RIVERA v. WASHINGTON (2016)

This Court granted certiorari to the Court of Appeals in these cases to consider its decisions to dismiss the direct appeals that defendants filed from the trial courts' denials of their motions to dismiss that were based on claims of quasi-judicial and sovereign immunity. Finding that the Court of Appeals reached the correct results in both cases, but did so under flawed analyses, we affirm its judgments.

Although these two cases arose separately, they pose a singular legal issue for this Court's determination, and thus can be addressed in the same opinion. In S15G0887, Akeem Washington, who was on probation for speeding, sued Shannon R. Rivera, a probation officer, and her administrative assistant, alleging that they failed to perform their ministerial duties when they swore out a warrant for Washington's arrest for failure to pay a fine that Washington already had paid in fulfillment of the conditions of his probation. Rivera moved to dismiss the complaint under OCGA § 9–11–12(b)(6),¹ asserting that she was immune from liability in Washington's suit because her alleged actions were protected by either quasi-judicial immunity or sovereign immunity. The trial court denied the motion, ruling that it was possible that facts could be shown in discovery that would establish that neither quasi-judicial immunity nor sovereign immunity applied. Even though the order denying the motion to dismiss meant that the case remained pending in the trial court, Rivera did not attempt to file an application for interlocutory appeal from that order, see OCGA § 5–6–34(b),² but filed a notice of appeal, asserting that she had authority to file a direct appeal under the collateral order doctrine, as that doctrine has been applied in Board of Regents etc. of Ga. v. Canas, 295 Ga.App. 505, 506–507(1), 672 S.E.2d 471 (2009). The Court of Appeals, though accepting the collateral order doctrine embraced in Canas, nonetheless dismissed the direct appeal, finding that the doctrine did not apply, as the trial court failed “to make any conclusive determination” on the claims of immunity. Rivera applied to this Court for a writ of certiorari, which was granted.

In S15G0912, Dan and Arlene Appelrouth sued their neighbors, Cesar and Janice Rodriguez, also naming Forsyth County and other unknown persons as defendants. The Appelrouths alleged that actions taken on the Rodriguezes' property, as well as on the County's road right of way and associated drainage ditch, caused water damage to the Appelrouths' property, and raised claims of, inter alia, breach of legal duty, negligence per se, trespass, nuisance, and inverse condemnation. The Rodriguezes filed a cross-claim against the County, which filed motions to dismiss both the complaint and cross-claim, asserting sovereign immunity. The trial court denied the motions, ruling that it was possible that evidence could be established which would allow the Appelrouths and the Rodriguezes to prevail against the County's claim of sovereign immunity. The County did not seek an interlocutory appeal from this order, but, like Rivera, filed a notice of appeal from the order denying the motions to dismiss, also citing Canas, supra. As in the Rivera case, the Court of Appeals dismissed the direct appeal, finding that the collateral order doctrine embraced in Canas did not apply, likewise noting that the trial court had not made a conclusive determination on the claim of immunity. The County then applied to this Court for a writ of certiorari, which was granted.

The collateral order doctrine applied in Canas, supra, pertains to appellate review. “OCGA § 5–6–34(a)(1)³ authorizes direct appeals only from ‘final judgments [of the trial court], that is to say, where the case is no longer pending in the court below.’ “ Sosniak v. State, 292 Ga. 35, 36(2), 734 S.E.2d 362 (2012) (Footnote omitted.). When a trial court grants a motion to dismiss based on a defense such as sovereign or quasi-judicial immunity, the case is final and may be appealed under OCGA § 5–6–34(a)(1). However, if such a motion is denied,

the case remains “pending in the court below” and continues on to trial. OCGA § 5–6–34(a)(2) through (12) authorize direct appeals of 11 specific types of trial court rulings that the General Assembly has deemed important enough to the case, or dispositive enough of the case, to warrant an immediate appeal, even though such rulings are often interlocutory rather than final judgments. But orders related to [defenses such as sovereign and quasi-judicial immunity] are not listed. The usual remedy for a party aggrieved by an order that does not terminate the case in the trial court, and is not authorized for direct appeal by OCGA § 5–6–34(a)(2)-(12), is to seek a certificate of immediate review from the trial court and then file an application for interlocutory appeal.

Sosniak, supra at 37, 734 S.E.2d 362.

