Waldrip v. Head
Waldrip v. Head
Opinion of the Court
A jury convicted Tommy Lee Waldrip of murder, and he was sentenced to death.
FACTS
Bypassing the requirements of the Georgia Civil Practice Act,
Waldrip filed both an application for interlocutory appeal and a direct appeal from the clarification order, and the warden filed motions to dismiss. This Court granted the application, consolidated it with the direct appeal, and asked the parties to address three questions:
1. Is an order in a habeas proceeding directing petitioner’s trial and appellate counsel to produce all their files directly appealable as a collateral order?
2. What is the scope of the waiver of the attorney-client privilege when a habeas petitioner asserts a claim for inef- , fectiveness of counsel?
*574 3. When former counsel’s files or a portion thereof are required to be produced in a habeas proceeding, do the files retain any measure of confidentiality or privilege?
JURISDICTION
1. As the state’s highest appellate court, this Court reviews the decisions of other courts in the state in four ways: (1) by direct appeal;
Generally, the Georgia Code limits the right of direct appeal to final judgments or rulings that have a final or irreparable effect on the rights of parties.
Although Waldrip argues that he has a right to directly appeal the October clarification order, we conclude that it does not meet the collateral order exception to the final judgment rule. The issue of whether Waldrip waived his attorney-client privilege is not a separate issue from his claim in his habeas petition that his trial and appellate counsel were ineffective; instead, the privilege and claim are directly related. Therefore, we decline to extend the collateral order doctrine to the discovery order in this case and dismiss the direct appeal.
In addition to filing a direct appeal, Waldrip filed an application for an interlocutory appeal. Since discovery orders generally are
Because of this defect in the interlocutory review process, this Court on rare occasions has assumed jurisdiction to consider an appeal despite the absence of a final judgment or a certificate of immediate review from the trial court. We have chosen to bypass the statutory requirements for interlocutory review and address the substantive issues raised on appeal when the case presented an important issue of first impression concerning a recently enacted statute for which a precedent was desirable,
Despite the dissent’s assertion that this Court is overstepping its authority by ignoring the certificate requirement, both the state constitution and code give this Court authority to establish rules of appellate procedure for this state. The constitution states that each court may exercise the powers “necessary in aid of its jurisdiction” and gives the Supreme Court express responsibility for administering the entire judicial system.
Just as this Court granted parties the right of direct appeal of collateral orders, although there was no legislative grant of authority for that action, this Court has the power to consider appeals of interlocutory orders when we disagree with the trial court concerning the need for immediate appellate review of an interlocutory order. Although we could enact the rule through our formal rule-making process, we choose to adopt this rule of procedure through an opinion, as we did in adopting the collateral order doctrine, to explain both the rule and its rationale.
Our adoption of this rule is consistent with national standards developed by the American Bar Association’s Judicial Administration Division. The Standards Relating to Appellate Courts recommend that appellate courts retain the discretion of interlocutory review when it would materially advance the end of the litigation, protect a party from irreparable harm, or clarify an issue of public importance.
In this case, Waldrip sought a certificate of immediate review, but the trial court did not grant his request. We disagreed with the trial court’s decision and granted the interlocutory application because it presents the important issue of the scope of the waiver of the attorney-client privilege when a habeas petitioner files a claim of ineffective assistance of counsel. In addition, every habeas court
SCOPE OF WAIVER OF ATTORNEY-CLIENT PRIVILEGE
2. Communications between attorney and client are excluded from evidence in this state on grounds of public policy.
Although we have never expressly addressed the scope of the waiver of the attorney-client privilege when a habeas petitioner asserts an ineffective assistance of counsel claim, we have previously limited any implied waiver of the attorney-client privilege. In Felts v. State,
Other states addressing the waiver issue provide persuasive authority for a rule limiting waiver of any privilege to communications related to the specific claims on ineffectiveness.
Based on this persuasive authority, our prior decisions, and the reason for finding an implied waiver, we reject the state’s contention that the filing of an ineffectiveness claim is an absolute waiver that entitles it to the complete file of former trial and appellate counsel. Instead, we hold that a habeas petitioner who asserts a claim of ineffective assistance of counsel makes a limited waiver of the attorney-client privilege and work product doctrine and the state is entitled only to counsel’s documents and files relevant to the specific allegations of ineffectiveness.
