Byrd v. Robinson

349 Ga.App. 19

825 S.E.2d 424

BYRD

v.ROBINSON.

A18A1485

Court of Appeals of Georgia.

March 1, 2019

Herschel G. Byrd, pro se.

Paula M. Rafferty, for appellee.

McFadden, Presiding Judge.

Herschel Byrd has filed a petition for writ of mandamus in this court seeking to invoke our original jurisdiction to require the Fulton County Superior Court Clerk to transmit records to this court. But because this is not one of the rare cases in which we will exercise such original jurisdiction, the petition must be dismissed.

[T]he 1983 Georgia Constitution gave [the Supreme Court of Georgia] and the Court of Appeals original mandamus jurisdiction. Each court may exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments; but only the superior and appellate courts shall have the power to issue process in the nature of mandamus, prohibition, specific performance, quo warranto, and injunction. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV.... We have construed this grant of authority as merely enabling, not mandatory. This [c]ourt has sought to maintain its general status as an appellate court, recognizing, among other things, that unlike trial courts, this [c]ourt has no established mechanism for developing an evidentiary record.

Clark v. Hunstein , 291 Ga. 646, 647-648 (1), 733 S.E.2d 259 (2012) (citations, punctuation, and emphasis omitted).

Unlike the appellate courts, the superior courts of this state are equipped to develop an evidentiary record and they

have the power, in proper cases, to issue process in the nature of mandamus, prohibition, specific performance, quo warranto, and injunction, and hence the need to resort to the appellate courts for such relief by petition filed in the appellate courts will be extremely rare. There may occasionally appear to be a need to file an original petition in the [appellate courts] to issue process in the nature of mandamus, and perhaps quo warranto or prohibition, where a superior court judge is named as the respondent. This appearance is misleading. Such petition may be filed in the appropriate superior court. Being the respondent, the superior court judge will disqualify, another superior court judge will be appointed to hear and determine the matter, and the final decision may be appealed to the [appellate court] for review.

Brown v. Johnson , 251 Ga. 436, 436–437, 306 S.E.2d 655 (1983). Thus, "[t]he procedure to be followed before seeking to invoke this court’s original jurisdiction (the need for which is extremely rare) is to file such petition in the appropriate [lower] court." Graham v. Cavender , 252 Ga. 123, 311 S.E.2d 832 (1984). Like our Supreme Court, this court has recognized that "[e]xcept in the rarest of cases, litigants seeking to invoke this [c]ourt’s original jurisdiction ... must first petition the superior court for such relief." Expedia, Inc. v. City of Colum(b)us , 305 Ga. App. 450, 455 (2), 699 S.E.2d 600 (2010). Accord Graham , supra at 124, ...