HEATHER WRYE v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2 ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 09, 2020
The Court of Appeals hereby passes the following order:
A21A0607. HEATHER WRYE v. NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2005-2 et al.
Heather Wrye filed this appeal pursuant to OCGA § 38-3-64, seeking to
challenge the constitutional application of the judicial emergency orders issued by the
Georgia Supreme Court pursuant to OCGA § 38-3-611 in this garnishment action.
Specifically, Wrye contends that her rights have been adversely affected because the
stay orders unlawfully expanded the trial court’s in rem subject-matter jurisdiction to
reach and include wages earned outside the period of garnishment established by
OCGA § 18-4-4 (c) (providing that in a continuing garnishment action, the
garnishment period shall begin on the day of service of the summons of garnishment
and shall include the next 179 days).2 However, we conclude that this appeal should
be transferred to the Georgia Supreme Court, which has exclusive jurisdiction over
“[a]ll cases involving the construction of . . . the Constitution of the State of Georgia
or of the United States and all cases in which the constitutionality of a law, ordinance,
or constitutional provision has been drawn in question.” Ga. Const. of 1983, Art. VI,
Sec. VI, Par. II (1); see also Atlanta Independent School System v. Lane, 266 Ga. 657,
1
See Chief Justice Melton’s Supreme Court Order Declaring Statewide Judicial
Emergency (Mar. 14, 2020), as extended on April 6, May 11, and June 12, 2020, and
as extended in part on July 10, August 6, and September 10, 2020, available at
www.gasupreme.us.
2
Effective January 1, 2021, the garnishment period will be extended to 1,095
days.
657 (1) (469 SE2d 22) (1996).
The Georgia Court of Appeals has only “limited jurisdiction to review
constitutional questions,” which arises when the facts of the case “do not involve
construction of some constitutional provision directly in question and doubtful either
under its own terms or under the decisions of the Supreme Court of Georgia or the
Supreme Court of the United States.” State v. Davis, 303 Ga. 684, 687-688 (1) (814
SE2d 701) (2018) (punctuation omitted). The instant appeal involves the construction
of the garnishment statutes and how the statutes should be construed in the context
of comporting with the Supreme Court’s judicial emergency orders, which,
unsurprisingly, has not previously been addressed in this State. See id. (holding that
the Georgia Supreme Court had jurisdiction over a “constitutional question of first
impression,” when the constitutional provision in question with respect to sex
offender registration had not previously been addressed); State Dept. of Corrections
v. Developers Sur. & Indem. Co., 295 Ga. 741, 742 n. 2 (763 SE2d 868) (2014) (“An
appeal requiring a first impression construction of the sovereign immunity provision
of the Georgia Constitution is within [the Georgia Supreme] Court’s exclusive
appellate jurisdiction.”). Indeed, implicit in Wrye’s appeal is the contention that the
Supreme Court’s judicial emergency orders cannot toll the garnishment period
provided in OCGA § 18-4-4 (c).
Consequently, it appears that jurisdiction over the instant appeals lies in the
Georgia Supreme Court. While we acknowledge that the question of appellate
jurisdiction is subject to differing reasonable conclusions, we note that the Supreme
Court has “the ultimate responsibility for construing the constitutional provisions
regarding appellate jurisdiction.” Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga.
177, 178 (476 SE2d 587) (1996). We also acknowledge that OCGA § 38-3-64 (c)
provides in pertinent part that an appeal of an order declaring the existence of a
judicial emergency “shall be heard immediately by the Georgia Court of Appeals
under the procedure of emergency motions.” Nevertheless, we have reviewed this
appeal in an expedited manner, and note that even if OCGA § 38-3-64 (c) and the
provision of the Georgia Constitution regarding appellate jurisdiction over
constitutional questions are in conflict, the latter would control. See MARTA v. Buho,
353 Ga. App. 466, 468 (838 SE2d 130) (2020) (to the extent a statutory rule
contradicts a constitutional rule, the constitutional rule prevails). Here, the
constitutionality regarding the Supreme Court’s judicial emergency orders’ ability to
toll the time period provided in OCGA § 18-4-4 (c) has been brought into question,
and jurisdiction therefore appears to be proper in the Georgia Supreme Court.
For the foregoing reasons, this appeal is hereby TRANSFERRED to the
Georgia Supreme Court for disposition.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/09/2020
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.