Lead Opinion
The State sought and this Court granted an emergency super-sedeas with regard to a contempt order issued against an assistant district attorney in the underlying murder prosecution. In light of the dissenting opinion, which posits that this Court does not have jurisdiction because the finding of contempt bears no relation to the murder case, we are compelled to re-examine our longstanding order declaring that all murder cases, and all interlocutory appeals in murder cases, be transferred to this Court. State v. Thornton,
The proper focus is “on the nature of the underlying action.”
Although the appeal in this case arises from a collateral order of contempt, it is undisputed that the nature of the underlying action is a criminal prosecution. It follows that the order of contempt is a matter lying within this Court’s jurisdiction.
2. It now appears that the order granting the emergency motion for supersedeas was moot at the time it was entered. Accordingly, the original order is hereby vacated.
Order granting emergency supersedeas vacated.
Notes
Sanders v. State,
In re Paul,
Langlands, supra,
In re Paul, supra.
Id.
WALB-TV v. Gibson,
Concurrence Opinion
concurring.
In State v. Thornton,
Regardless of the precise basis for the order in Thornton, it has provided a practical, bright-line rule which continues to serve both Georgia appellate courts well. As the controlling precedent cited in the majority opinion makes clear, Thornton includes all collateral orders which are entered in the context of a pending murder prosecution. Exclusion of certain contempt orders on the ground that they do not sufficiently affect the underlying murder trial would destroy the benefits of Thornton’’s bright-line rule. Because there exists absolutely no basis under our precedent to transfer this appeal from a contempt order in the context of a pending murder prosecution, I fully concur in the majority opinion.
Dissenting Opinion
dissenting.
This Court’s jurisdiction is strictly limited by our state’s constitution. In its opinion, the majority judicially rewrites our constitutionally-mandated jurisdiction to include the present case. Because this Court lacks the authority to edit our constitutional jurisdiction in this way, I must respectfully dissent, as I did to the original order which is now being vacated.
The record shows that, on October 6, 2009, the trial court issued an oral order finding Assistant District Attorney Linda Dunikoski in contempt of court and ordering her to pay a $100 fine for violating certain agreed-upon rules of conduct in that particular courtroom. More specifically, the trial court found that Dunikoski disrespectfully argued with the trial court after it entered a certain ruling in a murder case Dunikoski was prosecuting. After discovering that Dunikoski had not paid the fine, apparently at the direction of the District Attorney, the trial court reduced the order to writing on November 12, 2009, ordering Dunikoski “to comply with [the] original order entered on October 6, 2009 by close of business on
Nothing in this factual scenario triggers this Court’s jurisdiction. “Cases involving contempt of court are not within this Court’s appellate jurisdiction.” Nowlin v. Davis,
The mere fact that a finding of contempt is issued during a murder trial does not alter this constitutionally-imposed jurisdictional limitation. This is evident from this Court’s finding in Holmes v. State,
None of the cases cited by the majority changes this result. As an initial matter, this case falls outside of the general rule that “the appellate court with subject-matter jurisdiction of the appeal from a judgment has appellate subject-matter jurisdiction of a contempt action in which enforcement of the judgment is sought.” Rogers v. McGahee,
Furthermore, the remaining cases cited by the majority are equally unpersuasive and easily distinguishable. The bulk of these cases deal with appeals in murder cases which directly affect the rights of the defendant and are, therefore, directly related to the murder trial. In both Waits v. State,
The majority’s reliance on In re Paul,
Because of the collateral nature of the reporter’s privilege issue in most cases, we conclude that reporters who are not parties in the underlying action should not have to wait*263 until the case is concluded before appealing an order that requires them to disclose information. The disclosure order typically is a final decision concerning the news reporter. In this case, for example, the order rejecting the privilege claim and compelling Paul to answer the interrogatories is a final order concerning him as a non-party, unlike the usual discovery order. Moreover, the issue of whether a reporter should be compelled to reveal information is separate from the principal issue in a criminal trial of whether the accused is guilty of the crime charged in the indictment. Furthermore, the public interest in a free press would be irreparably harmed if review of the order compelling disclosure had to await a jury verdict in the murder case. Either the reporter would have already revealed the information or been imprisoned for failing to obey the disclosure order. Therefore, we hold that non-parties engaged in news gathering may file a direct appeal of an order denying them the statutory reporter’s privilege under the collateral order exception to the final judgment rule.
