Charles H. Wesley Education Foundation, Inc. v. State Election Board

The Charles H. Wesley Education Foundation, Inc. (Appellant) is a non-profit corporation that has successfully litigated certain voter registration issues in federal court. Charles H. Wesley Education Foundation v. Cox, 324 FSupp2d 1358 (N.D. Ga. 2004), aff'd 408 F3d 1349 (11th Cir. 2005). On August 25, 2005, Appellant petitioned the State Elections Board for the promulgation of new voter registration rules.

An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule____Within 30 days after submission of a petition, the agency either shall deny the petition in writing, stating its reasons for the denial, or shall initiate rule-making proceedings in accordance with Code Section 50-13-4.

OCGA§ 50-13-9. During a public meeting on September 14, 2005, at which the Board adopted certain previously announced amendments, it was discovered that the Board’s staff and attorneys had inadvertently failed to forward Appellant’s petition to Board members. However, the Board indicated that it would still review the petition.

*708About two months later, the Board had not yet taken any further action, and Appellant brought suit against the Board, its members, and the Secretary of State, who is its chairperson (Appellees). Appellant sought declaratory judgment and mandamus, alleging that Appellees had violated OCGA § 50-13-9, as well as certain state and federal constitutional requirements, by failing either to deny Appellant’s petition within 30 days or to commence rule-making proceedings as specified in that statute. Appellees filed a motion to dismiss and subsequently renewed that motion, attaching an April 7, 2006 letter from their attorney to Appellant’s counsel, stating that its petition had been rejected with the enactment of different rules, and setting forth reasons for that rejection. Ten days later, the trial court concluded that this letter rendered Appellant’s claims moot. However, due to the likelihood of appeal, the trial court also considered the substance of those claims and dismissed the complaint. Appellant appeals from this order.

1. Appellant initially contends that the trial court erroneously failed to provide notice and reasonable opportunity to present evidence in opposition to the renewed motion and the letter attached thereto. Neither Appellant nor the dissent cites any authority that, upon submission and consideration of evidence with respect to the ground of mootness, a motion to dismiss must be converted into a motion for summary judgment. Nevertheless, a trial court generally should allow a party 30 days to respond to a motion and to any evidence submitted in support thereof. See Uniform Superior Court Rule 6.2. Compare Garnett v. Murray, 281 Ga. 506, 507 (1) (639 SE2d 475) (2007) (supplemental brief filed by movant did not extend time for response); Dearing v. State of Ga., 243 Ga. App. 198, 203 (3) (532 SE2d 751) (2000) (“Where evidence is not required, a court has the discretion to rule on a motion to dismiss before the 30 days required by USCR 6.2 expires. [Cit.]”). However, even assuming that the trial court erred in that regard, dismissal of the complaint was nevertheless proper if it failed to state a claim upon which relief could be granted, as evidence was not required for the trial court to make that alternative determination. See OCGA§ 9-11-12 (b) (6); Evans v. Just Open Government, 242 Ga. 834, 841 (7) (251 SE2d 546) (1979); Dearing v. State of Ga., supra. Contrary to what the dissent argues, it is not necessary to construe the motion to dismiss as a motion for judgment on the pleadings, since the trial court has not entered a pre-trial order and, therefore, the pleadings are not, strictly speaking, “closed” within the meaning of OCGA § 9-11-12 (c). Richard C. Ruskell, Davis and Shulman’s Ga. Practice and Procedure § 9:7, p. 500 (2007-2008 ed.).

2. The failure of the Board to act on Appellant’s petition for the promulgation of rules within 30 days is not a valid basis for any legal *709relief if the 30-day period of OCGA § 50-13-9 is merely directory rather than mandatory.

A substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.

OCGA § 1-3-1 (c). “This provision of statutory construction has been applied in many cases to statutes which provide that certain acts must be performed by public officials within specified periods of time. [Cits.]” Clayton County v. Evans, 258 Ga. 146, 147 (366 SE2d 282) (1988).

So, this [C]ourt has held that language contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act. [Cits.]

Barton v. Atkinson, 228 Ga. 733, 739 (1) (187 SE2d 835) (1972). Compare State v. Henderson, 263 Ga. 508, 510, fn. 6 (436 SE2d 209) (1993) (recognizing a rejection of this proposition in cases construing the time requirements in the forfeiture statute). “[I]n such instances ‘shall’ denotes simple futurity rather than a command. [Cit.]” Hardison v. Fayssoux, 168 Ga. App. 398, 400 (309 SE2d 397) (1983).

The relevant language of OCGA § 50-13-9 states simply that, “[w]ithin 30 days after submission of a petition, the agency either shall deny the petition in writing, stating its reasons for the denial, or shall initiate rule-making proceedings . . . .” The initiation of rule-making proceedings is not a penalty for the failure to comply with the 30-day provision, but rather is one of the two possible alternative actions available to the agency which was requested to promulgate rules. Thus, OCGA § 50-13-9 is analogous to statutes which require that a final decision, either granting or denying an administrative application, be rendered within a certain period. See Thebaut v. Ga. Bd. of Dentistry, 235 Ga. App. 194 (1) (509 SE2d 125) (1998). Such provisions are generally directory unless there are additional negative words which prevent the agency from taking action after expiration of the time period. OCGA § 50-13-9 does not *710state that, if action by the agency is not taken within 30 days, it is foreclosed or that a certain result will occur by operation of law. Thebaut v. Ga. Bd. of Dentistry, supra. Nor does that statute in any other manner expressly declare that a designated result will follow noncompliance or that the agency will cease to have authority to take specified action after 30 days. Thebaut v. Ga. Bd. of Dentistry, supra at 196 (1).

