Patterson v. Ellerbee

BLACKBURN, Presiding Judge.

In this case regarding a purported class action suit against a juvenile court judge for allegedly failing to appoint counsel for indigent defendants during deprivation proceedings, Colleen Patterson appeals the trial court’s dismissal of her action. Because the trial court correctly determined that it lacked subject matter jurisdiction over this law suit, one of two separate grounds on which the superior court dismissed this action, we affirm. Without subject matter jurisdiction, the superior court lacked any authority to determine either the efficacy of certifying a class or the underlying merits of the action.

The record shows that, for a period of approximately two years beginning in January 2002, Lowndes County brought deprivation petitions regarding all three of Patterson’s minor children, and in all three cases, the juvenile court found that the children were deprived and granted custody to the Department of Family and Children Services. Patterson’s parental rights have not been terminated, and determinations regarding the extent of her visitation and any case plans for reunification are ongoing. During these proceedings, the juvenile court did not appoint counsel to represent Patterson, and it is highly disputed whether she ever requested such counsel.

On December 11, 2002, James Finkelstein, Patterson’s current appellate counsel, wrote the juvenile court a letter in which he stated:

I represent Mr. Fonsie Patterson on [a] matter involving false arrest and malicious prosecution (for a false charge of child molestation . . .). At present I do not represent Mr. Patterson or Ms. Sharlow [Patterson] on the . . . Juvenile cases except for the limited purpose of ensuring that their rights to Due Process of Law and to the Assistance of Counsel in the . . . deprivation . . . proceedings are not abridged. My purpose in writing this letter is to secure the immediate appointment of counsel.

(Emphasis supplied.) Thus, as of at least the date of Finkelstein’s letter, Patterson was represented by counsel with regard to the underlying issue in this appeal.

In response to Finkelstein’s letter, on December 12, 2002, the juvenile court informed him that, to the extent he represented Patterson, he would have to follow the appropriate rules and file a notice of appearance on her behalf prior to corresponding or communicating with the juvenile court about Patterson’s case. There is no evidence of record that, despite his statement that he was representing Patterson, albeit in a limited capacity, Finkelstein ever filed any such notice of appearance. In addition, there is no evidence that Finkelstein took any further steps to attempt to obtain separate counsel for his client at any time during the ongoing deprivation proceedings.

Instead of taking action in Patterson’s deprivation proceedings in the juvenile court, Finkelstein, more than six months after writing a letter to the juvenile court, filed a class action law suit in superior court on behalf of all indigent defendants who allegedly had been denied the right to counsel in deprivation proceedings in Lowndes County Juvenile Court. This class action suit, of which Patterson was named as the class representative, was brought directly against a single juvenile court judge, O. Wayne Ellerbee, in his individual capacity and in his official capacity. In addition, the class action complaint states that, since the filing of the class action, Patterson “has retained [Finkelstein] to represent her in the Juvenile Court of Lowndes County, and that [he] will appear on her behalf to petition for the return of her children and to vacate the prior deprivation orders.”

On August 18, 2003, Judge Ellerbee filed a motion to dismiss the class action, contending, among other things,¹ that: (1) the superior court lacked subject matter jurisdiction over the law suit pursuant to OCGA § 9-11-12 (b) (1); (2) Patterson failed to state a claim upon which relief can be granted pursuant to OCGA § 9-11-12 (b) (6); (3) Judge Ellerbee was entitled to official immunity; and (4) Judge Ellerbee was entitled to qualified immunity. On October 7, 2003, the superior court granted the motion to dismiss, finding both that Patterson failed to state a claim and that it lacked subject matter jurisdiction over the case.

In deciding this case, we must first consider whether the trial court properly determined that it lacked subject matter jurisdiction over this case. If there was no subject matter jurisdiction, then the question of class action certification becomes irrelevant, as the trial court would have no power to make that determination, regardless of the merits of the underlying claims.

Superior courts in this state have subject matter jurisdiction over equity cases. Ga. Const. Art. VI, Sec. IV, Par. I. An appropriate equity case is one in which the plaintiff lacks an adequate remedy at law, thereby necessitating an action in superior court because no other means of relief is available.

Based on the facts of record now before us, we cannot say that Patterson has exhausted her legal remedies before the juvenile court, triggering the equity jurisdiction of the superior court. It is undisputed that, as of December 11, 2002, Finkelstein was acting as Patterson’s counsel regarding the matter of her representation in the ongoing deprivation matters. For purposes of this analysis, we assume that Patterson asked the juvenile court to appoint counsel to represent her at the hearings which she has attended, before or after December 11, 2002. Her attorney, Finkelstein, has chosen not to challenge the juvenile court’s decision to deny her request for counsel, in any way, whether by filing an actual motion requesting counsel, a motion for reconsideration concerning the juvenile court’s denial of counsel, or an appeal of the denial of counsel. Instead, Finkelstein chose to take Patterson’s issues up in a separate court under the auspices of a class action. In this case, there were and are remedies available to Patterson through the juvenile court. Because of these available legal remedies, she is not entitled to equitable relief. The superior court properly determined that it lacked subject matter jurisdiction in this case.

As there was no subject matter jurisdiction in this case, those cases in which subject matter jurisdiction is proper but reversal is necessary because a trial court failed to consider class certification prior to ruling on the merits are simply not applicable here. See, e.g., IBM v. Kemp.²

Even if Patterson’s case could be considered a true equity case, it remains questionable that her claims could survive a motion to dismiss. As an initial matter, it would be highly unorthodox for the superior court to order the juvenile court to follow the law which it is already required to uphold. See Wiggins v. Bd. of Commrs. of Tift County³ (physical precedent only). Moreover, Judge Ellerbee’s official and qualified immunity would also serve as formidable obstacles to Patterson’s suit. And, finally, even if the superior court had jurisdiction over Patterson’s case, it seems unlikely that Patterson could be a proper class representative for indigent defendants without counsel in deprivation cases, as Patterson admits on the face of her complaint that she is, in fact, represented by counsel in her own ongoing deprivation matters.

As a cautionary note, it must be pointed out that we do not reach the merits of Patterson’s claims regarding representation of indigent defendants in deprivation cases. As the superior court lacked jurisdiction over Patterson’s case, her claims regarding representation are simply not before this Court at this time.

Judgment affirmed.

Andrews, P. J., Eldridge, Mikell and Adams, JJ., concur. Ruffin, P. J., and Barnes, J., dissent.

1 Judge Ellerbee moved to dismiss specifically pursuant to OCGA§ 9-11-12 (b) (1), (6), and all defenses raised in his answer to defendant’s complaint, including qualified and official immunity.

2 IBM v. Kemp, 244 Ga. App. 638, 642 (2) (536 SE2d 303) (2000). In such cases, the trial court had subject matter jurisdiction which, in turn, gave it the authority to consider the question of class certification. Moreover, these cases do not stand for the proposition that a trial court must consider the requirements of the class action statute prior to ruling on any motion to dismiss. To the contrary, if, as in this case, the trial court has no subject matter jurisdiction over a case, it must consider that matter first, whether raised in a motion to dismiss or sua sponte. If the trial court failed to first consider subject matter jurisdiction and made a decision on class certification in the absence of such jurisdiction, that decision would be void. To hold otherwise would be tantamount to ruling that the legislature could alter the jurisdiction established pursuant to the state constitution by a statutory provision.

3 Wiggins v. Bd. of Commrs. of Tift County, 258 Ga. App. 666, 668 (574 SE2d 874) (2002).