GARDEI v. CONWAY ( 2022 )

In the Supreme Court of Georgia
Decided: February 1, 2022
S21G0430. GARDEI v. CONWAY et al.
MCMILLIAN, Justice.
Carl Gardei filed a petition for declaratory judgment against
R. L. “Butch” Conway, the Sheriff of Gwinnett County, and D. Victor
Reynolds, the Director of the Georgia Bureau of Investigation
(“GBI”), in their individual capacities (collectively “Respondents”), 1
alleging that Respondents’ continued enforcement against him of
the statutory requirements governing Georgia’s Sex Offender
Registry (the “Registry”), see OCGA §§ 42-1-12 through 42-1-19 (the
“Registry Act”), violated his constitutional rights. The trial court
dismissed Gardei’s petition on the ground that his claims for relief
1Gardei originally filed the declaratory judgment action against the
Respondents in their official and individual capacities, but he ultimately
amended the petition to assert claims against the Respondents individually.
were time-barred under OCGA § 9-3-33,2 the two-year statute of
limitation for personal injury claims, because Gardei had initially
registered under the Registry Act in 2009 and every year thereafter.
The Court of Appeals affirmed in a divided opinion. See Gardei v.
Conway, 357 Ga. App. 539 (851 SE2d 170) (2020). We granted
Gardei’s petition for certiorari, noting our particular concern as to
whether Gardei’s claims for declaratory and injunctive relief are
subject to the limitation period set forth in OCGA § 9-3-33 and
whether any applicable statute of limitation was tolled based on the
requirement that Gardei annually renew his sex-offender
registration. As explained below, we conclude that although Gardei’s
claims are subject to the two-year statute of limitation under OCGA
§ 9-3-33, because he seeks only prospective relief, the statute of
2 OCGA § 9-3-33 provides:
Except as otherwise provided in this article, actions for
injuries to the person shall be brought within two years after the
right of action accrues, except for injuries to the reputation, which
shall be brought within one year after the right of action accrues,
and except for actions for injuries to the person involving loss of
consortium, which shall be brought within four years after the
right of action accrues.
2
limitation on those claims has not yet begun to run. 3 Therefore, we
reverse the Court of Appeals’s judgment holding that Gardei’s
claims are time-barred and remand the case for further proceedings.
Because we are reviewing an order on a motion to dismiss, we
accept as true the well-pled material allegations of Gardei’s
amended petitions and resolve any doubts in his favor. See Williams
v. DeKalb County, 308 Ga. 265, 270 (2) (840 SE2d 423) (2020).
Viewed in that light, Gardei’s petition alleges that he pleaded guilty
in 1992 to three counts each of sexual abuse, attempted sexual
assault, and kidnapping in Arizona. He was released from prison in
2003, without any requirement for additional supervision or
registration in Arizona. However, Gardei immediately moved to
New Mexico, where he was required to register as a sex offender for
a period of ten years based on his Arizona convictions. Gardei then
moved from New Mexico to Georgia in 2009, before the ten-year New
3 And because we conclude that Gardei’s declaratory judgment claims
are not time-barred, we do not reach the issue of whether the statute was
tolled, as further discussed in Division 4 below.
3
Mexico registration requirement had expired. Upon his arrival in
Georgia, Gardei registered as a sex offender in accordance with the
then-existing version of the Registry Act. 4 Since that time, Gardei
has complied with the Registry Act’s requirement that he renew his
sex offender registration each year. See OCGA § 42-1-12 (f) (4).5
4 Gardei moved to Georgia while his ten-year sex-offender registration
requirement under New Mexico law was still in effect, and at the time of the
move, Georgia’s Registry Act provided that registration was required by any
person who:
(6) Is a nonresident sexual offender who changes residence from
another state or territory of the United States to Georgia who is
required to register as a sexual offender under federal law,
military law, tribal law, or the laws of another state or territory,
regardless of when the conviction occurred;
(7) Is a nonresident sexual offender who enters this state for the
purpose of employment or any other reason for a period exceeding
14 consecutive days or for an aggregate period of time exceeding
30 days during any calendar year regardless of whether such
sexual offender is required to register under federal law, military
law, tribal law, or the laws of another state or territory; or
(8) Is a nonresident sexual offender who enters this state for the
purpose of attending school as a full-time or part-time student
regardless of whether such sexual offender is required to register
under federal law, military law, tribal law, or the laws of another
state or territory.
Ga. L. 2006, p. 379, § 24 (former OCGA § 42-1-12 (e) (6-8) (2006)). OCGA § 42-
1-12 (e) (6-8) has been amended several times since 2009.