To implement this holding, we suggest that parties follow the procedure used in resolving similar discovery disputes in both civil and criminal cases. Initially, petitioner’s current counsel determines the documents waived by the privilege. When the state disagrees, the parties should attempt to resolve their dispute; if they are unable to reach an agreement, the state may move for an in-camera inspection of the disputed parts of the files. At that point, the habeas court needs to review the files and order the disclosure of the parts that are relevant to the issues raised.
PROTECTING THE CONFIDENTIALITY OF TRIAL COUNSEL’S FILES
3. The Civil Practice Act provides that a court, for good cause shown, “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden.”
Waldrip seeks a protective order restricting disclosure of documents to the habeas proceeding and the attorney general’s office, which represents the warden. In particular, he requests that the documents or their contents not be disclosed to law enforcement officers or prosecutors because it would chill his constitutional rights under the fifth and sixth amendments and make a fair retrial impossible. As support, Waldrip cites Commonwealth v. Chmiel.
Because Waldrip’s petition has not been resolved and there is no pending trial, we do not need to address the issue raised in the Pennsylvania case concerning the use of an attorney’s testimony at a client’s subsequent trial. Rather, our inquiry is limited to the use of former counsel’s files in this habeas proceeding. Having seen the potential problems that can be created by public disclosure and use of counsel’s files, we conclude that the files retain their confidential nature despite the client’s implied waiver of the attorney-client privilege in this habeas corpus proceeding. To protect the petitioner’s constitutional right to effective assistance of counsel and against compelled self-incrimination, we hold that Waldrip is entitled to a protective order limiting disclosure in this habeas proceeding to persons needed to assist the warden in rebutting the claim of ineffectiveness.
Judgment reversed.
Waldrip v. State, 267 Ga. 739 (482 SE2d 299) (1997).
See OCGA § 9-11-37 (1993).
See OCGA § 5-6-34 (a) (1995).
See OCGA §§ 5-6-35; 5-6-34 (b) (1995).
See Ga. Const. art. 6, sec. 6, para. 5 (1998); OCGA § 5-6-15 (1995); Ga. Sup. Ct. R. 38-45.
See Ga. Const, art. 6, sec. 6, para. 3 (7) (1998); art. 6, sec. 6, para. 4.
See Ga. Const, art. 6, sec. 6, para. 4 (1998); OCGA § 15-2-9 (1999).
See In re Paul, 270 Ga. 680, 682 (513 SE2d 219) (1999); OCGA § 5-6-34 (a) (2)-(8) (1995).
See Scroggins v. Edmondson, 250 Ga. 430, 431-432 (297 SE2d 469) (1982); Patterson v. State, 248 Ga. 875, 876-877 (287 SE2d 7) (1982).
See Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 80-82 (485 SE2d 525) (1997); see also Turner v. Giles, 264 Ga. 812, 813 (450 SE2d 421) (1994) (dismissing direct appeal after declining to adopt federal rule permitting a direct appeal from an interlocutory order denying a claim of qualified immunity in a § 1983 action and dismissing direct appeal).
See OCGA § 5-6-34 (b) (1995).
See Scruggs v. Georgia Dep’t of Human Resources, 261 Ga. 587 (408 SE2d 103) (1991).
See In re Board of Twiggs County Comm’rs, 249 Ga. 642, 643 (292 SE2d 673) (1982) (“we have chosen to pretermit the procedural issue and decide the appeal on its merits . . . because an important first-impression issue has been raised under this recently enacted and previously unconstrued public revenue statute”).
See G. W. v. State, 233 Ga. 274 (210 SE2d 805) (1974) (reversing court of appeals decision dismissing appeal in which nonresident juveniles challenged adjudicatory order transferring them to juvenile court authorities of another state); cf. Scroggins, 250 Ga. at 432 (orders granting motions to cancel lis pendens are directly appealable under collateral order exception because “an important right might be lost if review had to await final judgment”).
See Isaacs v. State, 257 Ga. 798 (364 SE2d 567) (1988) (considering appeal of interlocutory order denying plea in abatement and motion for acquittal in death penalty case, even though trial court did not grant certificate of immediate review, based on judicial economy).
