Bibb Cnty. v. Monroe Cnty.

• Decision Date: 10 March 2014
• Docket Number: S13A1396.,Nos. S13A1395,s. S13A1395
• Court: Georgia Supreme Court
• Parties: BIBB COUNTY v. MONROE COUNTY et al. Kemp v. Monroe County.

294 Ga. 730
755 S.E.2d 760

BIBB COUNTY
v.
MONROE COUNTY et al.
Kemp
v.
Monroe County.

Nos. S13A1395, S13A1396.

Supreme Court of Georgia.

March 10, 2014.

[755 S.E.2d 763]

Virgil Louis Adams, Donald James Jordan, Dawn Maynor Lewis, Adams & Jordan, PC, Charles Madden Cork III, Macon, for appellant (case no. S13A1395).

William Wright Banks, Jr., Senior Asst. Attys. Gen., Mary J. Leddy Volkert, Shannon Alfonso McGhee, Asst. Attys. Gen., Denise E. Whiting–Pack, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Nels Stefan David Peterson, Sol.-Gen., Atlanta, for appellant (case no. S13A1396).

Carolyn Cain Burch, Jessica Eileen Sabbath, Letitia A. McDonald, King & Spalding LLP, Atlanta, Michael Andrew Dillon, Benjamin Austin Vaughn, Forsyth, for appellees.

HUNSTEIN, Justice.

These appeals involve a long-running boundary line dispute between Monroe County and Bibb County, which has culminated in a superior court order directing Secretary of State Brian Kemp to accept a line identified by a State-appointed land surveyor as the true boundary line separating the two counties. This Court granted the applications for discretionary appeal filed separately by Bibb County and Secretary Kemp to address the propriety of the relief granted below. We now hold that, while mandamus may lie to require the Secretary of State to comply with his statutory obligations with regard to county boundary line disputes, see OCGA § 36–3–20 et seq., the superior court lacked the authority to require Secretary Kemp to accept a particular line as the true boundary line. Specifically, while mandamus is authorized to compel the Secretary to consider the relevant law and evidence, to determine the true boundary line between the counties, and to record the survey and plat reflecting that boundary line, mandamus is not authorized to dictate where the boundary line is to be located. Accordingly, we reverse and remand for further proceedings.

[755 S.E.2d 764]

In 2005, Governor Sonny Perdue appointed land surveyor Terry Scarborough to identify the boundary between the counties, pursuant to a statutory process for settling boundary disputes first established in the 1880s. See OCGA § 36–3–20 et seq.; Ga. L. 1887, pp. 106–107. In April 2008, after receiving formal authorization to proceed from the Secretary of State (“the Secretary”), Scarborough conducted his survey work and submitted his final survey and plat to the Secretary on March 27, 2009, delineating what he concluded was the true boundary line separating Monroe County and Bibb County. Bibb County filed exceptions to the final survey with the Secretary, disputing Scarborough's conclusion as to the location of the northernmost terminating point of the boundary line. Monroe County responded, defending the survey, whereupon the Secretary referred the matter to the Office of State Administrative Hearings for appointment of a Special Assistant Administrative Law Judge (“SAALJ”) to hear evidence and make a recommendation. After a three-day evidentiary hearing in February and March 2011, the SAALJ recommended accepting the survey. The Secretary then held oral argument and conducted a site visit to the area along the Ocmulgee River encompassing both the terminating point identified in the Scarborough survey and the alternative terminating point argued for by Bibb County. On August 23, 2011, the Secretary issued a final determination, rejecting the Scarborough survey, thus leaving the boundary line undetermined.

After the Secretary denied Monroe County's motion for reconsideration, Monroe County sought judicial review in superior court. The trial court dismissed that action, based on its conclusion that the Secretary, in issuing his final determination, was not acting in a judicial capacity and thus his determination was in the nature of a political decision not subject to direct judicial review. Monroe County then filed a petition for mandamus, asserting that the Secretary had exceeded his authority in refusing to accept the Scarborough survey and failing to establish a definitive boundary line. Following a hearing, the superior court issued its final order, granting the mandamus petition and directing the Secretary to record the Scarborough survey and plat, thereby establishing the boundary between Monroe County and Bibb County as that identified by Scarborough. On the same date, the superior court also denied an emergency motion to intervene filed by Bibb County.

