Thurbert E. Baker, Attorney General, Patricia B. Burton, Assistant Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.

Timothy P. Terrell, Roy M. Sobelson, Atlanta, Jack L. Sammons, Jr., Macon, L. Ray Patterson, Athens, for amici curiae. FLETCHER, Presiding Justice.

A jury convicted Tommy Lee Waldrip of murder, and he was sentenced to death.¹ After Waldrip filed a habeas petition alleging ineffective assistance of counsel, the warden sought the files of Waldrip's trial and appellate counsel. The habeas court granted the warden's motion to compel access to the complete files of Waldrip's trial and appellate counsel. We granted this application to determine the extent of the waiver of the attorney-client privilege when a habeas petitioner asserts a claim for ineffective assistance of trial counsel. Following the rule adopted in other states, we hold that the filing of an ineffective assistance claim is an implied waiver of the attorney-client privilege limited to the documents that are relevant to the petitioner's claim. Because of the potential problems that would be created by public disclosure of the documents, we further conclude that Waldrip is entitled to a protective order prohibiting disclosure of the files obtained in this habeas proceeding to persons other than those needed to assist the warden in rebutting the claim of ineffectiveness. Therefore, we reverse.

FACTS

Bypassing the requirements of the Georgia Civil Practice Act,² the state filed its motion to compel in July 1999. Three days later, the habeas court entered an order compelling Waldrip's former counsel to produce their entire files. When Waldrip requested an opportunity to respond, the habeas court vacated its order and gave Waldrip ten days to respond. In his response, Waldrip opposed the motion and sought a protective order restricting disclosure to the habeas proceeding and the state attorney general's office. In September 1999, the warden wrote a letter brief asking the habeas court to rule on his motion to compel and attaching a proposed order. Two days later, the habeas court entered the order. It reinstated the July order and further required Waldrip's previous counsel to produce their complete files to the warden. In October, the habeas court issued an order clarifying that habeas counsel did not have to produce any of their files or work product and denying the motion for a protective order on the grounds that the issue was not ripe for review. Although Waldrip requested a certificate of immediate review, the trial court did not rule on the motion.

Waldrip filed both an application for interlocutory appeal and a direct appeal from the clarification order, and the warden filed motions to dismiss. This Court granted the application, consolidated it with the direct appeal, and asked the parties to address three questions:

1. Is an order in a habeas proceeding directing petitioner's trial and appellate counsel to produce all their files directly appealable as a collateral order?

2. What is the scope of the waiver of the attorney-client privilege when a habeas petitioner asserts a claim for ineffectiveness of counsel?

3. When former counsel's files or a portion thereof are required to be produced in a habeas proceeding, do the files retain any measure of confidentiality or privilege?

JURISDICTION

1. As the state's highest appellate court, this Court reviews the decisions of other courts in the state in four ways: (1) by direct appeal;³ (2) by discretionary or interlocutory application;⁴ (3) by writ of certiorari;⁵ and (4) by certified question.⁶ We review state trial court decisions by direct appeal or application, decisions of the Court of Appeals of the State of Georgia by petition for certiorari or by certified question, and federal court decisions by certified question from the federal appellate courts.⁷

Generally, the Georgia Code limits the right of direct appeal to final judgments or rulings that have a final or irreparable effect on the rights of parties.⁸ This Court has created an exception for "collateral orders" when the issue is substantially separate from the basic issues in the complaint, an important right may be lost if review must wait until a case is finally resolved, and nothing further in the underlying action can affect the issue on appeal.⁹

Although Waldrip argues that he has a right to directly appeal the October clarification order, we conclude that it does not meet the collateral order exception to the final judgment rule. The issue of whether Waldrip waived his attorney-client privilege is not a separate issue from his claim in his habeas petition that his trial and appellate counsel were ineffective; instead, the privilege and claim are directly related. Therefore, we decline to extend the collateral order doctrine to the discovery order in this case and dismiss the direct appeal.¹⁰

In addition to filing a direct appeal, Waldrip filed an application for an interlocutory appeal. Since discovery orders generally are interlocutory, our appellate courts ordinarily obtain jurisdiction over them through the application process. This process requires the trial court to certify that its order is "of such importance to the case that immediate review should be had."¹¹ The purpose of the certificate requirement is to permit trial courts, rather than parties, to regulate the litigation;¹² it is not to permit trial courts to deprive appellate courts of their jurisdiction. Under our present rules, strict adherence to the certificate requirement provides no alternative procedure in the event that the appellate court disagrees with the trial court's decision that "immediate review should be had."

Because of this defect in the interlocutory review process, this Court on rare occasions has assumed jurisdiction to consider an appeal despite the absence of a final judgment or a certificate of immediate review from the trial court. We have chosen to bypass the statutory requirements for interlocutory review and address the substantive issues raised on appeal when the case presented an important issue of first impression concerning a recently enacted statute for which a precedent was desirable,¹³ dismissal would deny the litigant the right of appellate review in this state,¹⁴ or consideration of the trial court order as "final" served the interest of judicial economy.¹⁵ In effect, this Court has granted the application for interlocutory review in those exceptional cases that involve an issue of great concern, gravity, and importance to the public and no timely opportunity for appellate review.

Despite the dissent's assertion that this Court is overstepping its authority by ignoring the certificate requirement, both the state constitution and code give this Court authority to establish rules of appellate procedure for this state. The constitution states that each court may exercise the powers "necessary in aid of its jurisdiction" and gives the Supreme Court express responsibility for administering the entire judicial system.¹⁶ The code gives this Court authority to "establish, amend, and alter its own rules of practice."¹⁷ Even if the legislature had not expressly provided this authority, this Court has the inherent power to maintain a court system that provides for the administration of justice in an orderly and efficient manner.¹⁸ As another court has explained, "A court uses its inherent power when constitutional provisions, statutes, or court rules fail to supply answers to problems or when courts find themselves compelled to provide solutions that enable the litigative process to proceed smoothly."¹⁹

Just as this Court granted parties the right of direct appeal of collateral orders, although there was no legislative grant of authority for that action, this Court has the power to consider appeals of interlocutory orders when we disagree with the trial court concerning the need for immediate appellate review of an interlocutory order. Although we could enact the rule through our formal rule-making process, we choose to adopt this rule of procedure through an opinion, as we did in adopting the collateral order doctrine, to explain both the rule and its rationale.²⁰

Our adoption of this rule is consistent with national standards developed by the American Bar Association's Judicial Administration Division. The Standards Relating to Appellate Courts recommend that appellate courts retain the discretion of interlocutory review when it would materially advance the end of the litigation, protect a party from irreparable harm, or clarify an issue of public importance.²¹ "The most desirable combination is to provide that, in every case where interlocutory review is sought, the lower court should give its opinion whether such review is appropriate, but that its determination should not bind the appellate court."²²

In this case, Waldrip sought a certificate of immediate review, but the trial court did not grant his request. We disagreed with the trial court's decision and granted the interlocutory application because it presents the important issue of the scope of the waiver of the attorney-client privilege when a habeas petitioner files a claim of ineffective assistance of counsel. In addition, every habeas court addressing the waiver issue has refused to issue a certificate of immediate review,²³ thus precluding appellate review of the substantive issues that Waldrip has raised. Moreover, once the entire files of trial and appellate counsel are released, the habeas petitioner has no meaningful way to protect privileged matter that is unrelated to the specific claim of ineffectiveness or to restrict its use. Given the...