State of Georgia v. International Keystone Knights of the Ku Klux Klan, Inc.

In the Supreme Court of Georgia
Decided: July 5, 2016
S16A0367. STATE OF GEORGIA et al. v. INTERNATIONAL KEYSTONE
KNIGHTS OF THE KU KLUX KLAN, INC.
BLACKWELL, Justice.
This case presents important questions about the doctrine of sovereign
immunity and the constitutional guarantee of the freedom of speech. But before
we can resolve those questions, we must consider our jurisdiction of this appeal.
The case comes to us as an appeal of right. The appeal is taken, however, from
a judgment of a superior court reviewing a decision of a state administrative
agency, and under OCGA § 5-6-35 (a) (1), there is no appeal of right from such
a judgment. An appeal from a judgment of that sort must come instead by way
of an application for discretionary review. No application was filed in this case,
and that leaves us without jurisdiction. For that reason, the appeal is dismissed.
1. As a part of its efforts to maintain the state highway system,1 the
Georgia Department of Transportation administers the Adopt-A-Highway
1
See generally OCGA § 32-2-2 (a) (1).
program, which encourages civic-minded Georgians to volunteer to remove
litter along state and federal highways throughout Georgia. The Department has
promulgated a number of conditions and requirements for those who seek to
participate in the program.2 An organization, business, family, or other group
can apply to adopt a particular stretch of highway, and if the Department
approves an application, it assigns that stretch of highway to the applicant, the
applicant commits to remove litter from the roadside from time to time, and the
Department erects a sign along the highway to recognize the applicant. In May
2012, the International Keystone Knights of the Ku Klux Klan applied to
participate in the program and sought to adopt a one-mile stretch of State Route
515 in Union County. The Department denied their application.
In June 2012, the Commissioner of Transportation3 sent a letter to the
International Keystone Knights, identifying two reasons for the denial of their
application. First, the stretch of State Route 515 from which the International
2
Although these conditions and requirements do not appear in the published Rules
and Regulations of the State of Georgia, see OCGA § 50-13-7, they are contained in the
record of this case.
3
The Commissioner is the chief executive officer of the Department. See OCGA §
32-2-40 (a).
2
Keystone Knights proposed to remove litter is a controlled-access highway with
a posted speed limit of 65 miles per hour. The Department had determined for
safety reasons, the Commissioner explained, that this stretch of highway was not
suitable for adoption by any applicant. Second, alluding to the violent and
subversive history of the Ku Klux Klan,4 the Commissioner said:
The impact of erecting a sign naming an organization which has a
long-rooted history of civil disturbance would cause a significant
public concern. Impacts include safety of the traveling public,
potential social unrest, driver distraction, or interference with the
flow of traffic. These potential impacts are such that were the
application granted, the goal of the program, to allow civic-minded
organizations to participate in public service for the State of
Georgia, would not be met.
Around the same time, the Department suspended the Adopt-A-Highway
program, although it has represented that it intends to resume the program at
some point.
Three months later, the International Keystone Knights sued the
Department in the Superior Court of Fulton County,5 seeking a writ of
4
See Virginia v. Black, 538 U. S. 343, 352-357 (II) (123 SCt 1536, 155 LE2d 535)
(2003) (recounting violent and subversive history of Ku Klux Klan).
5
The International Keystone Knights named the State of Georgia, the Department, the
Commissioner of Transportation in his official capacity, and the Governor in his official
capacity as defendants, and all of these defendants are appellants in this Court. For the
3
mandamus, an injunction, and a declaratory judgment, all with the goal of
compelling the Department to approve their application. In their complaint, the
International Keystone Knights set forth a detailed account of their application
and subsequent dealings with various Department personnel, which culminated
in the denial of the application. About the first ground for the denial, they
alleged that, if the stretch of State Route 515 that they proposed to adopt were
unsuitable for safety reasons, they had offered and still were willing to adopt
another nearby stretch of the state highway system. As to the second ground,
they alleged that the denial of their application on that ground was an
abridgement of the freedom of speech as guaranteed by the Georgia
Constitution.6 Among other relief, the International Keystone Knights sought an
injunction against the Department “denying [their] Adopt-A-Highway permit”
purposes of this opinion, however, it is unnecessary to distinguish among these defendants,
and so, to keep it simple, we refer to them collectively as the “Department.” In the beginning,
the International Keystone Knights also named Union County, the Commissioner of Union
County in his official capacity, the North Georgia Resource Management Authority, and the
Executive Director of the Authority in her official capacity as defendants. Later, the
International Keystone Knights voluntarily dismissed their claims against these latter
defendants without prejudice.
6
See Ga. Const. of 1983, Art. I, Sec. I, Par. V. In their complaint, the International
Keystone Knights notably made no mention of the First Amendment of the United States
Constitution, which also protects the freedom of speech.
4
and a declaratory judgment that the Department “wrongfully denied [them] an
Adopt-A-Highway permit based on the content of [their] speech.”
The Department answered the complaint, and it filed a motion to dismiss
the lawsuit on several grounds. First, the Department asserted, the doctrine of
sovereign immunity barred the claims for declaratory and injunctive relief.
Second, the wrong alleged in the complaint, the Department argued, could not
properly be remedied by a writ of mandamus, injunction, or declaratory
judgment. Third, the International Keystone Knights could have sought judicial
review of the denial of their application under the Administrative Procedure
Act,7 the Department said, and for that reason, they had an adequate remedy at
law that barred the relief that they sought in the lawsuit.
