Schumacher v. City of Roswell

HINES, Chief Justice,

dissenting.

I respectfully dissent because the opinion of the majority needlessly upturns the well-established, well-founded, and absolutely clear Georgia precedent regarding the appellate procedure in zoning cases to regress toa state of the law which was, and will now again be, abstruse and uncertain.

As noted by the Court of Appeals, the starting point in the determination of the appropriate procedure for pursuing an appeal in the Court of Appeals, and indeed in this Court, is the examination of OCGA § 5-6-34, which outlines lower court judgments and orders that parties may appeal directly, and OCGA § 5-6-35, which prescribes the cases in which parties must file an application for discretionary appeal. Rebich v. Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994). If a direct appeal of a judgment is not authorized under OCGA § 5-6-34 because the appealing party was required to pursue the discretionary application process set forth in OCGA § 5-6-35, the appellate court does not have jurisdiction to hear the merits of the appeal, and therefore, must dismiss it. Id. This comports with the primary legislative purpose of the passage of OCGA § 5-6-35, which is to aid the appellate courts in managing massive caseloads by giving them the discretion not to entertain an appeal in circumstances in which a direct appeal is not the optimal use of the appellate forum. Id. And, as was stressed in Rebich, generally the underlying subject matter of the appeal con trols as to whether the procedure for discretionary appeal under OCGA § 5-6-35 must be followed. Id.

In this case, the issue is straightforward — whether the Plaintiffs were required by OCGA § 5-6-35 (a) (1) to file an application for discretionary appeal, and therefore, were not entitled to a direct appeal under OCGA § 5-6-34. In relevant part, OCGA § 5-6-35 (a) (1) requires an application to appeal from “decisions of superior courts reviewing decisions of . . . local administrative agencies.” In Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (383 SE2d 123) (1989), this Court determined that appeals in all zoning cases, whether to this Court or the Court of Appeals would require a discretionary applica*645tion,8 id. at 426 (1), reasoning that such appeals were “from the decision of a court reviewing a decision of an administrative agency within the meaning of OCGA § 5-6-35 (a) (l).”9 Id. Trend involved an as-applied constitutional challenge regarding the landowner’s property, not a facial due process challenge like the one presented in this case.

However, subsequently, in O S Advertising Co. of Ga. v. Rubin, 267 Ga. 723 (482 SE2d 295) (1997), the Court was squarely faced with the issue of whether one who raises a facial challenge to a zoning ordinance should have a right of direct appeal. In such challenges the administrative agency cannot and does not adjudicate the claim. Nevertheless, although this Court expressly acknowledged that there were some “fallacies in the rationale in Trend,” we declined to create an exception to Trend in the case of such a challenge to a zoning ordinance. Id. at 725 (2). We explained that the

proposed distinction would create confusion concerning the proper procedure to follow in appeals in zoning cases without providing property owners or zoning authorities any additional review of their substantive claims. Moreover, it would permit litigants to control the appellate procedure, contrary to legislative intent, by raising a facial challenge to every zoning ordinance. . . . More problematic, it would impose on both the parties and this Court the difficult task of determining whether the superior court acted in its role as a “trial court” or as a “reviewing court” in each zoning case. As a result, parties would file both an application and a direct appeal to avoid the risk of reaching a conclusion different from this Court and thus losing their right to any appellate review. Because the decision in Trend provides a clear, efficient, and fair rule, we follow it here and dismiss this direct appeal.

Id. See also Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 857 (1) (572 SE2d 530) (2002), disapproved on other grounds by City of Cumming v. Flowers, 300 Ga. 820, 832 (6) (a) (797 SE2d 846) (2017).

