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*Compelling* Public Relief in Georgia

by merlin on July 28th, 2012
  • Sumo

This is a touchy and difficult subject, because it implicates two principles of legal practice in the State of Georgia that are of equal importance to attorneys: Legal propriety (doing what is technically right) and politics (doing what is popular or doesn’t clash with people’s principles).  When a public officer refuses to, or doesn’t, perform their duties the way they ought to be, a writ of mandamus is the evident answer for this problem. This is to be distinguished from a situation where the relief granted is not to the liking of the applicant; an action subject to judicial review for abuse of discretion, or otherwise, is still reviewable.  THIS extraordinary remedy lies only when there is nothing that would be subject to review.

The basic Georgia Code section addressing a petition for the writ is 9-6-20, which provides that [a]ll official duties should be faithfully performed, and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights.”  The section goes on to expressly state a caveat to when the writ can be sought by stating that “no writ of mandamus to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.”

As said, this writ is available to compel someone to take an action, and not available where the action taken isn’t to the liking of the person seeking the writ (in other words, it’s not a substitute for an appeal).  This doesn’t seem to be something folks necessarily understand, and as recent as 2012, the Supreme Court of Georgia heard Gilbert v. Pridgen, S12A0869:

Appellant appealed from an order denying a filing of a petition for writ of mandamus. Appellant sought to file a petition for mandamus to compel judges of the court to dismiss his citation for speeding, to recuse one of them for reviewing his pleading, and to “impeach” certain of them due to alleged misconduct. Because appellant failed to carry his burden and his petition showed on its face “such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading,” the court concluded that the trial court did not err by denying the petition.

THOMPSON, Justice.

This is an appeal from an order denying filing of a petition for writ of mandamus. For the reasons that follow, we affirm.

Appellant Elisha Gilbert sought to file a petition for mandamus in Dooly County Superior Court to compel appellees, judges of that court, to dismiss his citation for speeding, to recuse one of them from reviewing his pleading, and to “impeach” certain of them due to alleged misconduct.

Pursuant to OCGA § 9-6-20, a writ of mandamus “may issue to compel a due performance if there is no other specific legal remedy for the legal rights.” Extraordinary writs like the writ of mandamus, therefore, “are not the proper remedy to seek review of a ruling made by a trial court where there is a right of judicial review of the judge’s ruling, because the availability of judicial review is an adequate legal remedy that eliminates the availability of mandamus relief.” Ford Motor Co. v. Lawrence, 279 Ga. 284, 285 (612 SE2d 301) (2005). In the present case, the court entered its final judgment on the traffic citation charging appellant with speeding in violation of OCGA § 40-6-181 (b), and reversal of that adverse final judgment must be obtained by one of the available methods of obtaining appellate review and not by writ of mandamus. See id. (mandamus not a vehicle by which party may obtain review of judicial order which is subject to appellate review). See also Smith & Wesson v. City of Atlanta273 Ga. 431, 433 (543 SE2d 16) (2001); Hayes v. Brown, 205 Ga. 234, 237 (52 SE2d 862) (1949). Similarly, writs of mandamus are not the proper remedy to seek recusal of a judge where, as in this case, no motion to recuse has been filed or impeachment of a judicial officer. See OCGA § 9-6-20 (“no writ of mandamus to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available”); Ga. Const. Art. III, Sec. VII, Par. I (House of Representatives shall have sole power to vote impeachment charges against judicial officers of this state).

“Mandamus is an extraordinary remedy” which is available only if the petitioner can show a clear legal right to the relief sought. Mid-Ga. Envtl. Mgmt. Group v. Meriwether County, 277 Ga. 670, 672-673 (2) (594 SE2d 344) (2004). Because appellant failed to carry his burden and his petition shows on its face “such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading,” we conclude the trial court did not error by denying filing of the petition. OCGA § 9-15-2 (d).

Judgment affirmed. All the Justices concur.

Note that the case was heard by the Supreme Court of Georgia.  This is because appeals concerning extraordinary remedies are exclusively within the Court’s jurisdiction.  However, the proper Court for appeal is actually spelled out by statute, at 9-6-28.  That section states as follows:

a) Upon refusal of the court to grant the mandamus nisi, the applicant may appeal to the Supreme Court, as in other cases. Either party dissatisfied with the judgment on the hearing of the answer to the mandamus nisi may likewise appeal.

(b) Mandamus cases shall be heard in the Supreme Court under the same laws and rules as apply to injunction cases.

The writ isn’t available just because a party wants to get its justice faster.  Section 9-6-26 states that “[m]andamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless, nor will it be granted on a mere suspicion or fear, before a refusal to act or the doing of a wrongful act.”  Again, these are matters subject to review.

Section 9-6-21(a) should be noted, as well, because that section implicates the rule regarding judicial review, as well:

“Mandamus shall not lie as a private remedy between individuals to enforce private rights nor to a public officer who has an absolute discretion to act or not to act unless there is a gross abuse of such discretion. However, mandamus shall not be confined to the enforcement of mere ministerial duties.” (emphasis supplied).

Considerations to keep in mind!

 

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