5 The Registry Act provides that any sex offender required to register
under the act must “[r]enew the required registration information with the
sheriff of the county in which the sexual offender resides or sleeps by reporting
in person to the sheriff within 72 hours prior to such offender’s birthday each
year to be photographed and fingerprinted.” OCGA § 42-1-12 (f) (4).
4
However, Gardei now asserts that his Arizona offenses would
not have required his registration on any basis other than the
nonresident provisions of OCGA § 42-1-12 (e) (6) to (8) and that he
has not committed any other criminal offenses. Therefore, since he
would no longer be required to be registered as a sexual offender in
New Mexico, Gardei argues he should no longer be subject to
registration in Georgia or to the annual renewal requirement.
On October 22, 2018, Gardei filed his petition against
Respondents,6 asking the trial court for declaratory and injunctive
relief from Respondents’ continued enforcement of OCGA § 42-1-12,
which he asserted violated the equal protection clause, due process
clause, and the privileges and immunities clause of the United
States Constitution and parallel provisions in the Georgia
Constitution, and the retroactive laws clause and the citizen status
clause of the Georgia Constitution, both facially and as applied.
Gardei asked the trial court to declare that the statute is
6 Gardei’s petition initially named then-GBI Director Vernon Keenon as
a respondent, but following Keenon’s retirement in January 2019, Reynolds
was substituted for him as a respondent.
5
unconstitutional and that he is not subject to its requirements.
Gardei also sought an injunction barring the enforcement of the
Registry Act requirements against him and requested an award of
his attorney fees, expenses, and costs.
After Gardei filed his petition, Conway and Reynolds each
moved for dismissal on the ground that Gardei failed to state a claim
under OCGA § 9-11-12 (b) (6). The trial court granted the
Respondents’ motions to dismiss, concluding that Gardei’s claims
are time-barred under the two-year statute of limitation for personal
injury actions set forth in OCGA § 9-3-33. Gardei appealed,7 and the
Court of Appeals, in a divided panel opinion, affirmed the trial
court’s dismissal of the petition, holding that OCGA § 9-3-33 applied
to Gardei’s claims, see Gardei, 357 Ga. App. at 541 (1), and that the
annual registration requirement did not toll the limitation period
under the “continuing violation” doctrine. 8 See id. at 541-42 (2). In
7 Gardei originally appealed the trial court’s order to this Court in Case
No. S20A0200, but we transferred the case to the Court of Appeals because the
issues raised did not invoke the Court’s appellate jurisdiction.
8 The Court of Appeals explained that
6
dissent, then-Chief Judge McFadden agreed that OCGA § 9-3-33
applied to Gardei’s claims, but concluded that, because Gardei
claims the “violations of his constitutional rights have continued
into the present because he must re-register as a sex offender every
year,” his action is not time-barred under the continuing violation
doctrine. Id. at 545 (2).
1. The threshold issue is whether a statute of limitation applies
to Gardei’s claims. Gardei argues that the Declaratory Judgment
Act is a statutorily created cause of action and, because the Act does
not include a statute of limitation, declaratory judgment actions are
not subject to any statute of limitation. We disagree.
[u]nder the continuing-violation doctrine, a plaintiff can sue for
actions that occurred outside the applicable limitations period if a
defendant’s conduct is part of a continuing practice and the last act
evidencing the continuing practice falls within the limitations
period. An analysis of whether an action constitutes a continuing
violation distinguishes between the present consequence of a one-
time violation, which does not extend the limitations period, and
the continuation of the violation into the present, which does.
Gardei, 357 Ga. App. at 541 (2) (citations and punctuation omitted). The Court
of Appeals concluded that the renewal provision was the present consequence
of one constitutional violation, i.e., Gardei’s initial registration. Implicit in this
analysis was the conclusion that Gardei’s claims arose in 2009 and therefore
OCGA § 9-3-33 would bar his claims absent any tolling.
7
The Declaratory Judgment Act provides:
In cases of actual controversy, the respective superior
courts of this state and the Georgia State-wide Business
Court shall have power, upon petition or other
appropriate pleading, to declare rights and other legal
relations of any interested party petitioning for such
declaration, whether or not further relief is or could be
prayed; and the declaration shall have the force and effect
of a final judgment or decree and be reviewable as such.
