In Re: Recusal of Judge Yolanda C. Parker-Smith

FIRST DIVISION BARNES, P. J., PADGETT and DAVIS, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules September 16, 2026 In the Court of Appeals of Georgia A27A0225. IN RE RECUSAL OF JUDGE YOLANDA C. PARKER-SMITH. DAVIS, Judge. This appeal arises due to an investigation by the Judicial Qualifications Commission into alleged unethical acts by DeKalb County Superior Court Judge Yolanda C. Parker-Smith. Because many of the acts of alleged wrongdoing involve the DeKalb County District Attorney’s Office, and because some of the witnesses in the investigation against Judge Parker-Smith are employees of the Office, the State moved to recuse Judge Parker-Smith from all pending criminal cases, numbering over 400, during the pendency of the investigation. Judge Gregory Adams, acting under Uniform Superior Court Rule 25.3, denied the motion, and the State now appeals. For the reasons set forth below, we are compelled to conclude that we lack jurisdiction to hear the State’s appeal at this time. “[A]ppeals by the State in criminal cases are construed strictly against the State and the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5–7–1.” State v. Cash, 302 Ga. 587, 588 (807 SE2d 405) (2017) (quotation marks omitted). OCGA § 5-7-1(a)(9) sets out that the State may appeal “[f]rom an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy[.]” However, “the [S]tate is not exempt from the requirement of obtaining a certificate of immediate review from the trial court and obtaining permission to file an interlocutory appeal from this court in order to appeal such an order.” State v. Osborne, 330 Ga. App. 688, 689(1) (769 SE2d 115) (2015); see OCGA § 5-7-2(a). Here, the motion to recuse Judge Parker-Smith was filed in an indictment and criminal proceeding against Dionte Castro, and there is no indication in the record that the proceedings against Castro are concluded or that a final judgment has been rendered in the case. See Ritter v. State, 269 Ga. 884, 885-86(2) (506 SE2d 857) (1998) 2 (“[A] decision on the recusal of the trial judge is an interlocutory matter that can never dispose of a criminal case,” as the trial court has rendered no decision that “either expressly or implicitly resolves the case by preventing further prosecution of the criminal charge in superior court.”). Because the case is still pending in the trial court, the State was required to file an application for interlocutory review and obtain a certificate of immediate review from the trial court, OCGA § 5-7-2(a), but the trial court did not issue a certificate of immediate review in this case. “Compliance with the applicable statutory provisions is considered an absolute requirement to confer jurisdiction on an appellate court to hear an appeal[.]” Osborne, 330 Ga. App. at 690- 91(1). Accordingly, we conclude that the State cannot currently pursue an appeal under OCGA § 5-7-1(a)(9). In its notice of appeal, the State argues that this order is directly appealable under the collateral order doctrine.1 We have previously observed, however, that there 1 Under the collateral order doctrine, immediate direct appeals are allowed of “a very small class of interlocutory rulings that are effectively final in that they finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Buckner-Webb v. State, 314 Ga. 823, 827-28(2)(a) (878 SE2d 481) (2022) (punctuation omitted). 3 is a distinct lack of authority allowing the State to appeal any order in a criminal case under the collateral order doctrine. Osborne, 330 Ga. App. at 691(2) (dismissing an appeal by the State of an order denying a motion to recuse). In Osborne, we noted that “the authority of the State to appeal an adverse ruling in a criminal case is controlled by statute[,]” and the statutes at issue here, OCGA §§ 5-7-1 & 5-7-2, expressly provide which orders require compliance with the interlocutory application procedures and which orders may be appealed directly by the State regardless of the finality of the underlying case. Id. at 691(2). Because “OCGA § 5–7–2(b) exempts several types of orders, decisions, and judgments listed in OCGA § 5–7–1(a) from the requirement of obtaining a certificate of immediate review, but a state’s appeal from the denial of a motion to recuse a judge is not one of them[,]” id. at 689(1), we concluded that the collateral order doctrine could not apply to allow the State to appeal an order denying a motion to recuse. Id. at 691-92(2). Similarly, in State v. Cash, 298 Ga. 90 (779 SE2d 603) (2015), the Supreme Court of Georgia also rejected an attempt by the State to appeal an order denying a motion to recuse under the collateral order doctrine. As part of its analysis, the Supreme Court noted that an order that satisfies the collateral order doctrine “is 4 considered to be effectively final and would be appealable because it comes within the terms of a relevant statutory right to appeal final judgments.” Id. at 93(1)(b). However, OCGA § 5-7-1 “does not provide for appeals by the State from final judgments[,]” and thus the Supreme Court stated definitively that “the State has no right to appeal the order denying its motion to recuse under the collateral order doctrine even if the order were determined to satisfy the requirements of the doctrine.” Id. The State argues that the order in this case is appealable because the facts of this case are different from Osborne and Cash. We certainly take note of the fact that this is not an ordinary recusal situation, as over 400 criminal prosecutions are potentially involved that now must proceed to trial despite the fact that the results of those trials may be susceptible to reversal due to alleged bias by the trial court.2 However, to determine whether an order is appealable under the collateral order 2 A judge of this Court has previously recognized that the failure to include an order denying a motion by the State to recuse or disqualify a judge as set forth in OCGA § 5–7–1(a)(9) among those classes of cases for which a certificate of immediate review shall not be required pursuant to OCGA § 5–7–2(b) “may have been an oversight.” Osborne, 330 Ga. App. at 692 (Ellington, J., concurring). Given the gravity and importance of the instant case, the merits of which we cannot reach at this time, we are compelled to echo these sentiments. 5 doctrine, “we evaluate the entire class [of orders] to which the claim belongs to determine whether this category of claims is potentially appealable under the collateral order doctrine[,]” Buckner-Webb, 314 Ga. at 828(2)(a), not the facts of each individual case, and Osborne and Cash have clearly set out that orders on motions to recuse categorically do not fall within the collateral order doctrine, at least when the State is the party that seeks to appeal. Furthermore, we have repeatedly observed that “courts have no authority to create equitable exceptions to such jurisdictional requirements imposed by statute[,]” Osborne, 330 Ga. App. at 691(1) (citation modified), nor do we have the authority to create appellate jurisdiction merely in the interests of judicial economy. Finally, “the state has not shown that compliance with the statutory requirement for appeal should be excused, as necessary to avoid or remedy a constitutional violation concerning the appeal, or that the circumstances attendant in this case rise to a constitutional level.” Id. 6  Because our precedent has clearly established that orders on motions to recuse do not fall within the collateral order doctrine, we are thus constrained to conclude that the State cannot directly appeal the denial of its motion to recuse absent a certificate of immediate review from the trial court. Accordingly, we dismiss the State’s appeal. Appeal dismissed. Barnes, P. J., and Padgett, J., concur. 7