*646Contrary to the very premise of the majority, Rubin with its application of Trend is direct and controlling precedent in this appeal as a matter of fact and of law. First, although the underlying case in Rubin involved an administrative determination regarding a variance, the sole issue on appeal was a facial challenge to the subject zoning ordinance. What is more, even if the Rubin appeal is viewed as one involving both an administrative decision and a facial attack, this Court’s dismissal of the direct appeal and endorsement of the procedure for discretionary appeal implicitly confirms that Rubin controls the present case; this is so because if the facial challenge would have conferred a right of direct appeal then the administrative decision would also have been a matter of direct appeal in accordance with the mandate of OCGA § 5-6-34 (d).10 See Johnson v. State, 300 Ga. 252, 257 (3) (794 SE2d 60) (2016). Indeed, the majority’s procedural premise that the route to appeal is governed by everything raised in the litigation below rather than the issue on appeal, i.e., that the presence of a variance or other administrative zoning ruling guides the appellate procedure in regard to an attendant facial challenge, not only runs afoul of OCGA § 5-6-34 (d) but is directly contrary to our precedent; such precedent dictates that we look only to the issues on appeal to determine whether the appeal is one of right or discretion, and issues, otherwise a matter of review by discretion may be reviewed on direct appeal when appealed as part of a judgment that is directly appealable. Eickhoff v. Eickhoff, 263 Ga. 498, 500 (1) (435 SE2d 914) (1993), overruled on other grounds by Lee v. Green Land Co., 272 Ga. 107, 108 (527 SE2d 204) (2000). But, perhaps even more significantly, the holding in Rubin was broad and unequivocal: “Adhering to our decision in Trend Development Corp. v. Douglas County, we reiterate that all appeals in zoning cases require an application and dismiss this direct appeal for lack of jurisdiction.” Id. *647at 724 (footnote omitted; emphasis supplied). This Court further stated that the holding in Trend “established a bright-line rule for both litigants and the appellate courts. If the underlying subject-matter is zoning, an application for discretionary appeal must be filed.” Id. at 724 (1) (emphasis supplied). The proper characterization of this litigation is unquestionably that it is a zoning case; therefore, it is controlled by Trend and Rubin. The adoption of the ordinance in question in some measure rezoned Plaintiffs’ parcels of real property, allegedly to their detriment. Thus, this is no less a zoning matter affecting particular properties than an adverse decision on a request for a variance. Indeed, it arguably is a harsher particularized zoning determination in that it completely changes the zoning of the properties in question whereas the denial of a variance leaves the applicable zoning in place. If these specific Plaintiffs and their properties had not allegedly sustained harm from the new zoning code then they would not have standing to challenge it in the first place. Oasis Goodtime Emporium I, Inc. v. City of Doraville, 297 Ga. 513, 531 (5) (773 SE2d 728) (2015). The fact that they did so by a collateral attack on the zoning ordinance does not change the applicability of Trend and Rubin; we have made plain that OCGA § 5-6-35 (a) (1) procedurally governs not only cases in which there is a direct appeal to the superior court from the local government’s zoning decision, but also where there is a collateral attack on the zoning decision by directly filing an action in superior court for relief. See Hamryka v. City of Dawsonville, 291 Ga. 124, 125 (2) (728 SE2d 197) (2012).

While Trend has certainly produced a significant and consistent body of law in regard to appellate procedure in zoning cases, as noted in Rubin, the briefly-stated rationale of Trend, i.e., that all zoning cases would require discretionary appeal because they were within the ambit of OCGA § 5-6-35 (a) (1), is problematic. This is especially apparent in the case of a facial due process challenge to a zoning ordinance, where the local administrative agency does not adjudicate the due process question. The express terms of OCGA § 5-6-35 (a) (1) contemplate that there be a “decision” of a state or local “administrative agency,” i.e., a lower tribunal, that is “reviewed” by the superior court.

This approach in zoning cases does stand in contrast to our approach in non-zoning cases. In non-zoning cases, we have said that a “decision” of an administrative agency within the meaning of OCGA § 5-6-35 (a) (1) is one that is adjudicatory in nature, which need not be characterized by formal adjudicative procedures. See State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 399-407 (4) (a) and n. 22 (788 SE2d 455) (2016) (compiling cases indicating that “[t]he decisions in which this Court has actually *648applied OCGA § 5-6-35 (a) (1) to require applications for discretionary review in cases involving administrative agencies almost uniformly appear to have concerned agency determinations of an adjudicative nature”). We noted that

[w]hen addressing agency determinations that are not quint - essentially executive, the courts routinely have drawn a distinction between determinations that are legislative in nature, on the one hand, and those that are adjudicative in nature, on the other. Although the line between legislation and adjudication is not always easy to draw, there seems to be some agreement about the defining characteristics of these two sorts of administrative determinations. Administrative determinations of a legislative nature are prospective in application,... and often marked by a general factual inquiry that is not specific to the unique character, activities or circumstances of any particular person. Determinations of an adjudicative nature, on the other hand, are immediate in application, specific in application, and commonly involve an assessment of facts about the parties and their activities, businesses, and properties.

Id. at 401 (4) (a) (citations and punctuation omitted). Thus, the determination of whether there has been a “decision” of an administrative agency for purposes of OCGA § 5-6-35 (a) (1) was analyzed in a manner not reflected in Trend/Rubin.11 And thus, Trend and its progeny Rubin should be considered in light of the policy of stare decisis.

Certainly, the doctrine of stare decisis is an essential part of a well-ordered system of jurisprudence, inasmuch as in most cases, it is of “more practical utility to have the law settled and to let it remain so, than to open it up to new constructions.” Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999). However,

[sjtare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision. ... In considering whether to reexamine a prior erroneous holding, we must balance the importance of having the question decided against the importance of having it decided right. In doing so, we consider *649factors such as the antiquity of the precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.