OCGA § 9-4-2 (a). As described in the Act, the purpose “is to settle
and afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations[.]” OCGA § 9-4-1. See also
Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 696 (3) (c)
(859 SE2d 33) (2021) (“[T]he object of the declaratory judgment is to
permit determination of a controversy before obligations are
repudiated or rights are violated.” (citation omitted)); Baker v. City
of Marietta, 271 Ga. 210, 213 (1) (518 SE2d 879) (1999) (“The
Declaratory Judgment Act provides a means by which a superior
court simply declares the rights of the parties or expresses its
opinion on a question of law, without ordering anything to be done.”
(cleaned up)).
8
Thus, the Declaratory Judgment Act merely creates a
procedural device for the declaration of rights between parties and
does not otherwise override substantive or procedural law. Indeed,
over 70 years ago, this Court determined that the predecessor to the
current Declaratory Judgment Act “does not nullify statutes of
limitations and established principles of law[.]” Bingham v. Citizens
of Southern Nat. Bank, 205 Ga. 285, 288 (53 SE2d 228) (1949).
Accord Burgess v. Burgess, 210 Ga. 380, 383 (2) (80 SE2d 280) (1954)
(quoting Bingham); Capitol Infrastructure, LLC v. Plaza Midtown
Residential Condo. Assn., Inc., 306 Ga. App. 794, 800 (702 SE2d 910)
(2010) (rejecting party’s contention that the Declaratory Judgment
Act “tolls, enlarges, or otherwise nullifies” the applicable limitation
period). See also OCGA § 9-3-3 (“Unless otherwise provided by law,
limitation statutes shall apply equally to all courts.”).
In Bingham, we held that the trial court properly sustained
demurrers to the petitioner’s suit for declaratory judgment to
declare his rights under a will after two previous proceedings in the
same court had adjudicated the issues. See 205 Ga. at 285-86. These
9
prior proceedings occurred more than three years before the filing of
the declaratory judgment action was brought, and therefore, the
Court held that the petitioner’s action was time-barred under Ga.
Code § 3-702 (1933), which provided that “[a]ll proceedings of every
kind in any court of this State, to set aside judgments or decrees of
the courts, shall be made within three years from the rendering of
said judgments or decrees.” See also id. at 288 (“Bingham’s petition
does not show that any application was made to vacate or set aside
the judgment procured at the instance of the trustees within the
statute of limitations. (Code, § 3-702).”). We see no reason to depart
from this long-standing precedent and thus, we conclude that, even
though the Declaratory Judgment Act does not include a specific
statute of limitation, declaratory judgment actions generally are
subject to statutory limitation periods.
2. Having determined that Gardei’s declaratory judgment
action is subject to a statute of limitation, the next step in the
analysis is to determine what statute of limitation applies to his
claims.
10
(a) Although we have not addressed the issue, several federal
appellate courts have concluded that actions “for declaratory relief
will be barred to the same extent the applicable statute of
limitations bars the concurrent legal remedy.” Algrant v. Evergreen
Valley Nurseries Ltd. Partnership, 126 F3d 178, 181 (II) (3d Cir.
1997). See also Petro Harvester Operating Co., L.L.C. v. Keith, 954
F3d 686, 699 (III) (C) (5th Cir. 2020) (“[A]s a general rule, an action
for declaratory judgment will be barred to the same extent that the
applicable statute of limitations bars an underlying action in law or
equity.” (citation and punctuation omitted)); Intl. Assn. of
Machinists & Aerospace Workers v. Tennessee Valley Auth., 108 F3d
658, 668 (IV) (6th Cir. 1997) (same); Levald, Inc. v. City of Palm
Desert, 998 F2d 680, 688-89 (II) (B) (1) (b) (9th Cir. 1993) (same);
Stone v. Williams, 970 F2d 1043, 1048 (I) (A) (2d Cir. 1992)
(“Because a declaratory judgment action is a procedural device used
to vindicate substantive rights, it is time-barred only if relief on a
direct claim would also be barred.” ); Clulow v. State of Oklahoma,
700 F2d 1291, 1302 (IV) (B) (10th Cir. 1983) (same), overruled on
11
other grounds, Garcia v. Williams, 731 F2d 640 (10th Cir. 1984).
This principle is consistent with how this Court has
determined the applicable limitation period for various claims in the
absence of a specific statute of limitation for the cause of action. In
Bingham, for example, we applied, without analysis, the limitation
period for setting aside a judgment, when the crux of the action was
seeking a declaration adverse to judgments already obtained by the
respondents. See 205 Ga. at 288.
Also, in equity cases, we have long held that “[c]ourts of equity,
although not in all cases bound by the statute of limitations, unless
expressly brought within its provisions, have nevertheless acted, in
this respect, in analogy to courts of law, and given effect to the
statute in all cases of concurrent jurisdiction[.]” Moore v. Moore, 103
Ga. 517, 525 (30 SE 535) (1898) (citations and punctuation omitted).
