Full Opinion

SECOND DIVISION DOYLE, P. J., DAVIS and WHITAKER, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules October 29, 2026 In the Court of Appeals of Georgia A26A1553. WILLIAMS v. MOORE. WHITAKER, Judge. After he was arrested and charged with obstruction for attempting to enter the House Chamber of the Georgia General Assembly, now-former State Senator Colton Moore filed a warrant application seeking the issuance of an arrest warrant against Randall Keith Williams, a House of Representatives employee. The magistrate court denied Moore’s application, and Moore filed a petition for review in the superior court. The superior court held a hearing but ultimately determined that it could not issue a ruling on the magistrate judge’s decision, remanding the case for an entirely new warrant application hearing in magistrate court. Williams appeals from that ruling. For the reasons set forth below, we reverse the superior court’s ruling and remand the case for further proceedings consistent with this opinion. The record shows that on January 27, 2025, Moore applied for a warrant to have Williams arrested. A warrant application hearing was held on March 7, 2025. During the hearing, several witnesses testified, and at least two videos of the incident at issue were introduced into evidence and viewed by the magistrate judge. The evidence presented at the warrant application hearing showed the following: In March 2024, the Speaker of the House of Representatives ordered that Moore be banned from entering the House Chamber. The day before a scheduled joint session of the General Assembly, Moore made a statement that he would “never back down,” by which he meant that he intended to enter the House Chamber during the joint session despite the ban. On the day of the joint session, January 16, 2025, Moore did attempt to enter the House Chamber, and as he approached the door, Williams and Cory Mulkey, another House of Representatives employee, prevented his entry. The director of the capitol police, who was present during the incident, had been informed that Moore was “banned” from the chamber and would not be allowed to enter. The director observed Moore, who is “a pretty big guy,” using his body to try 2 to gain access to the House Chamber, while Williams tried to prevent him from doing so. According to the director, Moore used his body to lean against and push people, including the director, Williams, Mulkey, and a state trooper. The director testified that as Moore was trying to enter, Williams did not physically tackle him, but did push him, at which time Moore lost his footing and fell backwards. Based on his actions that day, Moore was arrested for misdemeanor obstruction of law enforcement officers. Moore’s account of the event differed. According to Moore, as he was approaching the Chamber door, Williams grabbed him by the shoulders, rocked him over sideways, pushed up against him, and shoved him to the ground, injuring his hand. At the conclusion of the presentation of evidence, Moore argued that Williams should be arrested for battery, aggravated battery, interference with government property, disruption of a General Assembly session, and unauthorized practice of law. The magistrate court denied the application the same day, discussing on the record the elements of each specific offense alleged, as well as the offenses of simple battery, disorderly conduct, and simple assault, and finding insufficient probable cause as to each one based on the evidence presented. 3 On April 7, 2025, Moore filed a petition for review in superior court. On October 30, 2025, a hearing was held. At the time of the hearing, the transcript of the hearing before the magistrate court had been filed with the superior court but not the record of the magistrate court proceedings, which should have included the videos entered into evidence. During this hearing, there appeared to be some confusion as to whether Moore had ever served the magistrate court with his petition for review,1 and what, if anything, the private court reporter had filed with the magistrate court. The superior court gave the parties two options, it would reschedule the hearing once the record was complete or proceed with the hearing as scheduled, after which the court stated it would delay its ruling until the record was complete. The parties opted to go forward with the hearing, during which Moore played one video of the incident.2 At 1 Moore was required by statute to serve the magistrate court with a copy of his filed petition for review within five days after filing the petition in the superior court. OCGA § 5-3-7(h). 2 Counsel for Williams initially objected to the playing of the video because it had not been made a part of the record and he had not had an opportunity to verify that it was the same video played in the magistrate court. But he later withdrew his objection. Contrary to the finding in the superior court’s order and the statement in Moore’s brief on appeal, there was no stipulation that the video played in the superior court was the same as any of the videos that had been admitted during the magistrate court hearing. 