Gardei v. Conway

• Citation: 313 Ga. 132,868 S.E.2d 775
• Decision Date: 01 February 2022
• Docket Number: S21G0430
• Parties: GARDEI v. CONWAY et al.
• Court: Georgia Supreme Court

313 Ga. 132

868 S.E.2d 775

GARDEI

v.CONWAY et al.

S21G0430

Supreme Court of Georgia.

Decided: February 1, 2022

Mark Allen Yurachek, Yurachek & Associates, LLC, 1344 La France Street NE, Suite #3, Atlanta, Georgia 30308, for Appellant.

Thomas Monroe Mitchell, Carothers & Mitchell, LLC, 1809 Buford Highway, Buford, Georgia 30518, Tuwanda Rush Williams, Murray Joseph Weed, Gwinnett County Department of Law, 75 Langley Drive, Lawrenceville, Georgia 30045-3520, Patricia B. Attaway Burton, Deputy Attorney General, Elizabeth McRary Crowder, Tina Michelle Piper, Assistant Attorney General, Christopher M. Carr, Attorney General, Andrew Alan Pinson, Solicitor-General, Drew F. Waldbeser, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellee.

McMillian, Justice.

Carl Gardei filed a petition for declaratory judgment against R. L. "Butch" Conway, the Sheriff of Gwinnett County, and D. Victor Reynolds, the Director of the Georgia Bureau of Investigation ("GBI"), in their individual capacities (collectively "Respondents"),¹ alleging that Respondents’ continued enforcement against him of the statutory requirements governing Georgia's Sex Offender Registry (the "Registry"), see OCGA §§ 42-1-12 through 42-1-19 (the "Registry Act"), violated his constitutional rights. The trial court dismissed Gardei's petition on the ground that his claims for relief were time-barred under OCGA § 9-3-33,² the two-year statute of limitation for personal injury claims, because Gardei had initially registered under the Registry Act in 2009 and every year thereafter. The Court of Appeals affirmed in a divided opinion. See Gardei v. Conway , 357 Ga. App. 539, 851 S.E.2d 170 (2020). We granted Gardei's petition for certiorari, noting our particular concern as to whether Gardei's claims for declaratory and injunctive relief are subject to the limitation period set forth in OCGA § 9-3-33 and whether any applicable statute of limitation was tolled based on the requirement that Gardei annually renew his sex-offender registration. As explained below, we conclude that although Gardei's claims are subject to the two-year statute of limitation under OCGA § 9-3-33, because he seeks only prospective relief, the statute of limitation on those claims has not yet begun to run.³ Therefore, we reverse the Court of Appeals's judgment holding that Gardei's claims are time-barred and remand the case for further proceedings.

Because we are reviewing an order on a motion to dismiss, we accept as true the well-pled material allegations of Gardei's amended petitions and resolve any doubts in his favor. See Williams v. DeKalb County , 308 Ga. 265, 270 (2), 840 S.E.2d 423 (2020). Viewed in that light, Gardei's petition alleges that he pleaded guilty in 1992 to three counts each of sexual abuse, attempted sexual assault, and kidnapping in Arizona. He was released from prison in 2003, without any requirement for additional supervision or registration in Arizona. However, Gardei immediately moved to New Mexico, where he was required to register as a sex offender for a period of ten years based on his Arizona convictions. Gardei then moved from New Mexico to Georgia in 2009, before the ten-year New Mexico registration requirement had expired. Upon his arrival in Georgia, Gardei registered as a sex offender in accordance with the then-existing version of the Registry Act.⁴ Since that time, Gardei has complied with the Registry Act's requirement that he renew his sex offender registration each year. See OCGA § 42-1-12 (f) (4).⁵

However, Gardei now asserts that his Arizona offenses would not have required his registration on any basis other than the nonresident provisions of OCGA § 42-1-12 (e) (6) to (8) and that he has not committed any other criminal offenses. Therefore, since he would no longer be required to be registered as a sexual offender in New Mexico, Gardei argues he should no longer be subject to registration in Georgia or to the annual renewal requirement.

On October 22, 2018, Gardei filed his petition against Respondents,⁶ asking the trial court for declaratory and injunctive relief from Respondents’ continued enforcement of OCGA § 42-1-12, which he asserted violated the equal protection clause, due process clause, and the privileges and immunities clause of the United States Constitution and parallel provisions in the Georgia Constitution, and the retroactive laws clause and the citizen status clause of the Georgia Constitution, both facially and as applied. Gardei asked the trial court to declare that the statute is unconstitutional and that he is not subject to its requirements. Gardei also sought an injunction barring the enforcement of the Registry Act requirements against him and requested an award of his attorney fees, expenses, and costs.

