Reed v. Hopper

Jordan, Justice,

dissenting.

1. The doctrine of "selective review,” created by Section 3 of the 1975 Habeas Corpus Act, is a dangerous one and is clearly unconstitutional. This doctrine, taken to its extreme, could effectively thwart the purpose for which this court was created, i.e., to correct errors of law in the trial courts. If this Act is constitutional, then the doctrine of selective review could be extended to all cases falling within the jurisdiction of this court. Indeed, a "sister” Act passed at the same session of the General Assembly has extended the doctrine to all interlocutory appeals. Ga. L. 1975, p. 757.

As the case load of the appellate courts continues to increase, other such legislation will be sought by those amongst us who consider the idea of limited appeal as an answer to this problem. Whatever the answer, I do not believe that it lies in this direction. Seven "lazy” or incompetent judges, by failing to find probable cause in any case, could thereby abolish appellate review. In my opinion, when this court was created in 1845, it was the intent of the General Assembly and the people to create a court in which litigants in the trial courts would have the right to have errors of law in the trial courts reviewed and corrected by this court. The Act here under review is an erosion of this right and is utterly inimical to our system of jurisprudence in this state.

The majority opinion is bottomed on the language in our Constitution (Code Ann. § 2-3704) which vests the General Assembly with power to "prescribe conditions as to the right of a party litigant to have his case reviewed by the Supreme Court or Court of Appeals.” Pursuant to this authority the General Assembly has imposed conditions relating to the time for filing an appeal, the payment of costs (or by pauper’s affidavit), the filing of an appeal before final judgment, and other conditions or restrictions *302dealing solely with the methods and mechanics of "carrying cases” to an appellate court. But could it be said that under this authority the General Assembly could impose "conditions” which would allow only blacks, or blind people, or those over 30, or white protestants to appeal? Clearly not. Yet, under this Act, those persons seeking the aid of the Great Writ have been denied the right to appellate review unless given permission by the reviewing court.

In my opinion it was not the intention of this language in the Constitution to allow the General Assembly to impose "conditions” which tend in any manner to erode, eliminate, or emasculate the substantive right of appeal. In other words, the General Assembly can provide the rules for the game, but they cannot eliminate the game or call it off. For them to have such power would be a gross abuse of the separation of powers doctrine.

The majority opinion relies on two cases, Fife v. Johnston, 225 Ga. 447 (169 SE2d 167) and Jordan v. Caldwell, 229 Ga. 343 (191 SE2d 530), as authority for the apparent holding that the General Assembly can impose any "conditions” on the right of appeal which it deems proper. These cases are not authority for such a broad holding. The Fife case merely upheld that portion of the Appellate Practice Act which restricted interlocutory appeals unless certified within ten days for immediate review. The Jordan case upheld that part of the Appellate Practice Act which required a notice of appeal to be filed within 30 days after entry of the appealable judgment. Both cases cited Art. VI, Sec. II, Par. IV of the Constitution (Code Ann. § 2-3704) as the authority for so holding. However, these cases dealt only with the time and method of "carrying cases” to the appellate court and in no way affected or tampered with the substantive right to appeal.

One of the most precious rights in our Constitution provides that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both.” Code Aim. § 2-104. (Emphasis supplied.) The majority opinion says the Act does not violate this provision of the Constitution since "the appellant was not denied his right to prosecute *303his cause in the habeas corpus court.” I dare say that when the Constitution used the language "any courtf that it included the Honorable Supreme Court of the State of Georgia.

The holding of the majority in this case gives the General Assembly unlimited and unbridled authority to impose "conditions” on the right of appeal which could lead to the practical abolition of this court and the Court of Appeals by a simple Act of that body. This unauthorized action by the General Assembly, approved by this court, could sound the death knell of appellate review in Georgia.

2. I further dissent from that portion of the majority opinion which upholds the validity of the Act which requires the petitioner in a habeas corpus case to obtain a certificate of probable cause in order to appeal while the respondent (state) can secure appellate review without such certificate. In my opinion to classify the prisoner and the warden in a different category for appeal is not a reasonable classification, amounts to invidious discrimination, and is a denial of equal protection of the law.

I respectfully dissent.

I am authorized to state that Justice Ingram joins in this dissent.