The trial court agreed that a writ of mandamus would be improper, and it
dismissed the mandamus claim. The trial court, however, otherwise denied the
motion to dismiss. In its order, the trial court concluded that sovereign immunity
was no bar to claims for injunctive and declaratory relief concerning “an alleged
illegal restriction on . . . constitutional speech rights.” The trial court found that
7
See OCGA § 50-13-1 et seq.
5
an injunction and declaratory judgment would be appropriate remedies for the
wrong alleged in the lawsuit. And about the question of an adequate remedy at
law, the trial court concluded that the International Keystone Knights could not
have obtained judicial review under the Administrative Procedure Act because
the denial of the application did not amount to a “contested case,” as that term
is used in the Act.8
After some discovery, the Department and the International Keystone
Knights filed motions for summary judgment. The Department again asserted
in its motion that the claims for injunctive and declaratory relief were barred by
the doctrine of sovereign immunity. In addition, the Department urged that its
denial of the application in this case did not amount to an unconstitutional
abridgement of the freedom of speech.9 The International Keystone Knights, on
8
The Administrative Procedure Act provides for judicial review in “contested cases.”
See OCGA § 50-13-19 (a). For the purposes of the Act, a “contested case” is “a proceeding,
including, but not restricted to, rate making, price fixing, and licensing, in which the legal
rights, duties, or privileges of a party are required by law to be determined by an agency after
an opportunity for hearing.” OCGA § 50-13-2 (2). No law requires the Department to hold
a hearing when it considers an application to participate in the Adopt-A-Highway program.
9
In this regard, the Department argued that the only “speech” implicated by its denial
of the application was the sign that the Department erects to recognize a participant in the
Adopt-A-Highway program, and such a sign is government speech, not the speech of
participants in the program. In the alternative, the Department argued that the Adopt-A-
Highway program is a nonpublic forum, and its decision to deny the application was
6
the other hand, argued in their motion that the denial was an abridgement of the
freedom of speech predicated on impermissible viewpoint discrimination.10
Following a hearing, the trial court denied the Department’s motion for
summary judgment, and it granted in part the International Keystone Knights’
motion. In its November 25, 2014 order, the trial court rejected the argument
that the doctrine of sovereign immunity barred the claims for injunctive and
declaratory relief, reasoning that the doctrine is no bar to claims premised on an
alleged constitutional wrong.11 Turning to the merits of the case, the trial court
found that the Adopt-A-Highway program does not implicate only government
speech,12 and whether the program is a nonpublic forum or not, the trial court
reasonable and viewpoint neutral.
10
In their motion, the International Keystone Knights relied on the First Amendment
of the United States Constitution, as well as the Georgia Constitution, notwithstanding that
their complaint raised a claim only under the Georgia Constitution. See note 6, supra.
11
The trial court acknowledged our decision in Ga. Dept. of Natural Resources v.
Center for a Sustainable Coast, 294 Ga. 593 (755 SE2d 184) (2014), and it correctly noted
that Sustainable Coast involved no constitutional claims. Since Sustainable Coast, we have
not had occasion to consider the extent to which the doctrine of sovereign immunity bars
claims for injunctive or declaratory relief from state action that is alleged to be
unconstitutional. Cf. Olvera v. Univ. System of Ga. Bd. of Regents, 298 Ga. 425, 428, n.3
(782 SE2d 436) (2016).
12
We note that this aspect of the trial court’s decision may be inconsistent with
Walker v. Texas Div., Sons of Confederate Veterans, ___ U. S. ___ (135 SCt 2239, 192
LE2d 274) (2015), a decision about the First Amendment of the United States Constitution,
7
found that the evidence shows that the denial of the International Keystone
Knights’ application amounted to impermissible viewpoint discrimination. In
that respect, the trial court explained that their application was “singled-out for
scrutiny not given to other applicants to the program.” Accordingly, the trial
court concluded that the second ground for the denial was an abridgement of the
freedom of speech in violation of the Georgia Constitution.13 The trial court
entered a declaratory judgment that “a denial of an application to the [Adopt-A-
Highway program] for public concern related to a group’s history of civil
disturbance represents an unconstitutional infringement on an applicant’s right
to free speech,” and it enjoined the Department from “denying applications to
the [program] for public concern related to a group’s history of civil
disturbance.”14 Ten days later, the Department filed a notice of appeal.15
which came down while this case was pending on appeal. Because we are without
jurisdiction in this case, however, we have no occasion to decide whether the principles set
forth in Walker apply equally to the Georgia Constitution and, if so, whether the decision of
the trial court actually is inconsistent with Walker.
13
The trial court limited its analysis to the Georgia Constitution, see note 10, supra,
correctly noting, however, that Georgia courts frequently look to decisional law construing
and applying the First Amendment of the United States Constitution when addressing the
freedom of speech guaranteed by the Georgia Constitution.
