Schumacher v. City of Roswell

GRANT, Justice,

concurring.

I join the Court’s opinion in full, including its conclusion that the only issue decided today is that a freestanding challenge to the facial validity of a zoning ordinance, unaccompanied by any complaint regarding an individualized determination impacting a particular parcel of land, does not challenge a “decision” of an “administrative agency” under OCGA § 5-6-35 (a) (1). This decision is consistent with the text of the statute, and accordingly with our responsibility as judges to apply even complicated statutes as they are written by the General Assembly.

That said, I understand and appreciate the concerns of the dissenting opinion regarding the lack of clarity in appellate procedures. More often than not, one would expect a close adherence to the textual demands of a statute to lead to greater clarity in the law; an attorney should be able to turn to the statute in the codebook and determine whether a direct appeal or an application is appropriate in a given case. That ideal is not necessarily met here. But the dissent’s approach does not add clarity either, seeking to extend a rationale that we have already deemed to have “fallacies.” See O S Advertising Co. of Ga. v. Rubin, 267 Ga. 723, 725 (2) (482 SE2d 295) (1997).

As illustrated by the numerous divided decisions of this Court over the years, this statute has never been a source of great clarity; even the members of this Court have been unable to agree on which cases fall within the parameters of OCGA § 5-6-35 (a) (1). See, e.g., Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 857 (1) (572 SE2d 530) (2002) (after first holding that direct appeal was proper for appellants who had filed application for discretionary *642review, reverting to treat appellate filings as if they had been filed pursuant to an application for discretionary review, and granting the application); Powell v. City of Snellville, 275 Ga. 207, 208-210 (1), (2) (563 SE2d 860) (2002) (initially dismissing appellant’s discretionary applications because appellant had the right to direct review, but concluding after reviewing full record that the direct appeals should be dismissed and that applications were in fact required); Dunlap v. City of Atlanta, 272 Ga. 523, 524, 525 (531 SE2d 702) (2000) (Majority: “It is axiomatic that an appeal from a superior court’s review of an administrative decision must be made through an application for appeal.”) (Dissent: “[I]t is undisputed that the Board made no decision in this case. Dun lap has bypassed administrative review entirely and, thus, OCGA § 5-6-35 (a) (1) did not require him to comply with discretionary appeal procedures.”).

Even in the context of zoning, which has purportedly been the subject of a “bright line rule,” this Court has not been able to agree on which cases require an application. See maj. op. at p. 640 (citing Mid-Ga. Envtl. Mgmt. Group v. Meriwether County, 277 Ga. 670, 671-672 (1), 675-676 (5), (6) (594 SE2d 344) (2004); King v. City of Bainbridge, 272 Ga. 427, 428 (1) (531 SE2d 350) (2000); Outdoor West, Inc. of Ga. v. Coweta County, 270 Ga. 527, 527-528 (512 SE2d 604) (1999); Harrell v. Little Pup Dev. & Constr., 269 Ga. 143, 144 (498 SE2d 251) (1998)). For example, in Sprayberry v. Dougherty County, 273 Ga. 503, 505-507 (543 SE2d 29) (2001), this Court concluded over dissent that because appellants had not filed an appeal to the superior court seeking review of an administrative decision on zoning, the order in question was directly appealable under OCGA § 5-6-34 (a). The following year, the Court overruled Sprayberry in part, explaining that “to the extent Sprayberry holds that a litigant is not seeking ‘review’ of an administrative decision by filing a mandamus action in superior court to attack or defend that decision, Sprayberry is hereby overruled.” Ferguson v. Composite State Bd. of Medical Examiners, 275 Ga. 255, 258 (2) (564 SE2d 715) (2002). The Ferguson decision also included a special concurrence arguing that Sprayberry should not be overruled at all, and another concurrence arguing that Spray-berry should be overruled in its entirety. See id. at 258 (Carley, J., concurring specially); id. at 260 (Hines, J., concurring). This is not the stuff of bright lines.

We recently attempted to bring some needed clarity to this interpretive enterprise by explaining in Keystone Knights that decisions can be “adjudicative,” “legislative,” or “executive,” and that an application is required to seek review of “adjudicative” decisions by administrative agencies. State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 400-406 (4) (a) (788 SE2d 455) (2016). *643That decision was a valuable step in asserting order over our jurisprudence in this area, but it still left much to be divined by practicing attorneys.6 Of course, in fairness to Keystone Kn ights, the complexity of the analysis required under any approach that takes statutory language seriously counsels in favor of a legislative solution. What, for example, is a “decision”? Or an “administrative agency”? And what is the answer when a case raises claims regarding legislative, executive, and adjudicative decisions by a government entity acting in different capacities with respect to each of the “decisions”? The statute invites rather than answers these questions, and we can only do so much to simplify while also remaining faithful to its text.7

Accordingly, the General Assembly may wish to clarify the scope of the matters that are subject to the discretionary appeal process. Until then, the best path forward — as remarkable as this is — may well be to follow the advice of two leading Georgia appellate treatises and file a discretionary application in every instance where there is any doubt. See McFadden, Brewer & Sheppard, Ga. Appellate Practice with Forms, § 8:12, p. 245 (2016-2017 ed.) (“The uncertainty created by these decisions, while seemingly academic, becomes less so in the context of the principle that the discretionary application requirements apply even within an area specifically referenced in the direct appeal provisions, and the Supreme Court’s reminders that the discretionary application process is intended to reduce its caseload. In that situation, the ‘tie’ may not go to the direct-appeal runner, and either a discretionary application or an application together with a direct appeal would be the wiser course.”); Michael B. Terry, Georgia Appeals: Practice and Procedure with Forms 122 (2015) (“when in doubt consider exercising an ‘abundance of caution,’ such as by filing both a notice of appeal and a discretionary application”).

In fact, the more efficient path would be to file only an application, because this Court has made clear that when an application is filed, but a direct appeal is permitted, we will grant the application under OCGA § 5-6-35 (j). See Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 20 n.3 (694 SE2d 346) (2010). In contrast, where an application for discretionary appeal is required, but is not filed, this Court *644does not have jurisdiction to consider the appeal, and the case will be dismissed. See Dunlap, 272 Ga. at 524. Where a litigant is in the quite understandable position of not being certain whether an application for appeal is required, the safer path is the one through the requirements of OCGA § 5-6-35 (a) (1).

I am authorized to state that Justice Nahmias joins in this concurrence.

I have my own doubts about whether Keystone Knights may have read “adjudicative” too broadly and “executive” too narrowly, as not every individualized decision is truly adjudicative, no matter how specific or immediate. But that particular issue is not relevant to the outcome here, and it may also be that Keystone Knights leaves sufficient room for the category of “executive” decisions as more cases come before us.

Nor do these questions address the additional layers of complexity that come about in cases that also require some application of OCGA § 5-6-34. See, e.g., Ferguson, 275 Ga. at 256-257; Rebich v. Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994).