After Gardei filed his petition, Conway and Reynolds each moved for dismissal on the ground that Gardei failed to state a claim under OCGA § 9-11-12 (b) (6). The trial court granted the Respondents’ motions to dismiss, concluding that Gardei's claims are time-barred under the two-year statute of limitation for personal injury actions set forth in OCGA § 9-3-33. Gardei appealed,⁷ and the Court of Appeals, in a divided panel opinion, affirmed the trial court's dismissal of the petition, holding that OCGA § 9-3-33 applied to Gardei's claims, see Gardei , 357 Ga. App. at 541 (1), 851 S.E.2d 170, and that the annual registration requirement did not toll the limitation period under the "continuing violation" doctrine.⁸ See id. at 541-42 (2), 851 S.E.2d 170. In dissent, then-Chief Judge McFadden agreed that OCGA § 9-3-33 applied to Gardei's claims, but concluded that, because Gardei claims the "violations of his constitutional rights have continued into the present because he must re-register as a sex offender every year," his action is not time-barred under the continuing violation doctrine. Id. at 545 (2), 851 S.E.2d 170.

1. The threshold issue is whether a statute of limitation applies to Gardei's claims. Gardei argues that the Declaratory Judgment Act is a statutorily created cause of action and, because the Act does not include a statute of limitation, declaratory judgment actions are not subject to any statute of limitation. We disagree.

The Declaratory Judgment Act provides:

In cases of actual controversy, the respective superior courts of this state and the Georgia State-wide Business Court shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

OCGA § 9-4-2 (a). As described in the Act, the purpose "is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations[.]" OCGA § 9-4-1. See also Love v. Fulton County Bd. of Tax Assessors , 311 Ga. 682, 696 (3) (c), 859 S.E.2d 33 (2021) ("[T]he object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated." (citation omitted)); Baker v. City of Marietta , 271 Ga. 210, 213 (1), 518 S.E.2d 879 (1999) ("The Declaratory Judgment Act provides a means by which a superior court simply declares the rights of the parties or expresses its opinion on a question of law, without ordering anything to be done." (cleaned up)).

Thus, the Declaratory Judgment Act merely creates a procedural device for the declaration of rights between parties and does not otherwise override substantive or procedural law. Indeed, over 70 years ago, this Court determined that the predecessor to the current Declaratory Judgment Act "does not nullify statutes of limitations and established principles of law[.]" Bingham v. Citizens of Southern Nat. Bank , 205 Ga. 285, 288, 53 S.E.2d 228 (1949). Accord Burgess v. Burgess , 210 Ga. 380, 383 (2), 80 S.E.2d 280 (1954) (quoting Bingham ); Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Assn., Inc. , 306 Ga. App. 794, 800, 702 S.E.2d 910 (2010) (rejecting party's contention that the Declaratory Judgment Act "tolls, enlarges, or otherwise nullifies" the applicable limitation period). See also OCGA § 9-3-3 ("Unless otherwise provided by law, limitation statutes shall apply equally to all courts.").

In Bingham , we held that the trial court properly sustained demurrers to the petitioner's suit for declaratory judgment to declare his rights under a will after two previous proceedings in the same court had adjudicated the issues. See 205 Ga. at 285-86, 53 S.E.2d 228. These prior proceedings occurred more than three years before the filing of the declaratory judgment action was brought, and therefore, the Court held that the petitioner's action was time-barred under Ga. Code § 3-702 (1933), which provided that "[a]ll proceedings of every kind in any court of this State, to set aside judgments or decrees of the courts, shall be made within three years from the rendering of said judgments or decrees." See also id. at 288, 53 S.E.2d 228 ("Bingham's petition does not show that any application was made to vacate or set aside the judgment procured at the instance of the trustees within the statute of limitations. (Code, § 3-702)."). We see no reason to depart from this long-standing precedent and thus, we conclude that, even though the Declaratory Judgment Act does not include a specific statute of limitation, declaratory judgment actions generally are subject to statutory limitation periods.

2. Having determined that Gardei's declaratory judgment action is subject to a statute of limitation, the next step in the analysis is to determine what statute of limitation applies to his claims.

(a) Although we have not addressed the issue, several federal appellate courts have concluded that actions "for declaratory relief will be barred to the same...