14
The trial court did not decide whether the first ground for the denial was proper, but
it acknowledged that the conditions and requirements that the Department has promulgated
8
2. Although no party to this appeal disputes our jurisdiction, “it is the duty
of this Court to inquire into its jurisdiction in any case in which there may be a
doubt about the existence of such jurisdiction.” Sanders v. State, 280 Ga. 780,
782 (1) (631 SE2d 344) (2006) (citation omitted). See also Williford v. Brown,
___ Ga. ___, ___ (2) (Case No. S16A0177, decided May 9, 2016); Lay v. State,
289 Ga. 210, 211 (2) (710 SE2d 141) (2011). There are two reasons to doubt our
jurisdiction in this case. First, there is a question about whether the judgment
from which the Department appeals is appealable at all. If it is, there also is a
for participation in the program include a provision that “[l]imited access roads and roads
with speed limits of 55 mph and higher are unsafe for volunteer litter pick up and are not
eligible for adoption.” We note as well that the trial court did not actually order the
Department to approve the application of the International Keystone Knights. To the
contrary, the trial court only directed that the Department may not deny an application on the
second ground at issue.
15
The notice of appeal was directed to the Court of Appeals. Following briefing and
oral argument, the Court of Appeals transferred the case to us in November 2015, explaining
that it involves constitutional questions that are within the exclusive appellate jurisdiction of
this Court. We agree that this Court has jurisdiction of the subject matter of this appeal. See
Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1) (“The Supreme Court shall be a court of
review and shall exercise exclusive appellate jurisdiction in . . . [a]ll cases involving the
construction of . . . the Constitution of the State of Georgia . . . .”). We note that this head of
our jurisdiction is unchanged by the recent enactment of House Bill 927, the Appellate
Jurisdiction Reform Act of 2016. See Ga. L. 2016, p. ___, § 3-1.
9
question about the procedure by which an appeal may be taken. We will
consider each of these questions in turn.16
3. In its notice of appeal, the Department said that it was appealing from
the order denying its motion for summary judgment on the ground of sovereign
immunity, and it cited Board of Regents of the Univ. System of Ga. v. Canas,
295 Ga. App. 505 (672 SE2d 471) (2009), for the proposition that an
interlocutory refusal of sovereign immunity is an appealable judgment under the
collateral order doctrine. This Court, however, recently overruled Canas, and in
doing so, we rejected the idea that a refusal of sovereign immunity is, without
more, appealable immediately. See Rivera v. Washington, 298 Ga. 770, 778
(784 SE2d 775) (2016). A mere denial of summary judgment on the ground of
sovereign immunity is interlocutory, and it is appealable only if the trial court
issues a certificate of immediate review and the appellant thereafter brings its
appeal as provided in OCGA § 5-6-34 (b). See OCGA § 9-11-56 (h) (“An order
denying summary judgment shall be subject to review by direct appeal in
accordance with subsection (b) of Code Section 5-6-34.”). See also Rivera, 298
16
No party to this appeal addressed jurisdiction at length in its principal brief, and so,
we directed the parties to file supplemental briefs on appellate jurisdiction.
10
Ga. at 777 (“[A]ppeals of non-final orders on claims of immunity must be
pursued through the interlocutory procedures of OCGA § 5-6-34 (b).” (Citation
omitted)). Here, the trial court issued no certificate of immediate review, and the
Department failed to bring its appeal by way of the procedure set forth in OCGA
§ 5-6-34 (b).
The judgment from which the Department appeals, however, is not just a
denial of its motion for summary judgment. In a single order, the trial court
denied summary judgment to the Department, granted partial summary judgment
to the International Keystone Knights and entered an injunction against the
Department. A grant of summary judgment — even a partial grant — is an
appealable judgment. See OCGA § 9-11-56 (h) (“An order granting summary
judgment on any issue or as to any party shall be subject to review by appeal.”).
An injunction is immediately appealable as well. See OCGA § 5-6-34 (a) (4)
(authorizing appeals from “judgments or orders granting or refusing applications
for . . . interlocutory or final injunctions”). For these reasons, the judgment from
which the Department appeals is an appealable one, notwithstanding our recent
overruling of Canas and its progeny. We now turn, therefore, to the second
jurisdictional question.
11
4. To invoke the jurisdiction of an appellate court, an appellant must bring
its appeal in a way that comports with the requirements of the Appellate Practice
Act of 1965 as amended.17 See Wood v. Atkinson, 229 Ga. 179, 180 (190 SE2d
46) (1972) (“[T]he General Assembly enacted the Appellate Practice Act of
1965[,] which prescribes the conditions as to the right of a party litigant to have
his case reviewed. We view these prescribed conditions as jurisdictional.”
(Punctuation omitted)). See also Christopher J. McFadden et al., Georgia
Appellate Practice § 12:6 (2015 ed.) (“An appellant who selects the wrong
procedure has usually made a fatal error that deprives the appellate court of
jurisdiction and requires dismissal.” (Citations omitted)); Rebich v. Miles, 264
Ga. 467, 468 (448 SE2d 192) (1994); C & S Nat. Bank v. Rayle, 246 Ga. 727,
730 (273 SE2d 139) (1980). If the appellant is entitled to take an appeal of right,
the Appellate Practice Act permits the appellant to do so by filing a notice of
appeal in the trial court. See OCGA § 5-6-37. But in some kinds of cases, there
are no appeals of right, and any appeal must come instead by way of an
application for discretionary review. See OCGA § 5-6-35 (a).
17
See OCGA § 5-6-30 et seq.
12
Of concern in this case, the Appellate Practice Act requires an application
to appeal from:
decisions of the superior courts reviewing decisions of the State
Board of Workers’ Compensation, the State Board of Education,
auditors, state and local administrative agencies, and lower courts
by certiorari or de novo proceedings; provided, however, that this
provision shall not apply to decisions of the Public Service
Commission and probate courts and to cases involving ad valorem
taxes and condemnations.
