In re Interest of J.F.

300 Ga. 740

797 S.E.2d 921

IN the INTEREST OF J.F., a Child.

S16Q1826

Supreme Court of Georgia.

Decided: March 6, 2017

G. Richard Stepp, G. Richard Stepp, P.C., P.O. Box 749, Lawrenceville, Georgia 30046-0749, for Appellant.

Daniel J. Porter, District Attorney, Nhan-Ai Du Simms, Pareesa Hanna Amjadi, Gwinnett County District Attorney's Office, Gwinnett Judicial Center, 75 Langley Drive, Lawrenceville, Georgia 30046, for Appellee.

NAHMIAS, Justice.

The Georgia Constitution says that "[t]he Court of Appeals may certify a question to the Supreme Court for instruction, to which it shall then be bound."

Ga. Const. of 1983, Art. VI, Sec. V, Par. IV. In this case, the Court of Appeals, in a divided full-court (15-judge) decision, certified to this Court a single question of statutory construction:

Does OCGA § 15-11-521 (b) require dismissal with prejudice when the State neither files a petition alleging [juvenile] delinquency within the applicable 30-day period nor seeks an extension of time in which to file such petition?

In the Interest of J.F. , 338 Ga.App. 15, 20, 789 S.E.2d 274 (2016).¹ Two panels of the Court of Appeals had previously decided that same question of law in contrary ways, with the first panel holding that the consequence of noncompliance with § 15-11-521 (b) is dismissal without prejudice, see In the Interest of M.D.H. , 334 Ga.App. 394, 397-399, 779 S.E.2d 433 (2015), and the second panel deciding three days later that the consequence is dismissal with prejudice, see In the Interest of D.V.H. , 335 Ga.App. 299, 300-301, 779 S.E.2d 122 (2015) ; see also id. at 301, 779 S.E.2d 122 (denying the State's motion for reconsideration based on M.D.H. ). The facts pertinent to resolving those two cases based upon the answer to the legal question were undisputed, as they are in this case: the State failed to file a juvenile delinquency petition within the time required by OCGA § 15-11-521 and did not obtain an extension of time from the trial court. See J.F. , 338 Ga.App. at 16-17, 789 S.E.2d 274.

At the time the Court of Appeals certified its question to this Court, we had granted petitions for certiorari in both M.D.H. and D.V.H. to address the same question. Since then we have decided those cases, holding in a single opinion that "if the State fails to file a delinquency petition within the required 30 days or to seek and receive an extension of that deadline, the case must be dismissed without prejudice," and thus affirming the decision in M.D.H. and reversing the decision in D.V.H. See In the Interest of M.D.H. , 300 Ga. 46, 46-47, 793 S.E.2d 49 (2016). Because the answer to the certified question submitted by the Court of Appeals now "may be found in the decision of this [C]ourt in [another case,] we will not again undertake to consider the question[ ] submitted." Bump v. Continental Cas. Co. , 219 Ga. 595, 595, 134 S.E.2d 787 (1964).

We therefore need not determine whether the certified question runs afoul of this Court's precedents holding that the Court of Appeals may not certify a question which, if answered, would effectively decide the whole case. See J.F. , 338 Ga.App. at 18-19, 789 S.E.2d 274 (stating that "the answer to the question presented in this appeal would undoubtedly control the decision in this case" and "we are mindful that our Supreme Court has previously held that ... ‘even if the question certified is one of law only, it will not be answered if such answer would necessarily control the decision of the case’ " (quoting Kelly v. Georgia Cas. & Sur. Co. , 216 Ga. 834, 835, 120 S.E.2d 329 (1961) )); id. at 22-23, 789 S.E.2d 274 (Andrews, P.J., dissenting) ("As the answer to the question certified to the Supreme Court by the majority would clearly decide the appeal, I believe this Court should decide the appeal." (also citing Kelly )).² Although the Court of Appeals majority acknowledged these precedents, it decided to "carv[e] out a narrow (and perhaps temporary) exception to this state's certification jurisprudence" for what it viewed as the "unique dilemma" presented by this case; at the time the question was certified, this Court had granted certiorari to review two Court of Appeals cases that decided the same question in opposite ways, and the Court of Appeals had to consider overruling one of the cases that we were reviewing. See J.F. , 338 Ga.App. at 15-16, 789 S.E.2d 274.

The provision for the Court of Appeals to certify questions to this Court and the provision for this Court to review decisions of the Court of Appeals by certiorari have co-existed in our Constitution for more than a century now.³ This Court has not recognized any exception to our well-established precedents limiting the kinds of questions that may be properly certified, and we are not convinced that an exception would be warranted for the reasons set forth by the Court of Appeals in this case. When the Court of Appeals is faced with a question that also may be decided by this Court, if that court cannot certify the question in accordance with our precedents and cannot delay its decision because of its obligation to decide appeals within two terms of court, see Ga. Const. of 1983, Art. VI., Sec. IX, Par. II, the court should simply decide its case as best it can.

Adhering to our precedents, we respectfully decline to answer the question certified by the Court of Appeals.

Question not answered.

All the Justices concur, except Boggs and Peterson, JJ., who are disqualified.

1 OCGA § 15-11-521 (b) says:

If a child is not in detention prior to adjudication, a petition alleging delinquency shall be filed within 30 days of the filing of the complaint alleging violation of a criminal law or within 30 days of such child's release pursuant to a determination that detention is not warranted. Upon a showing of good cause and notice to all parties, the court may grant an extension of time for filing a petition alleging delinquency. The court shall issue a written order reciting the facts justifying any extension.

Six of the 15 Court of Appeals judges concurred in Judge Dillard's majority opinion certifying the question; three concurred specially; one concurred fully and specially; and four dissented. Those concurring agreed with the decision to certify the question but wrote separately to express their positions on the merits of the question. See J.F. , 338 Ga.App. at 20, 789 S.E.2d 274 (Ray, J., concurring specially); id. at 22, 789 S.E.2d 274 (McFadden, J., concurring fully and specially). The dissenting judges objected to the certification as improper under this Court's precedent and disagreed with the specially concurring judges as to how the appeal should be decided on the merits. See id. at 22-25, 789 S.E.2d 274 (Andrews, P.J., dissenting).

2 In this Court's seminal decision on the scope of the certification provision, Lynch v. Southern Express Co., 146 Ga. 68, 90 S.E. 527 (1916), we explained that the kinds of questions that properly may be certified by the Court of Appeals are limited in two significant ways. First, a certified question must be "a definite question of law"; "questions of fact, or mixed questions of law and fact," which require application of the law to the particular facts of the case, are not permitted. Id. at 71, 90 S.E. 527. Second, even if the question presented is one of law, it cannot be answered if it, "in effect, calls for a decision of the whole case." Id. at 68, 90 S.E. 527. Since Lynch , when this Court's opinions have...