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Proper Court for Extraordinary Writs

by merlin on March 15th, 2013
  • Sumo

The post describes one aspect of a topic I have been learning more about recently(unwanted but required).  If a Writ must issue from a higher Court to a lower Court, shouldn’t it automatically be sought for and issued from a Court with power over the Court commanded?

Actually, the case presented below, Brown v. Johnson, 306 S.E.2d 655, 251 Ga.436 (Ga. 1983), affirms that is the correct venue for this Writ is the Superior Court that is interfering with the action sought.  It first be given an opportunity to command itself to correct its own behavior.  Of course, because it necessarily involves a “clear legal right to the relief requested”, it requires plain and evident misconduct that actually causes verifiable injury (including nonphysical injury

Specifically, the final paragraph of this opinion spells this entire point out plainly.

Page 656

        [251 Ga. 437] Phillip Brown, pro se.

        Willis B. Sparks, Dist. Atty., Macon, for Walker P. Johnson, Jr., Judge.

        [251 Ga. 436] HILL, Chief Justice.

        Prior to the effective date of the Constitution of 1983, this court had no original jurisdiction. See Const.1976, Art. VI, Sec. II, Par. IV (Code Ann. § 2-3104).

        The Constitution of 1983, effective July 1, 1983, provides that “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.” (Art. VI, Sec. I, Par. IV (Code Ann. § 2-704).)

        In the matter before us, petitioner has filed a petition for mandamus seeking to invoke the original jurisdiction of this court to require the respondent, a superior court judge, to enter an order in a matter allegedly pending more than thirty days in violation of OCGA § 15-6-21(a) (Code, §§ 24-2620). Without considering the merits of this petition, we find it appropriate to specify, at least as is applicable to the case at hand, the procedure to be followed before seeking to invoke this court’s original jurisdiction.

        Generally, the superior courts of this state 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 Supreme Court to issue process in the nature of [251 Ga. 437] 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 Supreme Court for review. Anything to the contrary in Shreve v. Pendleton, 129 Ga. 37458 S.E. 880 (1907), will no longer be followed.

        The petition for writ of mandamus filed in this court is therefore dismissed.

        Petition for Writ Dismissed.

        All the Justices concur.

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