OCGA § 5-6-35 (a) (1). Enacted in 1979,18 OCGA § 5-6-35 (a) (1) was meant
to “reduce the massive caseload of Georgia’s appellate courts.”19 Ferguson v.
Composite State Bd. of Med. Examiners, 275 Ga. 255, 256 (1) (564 SE2d 715)
(2002). See also Rayle, 246 Ga. at 729-730. Appeals in cases to which OCGA
§ 5-6-35 (a) (1) applies must come by timely application, and if they come
instead by a notice of appeal, the appellate court is without jurisdiction and must
dismiss the appeal. See Rebich, 264 Ga. at 468. Here, the Department filed no
18
As originally enacted in 1979, the statute did not extend to decisions of the State
Board of Education, see Ga. L. 1979, p. 619, § 3, which were added five years later. See Ga.
L. 1984, p. 599, § 2.
19
Although OCGA § 5-6-35 (a) undoubtedly has helped with the “massive caseload
of Georgia’s appellate courts,” this Court and our Court of Appeals both continue to manage
very heavy caseloads. See Report of the Appellate Jurisdiction Review Commission at 6-7
& n.22 (Jan. 2016) (available at https://gov.georgia.gov/, visited May 22, 2016).
13
application to appeal. We must decide, therefore, whether this appeal is from
“[a] decision[] of the superior court[] reviewing [a] decision[] of . . . [a] state .
. . administrative agenc[y].” If it is, the Department failed to bring its appeal as
required by the Appellate Practice Act, and we are left without jurisdiction.
(a) We first consider whether the denial of the International Keystone
Knights’ application was a “decision” of a “state administrative agency.” No one
disputes that the Department is a “state administrative agency” for the purposes
of OCGA § 5-6-35 (a) (1), and in the context of this case, it quite clearly is.20
20
The Appellate Practice Act does not define “state administrative agency” expressly,
and the parties have pointed us to no judicial precedents that address the meaning of the term
as it is used in OCGA § 5-6-35 (a) (1). Cf. Ga. Dept. of Transp. v. Peach Hill Properties, 278
Ga. 198, 200 (1) (599 SE2d 167) (2004) (holding that OCGA § 5-6-35 (a) (1) did not apply
in case involving the Department, but on grounds other than that the Department is not a
“state administrative agency”). In these circumstances, the settled principles that inform our
consideration of statutory meaning direct us to look to the usual and customary meaning of
the term. See Hendry v. Hendry, 292 Ga. 1, 2-3 (1) (734 SE2d 46) (2012). See also Deal v.
Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (courts must “read the
statutory text in its most natural and reasonable way” (citation omitted)). In common legal
usage, “administrative agency” refers to “[a] governmental body charged with administering
and implementing particular legislation.” Black’s Law Dictionary at 42 (5th ed. 1979). The
Department is a department of the Executive Branch, it is charged by statute with the
maintenance of the state highway system, see OCGA § 32-2-2 (a) (1), and pursuant to that
statutory mandate, it established the Adopt-A-Highway program, established conditions and
requirements for participation in the program, and administers the program, including by
determining the eligibility of applicants to participate. When the Department exercises its
authority under the statute to administer that program — as it did when it denied the
International Keystone Knights’ application — it is a “state administrative agency” for the
purposes of OCGA § 5-6-35 (a) (1).
14
Even so, the Department argues, its denial of an Adopt-A-Highway application
is not a “decision.” The Department urges that, as the term is used in OCGA §
5-6-35 (a) (1) with reference to administrative agencies, a “decision” refers to
a determination of an adjudicative nature that is made by way of a formal
adjudicative procedure. And the Department correctly notes that no law —
neither the Administrative Procedure Act, the State Highway Code, nor the
Rules and Regulations of the Department — sets forth formal procedures that
apply to the consideration and denial of applications to participate in the Adopt-
A-Highway program. We agree that a “decision” is a determination of an
adjudicative nature, but precedents of this Court — both old and recent —
foreclose the idea that a “decision” always must be characterized by formal
adjudicative procedures. Ultimately, we conclude that the denial of the
International Keystone Knights’ application was a determination of an
adjudicative nature, and the denial was, therefore, a “decision” of the
Department.
The Appellate Practice Act does not define “decision” explicitly, and
although some of the judicial precedents hint at the meaning of the term, we
have not previously attempted to supply a terse definition. Our analysis begins,
15
therefore, with the usual and settled principles that inform our consideration of
statutory meaning:
A statute draws its meaning, of course, from its text. When we read
the statutory text, we must presume that the General Assembly
meant what it said and said what it meant, and so, we must read the
statutory text in its most natural and reasonable way, as an ordinary
speaker of the English language would. The common and
customary usages of the words are important, but so is their context.
For context, we may look to the other provisions of the same
statute, the structure and history of the whole statute, and the other
law — constitutional, statutory, and common law alike — that
forms the legal background of the statutory provision in question.
Tibbles v. Teachers Retirement System of Ga., 297 Ga. 557, 558 (1) (775 SE2d
527) (2015) (citations and punctuation omitted).
In this case, it is useful at the outset to consider the legal distinctions that
American courts commonly draw between administrative determinations of
different sorts, which form an important part of the legal background of OCGA
§ 5-6-35 (a) (1) as it applies to the “decisions” of administrative agencies.
