Opinion
A22I0048 A22I0053
10-20-2021
THE STATE v. DANA PAGE MALICK. JERRI L. FROST et al. v. DANA PAGE MALICK.
The Court of Appeals hereby passes the following order:
Dana Page Malick was indicted on two counts of child molestation and two counts of cruelty to children in the first degree based on allegations of abuse made by her stepson. Malick sought to subpoena, inter alia, records from her stepson's mental health counselors, including those maintained by non-party, Jerri L. Frost, a licensed clinical social worker. Both the State and Frost filed motions to quash, asserting that the records were privileged. See OCGA § 24-5-501. The trial court ordered Frost to produce the child's counseling records for an in camera review. See Bobo v. State, 256 Ga. 357 (349 S.E.2d 690) (1986) (plurality opinion). The State and Frost obtained certificates of immediate review and filed these two applications for interlocutory appeal.
The ability of the State to appeal in a criminal case is limited by OCGA § 5-7-1. See State v. Cash, 298 Ga. 90, 91 (1) (a) (779 S.E.2d 603) (2015); State v. Outen, 289 Ga. 579, 580 (714 S.E.2d 581) (2011). "Because OCGA § 5-7-1 (a) establishes the universe of appeals the State is permitted to seek in criminal cases, if the State attempts an appeal outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to entertain it." State v. Wheeler, 310 Ga. 72, 74 (1) (849 S.E.2d 401) (2020) (punctuation omitted). Notably, orders denying motions to quash or mandating the production of records for in camera review are not among the orders enumerated in OCGA § 5-7-1 (a). Accordingly, this Court does not have jurisdiction to consider the State's application in Case No. A22I0048, and it is hereby DISMISSED.
The State alleges that this appeal is proper under OCGA § 5-6-34 (a) (13), which permits a direct appeal from all judgments or orders entered pursuant to OCGA § 9-11-11.1, the anti-SLAPP provision of the Civil Practice Act. Even if the trial court's order had been entered pursuant to the anti-SLAPP provision, "the State has no right to appeal under OCGA § 5-6-34 or any other provision of the Appellate Practice Act, as that Act grants the right of appeal only to either party in any civil case and the defendant in any criminal proceeding." Cash, 298 Ga. at 93 (1) (b); accord OCGA § 5-6-33.
However, a different result is required for Frost's application. The trial court's order requiring Frost to produce records in response to a subpoena is properly characterized as a discovery order. See, e. g., Bazemore v. State, 244 Ga.App. 460, 464 (2) (535 S.E.2d 830) (2000) ("Whether the trial court should quash a subpoena depends on the nature and scope of the discovery request."). As a general rule, discovery rulings directed at parties do not constitute collateral orders which are subject to direct appeal, see General Motors Corp. v. Hammock, 255 Ga.App. 131, 132 (564 S.E.2d 536) (2002), but "a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance." Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga.App. 411, 413 (1) (785 S.E.2d 72) (2016). Thus, an order denying a third party's motion to quash a subpoena is directly appealable. See Britt v. State, 282 Ga. 746, 748-749 (1) (653 S.E.2d 713) (2007); Hickey, 336 Ga.App. at 414 (1). "This Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal." Spivey v. Hembree, 268 Ga.App. 485, 486, n. 1 (602 S.E.2d 246) (2004).
Accordingly, Frost's application for interlocutory appeal in Case No. A21I0053 is hereby GRANTED. Frost shall have ten days from the date of this order to file a notice of appeal in the trial court, if one has not already been filed. The trial court clerk is instructed to include a copy of this order in the appellate record.