See Ga. Const, art. 6, sec. 1, para. 4; art. 6, sec. 9, para. 1.
See OCGA § 15-2-8 (1999).
Garcia v. Miller, 261 Ga. 531, 532 (408 SE2d 97) (1991); see also McCorkle v. Judges of Superior Court, 260 Ga. 315, 317 n.1 (392 SE2d 707) (1990) (Hunt, J., concurring) (court exercises its inherent power only when established methods fail); Kirwan v. Welch, 549 NE2d 348 (Ill. 1989) (recognizing the legislature’s concurrent jurisdiction to promulgate rules of procedure if they do not infringe on the courts’ inherent powers).
State v. Buckner, 527 SE2d 307 (N.C. 2000).
See McCowan v. Brooks, 113 Ga. 384 (39 SE 112) (1901) (“the court may, without a formal amendment of the rule, pass an order which will accomplish the same purpose in the particular case as was intended to be accomplished by the rule adopted”).
See Standards Relating to App. Cts. § 3.12 (1994).
See id. at 34 commentary.
See McMichen v. Turpin, S99A0057 (Ga. Sup. Ct. Oct. 21, 1998); Wellons v. Turpin, S98A0320 (Ga. Sup. Ct. Dec. 1, 1997).
See McClain v. Turpin, 97-V-743 (Butts Co. Super. Ct. June 3, 1999) (motion to compel access to trial counsel’s files granted after trial and habeas counsel did not oppose motion); Alderman v. Turpin, 94-V-720 (Butts Co. Super. Ct. April 23, 1999) (petitioner must produce complete trial attorney’s file in re-sentencing trial and appeal); Burgess v. Turpin, 95-V-656 (Butts Co. Super. Ct. March 30,1999) (petitioner must provide access to entire files of former defense counsel); Greene v. Turpin, 98-V-320 (Butts Co. Super. Ct. Oct. 6, 1998) (petitioner must provide access to complete files of former trial counsel); McMichen v. Turpin, 97-V-005 (Butts Co. Super. Ct. Aug. 17, 1998) (warden is entitled to complete files of petitioner’s former trial and appellate counsel); Wellons v. Turpin, 97-V-339 (Butts Co. Super. Ct. Sept. 30, 1997) (petitioner must produce complete trial attorney’s file with one exception related to voir dire material); Davis v. Turpin, 94-V-162 (Butts Co. Super. Ct. Jan. 9,1997) (since waiver covers the entire period of representation by all of petitioner’s former attorneys, all areas of trial and appellate attorneys’ files shall be open for inspection).
OCGA §§ 24-9-21 (2); 24-9-24; 24-9-25 (1995).
See Alexander Scherr, Green Georgia Law of Evidence §§ 194-195 (5th ed. 1999).
Daughtry v. Cobb, 189 Ga. 113, 118 (5 SE2d 352) (1939).
Bailey v. Baker, 232 Ga. 84, 86 (205 SE2d 278) (1974).
Roberts v. Greenway, 233 Ga. 473, 477 (211 SE2d 764) (1975) (attorney may testify
Roberts, 233 Ga. at. 477.
See Reed v. State, 640 So2d 1094, 1097 (Fla. 1994). But see Waitkus v. Mauet, 757 P2d 615, 616 (Ariz. App. 1988) (waiver of attorney-client privilege permits questioning of attorney at evidentiary hearing but not access to the attorney’s work product and trial preparation files).
244 Ga. 503, 505 (260 SE2d 887) (1979).
See Bailey, 232 Ga. at 86.
See Paul S. Milich, Georgia Rules of Evidence § 21.16 (1995); Hyde v. State, 70 Ga. App. 823, 827 (29 SE2d 820) (1944).
See State v. Walen, 563 NW2d 742, 753 (Minn. 1997) (waiver reaches only communi
See Taylor, 393 SE2d at 805.
