Opinion
A23A0279
06-06-2023
MARION D. CALHOUN v. CARLOTTA HARRELL.
The Court of Appeals hereby passes the following order:
Marion D. Calhoun appeals from a Stalking Three Year Protective Order entered against her and in favor of Carlotta Harrell. Calhoun contends that her conduct at issue - posting to Facebook comments relating to Harrell, the Chair of the Henry County Board of Commissioners - amounted to engaging in political speech protected by the First Amendment, and was at any rate, insufficient to authorize the order.
Because the trial court granted the protective order and thus rejected Calhoun's constitutional argument, it appears that jurisdiction over this case lies in the Supreme Court of Georgia. See Chan v. Ellis, 296 Ga. 838, 839, n. 2 (770 S.E.2d 851) (2015) (resolving case on non-constitutional basis, but explaining that "the constitutional contention forms the basis for our exercise of appellate jurisdiction in this case," where the appellant contended that "the online publication of commentary about [appellee] . . . is speech protected by the First Amendment") (citing Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1), for the proposition that the Georgia Supreme Court has exclusive appellate jurisdiction in "[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 . . . has been drawn in question"); accord Collins v. Bazan, 256 Ga.App. 164, 165 (1) (568 S.E.2d 72) (2002) (reversing stalking protective order for lack of sufficient evidence of stalking as defined by OCGA § 16-5-90 (a) (1), after determining that the constitutional issues - that "the prohibition violates constitutional principles concerning freedom of speech and overbroadness" - were not raised below and were thus not preserved for appeal). As the Supreme Court has the ultimate responsibility for determining appellate jurisdiction, see Saxton v. Coastal Dialysis &Med. Clinic, 267 Ga. 177, 178 (476 S.E.2d 587) (1996), this case is hereby TRANSFERRED to the Supreme Court for disposition.