Id. at 683. When the full holding of Paul is considered, rather than small excerpts, it becomes clear that it does not support the majority’s conclusions. It was necessary in Paul to consider the collateral order to prevent irreparable harm to the sweeping constitutional rights of the public to a free press. No such rights are involved in this contempt action imposing a $100 fine.
Likewise, WALB-TV, supra, involved a collateral order touching upon the rights of the public to a free press. Specifically, we considered as a collateral order the trial court’s ruling that a television station would not be granted access to a murder trial. These issues, of course, raise similar concerns for the constitutional rights of the public as in Paul. Moreover, in WALB-TV, “[t]he order at issue was entered in the context of a murder prosecution and the court below ruled that the defendants’ constitutional rights would be affected by the requested access.” (Emphasis supplied.) WALB-TV, supra,
For all the reasons set forth above, the majority now unnecessarily rewrites this Court’s constitutionally-imposed jurisdiction based on distinguishable case law. This Court has no authority to do
I am authorized to state that Justice Hines joins in this dissent.
The style of this case (“S10M0390. THE STATE v. MURRAY”) belies the nature of this action, which was initially captioned as “In re ADA Linda Dunikoski.” The judgment of contempt at issue in this matter is a personal judgment against Dunikoski, and any ensuing litigation must be between the trial judge imposing the contempt and the attorney against whom the personal judgment has been entered. In fact, under OCGA § 5-7-1, the State has no right to appeal a contempt judgment against an assistant district attorney. Moreover, the trial court’s role in the litigation is illustrated by the rule that a trial judge who alleges an attorney is in criminal contempt for behavior in his or her courtroom must transfer the case to another judge to hear the charges if “the announcement of punishment is delayed, and [if] the contumacious conduct was directed toward the judge or .where the judge reacted to the contumacious conduct in such manner as to become involved in the controversy.” Dowdy v. Palmour,
As the concurrence points out, since 1983, our constitution has provided that this Court has appellate jurisdiction over “[a] 11 cases in which a sentence of death was imposed or could be imposed.” Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (8). This provision, however, in no way supports the concurrence’s strained conclusion that this Court has jurisdiction over the present contempt action, as an action for contempt such as the one before us is simply not or incident to a murder case subject to possible punishment by death, whether pre-conviction or post-conviction. As a result, we lack jurisdiction under our constitution.
Dissenting Opinion
dissenting.
1. The emergency application for supersedeas at issue in this matter is clearly moot and ultimately will be dismissed. The issue that divides us is whether that dismissal order, like the order granting supersedeas in the first place, should be issued by the Supreme Court or the Court of Appeals. Assuming the validity of this Court’s jurisdiction over murder cases “and all pre-conviction appeals in murder cases” under State v. Thornton,
2.1 write separately to explain my views regarding the validity of Thornton, pursuant to which this Court, rather than the Court of Appeals, has taken jurisdiction over all murder cases — hundreds and hundreds of such cases — for the past 25 years. For a case with such significant consequences, Thornton provides little reasoning for its holdings, and the little reasoning it does provide should appear troubling, at first glance, to anyone who believes that courts in our democratic system of government have only the jurisdiction to decide cases that is granted to them by the people through our Constitution. As discussed below, however, upon closer examination I believe the holding in Thornton can be defended and should be followed. Because Justice Melton’s dissent ultimately argues that we cannot expand Thornton to take jurisdiction of this contempt action, rather than simply that we should not do so, I agree with, his result but not all of his reasoning, and therefore I do not join his dissenting opinion.
(a) Under the 1945 and 1976 Georgia Constitutions, this Court
The jurisdictional discussion in Thornton begins as follows:
The district attorney did not give timely notice to the defense that the state intended to seek the death penalty, . . . and for this reason this is not a case “in which a sentence of death was imposed or could be imposed.” . . . Hence, this appeal was filed properly in the Court of Appeals.
Having held that non-capital murder cases are properly appealed
As a matter of policy, however, we deem it appropriate, at the present time, that all murder cases be reviewed by this court. Accordingly, we adopt today the following order: “The Court of Appeals is directed to transfer to the Supreme Court all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases, whether or not timely notice was given by the district attorney as required by Unified Appeal § II. A. 1., 246 Ga. at A-7. This order shall be effective as to cases docketed in the Court of Appeals after December 1, 1984.” Collins v. State,239 Ga. 400 , 403 (3) (236 SE2d 759 ) (1977).
