Last Resort for Speedy Appeals

Robinson v. Glass

302 Ga. App. 742 (2010)

Until very recently, every appeal to the Georgia appellate courts began when a party filed a notice of appeal, which directed the clerk of the trial court to prepare a copy of documents from the record, certify them, and send them to the appellate court. The governing statute contemplated that the clerk would be able to do this within five days. See OCGA § 5-6-43

It is unfortunately common in some courts to come nowhere close to this target, and in some cases to take up to a year. The appellant in the subject case decided to do something dramatic about the delay.

After three months passed with no preparation of the record or bill of costs, Glass's counsel began telephoning the Fulton County Superior Court clerk's office. He testified that he made approximately five telephone calls, that an assistant clerk promised him each time that she would check on the status of the record, and that no one ever called him back. On January 8, 2008, counsel prepared a letter to the supervisor of the Appeals Section inquiring about the status of the record. This letter was never answered. After receiving no response to his letter, Glass filed a petition for mandamus on February 2, 2008.

And this was the response from the clerk.

Robinson answered, asserting that Glass had failed to state a claim, that he had no right to seek relief, that he had adequate remedies at law, and that his claims were barred by laches and mootness. She also denied knowledge of the law's requirements. Robinson moved to have the petition dismissed as moot, claiming that "[f]or reasons beyond the scope of this motion, the record did not get prepared due to a lack of communication." Finally, she alleged that Glass was stubbornly litigious for refusing to pay court costs. But the bill of costs is dated February 26, 2008, five days after Glass filed his petition for mandamus, and it was promptly paid by Glass's counsel.

The mandamus case was ultimately dismissed as moot because the clerk's office prepared the record for appeal before the trial court ruled on the petition. However, appellant's counsel sought fees for bringing the action under OCGA § 9-15-14, and the trial court awarded them. The Court of Appeals affirmed, and in the course of its decision, it remarked:

A public officer that refuses or neglects to obey a plain statutory mandate for almost six months, thereby forcing a citizen to go to the trouble and expense of filing a mandamus petition in order to obtain what he is entitled to by law, and furthermore files an answer denying that the citizen is entitled to relief, should not be able to escape responsibility for his or her inaction by belatedly complying with the law a few days before a scheduled hearing. We have held, in the context of frivolous appeal penalties under Court of Appeals Rule 15, that public officials have a particular responsibility to ensure that they have a reasonable basis for their positions in litigation, because they represent "a government agency spending the taxpayers' money. . . ."

COMMENT

The report does not indicate that the clerk defended on grounds of having inadequate staff, or too much work. That would have been a far more substantial defense, if true.

The recent amendments to the rules of the appellate courts allowing the parties to prepare their own records will alleviate much of the problem addressed here. For announcements about the rules, see this from the Supreme Court and this (6/15/10) from the Court of Appeals. Chris McFadden, a candidate for the Court of Appeals in November, discusses how to comply with these rules here.

Suing the clerk is obviously a last resort. Maintaining communication is the far better course. Unfortunately, according to the report, the lawyer's efforts to do so failed.