Sentence Review Panel v. Moseley

BENHAM, Justice,

dissenting.

I respectfully dissent from Division 1 of the majority opinion because I disagree that former OCGA § 17-10-6 was unconstitutional. First, the majority opinion ignores the fact that our constitution expressly authorizes the General Assembly to “abolish, create, consolidate, or modify . . . courts. . . (Emphasis supplied.) Ga. Const, of 1983, Art. VI, Sec. I, Par. VII. See also Ga. Const, of 1983, Art. VI, Sec. I, Par. I (“the General Assembly . . . may authorize administrative agencies to exercise quasi-judicial powers”); Tax Assessors of Gordon County v. Chitwood, 235 Ga. 147, 153-154 (218 SE2d 759) (1975) (the General Assembly may create tribunals for special purposes). Thus, the legislature had the authority to enact the legislation which created the Sentence Review Panel.

Decided July 7, 2008. Gray, Hedrick & Edenfield, Bruce M. Edenfield, Susan L. Rutherford, Thurbert E. Baker, Attorney General, Mary Beth West-moreland, Deputy Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, for appellant.

I also disagree with the majority opinion’s stance that the enactment of former OCGA § 17-10-6 and the existence and operation of the Panel violated our constitution’s mandate which provides: “[t]he legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.” Ga. Const, of 1983, Art. I, Sec. II, Par. III. While the General Assembly created the Panel and its basic statutory framework, the Panel itself was comprised of superior court judges who were appointed for service by the President of the Council of Superior Court Judges. It is these appointed superior court judges who made decisions regarding the sentences handed down by their peers. In addition, the Panel functioned independently of the legislature, having its own budget, a clerk, and staff to facilitate its duties. Thus the implication made by the majority’s opinion that OCGA § 17-10-6 allowed the legislature and legislators to have powers, discharge duties, or perform functions deemed to be “judicial,” including review and modification of sentences issued by superior court judges, is unfounded. The legislature’s mere creation and authorization of the Panel did not infringe upon the function of the judicial branch in violation of our constitution. Ga. Dept. of Human Resources v. Word, 265 Ga. 461 (1) (458 SE2d 110) (1995) (“the legislature may invoke the action of the judicial branch so long as it does not assume the constitutional ‘field of action’ of that branch”).

Accordingly, I would reverse the trial court’s decision in its entirety. I am authorized to state that Presiding Justice Hunstein joins this dissent.

Hall, Booth, Smith & Slover, J. Brown Moseley, pro se. Gerald R. Weber, Jr., Sarah E. Geraghty, Kilpatrick Stockton, Curtis A. Garrett, Jr., Hayley R. Ambler, Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, amici curiae.