Administrative agencies usually are a part of the Executive Branch,21 and so,
21
See, e.g., B&B Hardware, Inc. v. Hargis Indus., ___ U. S. ___, ___ (135 SCt 1293,
191 LE2d 222) (2015) (Thomas, J., dissenting) (“[F]ederal administrative agencies are part
of the Executive Branch . . . .”); City of Arlington v. Federal Communications Comm., ___
U. S. ___, ___ (133 SCt 1863, 185 LE2d 941) (2013) (Roberts, C.J., dissenting) (“[M]odern
administrative agencies fit most comfortably within the Executive Branch . . . .”).
16
many agency determinations unsurprisingly are quintessentially executive in
nature, including, for instance, the day-to-day management of agency personnel
and resources, the dissemination of information to the public, the undertaking
of law enforcement and compliance investigations, and prosecutorial
determinations to initiate or decline to bring enforcement proceedings. But
pursuant to their mandates to implement and administer the statutory law, see
note 20, supra, administrative agencies also frequently have occasion to make
determinations that are not purely executive in nature. See generally Federal
Trade Comm. v. Ruberoid Co., 343 U. S. 470, 487 (72 SCt 800, 96 LE 1081)
(1952) (Jackson, J., dissenting in part) (“Administrative agencies have been
called quasi-legislative, quasi-executive or quasi-judicial, as the occasion
required . . . .”). When addressing agency determinations that are not
quintessentially executive, the courts routinely have drawn a distinction between
determinations that are legislative in nature, on the one hand, and those that are
adjudicative in nature, on the other.
Although “the line between legislation and adjudication is not always easy
to draw,” LC&S, Inc. v. Warren County Area Plan Comm., 244 F3d 601, 603
(7th Cir. 2001), there seems to be some agreement about the defining
17
characteristics of these two sorts of administrative determinations.
Administrative determinations of a legislative nature are prospective in
application, see, e.g., Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226 (29
SCt 67, 53 LE 150) (1908), general in application, see, e.g., Dibble v. Quinn,
793 F3d 803, 813 (II) (C) (3) (7th Cir. 2015), and often marked by a general
factual inquiry that is not specific to the unique character, activities or
circumstances of any particular person, see, e.g., Thomas v. City of New York,
143 F3d 31, 36 (II) (A) (1), n.7 (2nd Cir. 1998). Determinations of an
adjudicative nature, on the other hand, are immediate in application, see, e.g.,
Prentis, 211 U. S. at 226, specific in application, Dibble, 793 F3d at 813 (II) (C)
(3), and commonly involve an assessment of “facts about the parties and their
activities, businesses, and properties,” RR Village Assn. v. Denver Sewer Corp.,
826 F2d 1197, 1205 (III) (B) (2nd Cir. 1987). Generally speaking, an
administrative determination is “[adjudicative] in character if it is particular and
immediate, rather than, as in the case of legislative or rule making action,
general and future in effect.” Philadelphia Co. v. Securities and Exchange
Comm., 175 F2d 808, 816 (I) (D.C. Cir. 1948), vacated as moot, 337 U. S. 901(69 SCt 1047, 93 LE 1715) (1949). See also Gallo v. United States District
18
Court, 349 F3d 1169, 1182 (2) (B) (9th Cir. 2003) (noting principal
considerations in characterizing administrative action as legislative or
adjudicative); Charles Alan Wright & Charles H. Koch, Jr., 32 Fed. Prac. &
Proc. - Judicial Review § 8122 (1st ed. 2016) (“In general, adjudication is the
decisionmaking process for applying preexisting standards to individual
circumstances. The core facts are predominantly specific or adjudicative facts.”
(Footnote omitted)). In distinguishing between legislative and adjudicative
determinations, there seems to be broad agreement that substance matters far
more than form, and the courts need not “capitulate to the label that a
government body places on its action.” 75 Acres, LLC v. Miami-Dade County,
338 F3d 1288, 1296 (IV) (C) (11th Cir. 2003) (citation omitted).
These principles reflect the usual way in which American courts
distinguish among administrative determinations of different sorts, and this
Court previously has taken note of that approach. Indeed, in a case decided only
six months before the enactment of OCGA § 5-6-35 (a) (1), this Court explicitly
acknowledged the settled distinction between administrative determinations of
a legislative nature and those of an adjudicative nature. See Bentley v. Chastain,
242 Ga. 348, 349-351 (1) (249 SE2d 38) (1978). With this background in mind,
19
we now turn back to the text and more immediate context of OCGA § 5-6-35 (a)
(1).
Both the text and immediate context of OCGA § 5-6-35 (a) (1) indicate
that a “decision,” as it is used with reference to administrative agencies, is a
determination of an adjudicative nature. As for the text itself, the usual and
common usage of “decision” suggests that the term should be understood in just
this way. When laypersons use the term with reference to the activities of the
government, they commonly mean “the act of settling or terminating (as a
contest or controversy) by giving judgment,” Webster’s Third New International
Dictionary at 585 (1969), “[t]he passing of judgment on an issue under
consideration,” The American Heritage Dictionary of the English Language at
484 (3d ed. 1992), and “[t]he action of deciding a contest, dispute, etc.” 1 The
New Shorter Oxford English Dictionary at 608 (1993). Likewise, when lawyers
use the term, they generally are understood to mean “[a] determination arrived
at after consideration of facts, and, in legal context, law” or “[a] determination
of a judicial or quasi judicial nature.” Black’s Law Dictionary at 366 (5th ed.
1979).