See McKinnon v. Smock, 264 Ga. 375, 378 (445 SE2d 526) (1994) (providing for in-camera review when dispute arises concerning whether document contains protected work product material); Hall v. Madison, 263 Ga. 73, 74 (428 SE2d 345) (1993) (trial court in habeas proceeding may examine prosecutor’s voir dire notes in camera to determine whether disclosure is warranted); Tribble v. State, 248 Ga. 274, 275-276 (280 SE2d 352) (1981) (providing for in-camera inspection of state’s file for exculpatory material based on request by defense).
See OCGA § 9-11-26 (c) (1993).
738 A2d 406 (Pa. 1999).
Dissenting Opinion
dissenting.
This Court is bound by the applicable constitutional and statutory provisions which were enacted for the purposes of establishing its jurisdiction and limiting its power. Thus, it should not be consid
At issue in this currently pending habeas corpus proceeding is a discovery order. In this connection, we must bear in mind that “habeas corpus is not a criminal proceeding, but is considered to be civil in nature. [Cits.]” Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999). The only jurisdictional question which the parties were asked to address is whether that non-final ruling is directly appealable as a. collateral order. The Court correctly answers that question in the negative. However, the majority then proceeds to hold that the Court nevertheless has jurisdiction over this case because it will deem it to be a valid “interlocutory” appeal, even though there was absolutely no compliance with the requirement of OCGA § 5-6-34 (b) that the trial court certify its discovery order for immediate review.
The majority does not cite either controlling or persuasive authority for its unprecedented holding. I submit that there is no such authority because in this case, the absence of jurisdiction pursuant to OCGA § 5-6-34 is undisputed. Compare In re Board of Twiggs County Commissioners, 249 Ga. 642 (1) (292 SE2d 673) (1982). Heretofore, certification by the trial court has always been considered a necessary and indispensable prerequisite to appellate jurisdiction over a civil case involving an interlocutory discovery order. See Johnson & Johnson v. Kaufman, 226 Ga. App. 77 (485 SE2d 525) (1997). Compare Isaacs v. State, 257 Ga. 798 (364 SE2d 567) (1988) (denial of plea in abatement and motion for acquittal in a criminal case addressed under the collateral order exception). In Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 589 (1) (408 SE2d 103) (1991), we unambiguously held that
the certificate of immediate review is not “surplusage.” [Cit.] The certificate is an essential component of a trial court’s power to control litigation. Therefore, a party seeking appellate review from an interlocutory order must follow the interlocutory-application subsection, OCGA § 5-6-34 (b), seek a certificate of immediate review from the trial court, and comply with the time limitations therein.
The majority predicates its exercise of jurisdiction upon the concept of inherent power. However, “ ‘[t]he very conception of inherent power carries with it the implication that its use is for occasions not provided for by established methods ....’” McCorkle v. Judges of Superior Court of Chatham County, 260 Ga. 315, 317, fn. 1 (392 SE2d 707) (1990) (Hunt, J., concurring). Certainly then this is not an appropriate case for the exercise of inherent power, because there is an “established method” for appealing the interlocutory discovery order, and there has been no compliance with the prescribed procedure. No court is at liberty “to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland v. State, 264 Ga. 872, 874 (1) (452 SE2d 756) (1995). However, that is exactly what has been done in this case. According to the concept of inherent judicial power adopted today, either this Court or the Court of Appeals is now authorized to ignore clear statutory limits on its jurisdiction in any case simply because a majority of its members has a subjective disagreement with the propriety of those limitations as applied to that case. In my opinion, this constitutes blatant judicial usurpation of the legislative function, and cannot be considered to be the legitimate exercise of inherent judicial authority. “The Legislature, being the sovereign power in the State, while acting within the pale of its constitutional competency, it is the province of the
Although the General Assembly has determined that the trial courts of this state are to play an important, integral and indispensable function in the appeal of any interlocutory order, it is now apparent that a majority of this Court, by employing the pretext of exercising its inherent power, will ignore the legislative mandate and henceforth will dispense with the lower court’s input in any and every case which, in its unbridled discretion, it wishes to review. I dissent because I have consistently subscribed to the principle that the judiciary should lead by example and, thus, that this Court must faithfully adhere to the constitutional and statutory provisions which apply to it to the same extent that it ensures the just enforcement of such of those provisions that are applicable to others. Because we have no jurisdiction over this case, this Court cannot, the majority should not and I will not reach the merits.
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