Similarly, and more recently, in Daniel v. American Optical Corp.,
251 Ga. 166, 167 (304 SE2d 383) (1983), a federal appellate court
certified the question of what statute of limitation applied to a strict
liability cause of action when the strict liability statute did not
12
include a specific statute of limitation. We held that the general two-
year statute of limitation for personal injury applied because “the
scope of application of this statute of limitations is determined by
the nature of the injury sustained rather than the legal theory
underlying the claim for relief.” Id. at 168 (1). Accord Godwin v.
Mizpah Farms, LLP, 330 Ga. App. 31, 38 (3) (b) (766 SE2d 497)
(2014) (“Georgia has no specific statute of limitation for breach of
fiduciary duty claims. Instead, we examine the injury alleged and
the conduct giving rise to the claim to determine the appropriate
statute of limitation.”). Accordingly, we conclude that in declaratory
judgment actions, the statute of limitation for the analogous legal
remedy will also apply to the declaratory judgment action.
(b) That brings us to the question of what statute of limitation
applies to Gardei’s constitutional claims. For Gardei’s claims arising
under the United States Constitution, the mostly closely analogous
claim would be under 42 USC § 1983, which establishes a civil action
against “[e]very person who, under color of any statute . . . subjects,
or causes to be subjected, any citizen of the United States . . . to the
13
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws[.]”No specific statute of limitation applies to
§ 1983 claims under federal law, but the United States Supreme
Court has concluded that these claims “are best characterized as
personal injury actions,” subject to state personal injury statutes of
limitation. Owens v. Okure, 488 U.S. 235, 240-41 (II) (A) (109 SCt
573, 102 LE2d 594) (1989) (concluding that 42 USC § 1983, which
allows redress for civil rights violations, “confers a general remedy
for injuries to personal rights” (punctuation and citations omitted)).
See also McNair v. Allen, 515 F3d 1168, 1173 (II) (11th Cir. 2008)
(“All constitutional claims brought under § 1983 are tort actions,
subject to the statute of limitation governing personal injury actions
in the state where the § 1983 action has been brought.”); Lovett v.
Ray, 327 F3d 1181, 1182 (11th Cir. 2003) (applying OCGA § 9-3-33
to § 1983 claims in Georgia).
Although this Court has not considered this issue, Georgia’s
Court of Appeals has long recognized that, generally speaking, “the
applicable limitation period [for a claim under 42 USC § 1983] is the
14
two-year period for personal injury set out in OCGA § 9-3-33.” Day
v. Brown, 207 Ga. App. 134, 135 (1) (427 SE2d 104) (1993). See also
Wilson v. Cromer, 356 Ga. App. 763, 767 (2) (847 SE2d 213) (2020);
Freeman v. City of Brunswick, 193 Ga. App. 635, 635-36 (388 SE2d
746) (1989).
We agree and now hold that the two-year limitation period
under OCGA § 9-3-33 for personal injury claims applies to claims for
violations of the federal constitution involving injuries to individual
rights. And, although Georgia does not have a statutory cause of
action like 42 USC § 1983 under which a person can assert claims
under the Georgia Constitution, declaratory judgment actions for
claims asserting the violation of individual rights are authorized
under our State’s constitution. We see no reason why the two-year
limitation period would not apply equally to Gardei’s declaratory
judgment claims for violations of his rights under the Georgia
Constitution. Cf. Daniel, 251 Ga. at 168 (1) (“We find no reason to
differentiate between actions for personal injuries brought under a
theory of strict liability as opposed to negligence for purposes of
15
applying OCGA § 9-3-33 (Code Ann § 3- 1004).”).
3. Having concluded that the two-year limitation period for
personal injury applies to Gardei’s claims, we must now examine
when the right of action accrued in order to determine if Gardei’s
declaratory judgment action was timely brought. OCGA § 9-3-33
provides: “Except as otherwise provided in this article, actions for
injuries to the person shall be brought within two years after the
right of action accrues,” with exceptions not applicable here. For
purposes of this statute of limitation, “[a]n action for personal injury
does not ‘accrue’ until the tort is complete,” Amu v. Barnes, 283 Ga.
549, 551 (662 SE2d 113) (2008) (citation and punctuation omitted),
and a personal injury tort claim is complete only “when an injury
results from [a] wrongful act or omission.” Harvey v. Merchan, 311
Ga. 811, 815 (2) (860 SE2d 561) (2021). See also Everhart v. Rich’s,
Inc., 229 Ga. 798, 801 (2) (194 SE2d 425) (1972) (“On a tort claim for
personal injury the statute of limitation generally begins to run at
the time damage caused by a tortious act occurs, at which time the
tort is complete.”).
