Terry M. Scarborough v. Brian Kemp, Secretary of State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 15, 2017
The Court of Appeals hereby passes the following order:
A18D0155. TERRY M. SCARBOROUGH v. BRIAN KEMP, SECRETARY OF
STATE.
In 2005, Terry M. Scarborough conducted a survey of the boundary line
between Bibb County and Monroe County, which Bibb County contested. Multiple
subpoenas have been issued requiring Scarborough to appear at administrative
hearings in this ongoing case. After Scarborough’s repeated failure to appear, Brian
Kemp, Secretary of State, filed this original action for an “Emergency Petition for
Declaratory Judgment on Enforcement of Administrative Subpoena” in the superior
court, requesting that the superior court order Scarborough to comply with any
subpoena issued pursuant to the Secretary of State’s authority under OCGA § 36-3-20
et seq. The superior court granted Kemp’s motion and Scarborough filed this
application for discretionary appeal.
Under OCGA § 5-6-34 (a) (1), a party may file a direct appeal from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below,
except as provided in Code Section 5-6-35.” OCGA § 5-6-34 (a) (1). It does not
appear that any provision of OCGA § 5-6-35, the discretionary appeal statute, applies
here.1 Therefore, it appears that the order Scarborough seeks to appeal is directly
1
Scarborough filed his application pursuant to OCGA § 5-6-35 (a) (1), which
requires a discretionary application from “[a]ppeals from decisions of the superior
courts reviewing decisions of . . . state and local administrative agencies.” Here,
appealable.
We will grant an otherwise timely application for discretionary appeal if the
lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly,
this application is hereby GRANTED, and Scarborough shall have ten days from the
date of this order to file a notice of appeal with the trial court. If he has already filed
a timely notice of appeal in the trial court, he need not file a second notice. The clerk
of the trial court is DIRECTED to include a copy of this order in the record
transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia
Clerk’s Office,
Atlanta,____________________
11/15/2017
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.
however, the superior court was not reviewing a decision of the state administrative
agency, but rather issued a ruling in an original action filed by Kemp. Thus, OCGA
§ 5-6-35 (a) (1) is not applicable and Scarborough was not required to file a
discretionary application.