20
The context in which the term is used in OCGA § 5-6-35 (a) (1) also
seems to point to this understanding of “decision.” Recall that the statute refers
to the “decisions” of not only state and local administrative agencies, but also
the State Board of Workers’ Compensation, the State Board of Education,
auditors, and the lower courts. Of those with whom the statute is concerned,
some — including “administrative agencies” — have executive and quasi-
legislative functions, but they all have an adjudicative role. The adjudicative
function strikes us as the most obvious tie that binds the various institutions and
offices with which OCGA § 5-6-35 (a) (1) is concerned. Cf. Hill v. Owens, 292
Ga. 380, 383 (2) (a) (738 SE2d 56) (2013) (“Words, like people, are judged by
the company they keep.” (Citation and punctuation omitted)).
The judicial precedents likewise are consistent with this understanding.
Only a year after OCGA § 5-6-35 (a) (1) was enacted, we said that the statute
was meant to “give the appellate courts . . . the discretion not to entertain an
appeal where the superior court had reviewed a decision of certain specified
lower tribunals (i.e., two tribunals had already adjudicated the case).” Rayle, 246
Ga. at 730. Since then, we have made repeated reference to “two tribunals”
having adjudicated — or at least, having had an opportunity to adjudicate — the
21
merits of cases to which OCGA § 5-6-35 (a) (1) applies. See, e.g., Hamryka v.
City of Dawsonville, 291 Ga. 124, 126-127 (3) (728 SE2d 197) (2012);
Ladzinske, 280 Ga. 264, 265 (626 SE2d 83) (2006); Ferguson, 275 Ga. at 256(1). More important, the holdings in the published decisions of this Court reflect
a distinction between agency determinations of an adjudicative nature and those
that are legislative or quintessentially executive in nature. The decisions in
which this Court has actually applied OCGA § 5-6-35 (a) (1) to require
applications for discretionary review in cases involving administrative agencies
almost uniformly appear to have concerned agency determinations of an
adjudicative nature.22 We consistently have refused, on the other hand, to require
22
See, e.g., Selke v. Carson, 295 Ga. 628, 629 (759 SE2d 853) (2014) (administrative
denial of appeal to Civil Service Board on the ground that a layoff was not an appealable
event); Augusta-Richmond County v. Lee, 277 Ga. 483, 483 (1) (592 SE2d 71) (2001)
(administrative denial of application for retail package license); Northwest Social & Civic
Club, Inc. v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003) (administrative denial of
applications to renew liquor license); Ferguson, 275 Ga. at 258 (3) (administrative denial of
petition for reinstatement of medical license); Swafford v. Dade County Bd. of Commrs., 266
Ga. 646, 647 (1) (469 SE2d 666) (1996) (administrative suspension of chair of Board of Tax
Assessors); Recycle & Recover, Inc. v. Ga. Bd. of Natural Resources, 266 Ga. 253, 254 (1)
(466 SE2d 197) (1996) (administrative denial of application for major modification of solid-
waste treatment facility); Prison Health Svcs., Inc. v. Ga. Dept. of Admin. Svcs., 265 Ga.
810, 811 (1) (462 SE2d 601) (1995) (administrative protest of contract award); Armstrong
v. Miles, 265 Ga. 344, 344 (455 SE2d 587) (1995) (administrative suspension of driver’s
license); Miller v. Ga. Dept. of Pub. Safety, 265 Ga. 62, 63-64 (453 SE2d 725) (1995)
(administrative suspension of driver’s license); Olin Corp. v. Collins, 261 Ga. 849, 849 (413
SE2d 193) (1992) (administrative denial of claim for refund of sales taxes); Miles v. Collins,
22
applications in cases concerning executive determinations23 and those involving
rulemaking or other determinations of a legislative nature.24
Considering the statutory text, its relevant context, the judicial precedents,
and the usual understanding of American courts generally about administrative
determinations of different sorts, we conclude that “decision” — as the term is
used in OCGA § 5-6-35 (a) (1) with reference to administrative agencies — is
most naturally and reasonably understood to refer to an administrative
determination of an adjudicative nature. On the facts of this case, it is difficult
to characterize the denial of the International Keystone Knights’ application to
259 Ga. 536, 536 (384 SE2d 630) (1989) (administrative assessment of taxes); Schieffelin
& Co. v. Strickland, 253 Ga. 385, 387 (320 SE2d 358) (1984) (administrative denial of
application to reduce designated wholesalers of distilled spirits and wine); Tri-State Bldg.
& Supply, Inc. v. Reid, 251 Ga. 38, 39 (302 SE2d 566) (1983) (administrative issuance of
subpoena); Plantation Pipe Line Co. v. Strickland, 249 Ga. 829, 829 (294 SE2d 471) (1982)
(administrative assessment of corporate taxes); Wheeler v. Strickland, 248 Ga. 85, 85 (281
SE2d 556) (1981) (administrative assessment of sales taxes).
23
See, e.g., Danbert v. N. Ga. Land Ventures, 287 Ga. 495, 495 (697 SE2d 204)
(2010) (no application required to appeal from denial of writ of mandamus “to compel
Towns County to enforce its subdivision regulations”); Mid-Georgia Environmental Mgmt.
Group v. Meriwether County, 277 Ga. 670, 671-672 (1) (594 SE2d 344) (2004) (no
application required to appeal from denial of writ of mandamus to compel county to send
verification letter to state regulators under OCGA § 12-8-24 (g)).