4 the conclusion of the hearing, Moore — as the petitioner — was ordered to ensure that the entirety of the record was filed with the superior court within five days. The record as it existed was thereafter transmitted to the superior court, but it did not include the videos of the incident that had been played before the magistrate judge and admitted into evidence. Both the court reporter and magistrate court contended that they did not possess the videos. The superior court ruled that the omission of the videos was not the fault of either party. In addition, the superior court ruled that “the operative facts” were established by the video evidence, such that its review was purely legal. “As such, and without the full and official record of the lower court,” the superior court determined that it could not “make a finding regarding whether the lower court’s order was clearly erroneous.” Consequently, the superior court remanded the case to magistrate court “for a new hearing on the matter by an 5 independent jurist.”3 Williams filed an application for discretionary review, which this Court granted. This appeal followed. Williams contends that the superior court erred in ordering a new hearing on the basis that it lacked the full magistrate court record and that it should instead have complied with the procedures set out in the Superior and State Court Appellate Practice Act, OCGA § 5-3-1 et seq. (“SSCAPA”). Although a superior court may remand a petition for review back to the lower judicatory with instructions, see OCGA § 5-3-18(a)(1)(C), the remand for an entirely new warrant application hearing was error. To the extent that the superior court’s review was hampered by the absence of a complete record, that court could have remanded the case to the magistrate court with direction to complete the record or 3 The parties seem to read the directive for a new hearing before an “independent jurist” as a directive that the hearing be held before someone other than the magistrate who presided over the warrant application hearing. Although the same magistrate judge who reviewed the warrant application for Moore’s arrest presided over the hearing on Moore’s application for an arrest warrant against Williams, the superior court made no findings to explain the need for either a new hearing or an “independent jurist,” and neither party sought recusal of the magistrate judge on any basis. 6 have the parties stipulate to its contents. See OCGA § 5-3-14(k),(m). Alternatively, the court could have conducted the SSCAPA review on the record before it.4 In conducting a substantive review of a petition for review, the superior court must: “(1) Review only matters raised in the record of the proceeding in the lower judicatory; (2) Accept the findings of fact and credibility of the lower judicatory unless they are clearly erroneous; (3) Accept a decision regarding an issue within the sound discretion of the lower judicatory unless such a decision was an abuse of discretion; (4) Determine whether the final judgment was sustained by sufficient evidence; and (5) Review questions of law de novo.” OCGA § 5-3-5(a).5 Looking first at the standard for reviewing the magistrate court’s factual findings, the superior court apparently recognized that the appropriate standard was “clearly erroneous,” as set forth in OCGA § 5-3-5(a)(2), but then declined to apply that standard to the record before it. Instead, the superior court ruled that “the 4 The parties have not briefed, and this Court takes no position on, whether some other disposition of the petition for review may also be available under SSCAPA. 5 This standard of review is not applicable if a de novo proceeding is “specified by law.” OCGA § 5-3-5(a), (b). 7 operative facts” were established by the video evidence,6 leading it to conclude that its review was therefore purely legal, but then remanding for a new hearing due to the record before it not containing the videos. Our Supreme Court has repeatedly recognized that “a magistrate judge has discretion to determine whether or not probable cause exists for the issuance of an arrest warrant.” Uzomba v. Cobb County Magistrate Court, 279 Ga. 629, 630(1) (619 SE2d 683) (2005), citing Chisholm v. Cofer, 264 Ga. 512 (448 SE2d 369) (1994). Accord McRae v. Padgett, 291 Ga. 78, 79 (727 SE2d 497) (2012). And a magistrate judge’s decision as to whether to issue an arrest warrant is entitled to substantial deference by a reviewing court. Anderson v. State, 305 Ga. App. 463, 464(1) (699 SE2d 793) (2010). That “substantial deference ... allows for a range of permissible outcomes, as long as that discretionary decision is based on a correct understanding of the law and facts.” Burns v. State, 320 Ga. 320, 327(2) (907 SE2d 581) (2024) (punctuation omitted). Thus, the proper standard for reviewing the magistrate court’s decision in this case was the abuse of discretion standard set forth in OCGA § 5-3- 5(a)(3). 6 The superior court viewed one video of the incident during its hearing, but that video was not a part of the magistrate court record before it for review. 