Woodard v. State, 296 Ga. 803, 812 (3) (b) (771 SE2d 362) (2015) (citations and emphasis omitted). See also Flowers, 300 Ga. at 820. Moreover, the respect for precedent is strongest in the case of statutory construction, where the legislative body is free to change this Court’s interpretation of its legislation. Hubbard v. United States, 514 U. S. 695, 696 (115 SCt 1754, 131 LE2d 779) (1995).

The soundness of reasoning is of import in the analysis, but it is not necessarily determinative. McKinney v. Pate, 20 F3d 1550, 1565 n. 21 (11th Cir. 1994) (affirming that “ ‘when [a] Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case’ ” (citation omitted; emphasis supplied)); Hubbard v. United States, supra at 716 (Scalia, J., concurring in part and concurring in the judgment) (explaining that courts must give reasons for ignoring stare decisis, “reasons that go beyond mere demonstration that the overruled opinion was wrong (otherwise the doctrine would be no doctrine at all)” (parenthetical in original)). Here, as we have acknowledged, Trend,’s bare bones statement of rationale premised upon OCGA § 5-6-35 (a) (1) has been called into question by a then majority of this Court. Rubin, supra at 725 (2). And, there is no further reasoning expressed in the opinion, sound or otherwise. However, again it is significant that the Trend rule helps implement the very purpose of the General Assembly in passing the discretionary appeal statute, i.e., promoting judicial management and economy. It alleviates confusion in the appellate process, and thereby benefits all concerned. Furthermore, it militates against specious claims by litigants in order to circumvent or control the appellate process.12 Simply, regardless of the flawed statement of rationale in Trend, there is a sound policy for the decision in that it provides a clear, efficient, and eminently workable rule in zoning cases. See Kimble v. Marvel Entertainment, LLC, _ U. S. _ (135 SCt 2401, 192 LE2d 463) (2015) (stare decisis carries enhanced force when a decision *650interprets a statute, even when the decision relies on the policies and purposes animating the law).

Admittedly, it is difficult to find the presence of reliance interests. Generally, reliance interests in the context of stare decisis refer to contract interests, property rights, and other substantive rights. Lejeune v. McLaughlin, 296 Ga. 291, 298 (2) (766 SE2d 803) (2014). That is plainly not the situation in the present case, as Trend and Rubin are decisions of appellate procedure. However, the remaining factors in the stare decisis analysis prove to be determinative here.

The ages of the decisions are significant in relationship to the resulting body of case law. Trend has now been the law of Georgia for nearly three decades, and consequently, has been cited as direct authority in numerous appellate decisions by this Court and the Court of Appeals, and has been highlighted in many secondary sources discussing Georgia jurisprudence. It has effectively functioned as the procedural gatekeeper in zoning cases, often determining the fate of untold parcels of real property. Its progeny Rubin has been the law for 20 years, and has served the same purposes. And as I have noted, the General Assembly, as the body enacting OCGA § 5-6-35 (a) (1), has for these decades been free to take legislative action in order to alter this Court’s interpretation of its legislation. Hubbard v. United States, supra at 696. But, tellingly it has not done so. See Kimble v. Marvel Entertainment, 135 SCt at 2410. Trend and Rubin have not been cast in doubt by any act of the General Assembly, and unquestionably they have become the well-settled law of this State.

But, most importantly in this situation is the factor of workability There can be little dispute that the bright line rule of Trend adhered to in Rubin has provided needed clarity and direction to the bench and bar in the all-too-often quagmire of appellate procedure. It leaves no doubt for trial courts, practitioners, and indeed, litigants as to the proper procedure for an appellate challenge of a zoning issue, and therefore, avoids the pitfall of dismissal of a fatally-flawed appeal. The workability of Trend cannot credibly be questioned. And, neither can the significance of the factor of utility be in doubt because if a matter of appellate procedure proves unworkable, due to vagueness, confusion, complexity, or otherwise, then the stated rationale for the procedure, even if reasonable in theory, is of little import. See Nahmias, J., concurring in Allaben v. State, 294 Ga. 315 (751 SE2d 802) (2013), overruled by State v. Springer, 297 Ga. 376 (774 SE2d 106) (2015) (in the context of stare decisis, workability can be the major concern). See also Swift & Co. v. Wickham, 382 U. S. 111, 116 (86 SCt 258, 15 LE2d 194) (1965) (“the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great”).

*651Contrary to any claim that the workability of a precedent is not a reason for retaining it, the United States Supreme Court and this Court have held otherwise. In Kimble v. Marvel Entertainment, 135 SCt at 2411, the Supreme Court stated that nothing about the precedent under consideration had proved unworkable; that the decision was “simplicity itself to apply”; that its “ease of use” appeared “in still sharper relief when compared to [the] proposed alternative”; and that the more “elaborate inquiry” would produce higher litigation costs and unpredictable results. Id. The Court determined that it should not trade in a decision which was eminently workable for one with perhaps better legal reasoning but which was not as workable. Id. It concluded that “[o]nce again, then, the case for sticking with long-settled precedent grows stronger: Even the most usual reasons for abandoning stare decisis cut the other way here.” Id.