The Secretary then filed an application for discretionary appeal with the Court of Appeals, which transferred the case to this Court. In the meantime, Bibb County filed an application for discretionary appeal in this Court, as to both the order granting the writ of mandamus and the order denying its motion to intervene. This Court granted both applications and consolidated the appeals, requesting the parties to address four distinct questions: (1) whether the actions of an official under OCGA § 36–3–20 et seq. may be the subject of a writ of mandamus; (2) whether, assuming mandamus were available, the superior court erred in granting the mandamus petition and ordering the Secretary to record the Scarborough survey; (3) whether the order granting mandamus was directly appealable; and (4) whether the superior court erred in denying Bibb County's emergency motion to intervene. We address these questions seriatim.

1. Pursuant to OCGA § 36–3–20,

[w]hen the boundary line between two or more counties is in dispute and the grand jury of either county presents that the boundary line needs to be marked out and defined, it shall be the duty of the clerk of the superior court in the county where the presentments were made to certify the presentments to the Governor. The Governor shall appoint some suitable and competent land surveyor, who shall not reside in either county, to survey, mark out, and define the boundary line in dispute and to return the survey with plat to the Secretary of State's office to be recorded in a book to be kept for that purpose.

Once the survey and plat have been filed with the Secretary, the Secretary must allow 30 days within which the authorities of either county may file “a protest or exceptions thereto.” OCGA § 36–3–23. Where such protest or exceptions are filed, the Secretary

[755 S.E.2d 765]

must, after giving written notice to the parties, hold a hearing. OCGA § 36–3–24. “Upon the hearing, the Secretary of State shall determine from the law and evidence the true boundary line in dispute between the respective counties.” Id.

Upon the making of a decision by the Secretary of State pursuant to Code Section 36–3–24 or in case no protest or exceptions are filed within the 30 days, the Secretary of State shall cause the survey and plat to be recorded in a book to be kept for that purpose, whereupon the same shall be final and conclusive as to the boundary line in dispute....

OCGA § 36–3–25.

As the statutory language makes clear, the Secretary's overall duty under this scheme is to ascertain the “true boundary line” between the counties. Where the appointed surveyor files his survey and plat and no protests or exceptions are filed within 30 days, the statute requires the Secretary to record the same, which then stands as the final, conclusive determination of the boundary line. Where a protest is filed, however, the Secretary is obligated to “determine” what constitutes “the true boundary line” after considering “the law and evidence.” OCGA § 36–3–24.

Because of the political nature of the decision-making surrounding county boundary lines, Bibb County and the Secretary contend that any dispute regarding the boundary setting process presents a purely political question that is non-justiciable. See Thompson v. Talmadge, 201 Ga. 867, 871(1), 41 S.E.2d 883 (1947) (“the judiciary under the Constitution is wholly without jurisdiction to adjudicate a purely political question”). In support of this argument, Bibb County and the Secretary cite our opinion in Early County v. Baker County, 137 Ga. 126, 72 S.E. 905 (1911), in which we characterized the Secretary's duties under the boundary dispute statute as being “political” rather than “judicial” in nature. Id. at 126–127, 72 S.E. 905; see also Fine v. Dade County, 198 Ga. 655, 665, 32 S.E.2d 246 (1944) (in determining disputed county boundary line, Secretary “does not ... act judicially but acts only politically”).¹

Construed in its proper context, the holding of Early County does not support the conclusion that disputes over the boundary setting process are categorically non-justiciable. The issue presented in Early County was whether the boundary dispute statute constituted a delegation of judicial powers in violation of the constitutional separation of powers doctrine. In determining that the statute was not an unconstitutional delegation of judicial power, this Court in no way implied that disputes with regard to the statute's application were non-justiciable “political questions.” Rather, we simply determined that establishing county boundaries was a “political function of government” entrusted to the legislative branch, which was authorized to “provide various means to find the location of a boundary,” including that set forth in the boundary dispute statute. Id. at 126–127, 72 S.E. 905. “ ‘The fact that a controversy has political overtones does not place it beyond judicial review.’ ” Owens v. City of Greenville, 290 Ga. 557, 558(1), 722 S.E.2d 755 (2012). See Thompson v. Talmadge, 201 Ga. at 871–875, 41 S.E.2d 883 (courts had jurisdiction to decide legitimacy of procedure employed by General Assembly to select successor to Governor-elect, who had died before taking office). Thus, we conclude that alleged violations of the boundary dispute statute by the Secretary are not non-justiciable “political questions.”

Accordingly, we answer the first question in the affirmative: the actions of officials under the OCGA § 36–3–20 et seq. may properly be the subject of a petition for...