Judicial Council of Ga. v. Brown & Gallo, LLC

Decision Date22 November 2010
Docket NumberNo. S10G0359.,S10G0359.
CourtGeorgia Supreme Court
PartiesJUDICIAL COUNCIL OF GEORGIA et al. v. BROWN & GALLO, LLC.
702 S.E.2d 894
288 Ga. 294
10 FCDR 3799


JUDICIAL COUNCIL OF GEORGIA et al.
v.
BROWN & GALLO, LLC.


No. S10G0359.

Supreme Court of Georgia.

Nov. 22, 2010.

702 S.E.2d 896

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, for appellants.

Fellows & LaBriola, Henry D. Fellows, Jr., Christina M. Baugh, Atlanta, for appellee.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Norman S. Fletcher, Rome, amici curiae.

BENHAM, Justice.

288 Ga. 294

A question presented by this case is whether the Judicial Council of Georgia and the Board of Court Reporting of the Judicial Council

288 Ga. 295
of Georgia fall within "the judiciary," as that term is used in OCGA § 50-13-2(1) of the Administrative Procedure Act and therefore are exempt from the coverage of the Act.1 We hold that they are part of the judiciary as that term is used in OCGA § 50-13-2(1) and reverse the judgment of the Court of Appeals.

This appeal arose when Brown & Gallo, an independently-owned court reporting agency, filed an action for declaratory judgment pursuant to OCGA § 50-13-10 of the Administrative Procedure Act, alleging that a portion of the code of professional ethics for court reporting adopted by appellant Board of Court Reporting of the Judicial Council of Georgia ("the Board") in 1994 and favorably reviewed by appellant Judicial Council of Georgia ("the Council") was invalid because it was vague, ambiguous, unreasonable, arbitrary and capricious, overbroad and beyond the scope of the Board's authority, and that the application of the rule to Brown & Gallo was unreasonable, arbitrary and capricious, and beyond the scope of the Board's authority.2 Brown & Gallo also sought a stay of the grievance procedure initiated by the Board 34 days earlier that alleged a possible violation by Brown & Gallo of the same portion of the ethics code.3 The Council and the Board sought dismissal of the declaratory judgment action on several grounds, one of them being that the action was barred by sovereign immunity. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX. Appellees reasoned that the Administrative Procedure Act was a waiver of sovereign immunity that specifically exempted "the judiciary" from its coverage and, as part of the judiciary, the Council and the Board were therefore exempt from the waiver of sovereign immunity. The trial court denied the motion to dismiss, ruling, among other things, that the Administrative Procedure Act's exclusion of "the judiciary" from its definition of "agency" in OCGA § 50-13-2(1) 4 did not include the Council and

288 Ga. 296
the Board because they were formed to define and regulate the practice of court reporting and to make all necessary rules and regulations to do so and, while an "agency of the judicial branch" ( OCGA § 15-14-23), they were not "the judiciary." 5 The trial court's order did not contain the definition of "judiciary" it employed. Using Court of Appeals Rule 36, the Court of Appeals issued a non-precedential affirmance of the trial court without opinion.
702 S.E.2d 897
Judicial Council of Georgia v. Brown & Gallo, LLC, 299 Ga.App. XXII (2009).6 We granted the petition for a writ of certiorari filed by the Council and the Board to determine whether the Court of Appeals erred in affirming the trial court's denial of the motion to dismiss filed by the Council and the Board.

OCGA § 50-13-10 is part of the Administrative Procedure Act and authorizes the filing of a declaratory judgment action questioning the validity of any rule that allegedly interferes with or impairs legal rights, without the petitioner having first requested the agency to pass upon the validity of the rule. "Rule" is statutorily defined in OCGA § 50-13-2(6) as meaning "each agency regulation, standard, or statement of general applicability ... [,]" and, as previously noted, "agency" is statutorily defined in OCGA § 50-13-2(1) as "each state board, bureau, commission, department, activity, or officer expressly authorized by law to make rules and regulations or to determine contested cases, except the General Assembly; the judiciary; the Governor...." It is without question that the Board and the Council are authorized by law to make rules and regulations with regard to the...

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28 cases
  • W. Sky Fin., LLC v. State ex rel. Olens
    • United States
    • Georgia Supreme Court
    • 31 d1 Outubro d1 2016
    ...as to insure that the legislature meant something else." (Citation and punctuation omitted.) Judicial Council of Ga. v. Brown & Gallo, LLC , 288 Ga. 294, 297, 702 S.E.2d 894 (2010). For the reasons set forth in Division 1 (a), we conclude that OCGA § 16-17-1 (d), including the statement tha......
  • Rivera v. Washington
    • United States
    • Georgia Supreme Court
    • 25 d5 Março d5 2016
    ...the claims are in the same posture of pre-trial determination, and subsequent appellate review.5 In Judicial Council of Ga. v. Brown & Gallo, 288 Ga. 294, 296 n. 6, 702 S.E.2d 894 (2010), in which this Court had granted a writ of certiorari to the Court of Appeals, we noted that the Court o......
  • Neal v. State, S11A1663.
    • United States
    • Georgia Supreme Court
    • 27 d1 Fevereiro d1 2012
    ...capable of more than one meaning, we construe the provision so as to carry out the legislative intent. Judicial Council of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 702 S.E.2d 894 (2010). Both the could-be-imposed language and its constitutional history support interpreting our constitution a......
  • In re
    • United States
    • Georgia Court of Appeals
    • 21 d1 Outubro d1 2013
    ...time, we must seek to effectuate the intent of the legislature.”) (citation and punctuation omitted); Judicial Council of Ga. v. Brown & Gallo, 288 Ga. 294, 297, 702 S.E.2d 894 (2010) (“[T]he ‘golden rule’ of statutory construction requires [courts] to follow the literal language of [a] sta......
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2 books & journal articles
  • Administrative Law - Martin M. Wilson and Jennifer A. Blackburn
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 63-1, September 2011
    • Invalid date
    ...of the judiciary under the 79. Id. at 257, 699 S.E.2d at 455. 80. Id. 81. Id. 82. Id. at 258, 699 S.E.2d at 456. 83. Id. 84. Id. 85. 288 Ga. 294, 702 S.E.2d 894 (2010). 86. Id. at 294-95, 702 S.E.2d at 896. 87. Id. 88. O.C.G.A. tit. 50, ch. 13. (2009 & Supp. 2011). 89. Id.; see also O.C.G.A......
  • "wrest" in Peace: the Effect of the Georgia Environmental Protection Division's "wrested Vegetation Rule" on Coastal Salt Marshes
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 32-4, June 2016
    • Invalid date
    ...inconvenience as to insure that the legislature meant something else." Id. at 129 (quoting Judicial Council of Ga. v. Brown & Gallo, LLC, 702 S.E.2d 894, 897 (Ga. 2010)).85. See 2004 Ga. Laws 352. The Act lays out an enumerated list of exceptions to which the buffer provisions do not apply.......

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