This Court has elaborated upon the final clause of the rule from Barton quoted above, holding as follows: “ ‘A statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result.’ ” Sanchez v. Walker County Dept. of Family & Children Services, 237 Ga. 406, 410 (229 SE2d 66) (1976). We conclude that the substantial rights of those who request the promulgation of rules pursuant to OCGA § 50-13-9 will not be injured or prejudiced by delaying for more than 30 days the decision of whether to initiate rule-making proceedings. The precise beginning of the time line for undertaking such a complex administrative process as rule-making is not of the essence of the statutory right to petition for the commencement of that process. See Barton v. Atkinson, supra at 740 (1). Compare Sanchez v. Walker County Dept. of Family & Children Services, supra at 410-411 (failure to comply with notice and hearing requirements of juvenile code injured substantial rights of parent to possession of child and as a party to proceedings involving the child). Accordingly, the 30-day period set forth in OCGA § 50-13-9 is directory only, and not mandatory.

3. Appellant’s amended complaint is completely dependent upon OCGA § 50-13-9. The theory of the complaint is that, because Appellees violated Appellant’s rights by failing to act within 30 days, it is now entitled to the commencement of rule-making proceedings. However, Appellant does not have any such rights under the statute which, as discussed, imposes only a directory duty on Appellees. Furthermore, Appellant does not ever claim any constitutional right to action by Appellees which is independent of the statute. The mandamus claim seeks to compel the Board immediately to grant Appellant’s petition and to commence rule-making proceedings. However, the Board clearly has the discretion to deny the petition instead, and is not required to make its determination prior to the expiration of 30 days. Therefore, Appellant’s complaint has failed to set out a framework within which it could show that it has a clear legal right to have performed the “particular act” which it seeks to have enforced. Clayton County v. Evans, supra at 148; Willis v. Dept. of Revenue, 255 Ga. 649, 650 (2) (340 SE2d 591) (1986). Because “the *711legislature vested the [A]ppellees with discretionary authority, a writ ofmandamus will not lie. [Cits.]” Smith v. Cofer, 243 Ga. 530, 531 (255 SE2d 49) (1979).

4. In its claim for declaratory judgment, Appellant alleges that Appellees violated its rights by failing to deny its petition within 30 days or to institute rule-making proceedings, and that it is entitled to the immediate commencement of such proceedings. Again, however, the statutory 30-day period is not mandatory, and the Board is authorized to deny the petition after expiration of that time. Furthermore, Appellant’s declaratory judgment claim, which was immediately followed in the complaint by requests for mandatory injunctive and mandamus relief,

was not truly an action for declaratory judgment. “The distinctive characteristic of a declaratory judgment is that the declaration stands by itself and does not seek execution or performance by the defendant.” [Cit.] A party may seek to invoke a court’s declaratory power to “relieve the petitioner from uncertainty and insecurity with respect to [its] rights, status, and legal relations.” [Cit.]

Gelfand v. Gelfand, 281 Ga. 40 (635 SE2d 770) (2006). As the trial court correctly concluded, however, it is “clear from reading [Appellant’s] Amended Complaint and its Response Brief to [Appellees’] Motion to Dismiss that the only declaratory relief [it] wants is in the form of [mandatory] injunctive or mandamus relief.” In other words, Appellant filed its petition seeking a declaration of rights “in order to compel” Appellees to institute rule-making proceedings immediately. Gelfand v. Gelfand, supra. Moreover, it is not the function of declaratory judgment to settle controversies and make binding declarations concerning mere directory provisions. See City of Brunswick v. Anderson, 204 Ga. 515 (1) (50 SE2d 337) (1948); Hudon v. North Atlanta, 108 Ga. App. 370, 371 (133 SE2d 58) (1963). “There must be in the controversy a legally protectible interest existing in virtue of some public law or ordinance. [Cits.]” City of Brunswick v. Anderson, supra. Where, as here, a statute which provides for the performance of a certain act by public officials within a specified period of time is directory, a trial court is not justified in declaring illegal a subsequent performance of that act. North by Northwest Civic Assn. v. Cates, 241 Ga. 39, 42-43 (2) (243 SE2d 32) (1978). Thus, the trial court here would not be justified in declaring illegal a denial of Appellant’s petition by Appellees after the expiration of 30 days.

5. “Nevertheless, the agency should aggressively endeavor to meet the time allotted so as to fulfill the purpose expressed, which is to achieve expedition so as to serve the public’s interest.” Thebaut v. *712Ga. Bd. of Dentistry, supra. Therefore, a petitioner under OCGA § 50-13-9 may be able to compel such agency to decide whether to deny the petition or to initiate rule-making proceedings. However, Appellant’s complaint alleges that it is entitled to the commencement of rule-making proceedings and, thus, that Appellees no longer have the option of denying the petition. The dissent

would require us to ignore the plain language of the complaint and to allow a theory of recovery entirely different from that which [Appellant] ha[s] claimed. A complaint must set forth the intended theory of recovery because there can be no recovery on a theory not alleged. [Cits.]

Gomez v. Chao, 239 Ga. App. 474, 475 (1) (521 SE2d 421) (1999). In accordance with our holding, that a petitioner under OCGA§ 50-13-9 does not have any cause of action for the agency’s failure to act within 30 days and cannot compel the agency to commence rule-making proceedings, the trial court correctly dismissed Appellant’s complaint.

Judgment affirmed.