As noted, Rivera and Forsyth County did not follow the interlocutory appeal procedures set forth in OCGA § 5–6–34(b), but asserted that a direct appeal was available under the collateral order doctrine. This Court recently addressed the collateral order doctrine, stating:

Although sometimes referred to as an exception to statutes allowing a direct appeal only from the final judgment in a case, the collateral order doctrine actually reflects a practical rather than a technical construction of such statutes, one that recognizes that a very small class of interlocutory rulings are effectively final in that they finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

State v. Cash, 298 Ga. 90, 92–93(1)(b), 779 S.E.2d 603 (2015) (Citations and punctuation omitted.). Thus, “an order that satisfies the requirements of the collateral order doctrine is considered to be effectively final and would be appealable because it comes within the terms of a relevant statutory right to appeal final judgments.” Id. at 93(1)(b), 779 S.E.2d 603.

This Court adopted the collateral order doctrine in Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982), recognizing its application to an order denying a plea of double jeopardy. In the civil context, we first applied the doctrine in Scroggins v. Edmondson, 250 Ga. 430, 432(1)(c), 297 S.E.2d 469 (1982), which concerned an order cancelling a recorded notice of lis pendens; we did so, in part, because nothing remaining in the basic suit could affect the validity of the notice, and cancellation of the lis pendens notice was substantially separate from the issues presented in the basic complaint. Thus, the pretrial order granting the motion to cancel the notice of lis pendens fell “within the small class of cases” for which the collateral order doctrine was appropriate. And, we have applied the doctrine in limited circumstances since. See, e.g., Warren v. State, 297 Ga. 810, 778 S.E.2d 749 (2015) (A pretrial order to involuntarily medicate a criminal defendant in an effort to render him competent to stand trial was directly appealable.); Fulton County v. State, 282 Ga. 570, 571, 651 S.E.2d 679 (2007) (The doctrine was applicable to an order requiring Fulton County to pay expenses associated with the defense of a criminal defendant, which order was entered in the criminal prosecution.); In re Paul, 270 Ga. 680, 513 S.E.2d 219 (1999) (An order directing a reporter to answer questions about his interview with a criminal defendant, entered in connection with the criminal prosecution, could be directly appealed under the collateral order doctrine as it was “a final order concerning him as a non-party” on his claim of reporter's privilege.). But see Cash, supra (An order denying the State's motion to recuse the trial judge could not fall under the collateral order doctrine as, in the circumstances presented, there was no statutory authority for such an appeal.).

We have continued to recognize that the collateral order doctrine has application to only “a very ‘small class' of interlocutory rulings.” Cash, supra. See also Paul, supra at 682, 513 S.E.2d 219 (“A direct appeal is allowed in this limited situation․”)

As noted, Rivera and Forsyth County filed their direct appeals relying upon the opinion of the Court of Appeals in Canas, supra. In that case, the Court of Appeals addressed an order in which the trial court had rejected the claim that the Board of Regents had immunity from the suit filed, on the basis of sovereign immunity. Recognizing that the order denying the Board's motion to dismiss was interlocutory, the Court of Appeals, relying largely upon federal cases, applied the collateral order doctrine, and determined that the trial court's order was directly appealable. However, in doing so, the Court of Appeals overlooked the precedent of this Court.

In Turner v. Giles, 264 Ga. 812, 813(1), 450 S.E.2d 421 (1994), this Court was faced with an attempt to file a direct appeal from the denial of a motion to dismiss in an action under 42 U.S.C. § 1983, based, at least in part, upon a claim of qualified immunity. This Court looked to Scroggins, supra, and found that the situation before it was different, as “an order denying a claim of qualified immunity in a § 1983 action is not substantially separate from the issues raised by the complaint.” And, this Court specifically declined to adopt the federal rule that would have permitted “a direct appeal from an adverse pretrial determination of the issue of qualified immunity in a § 1983 action.” Id. at 813, 450 S.E.2d 421. Indeed, observing that a direct appeal in such a case would be available in the federal courts, we noted that

the jurisdiction of the courts of Georgia is not a federal issue upon which the decision of the Supreme Court of the United States in Mitchell [v. Forsyth, 472 U.S. 511, 525(III), 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ] would be controlling, but derives from the constitutional and statutory law of this state.

