NEW GEORGIA PROJECT, INC. v. GEORGIA GOVERNMENT TRANSPARENCY AND CAMPAIGN FINANCE COMMISSION ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 09, 2021
The Court of Appeals hereby passes the following order:
A21A1635. NEW GEORGIA PROJECT, INC. et al. v. GEORGIA
GOVERNMENT TRANSPARENCY AND CAMPAIGN FINANCE
COMMISSION.
The Georgia Government Transparency and Campaign Finance Commission
(“the Commission”) is investigating New Georgia Project, Inc. and New Georgia
Project Action Fund, Inc. (collectively, “Appellants”) for alleged violations of the
Ethics in Government Act. In connection with the investigation, the Commission
issued subpoenas to Wells Fargo Bank for Appellants’ bank records. Appellants filed
motions to quash the subpoenas in superior court, arguing that they were overly broad
and that disclosure of the requested information would violate the rights of
Appellants’ donors. The superior court denied the motions, and Appellants filed this
direct appeal. The Commission has moved to dismiss the appeal, arguing that
Appellants were required to file an application for discretionary review under OCGA
§ 5-6-35 (a) (1). For reasons that follow, we agree with the Commission.
OCGA § 5-6-35 (a) (1) requires a discretionary application to appeal “decisions
of the superior courts reviewing decisions of . . . state and local administrative
agencies . . . by certiorari or de novo proceedings[.]” (Emphasis supplied.) In Tri-
State Bldg. & Supply v. Reid, 251 Ga. 38 (302 SE2d 566) (1983), the Georgia
Supreme Court held that an administrative subpoena is a “decision” within the
meaning of this statute. In that case, Tri-State filed in the superior court a motion to
quash an “administrative subpoena or investigative demand” that had been served
upon it by a state agency. Id. at 38. The superior court ruled in favor of the agency,
and Tri-State appealed directly to the Supreme Court. The Supreme Court dismissed
the appeal, ruling that a discretionary application was required under OCGA § 5-6-35
(a) (1). The Court rejected Tri-State’s argument that the issuance of an administrative
subpoena or investigative demand was not a “decision” of a state agency within the
meaning of the statute because it was not a resolution of the merits. Id. at 38-39. See
also Financial Educ. Svcs. v. State, 336 Ga. App. 606 (785 SE2d 544) (2016)
(dismissing direct appeal from superior court order compelling compliance with state
agency’s investigative demand because discretionary application was required under
OCGA § 5-6-35 (a) (1)).
In seeking to quash the Commission’s subpoenas, Appellants asked the
superior court to review the “decision” of a state agency. See Tri-State, 251 Ga. at 38-
39 (agency’s issuance of “administrative subpoena or investigative demand” was a
“decision” under OCGA § 5-6-35 (a) (1)). Therefore, pursuant to OCGA § 5-6-35 (a)
(1), Appellants may appeal the superior court’s ruling only by filing an application
for discretionary appeal. See Tri-State, 251 Ga. at 38-39; Financial Educ. Svcs., 336
Ga. App. at 608.
Appellants argue that a direct appeal is permitted under Hickey v. RREF BBB
SBL Acquisitions, 336 Ga. App. 411 (785 SE2d 72) (2016). In Hickey, we held that
the collateral order doctrine permitted a direct appeal from “a discovery order directed
at a disinterested third party.” Id. at 413 (1) (punctuation omitted). But Hickey did not
involve an administrative subpoena issued in connection with a state agency
investigation. Nothing in Hickey absolves Appellants from complying with the
discretionary appeal procedure under OCGA § 5-6-35 (a) (1).
Appellants also argue that the Tri-State and Financial Education Services cases
are distinguishable because they involved subpoenas issued directly to the subjects
of the administrative investigations, not to a disinterested third party, as is the
situation here. That distinction, however, appears to be one without a difference.
OCGA § 5-6-35 (a) (1) requires a discretionary application where the superior court
has reviewed a state agency’s decision—here, the issuance of administrative
subpoenas. Appellants fail to show how it matters, for appellate jurisdictional
purposes, to whom the subpoena was issued.
Finally, Appellants contend that Wells Fargo Bank has no incentive to resist
the subpoenas, and, thus, a direct appeal is necessary here so that Appellants may
protect their donors’ rights. However, Appellants were able to challenge the
subpoenas by filing motions to quash in superior court, see OCGA § 7-1-360 (c), and
they had the right to seek appellate review of the superior court’s adverse ruling by
filing an application for discretionary appeal. The result would be the same if the
subpoenas had been issued directly to Appellants. See Tri-State, 251 Ga. at 38-39;
Financial Educ. Svcs., 336 Ga. App. at 608.
For these reasons, the Commission’s motion to dismiss is hereby GRANTED,
and this appeal is DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/09/2021
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.