Marr v. Georgia Department of Education

Full title: MARR v. GEORGIA DEPARTMENT OF EDUCATION et al

Court: Supreme Court of Georgia

Date published: Jan 18, 1995

264 Ga. 841 (Ga. 1995)

452 S.E.2d 112

Opinion

S95D0641.

DECIDED JANUARY 18, 1995.

OCGA § 5-6-35. Fulton Superior Court. Before Judge Eldridge.

McClellan Pangborn, Bret J. Pangborn, for appellant.

Michael J. Bowers, Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, for appellees.

PER CURIAM.

This is an application for discretionary appeal of an order of the superior court affirming the decision of the Georgia Department of Education. See OCGA § 5-6-35 (a) (1). Applicant contends that this Court has jurisdiction over the application filed pursuant to OCGA § 5-6-35 (d) because of her contention that OCGA § 47-2-2 is in violation of the Constitution of the State of Georgia and that, therefore, this Court has exclusive appellate jurisdiction under Art. VI, Sec. VI, Par. II of the Georgia Constitution of 1983. However, the trial court did not specifically pass upon the constitutionality of that statute.

The basis of this court's jurisdiction to review the judgment complained of being predicated upon the drawing into question of the constitutionality of a statute of this State and the record failing to show that such point was passed upon by the trial judge, this court is without jurisdiction. The case is therefore transferred to the Court of Appeals. [Cits.]

Undercofler v. U.S. Steel Corp., 219 Ga. 264 ( 133 S.E.2d 11) (1963). See also Senase v. State, 258 Ga. 592 ( 372 S.E.2d 813) (1988).

OCGA § 5-6-35 (f) provides that in connection with applications for discretionary appeal, the appellate court "shall issue an order granting or denying such an appeal within 30 days of the date on which the application was filed." We construe this language and the identical language contained in OCGA § 5-6-34 (b) dealing with interlocutory appeals to mean that when an application is transferred from one appellate court to the other, the 30-day time period is to be computed from the date of the filing in the court to which said application has been transferred. See C C Financial v. Ross, 250 Ga. 832 ( 301 S.E.2d 262) (1983).

Transferred to Court of Appeals. All the Justices concur.

DECIDED JANUARY 18, 1995.