This is a troubling holding, particularly for a matter affecting so many of the most significant criminal cases in this State. There is no discussion of or citation of authority for the proposition that this Court can obtain jurisdiction over cases “[a]s a matter of policy” — a proposition seemingly at odds with the fundamental principle underlying our democratic system of government, in which the judicial branch, like the legislative and executive branches, has only the power granted to it by the people through their Constitution. Indeed, even the legislature cannot confer jurisdiction on this Court beyond the limits of the Constitution. See, e.g., Collins,
(b) Yet despite my initial reservations, I have reached the conclusion that Thornton’s jurisdictional holding and order can be supported by the Constitution and this Court’s precedent. The basis for our jurisdiction is not some assertion of “inherent authority” to create jurisdiction based solely on policy considerations (an assertion I reject) or our authority over appeals in death penalty cases (which would, at minimum, require us to overrule several precedents). Instead, we may properly take all murder appeals as a categorical exercise of our longstanding and almost-unlimited certiorari jurisdiction.
This conclusion begins with a 1916 constitutional amendment,
“It shall also be competent for the Supreme Court to require by certiorari or otherwise any case to be certified to the Supreme Court from the Court of Appeals for review and determination with the same power and authority as if the case had been carried by writ of error to the Supreme Court.”
Georgia Constitution of 1877, Art. VI, Sec. II, Par. V (amended 1916). See State v. Tyson,
In several cases interpreting that language in the last few years in which these constitutions had effect, we held, without dissent on this point, that:
This court has the constitutional authority to require, by certiorari or otherwise, any case to be certified from the Court of Appeals, Const. Art. VI, Sec. II, Par. IV; Code Ann. § 2-3104, even before it is decided by that court, Collins v. State,239 Ga. 400 (3) (236 SE2d 759 ) (1977), and without any application for certiorari being filed. Collins v. State, supra. Having the case before us, in its discretion this court can consider any matter presented to or decided by the Court of Appeals.
Daniels v. State,
In Collins, the Court exercised this authority on a categorical instead of a case-by-case basis. In 1977 the General Assembly had enacted a statute purporting to expand the Supreme Court’s direct
This does not end the analysis, however, because between the decisions in Collins in 1977 and Thornton in 1984, the people of Georgia ratified the Constitution of 1983. That Constitution reorganized and modified to some extent the provisions regarding this Court’s jurisdiction, including the change from authority over all “cases of conviction of a capital felony” to only death penalty cases, as recognized at the beginning of Thornton, and the conferring of new direct appeal jurisdiction over two of the three categories of cases at issue in Collins (election contests and cases in which the constitutionality of ordinances is questioned). See generally Georgia Constitution of 1983, Art. VI, Sec. VI, Pars. II and III. The broad language allowing the Supreme Court to take jurisdiction “by certiorari or otherwise [over] any case” in the Court of Appeals was also modified, to now read simply: “The Supreme Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.” Id., Art. VI, Sec. VI, Par. V.
It could be argued that this new language was intended to narrow the Supreme Court’s previously recognized and exercised plenary authority to take jurisdiction of cases, and even categories of cases, from the Court of Appeals. But that is not apparent from the text, which appears simply to be a shorter and clearer statement of the Court’s general certiorari jurisdiction (along with the addition of the standard, “gravity and great public importance,” approximating the one traditionally used by the Court in granting certiorari, see, e.g., Orkin v. State,
Judge Beasley explained the need for this change:
It was brought to my attention that very — not very often, but sometimes now in cases of great public importance the supreme court doesn’t wait until there is a decision of the court of appeals, they take it by cert right away so that you don’t have double consideration of the merits of the case, and it saves a lot of time.
Id. at 102. Justice Hill then explained further, referring to the Court’s order in Collins:
As Judge Deen indicated a few minutes ago, we already are taking election contest cases by a rule, or not a rule, an order simply saying that we will grant certiorari in election contest cases. If it’s — if we can only review the decisions of the court of appeals then we couldn’t have such a standing order because the case would not be ripe for certiorari until after the court of appeals had rendered their decision, so that this — if you were to have a two governors case or some huge financial institution that failed and you knew it was going to have to be decided ultimately in the supreme court, no point in making it be decided first in the court of appeals.
Id. at 102-103.