Turner, supra at 812(1), 450 S.E.2d 421. And, under Georgia law, this Court determined that an interlocutory order rejecting a claim of qualified immunity is not directly appealable under the collateral order doctrine, but that appeal must be pursued under the interlocutory procedures of OCGA § 5–6–34(b). Id. at 813–814, 450 S.E.2d 421.⁴ Further, at no time since the decision in Turner has this Court recognized a direct appeal from a denial of a motion to dismiss based upon any claim of immunity, adhering rather to the statutory scheme for appellate review of interlocutory orders as set out by our General Assembly in OCGA § 5–6–34.⁵

The Court of Appeals did not cite Turner in Canas, but its flawed analysis can be seen in the opinion itself. Canas cited Cameron v. Lang, 274 Ga. 122, 124(1), 549 S.E.2d 341 (2001), for the proposition that:

Under Georgia law, qualified immunity is an entitlement not to stand trial rather than a mere defense to liability. The issue of a government employee's qualified immunity must therefore be resolved as the threshold issue in a suit against the officer in his personal capacity.

Canas, supra at 507, 672 S.E.2d 471 (n. 7). But, Cameron did not make such a pronouncement about qualified immunity under the laws of this state. Rather, Cameron noted that, in the context of qualified immunity under federal law, the Supreme Court of the United States found in Mitchell v. Forsyth, 472 U.S. 511, 525(III), 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that “qualified immunity is an entitlement not to stand trial rather than a mere defense to liability.” Cameron, supra at 124(1), 549 S.E.2d 341 (Citation and punctuation omitted.) But, as Turner held, state law controls and requires that appeals of non-final orders on claims of immunity must be pursued through the interlocutory procedures of OCGA § 5–6–34(b). Turner, supra at 813–814, 450 S.E.2d 421.

As to Canas's reliance upon Cameron for the proposition that qualified immunity must be resolved as a threshold issue, it is certainly true that Cameron stated:

Because the better policy and practice is to address immunity before causation, we hold that our state courts must consider the issue of a government employee's qualified immunity from liability as the threshold issue in a suit against the officer in his personal capacity.

Cameron, supra at 124, 549 S.E.2d 341. But, nothing in that passage, or elsewhere in Cameron, overrules Turner and authorizes a direct appeal instead of requiring that the statutory framework governing interlocutory appeals be followed. Rather, the above passage from Cameron is merely in keeping with this Court's recommendation in Turner that “except in clear cases, the trial courts issue a certificate of immediate review under OCGA § 5–6–34(b) for interlocutory orders denying dismissal or judgment on the basis of qualified immunity. [Cit.]” Supra at 813–814. Both are simply statements of the best policy for trial courts to pursue when faced with a case that raises some defense of immunity; courts should address motions on immunity issues as early as practicable and, if there is any substantial question, permit an interlocutory appeal to proceed.⁶ And, the admonitions in Turner and Cameron are consistent with this Court's recognition that, regarding the interlocutory appellate procedures, the General Assembly did not intend for parties to usurp the trial courts' authority to regulate litigation. Scruggs v. Georgia Dept. of Human Res., 260 Ga. 587, 588–589(1), 408 S.E.2d 103 (1991). See also Waldrip v. Head, 272 Ga. 572, 575(1), 532 S.E.2d 380 (2000). Further, we note that trial courts possess broad discretion to

enter protective orders governing discovery, see OCGA § 9–11–26(c), to control the sequence and timing of discovery, see OCGA § 9–11–26(d), and to establish pretrial procedure, see OCGA § 9–11–16(a)(5), to focus discovery initially on the [relevant] issue․

Austin v. Clark, 294 Ga. 773, 776–777, 755 S.E.2d 796 (2014) (Nahmias, J., concurring) (Footnotes and citation omitted.) Moreover, a defendant asserting an immunity defense may move to dismiss for lack of subject matter jurisdiction under OCGA § 9–11–12(b)(1), on consideration of which, the trial court may hear evidence and make relevant factual findings to decide the threshold issue. See Department of Trans. v. Dupree, 256 Ga.App. 668, 671–675(1)(a), (b), 570 S.E.2d 668 (2002). See also Considine v. Murphy, 297 Ga. 164, 167, 773 S.E.2d 176 (n. 2) (297 Ga. 164, 773 S.E.2d 176) (2015).

The scheme for appellate interlocutory review is legislative in nature, and provides ample opportunity for review in appropriate cases when a defense of immunity is raised. In the event that the General Assembly determines that the established framework does not adequately safeguard the interests of those who assert those defenses, it is for that body to change it. Accordingly, we hereby overrule Canas, supra, to the extent that it applied the collateral order doctrine to the immunity claim therein.⁷

Although the Court of Appeals applied incorrect analyses in these cases, it reached the correct results in dismissing the direct appeals filed by Rivera and Forsyth County, and thus we affirm that Court's judgments.

Judgments affirmed.

HINES, Presiding Justice.

All the Justices concur.