Southern LNG, Inc. v. MacGinnitie

• Decision Date: 29 November 2011
• Docket Number: No. S11A1207.,S11A1207.
• Citation: 290 Ga. 204,11 FCDR 3849,719 S.E.2d 473
• Parties: SOUTHERN LNG, INC. v. MacGINNITIE.
• Court: Georgia Supreme Court

11 FCDR 3849

290 Ga. 204

719 S.E.2d 473

SOUTHERN LNG, INC.

v.MacGINNITIE.

No. S11A1207.

Supreme Court of Georgia.

Nov. 29, 2011.

Mandamus. Fulton Superior Court. Before Judge LaGrua.

Lisa F. Stuckey, Herbert H. Gray, III, Brian J. Morrissey, William J. Seigler, III, Ragsdale, Beals, Seigler, Patterson & Gray, LLP, Atlanta, for appellant.

Warren R. Calvert, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Heather Ramsey Ryfa, Asst. Atty. Gen., Department of Law, for appellee.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 S.E. 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.

All the Justices concur, except NAHMIAS, J., who concurs in judgment only, and BENHAM, J., who dissents.

BENHAM, Justice, dissenting.

I respectfully disagree with the majority's reversal of the trial court's dismissal of appellant's complaint for declaratory judgment and mandamus relief. I believe the trial court was correct when it determined that sovereign immunity precluded appellant from bringing a declaratory judgment action against the Commissioner and, while the portion of appellant's complaint seeking mandamus relief was not subject to dismissal on sovereign immunity grounds, I believe the trial court was correct in dismissing the mandamus action because appellant was precluded from seeking mandamus relief since appellant has an adequate remedy at law.

1. The majority believes it is unnecessary to address whether the trial court was correct in holding that sovereign immunity barred appellant's petition for declaratory judgment. I disagree with that view and believe that the doctrine of sovereign immunity bars appellant's declaratory judgment action since it does not fall within the waiver of sovereign immunity found in OCGA § 50–13–10.

The Georgia Constitution states that “[e]xcept as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies ... [and] can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” 1983 Ga. Const., Art. I, Sec. II, Par. IX(e). A waiver of sovereign immunity in certain declaratory judgment actions is found in OCGA § 50–13–10 of the Administrative Procedures Act. It authorizes the filing of an action for declaratory judgment to determine the validity of any 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.” “Pursuant to OCGA § 50–13–10, the state has ‘consented’ to be sued and has waived sovereign immunity only as to declaratory judgment actions wherein the rules and regulations of its departments and agencies are challenged.” State Bd. of Ed. v. Drury, 263 Ga. 429, 432, 437 S.E.2d 290 (1993) (emphasis in original). See also Dept. of Transp. v. Peach Hill Properties, 280 Ga. 624(1), 631 S.E.2d 660 (2006); Live Oak Consulting v. Dept. of Community Health, 281 Ga.App. 791(1), 637 S.E.2d 455 (2006). The limited waiver of sovereign immunity does not authorize a declaratory judgment action challenging a state agency's forms or interpretive rules. Roy E. Davis Co. v. Dept. of Revenue, 256 Ga. 709, 711, 353 S.E.2d 195 (1987). See also Ga. Dept. of Medical Assistance v. Beverly Enterprises, 261 Ga. 59, 401 S.E.2d 499 (1991). The petition for declaratory judgment filed by appellant does not fall within the limited waiver of sovereign immunity provided by OCGA § 50–13–10 because appellant's petition does not challenge the application of a rule, waiver, or variance; instead, it questions what it believes is the Commissioner's application of a statute. Since appellant's petition does not fall within the limited waiver of sovereign immunity, the trial court correctly dismissed that portion of appellant's complaint for failure to state a claim.

None of the arguments presented by appellant in its effort to establish that sovereign immunity is not applicable to its declaratory judgment action withstand scrutiny. Appellant argues that sovereign immunity may not be applied to its petition since it did not seek monetary relief. “Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability....” Bd. of Regents, etc., of Ga. v. Canas, 295 Ga.App. 505(1), 672 S.E.2d 471 (2009). While sovereign immunity does shield the State from suits seeking to recover damages ( In the Interest of A. V. B., 267 Ga. 728(1), 482 S.E.2d 275 (1997)), its application is not limited to protecting the public purse from being used to pay damages; sovereign immunity protects the government from legal action unless the government has waived its immunity from suit. Cameron v. Lang, 274 Ga. 122(3), 549 S.E.2d 341 (2001).

Citing Undercofler v. Colonial Pipeline Co., 114 Ga.App. 739, 152 S.E.2d 768 (1966), appellant contends its declaratory judgment action was properly before the trial court and should not have been dismissed on the basis of sovereign immunity. In Colonial Pipeline, a taxpayer that owned property in 35 Georgia counties and operated a pipeline system carrying liquid petroleum in Georgia sought and received a declaratory judgment against the Revenue Commissioner that it was required to make its annual ad valorem tax return to the Commissioner rather than the local tax commissioner in each county in which it had property. There was neither discussion nor application of the doctrine of sovereign immunity in Colonial Pipeline, perhaps due to the fact that sovereign immunity did not gain constitutional status in Georgia until 1974, eight years after the Colonial Pipeline decision. With the ratification of the 1974 constitutional amendment came “an entirely new ball game as far as the doctrine of sovereign immunity is concerned ... [and] other opinions of the courts of this state dealing with the judicial application of the rule prior to the 1974 amendment are not applicable to claims against the state arising since the 1974 amendment.” Dept. of Human Resources v. Briarcliff Haven, 141 Ga.App. 448, 450–451, 233 S.E.2d 844 (1977).

2. The trial court found that the portion of appellant's complaint seeking a writ of mandamus failed to state a claim upon which relief could be granted because the doctrine of sovereign immunity was applicable. The complaint sought mandamus to compel the Commissioner to take actions required of him with regard to the return of real property owned by a “public utility,” as that term is defined in OCGA § 48–1–2. I agree with the majority's implicit determination that the trial court erred when it ruled that the doctrine of sovereign immunity was applicable to that portion of the complaint in which appellant sought a writ of mandamus. See Stanley v. Sims, 185 Ga. 518, 526, 195 S.E. 439 (1938). However, upon employment of “right for any reason” analysis, the trial court's error is not reversible error. Mandamus is an extraordinary legal remedy that issues to compel the performance of an official duty (OCGA § 9–6–20), and “[t]he right to the extraordinary writ of mandamus exists only upon meeting a two prong test: (1) the applicant must demonstrate a clear legal right to the relief sought, and (2) there must be no other adequate remedy.” Carnes v. Crawford, 246 Ga. 677, 678, 272 S.E.2d 690 (1980). It is appropriate to dismiss a petition for a writ of mandamus where the plaintiff does not have a clear legal...