Thus, there was specific discussion, in the context of the Court’s certiorari jurisdiction, of the Court’s authority to review cases before decision by the Court of Appeals and to do so by standing order applying to a category of cases. Judge Beasley’s amendment, intended to continue that authority, was adopted without objection, id.
This understanding is reinforced by the unanimous opinion issued in Thornton just a year after the 1983 Constitution took effect, by Justices who had been directly involved in the framing of that Constitution and who appeared to take such continued authority as a given. It is supported further by at least two subsequent opinions in which this Court expressly recognized such authority, without dissent on the point. See Cheeley v. Henderson,
Despite Thornton’s unfortunately summary holding, when understood as an exercise of this Court’s discretion, pursuant to its certiorari jurisdiction, to require any specific case or class of cases to be transferred to this Court from the Court of Appeals, the decision in Thornton is defensible.
This is not to say that Thornton’s order taking jurisdiction of all murder cases, when properly understood as a discretionary decision, could not be changed. Indeed, in 1999, then-Chief Justice Benham argued strongly, 15 years after Thornton, that “the time has come for this Court to comply with the change in its appellate jurisdiction in non-capital murder cases brought about by passage of the 1983 Georgia Constitution, as recognized in State v. Thornton.” Weatherbed,
Because I believe that Thornton is based upon a reasonable
3.1 have discussed the validity of Thornton at length because its order affects such a large component of this Court’s docket and no prior opinion I have found presents a clear and defensible rationale for that order — including the majority opinion in this case, which states that this case compels the Court “to re-examine our longstanding order” in Thornton, Majority opinion p. 258, but then simply treats that order as a given. While I accept Thornton as good law, a contempt action involving an attorney who happened to be trying a murder case at the time of the alleged contempt, but which does not involve the interests of the defendant or the State in that case, does not come within the scope of Thornton’s order or otherwise within our direct appeal jurisdiction, largely for the reasons expressed by Justice Melton. This is not a “pre-conviction[ ] appeal in [a] murder case[ ],” Thornton,
Under the same certiorari authority on which the Thornton order rests, I believe we could expand that order to encompass appeals of all contempt actions arising during murder cases, no matter how tangential. It is on this point that I differ from Justice Melton. But I do not believe that such an expansion would be appropriate, as contempt orders not affecting the underlying murder case neither presumptively involve issues of gravity and great public importance nor impose significant burdens on the Court of Appeals. We are chary in granting certiorari in general, and we should continue to be extremely cautious about exercising our authority to review specific cases, much less categories of cases, before a decision by the Court of Appeals and the filing of a petition for certiorari through the usual procedures. Moreover, such an expansion of Thornton would be inconsistent with our decision in Holmes v. State, supra, and with the approach the Court of Appeals has taken in similar contempt appeals. I do not believe that the practical interest in establishing a “bright-line rule,” the rationale of Presiding Justice Carley’s concurrence, is weighty enough to overcome these other considerations.
For these reasons, I respectfully dissent, and I would order that the supersedeas application be transferred to the Court of Appeals.
Thus, the 1983 Constitution has been interpreted in Thornton and elsewhere to provide this Court with jurisdiction over pre-conviction appeals in death penalty cases, rather than over only appeals from capital felony convictions as under the prior constitutions — but not to provide jurisdiction, either before or after conviction, over murder cases in which the death penalty can no longer be imposed. See Weatherbed v. State,
The term “certiorari” is not limited to review of any type of case, but refers simply to
Technically, the proper procedure for this Court to exercise its certiorari jurisdiction over non-capital murder cases would be to have them first docketed in the Court of Appeals and then formally transferred to this Court pursuant to Thornton’s order. See Collins,
In this respect, although we have to guess at the policy reasons underlying Thornton, I note that the opinion came shortly after the 1977 decision in Collins, which recognized that jurisdiction over a large number of other major criminal cases that had once been “capital felonies” appealed to this Court - all rape, kidnapping, and armed robbery cases - now lay in the Court of Appeals. It may have been seen as simply too much to allow the 1983 Constitution’s revision eliminating the Supreme Court’s direct appeal jurisdiction over non-capital murder cases to move all those cases to the Court of Appeals as well (assuming, as Thornton held, that this was the effect of the new Constitution, but see footnote 9 above). We are now a quarter-century down the road, and perhaps these considerations have changed, but there are also 25 years of reliance interests built into budgets, timetables, and other expectations regarding which court will expend the time and resources hearing appeals in murder cases.