Southern LNG, Inc. v. MacGinnitie , 290 Ga. 204 ( 2011 )

Melton, Justice.

Appellant Southern LNG, Inc. is a Delaware corporation that owns real property on Elba Island in Chatham County, on which are located liquified natural gas facilities that contain liquid natural gas appellant receives from international producers. When natural gas is needed, the liquid natural gas is removed from the storage facilities through a network of pipes, is returned to a gaseous state, and is then delivered by means of intra- and interstate pipelines. Appellant contends it is a “public utility” under OCGA § 48-1-2 and, as such, is required under OCGA § 48-5-511 to make an annual tax return of its Georgia property to the Georgia Revenue Commissioner rather than to the Chatham County tax authorities. Appellant filed a complaint for declaratory judgment and for writ of mandamus in the Superior Court of Fulton County, seeking to have the trial court recognize appellant as a “public utility” under OCGA § 48-1-2 and to order appellee Douglas J. MacGinnitie, the Georgia Revenue Commissioner, to accept appellant’s annual ad valorem property tax return, to assess the property uniformly with that of other public utilities in Georgia, and to include the property in the report the Commissioner files with the Chatham County tax assessor. See OCGA § 48-5-524. The trial court granted the Commissioner’s motion to dismiss the complaint, ruling that appellant’s complaint failed to state a claim upon which relief could be granted because the doctrine of sovereign immunity was applicable to the claims. A timely appeal to this Court on the applicability of sovereign immunity to this case followed. For the reasons that follow, we reverse.

We need not address whether sovereign immunity would act as a bar to appellant’s declaratory action, as it is clear that, if the declaratory action were barred by sovereign immunity (thus leaving appellant without an adequate legal remedy), appellant’s mandamus action would still remain viable. See Stanley v. Sims, 185 Ga. 518, 526 (195 SE 439) (1938) (action for mandamus seeking to compel an official to perform a ministerial duty cannot be dismissed for failure to state a claim based on an assertion of sovereign immunity because “[s]uch an action is not within the rule that a State can not be sued without its consent”). This is not to say that declaratory actions against the State are necessarily barred by sovereign immunity.¹ We simply decline to address the question whether a declaratory action against the State to determine one’s rights with respect to the applicability of a statute is barred by sovereign immunity.

Judgment reversed.

Ml the Justices concur, except Nahmias, J., who concurs in judgment only, and Benham, J., who dissents.

1 Indeed, declaratory actions and similar actions against the State have long been recognized in other contexts. See, e.g., OCGA § 50-13-10 (authorizing declaratory action to determine the validity of any administrative rule, waiver, or variance “when it is alleged that the rule, waiver, or variance or its threatened application interferes with or impairs the legal rights of the petitioner”); State Bd. of Ed. v. Drury, 263 Ga. 429, 432 (1) (437 SE2d 290) (1993) (declaratory action is authorized with respect to validity of administrative rale); Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 (152 SE2d 768) (1966) (declaratory action by property owner against Revenue Commissioner regarding requirement to make annual ad valorem tax return to the Commissioner rather than the local tax commissioner in each county in which property owner had property); IBM v. Ga. Dept. of Admin. Svcs., 265 Ga. 215, 216 (1) (453 SE2d 706) (1995) (concluding that sovereign immunity did not protect Department of Administrative Services from injunctive relief, and noting that “[t]o avoid the harsh results sovereign immunity would impose, the court has often employed the legal fiction that such a suit is not a suit against the state, hut against an errant official, even though the purpose of the suit is to control state action through state employees”) (citation omitted).