24
See, e.g., Ga. Dept. of Transp. v. Peach Hill Properties, 278 Ga. 198, 200 (1) (599
SE2d 167) (2004) (no application required to appeal in case challenging agency policy
statement).
23
participate in the Adopt-A-Highway program as anything but adjudicative in
nature. The denial was not a rule or statement of policy that was general and
prospective in application. To the contrary, the denial was a determination to
reject a single application submitted by a specific applicant, and it had the
immediate and particular consequence of disallowing that applicant to
participate in the Adopt-A-Highway program upon the terms proposed in the
application. Moreover, the denial was not based on general considerations alone,
but rather was predicated in part upon an assessment of the suitability of a
particular stretch of road for adoption under preexisting standards. The denial
was premised as well upon a consideration of the peculiar character of the
applicant, particularly the violent and subversive history that comes so readily
to mind when one thinks of the Ku Klux Klan and its affiliates. The denial of the
International Keystone Knights’ application was a determination of an
adjudicative nature.
Although a determination of an adjudicative nature is essential to an
administrative “decision” for the purposes of OCGA § 5-6-35 (a) (1), the
Department says that a “decision” also must be marked by formal adjudicative
procedures. We disagree. In the first place, we do not understand the usual and
24
common usage of “decision” to connote any particular degree of formality in the
decisional process. Nor is any particular degree of formality inherent in the
notion of adjudicative decisionmaking. As preeminent commentators have
noted,
Anglo-American legal institutions tend to make [adjudicative]
decisions through an adversary process, usually a trial, and hence
lawyers tend to think of adjudication as synonymous with trial
processes. Adjudication, however, is any decision which focuses on
the resolution of individual controversy and these decisions may be
made through any number of different processes.
Wright & Koch, supra, at § 8122. More important, our own precedents foreclose
the idea that formal adjudicative procedures are essential to a “decision,” as that
term is used in OCGA § 5-6-35 (a) (1).
Soon after the enactment of OCGA § 5-6-35 (a) (1), this Court invoked
the statute to require an application to appeal in a case involving an
administrative determination of an adjudicative nature without any indication
that the decisional process at the agency implicated formal adjudicative
procedures. In Tri-State Bldg. & Supply, Inc. v. Reid, 251 Ga. 38 (302 SE2d
566) (1983), we considered an appeal from a decision of a superior court on a
motion to quash an administrative subpoena issued by the administrator of the
25
Office of Consumer Affairs. Although the statutory law identified the
circumstances in which the administrator was authorized to issue a subpoena,
the required content of the subpoena, and the judicial proceedings by which the
subject of the subpoena could challenge it, see former OCGA § 10-1-403, there
was no statutory law concerning the “process” by which the administrator was
to decide whether to issue the subpoena in the first instance, much less any sort
of adversarial or other formal adjudicative procedure. Even so, we held that the
decision to issue the subpoena was a “decision” of a state administrative agency
for the purposes of OCGA § 5-6-35 (a) (1), requiring the appeal to be brought
by an application for discretionary review. See 251 Ga. at 39.
More recently, in Selke v. Carson, 295 Ga. 628 (759 SE2d 853) (2014),
we considered an appeal from a decision of a superior court reviewing a
decision of a county personnel services director, who refused to submit
administrative appeals of layoffs to the county civil service board, reasoning that
a layoff was not an appealable event. Although the applicable law made certain
provision for formal adjudicative proceedings before the board, there appear to
have been no adversarial or other formal adjudicative procedures that applied
to the process by which the director decided whether to submit a matter to the
26
board in the first instance. Notwithstanding the absence of any such formal
procedures, we held that the director “made an administrative department
decision [when he] refus[ed] to forward appellants’ [administrative] appeals to
the [board],” and for that reason, OCGA § 5-6-35 (a) (1) required an application
to appeal from the judgment of the superior court. See 295 Ga. at 629.
Tri-State and Selke are inconsistent with the notion that formal
adjudicative procedures are essential to a “decision,” and the Department has
given us no reason to believe that those cases were wrongly decided. The
Department does point, of course, to a number of cases involving “decisions”
of administrative agencies that implicated formal adjudicative procedures, but
it is unsurprising that many of the published decisions addressing OCGA § 5-6-
35 (a) (1) would involve such formal procedures. After all, the greater the stakes
in an administrative determination, the greater the likelihood that one aggrieved
by that determination will seek judicial review and perhaps will pursue the
matter as far as an appellate court, implicating OCGA § 5-6-35 (a) (1). But
generally speaking, the greater the stakes, the more likely it is that the statutory
law or due process will require formal adjudicative procedures, at least to the
extent that the determination implicates liberty or property interests. See
27
generally Gregory v. Sexual Offender Registration Review Board, 298 Ga. 675,
686-687 (3) (784 SE2d 392) (2016) (weight of “the private interest affected” is
one of three factors to be considered in assessing what process constitutionally
is due). It is, therefore, altogether unremarkable that many of our cases applying
OCGA § 5-6-35 (a) (1) involve formal adjudicative procedures, and as Tri-State
and Selke illustrate, such procedures are not essential to a “decision” for the
purposes of the statute.