This Court too has recently made plain that “the doctrine of stare decisis strongly counsels adherence to our longstanding, consistent, and workable precedents.” Savage v. State of Ga., 297 Ga. 627, 641 (5) (b) (774 SE2d 624) (2015) (emphasis supplied). See also Nahmias, J., concurring in PNC Bank, Nat. Assn. v. Smith, 298 Ga. 818, 824 (785 SE2d 505) (2016) (the holding at issue “is a four-decade-old statutory precedent that created a workable rule . . . and thus it should be followed as a matter of stare decisis”); Nahmias, J., concurring in Brown v. Crawford, 289 Ga. 722, 725-726 (715 SE2d 132) (2011) (the precedent had “been law for over a decade,” had been “applied in a number of cases,” and “the clear procedural rule ... is workable, ... as it simply requires the [filing of] a discretionary application to appeal”; “ ‘Stare decisis is an important principle that promotes the rule of law, particularly in the context of statutory interpretation, where our incorrect decisions are more easily corrected by the democratic process.’ ”).

To regress to pre-Trend puts the litigants, the attorneys, and the courts in the untenable position of determining the proper characterization of every action by zoning commissions or zoning boards, who typically perform a mixture of administrative, quasi-judicial, and legislative functions. The discretionary appellate procedure unequivocally ruled as applicable in all zoning cases by Trend and its progeny has long proved to be a clear and workable system for handling appeals in zoning cases, and this Court should not now stray from it.13 As we aptly noted in Rubin, the discretionary appeal *652procedure,

Decided June 30, 2017. John R. Monroe, for appellants. Freeman, Mathis & Gary, Dana K. Maine, Connor M. Bateman, for appellee.
does not deny a party in a zoning case the right to appellate review. It merely permits this Court to consider the appellant’s enumerations of error in a streamlined process that [potentially] omits oral arguments and a written opinion.

Id. at 724 (1).

Here, the Plaintiffs’ amended complaint seeking declaratory and injunctive relief challenged the City Council’s zoning decision to approve the Unified Development Code (“UDC”) and the new zoning map on due process and other grounds, and the Plaintiffs sought to have the UDC and map declared null and void and to prevent their enforcement. None of the Plaintiffs’ requests for relief were independent of the City Council’s decision to approve the UDC and the map, and none of the requests for relief could be granted or denied by the superior court without affirming, reversing, or in some manner rendering a judgment in regard to the City Council’s zoning decisions. Under these circumstances, in which an appeal is taken from a judgment of a superior court reviewing a zoning decision, there should be no direct appeal. Plaintiffs’ appeal to the Court of Appeals was properly a matter of discretion under OCGA § 5-6-35, rather than one of right under OCGA § 5-6-34. Accordingly, the Court of Appeals correctly dismissed the plaintiff petitioners’ direct appeal, and its judgment should be affirmed by this Court.

As Circuit Judge Vance observed in his dissent in Gulf States Manufacturers, Inc. v. N.L.R.B., 598 F2d 896 (5th Cir. 1979), the opinion of the majority “supplants clarity with needless confusion. The end and purpose of this change are not apparent. If the objective is to advance the state of the law, I respectfully submit that it fails.” Id. at 911.

I am authorized to state that Justice Benham and Judge Colvin join in this dissent.

Although the zoning appeal in Trend itself was not dismissed, the Court used it as the vehicle to announce the rule of appellate procedure to be followed in all future zoning cases as of the date Trend appeared in the Georgia Reports Advance Sheets.

The opinion also noted that in Ross v. Mullis Tree Service, 183 Ga.App. 627, 628 (360 SE2d 288) (1987), the Court of Appeals held that “ ‘OCGA § 5-6-35 (a) (1) is applicable to appeals from decisions of the superior courts reviewing decisions of local zoning tribunals. . . .’ ” Id.

OCGA § 5-6-34 (d) provides:

Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or else where . For purposes of review by the appellate court, one or more judgments, rulings, or orders by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all cases review all judgments, rulings, or orders raised on appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous. Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.

We noted in Keystone Knights that many administrative decisions are executive in nature, and thus, would not fall under the provisions of OCGA § 5-6-35 (a) (1).

If a facial due process challenge to the applicable zoning ordinance was allowed to confer a right of direct appeal, this might prove incentive to add such a claim to otherwise routine zoning litigation, or to bypass the administrative process entirely and rely solely on such a facial challenge burdening both the trial and appellate courts with a matter more expeditiously resolved by the local zoning commission or board.

The policy of Trend/Rubin has been applied only in the arena of zoning.