16
To determine when the injury was incurred and the right of
action accrued, we look first at the requirements of the Registry Act.
Any sex offender required to register under the Registry Act must
renew that registration each year under OCGA § 42-1-12 (f) (4). The
Registry Act requires that the sex offender must “[c]ontinue to
comply with the registration requirements of [the Registry Act] for
the entire life of the sexual offender, excluding ensuing periods of
incarceration.” OCGA § 42-1-12 (f) (6).9 Any sex offender who fails
to comply with these registration requirements “shall be guilty of a
felony and shall be punished by imprisonment for not less than one
nor more than 30 years[.]” OCGA § 42-1-12 (n) (3).
Gardei claims that OCGA § 42-1-12 is unconstitutional, both
facially and as applied to him; seeks a declaration that he is
therefore not subject to the Registry Act; and asks that the
9 The Registry Act also provides a method for sex offenders who meet
certain requirements to petition a superior court for release from the Registry
requirements. See OCGA § 42-1-19. However, Gardei asserts in his petition
that he is not eligible for removal from the Registry under this or any other
statutory provision.
17
Respondents be enjoined from further enforcement of the Registry
Act against him. 10 Here, the Court of Appeals determined that the
renewal requirement was a consequence of Gardei’s initial sex
offender registration in 2009, which Gardei alleges also violated his
rights, and because Gardei was aware of all the facts necessary to
pursue his constitutional claims at that time, the renewals did not
create any causes of action separate from that initial alleged
constitutional violation. See Gardei, 357 Ga. App. at 541-42 (2). We
disagree because here the correct inquiry as to when the cause of
action accrues does not focus on when Gardei became aware of
sufficient facts to pursue a constitutional claim, but rather when
Gardei suffered the injury that completed the tort.
The Registry Act creates a lifetime requirement that Gardei
report in person to his local sheriff’s office each year to renew his
registration. See OCGA § 42-1-12 (f) (4). Although Gardei incurred
the same or similar consequences upon his initial registration and
10 At oral argument, Gardei’s counsel confirmed that Gardei is seeking
only prospective relief in this action.
18
each subsequent renewal, he was subject to a new felony prosecution
on each of these occasions – in other words, each year – if he failed
to comply. Assuming for purposes of the appeal that application of
the Registry Act violated Gardei’s constitutional rights since 2009,
or became a violation at some point in the interim, a wrongful act
occurred each time Gardei was required to register in violation of
his rights. Each such renewal extended the allegedly illegal
consequences of registration for another year and resulted in a new
wrongful act, a new injury, and the accrual of a new cause of action. 11
Likewise, a new wrongful act and a new injury will occur each year
11 In this way, the renewal requirement is somewhat akin to the facts
underlying an abatable continuing nuisance.
A nuisance, permanent and continuing in its character, the
destruction or damage being at once complete upon the completion
of the act by which the nuisance is created, gives but one right of
action, which accrues immediately upon the creation of the
nuisance, and against which the statute of limitations begins, from
that time, to run. Where a nuisance is not permanent in its
character, but is one which can and should be abated by the person
erecting or maintaining it, every continuance of the nuisance is a
fresh nuisance for which a fresh action will lie. This action accrues
at the time of such continuance, and against it the statute of
limitations runs only from the time of such accrual.
City of Atlanta v. Kleber, 285 Ga. 413, 416 (1) (677 SE2d 134) (2009). Likewise,
where mandated registration under the Registry Act violates an individual’s
rights, the renewal requirement repeats the harm on an annual basis.
19
if Gardei remains subject to the renewal requirement under OCGA
§ 42-1-12 (f) (4).
We conclude that because Gardei’s petition seeks a
determination only as to whether he is required to comply with the
Registry Act in the future, his causes of action have not yet
accrued. 12 Accordingly, the trial court and the Court of Appeals erred
in holding that Gardei’s action for declaratory and injunctive relief
is time-barred, and we reverse and remand the case for further
proceedings in accordance with this opinion.
4. Given our holding in Division 3, we need not address
whether the continuing violation doctrine applies or whether the
statute of limitation could otherwise be tolled.
Judgment reversed and case remanded. All the Justices concur.
12 Because Gardei has asserted no claims based on past renewals of his
registration, we express no opinion as to whether any such claims would be
time-barred under OCGA § 9-3-33.
20