That is not to say, however, that formal adjudicative procedures are
altogether irrelevant. For OCGA § 5-6-35 (a) (1) to apply with respect to
administrative agencies, there must be not only a “decision,” but it must be the
“decision[] of . . . [the] state [or] local administrative agenc[y].” (Emphasis
supplied). When the statutory law or a formal regulation requires that the
adjudicative process follow formal adjudicative procedures, those procedures
commonly identify the point of decision for the agency, as well as the officer
with legal authority to make the determination for the agency. See, e.g., OCGA
§ 50-13-41 (Administrative Procedure Act procedures for hearing before
administrative law judge). In those instances, the task of identifying the point
at which the agency itself has made a determination is relatively straightforward.
28
In the absence of formal adjudicative procedures, however, it may be less
apparent in some cases who is authorized to speak for the agency and whether
the agency itself has really made any decision at all. Determinations by persons
not legally authorized to bind an agency, after all, cannot be fairly characterized
as decisions of the agency. A couple of the Georgia precedents have recognized
this problem. See Ford Motor Co. v. Collins, 257 Ga. 310, 310 (1) (357 SE2d
567) (1987) (“We decline to hold that a letter from an official within the office
of the Commissioner of the Department of Revenue is an agency ‘decision’
within the meaning of [OCGA § 5-6-35 (a) (1)].”); Fulton County v. T-Mobile
South, LLC, 305 Ga. App. 466, 468-469 (1) (699 SE2d 802) (2010) (letter from
county attorney was not a “decision” of an administrative agency).
Here, however, we do not confront such a problem. The record shows that
the Department denied the application at issue by way of a letter from the
Commissioner himself. Whatever ambiguity might exist about who else at the
Department is authorized to speak definitively for the agency on the question of
an Adopt-A-Highway application, it cannot seriously be disputed that the
Commissioner — the chief executive officer of the Department, see OCGA §
32-2-40 (a) — is authorized to do so. For these reasons, we conclude that this
29
case involves a “decision” of a state administrative agency for the purposes of
OCGA § 5-6-35 (a) (1).
(b) The Department contends that, even if its denial of the International
Keystone Knights’ application was an administrative “decision,” the judgment
of the superior court from which the Department appeals was not a “decision[]
of the superior court[] reviewing” the denial of the application. To this end, the
Department points out that the judgment from which it appeals was not entered
in a proceeding under the Administrative Procedure Act25 or any other statute
authorizing direct judicial review of its denial of the International Keystone
Knights’ application. Instead, the Department notes, the judgment was entered
in a proceeding for injunctive and declaratory relief. That is true enough, but
when we consider the nature of the proceedings in the superior court for the
purposes of OCGA § 5-6-35 (a) (1), we look to the substance of those
proceedings, not merely the form of the relief sought. See Ladzinske v. Allen,
280 Ga. at 265. See also Rebich, 264 Ga. at 468. We previously have applied
OCGA § 5-6-35 (a) (1), of course, in appeals from proceedings for judicial
25
Indeed, the Department now contends that this case is not subject to the
Administrative Procedure Act, although it argued otherwise in the trial court. See note 8,
supra, and accompanying text.
30
review under the Administrative Procedure Act and other statutes. See, e.g.,
Schieffelin & Co. v. Strickland, 253 Ga. 385, 387 (320 SE2d 358) (1984)
(judicial review under Administrative Procedure Act); Plantation Pipe Line Co.
v. Strickland, 249 Ga. 829, 829 (294 SE2d 471) (1982) (judicial review under
Revenue Code). But we also have applied it in appeals from judgments entered
upon petitions for writs of mandamus, see, e.g., Rebich, 264 Ga. at 468,
petitions for injunctive relief, see, e.g., Prison Health Svcs., Inc. v. Ga. Dept. of
Admin. Svcs., 265 Ga. 810, 811 (1) (462 SE2d 601) (1995), and complaints for
declaratory relief. See, e.g., Dunlap v. City of Atlanta, 272 Ga. 523, 524 (531
SE2d 702) (2000). The form of the proceedings below is not dispositive.
Here, the subject matter of the proceedings and judgment from which the
Department appeals is the denial of the Adopt-A-Highway application. In their
complaint, the International Keystone Knights directed most of their allegations
to the filing, consideration, and eventual denial of their application, and they
sought relief specifically to compel the Department to grant their application. On
the motions for summary judgment, both parties put forward evidence about the
denial of that application. And in its order denying summary judgment to the
Department, awarding partial summary judgment to the International Keystone
31
Knights, and entering an injunction and declaratory judgment, the trial court
specifically addressed the grounds upon which the Department denied that
application and found, among other things, that the second ground amounted to
impermissible viewpoint discrimination because the International Keystone
Knights were “singled-out for scrutiny not given to other applicants in the
program.”
If a party to a judicial proceeding “attacks or defends the validity of an
administrative ruling and seeks to prevent or promote the enforcement thereof,
the trial court must necessarily ‘review’ the administrative decision [to resolve
the merits of the case].” Ferguson, 275 Ga. at 257-258 (2) (citations and
punctuation omitted). Notwithstanding that the proceedings and judgment below
were only for injunctive and declaratory relief, the proceedings and judgment
amounted to a review of a decision to deny a particular Adopt-A-Highway
application. See Ladzinske, 280 Ga. at 265.
5. Because the Department appeals from a decision of a superior court
reviewing a decision of a state administrative agency, it was required under
OCGA § 5-6-35 (a) (1) to bring its appeal by way of an application for
discretionary review. The Department failed to do so, and that circumstance
32
leaves this Court without appellate jurisdiction. Accordingly, this appeal must
be dismissed.
Appeal dismissed. All the Justices concur.
33