8 The superior court set forth this standard, mistakenly citing it as (a)(4), but concluded that due to the video that court had reviewed of the incident, its review was de novo. See generally Walker v. State, 312 Ga. 332, 336(2)(b) (862 SE2d 542) (2021) (explaining that de novo appellate review of a trial court’s findings applies to the extent that the controlling facts are undisputed because they are “indisputably discernible” from a video recording). But it is unclear from the appellate record, which contains no video evidence, whether the controlling facts are “indisputably discernible” from any of the video recordings. And the superior court’s conclusion ignores the fact that there was other evidence of the incident admitted at the hearing before the magistrate court, and the magistrate court relied on that evidence in making its ruling. See Downer v. State, 314 Ga. 617, 623(2) (878 SE2d 537) (2022) (recognizing that even if controlling facts are discernible from a videotape, “to the extent that legally significant facts were proved by evidence other than the video recording, the trial court as fact-finder was entitled to determine the credibility and weight of that other evidence” (punctuation omitted)). Further, Moore — as the party pursuing the petition for review — had the burden of demonstrating error affirmatively by the record. See Westmoreland v. State, 9 287 Ga. 688, 696(10) (699 SE2d 13) (2010). And although the superior court found that the omission of the videos was not the fault of either party, it reached that determination by relying almost exclusively on actions taken by Moore after he was ordered to cause the record, transcript, and all exhibits to be transmitted to the superior court. The superior court’s ruling does not appear to have taken into account that the magistrate court record did not include Moore’s petition for review, the receipt of which was a prerequisite to the magistrate court’s duty to transmit a copy of the record, or that the record reflects no evidence of any effort by Moore for six months after he filed his petition for review to ensure that the videos were included in the record. OCGA §§ 5-3-14 and 5-3-15 set forth the procedures for maintaining and transmitting a record from a lower judicatory7 to the reviewing court8 in a petition for review. As relevant to this case, the clerk of the lower judicatory shall ensure that the 7 A “lower judicatory” is a “court, official, board, tribunal, commission, municipal or county authority, council, or similar body exercising judicial or quasi-judicial powers authorized by law” that is “(A) [i]nferior in authority to the superior and state courts; and (B) [s]ubject to the appellate jurisdiction of the superior or state courts as provided by the laws and the Constitution of this state.” OCGA § 5-3-3(5), (6). 8 A “reviewing court” is a “superior or state court reviewing a final judgment pursuant to [SSCAPA].” OCGA § 5-3-3(12). 10 transcript of the evidence and proceedings is included in the record transmitted to the reviewing court, see OCGA § 5-3-14(j), and if “anything material to any party is omitted from or misstated in the record under review, the parties may stipulate, or the lower judicatory may direct, that the omission or misstatement be corrected before or after the record is transmitted to the reviewing court.” OCGA § 5-3-14(m). Furthermore, the lower judicatory or the reviewing court may order the clerk of the lower judicatory to send up any original exhibits. OCGA § 5-3-14(o). As to transmission, upon being served with a copy of the petition for review, the clerk of the lower judicatory must transmit a copy of the record to the reviewing court, usually within 30 days, and if the clerk does not, the petitioner shall notify the reviewing court, which shall then order the transmission. OCGA § 5-3-15(a), (d). As set forth above, because the superior court did not properly apply OCGA § 5-3-5(a)(2) or (a)(3) and improperly ordered a new hearing in the magistrate court, we reverse its ruling and remand the case to the superior court for further proceedings consistent with this opinion.9 See generally Great Am. Dream, Inc. v. DeKalb County, 9 Upon review of all pertinent facts, the superior court on remand may conclude that it must apply the presumption of regularity. See Holmes v. Roberson-Holmes, 287 Ga. 358, 361(1) (695 SE2d 586) (2010) (recognizing that there is a presumption of regularity that attaches to all official acts, including judicial proceedings); Tucker v. Crystal Clear Luxury 11 290 Ga. 749, 752(1) (727 SE2d 667) (2012) (reversing a decision based on the application of the wrong legal standard). Judgment reversed and case remanded with direction. Doyle, P. J., and Davis, J., concur. Pools, 361 Ga. App. 369, 370-71 (864 SE2d 462) (2021) (concluding that where appellant’s challenges draw into question the evidence presented at a bench trial, and appellant failed to include a trial transcript, we must assume that the evidence was sufficient to support the trial court’s judgment); Jones v. State, 340 Ga. App. 142, 145(1) n.6 (796 SE2d 765) (2017) (“[When the record is not supplemented with ... missing exhibits, we must assume that the exhibits support the judgment below.”). See also Bailey v. McIntosh County, 322 Ga. 602, 616(3) n.13 (921 SE2d 382) (2025) (“[G]iven the presumption of regularity, we cannot say that the [lower] court did not properly have the [pertinent document] before it in entering the injunction.”); Nationstar Mtg. LLC v. Brunt, 330 Ga. App. 202, 204(2) n.2 (766 SE2d 818) (2014) (declining to conclude that the lower court had not considered all documents within the breast of the court pertinent to the motion at the time the court made its decision, given the presumption in favor of regularity of proceedings below). 12