CopyCited 22 times | Published | Supreme Court of Georgia | Nov 21, 2007 | 282 Ga. 707, 2007 Fulton County D. Rep. 3588
...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....
...About 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....
...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 relief if the 30-day period of OCGA §
50-13-9 is merely directory rather than mandatory....
...6,
436 S.E.2d 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 S.E.2d 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 S.E.2d 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 state 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....
...ere such injury or prejudice will result.'" Sanchez v. Walker County Dept. of Family & Children Services,
237 Ga. 406, 410,
229 S.E.2d 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....
...of Family & Children Services, supra at 410-411,
229 S.E.2d 66 (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....
..."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. Ga. 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....
...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 S.E.2d 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....
...rd members had ever seen it, despite the fact that it had been properly filed with the Board's staff. All five Board members stated they had not yet seen the petition, and they promised to review it later and make a decision on it at that time. OCGA §
50-13-9 gives state administrative agencies 30 days to consider and rule on a petition to initiate the rulemaking process for the adoption, amendment, or repeal of an administrative rule....
...rulemaking based on the petition or deny the petition in writing stating the reasons for the denial. The trial court further concluded that even if the Board's actions at the September 14, 2005 public meeting did not satisfy the requirements of OCGA §
50-13-9, the April 7, 2006 from the Board's attorney to the Wesley Foundation constituted a written denial of the petition with reasons stated....
...The basis for the Wesley Foundation's claim for relief is straightforward. The Wesley Foundation contends that the Board has, for more than two years now, steadfastly refused to make a final decision on its petition for rulemaking as required by OCGA §
50-13-9. OCGA §
50-13-9 expressly grants interested persons [19] a statutory right to petition state agencies for the promulgation, amendment, and repeal of administrative rules and regulations....
...authorize relief under both Georgia's version of the Uniform Declaratory Judgments Act [26] and the statutes authorizing the issuance of writs of mandamus. [27] A lawsuit to obtain a judicial declaration of one's rights under a statute such as OCGA §
50-13-9 is a paradigmatic example of the proper use of the declaratory judgment procedure....
...It does not give the Board discretion to do nothing at all. While the courts may not issue a writ of mandamus compelling the Board to decide the petition a certain way, they can certainly order the Board to make a decision one way or the other as required by OCGA §
50-13-9....
...Instead, they can simply ignore rulemaking petitions, secure in the knowledge that they will never be called to task by the courts for doing so. This result is the antithesis of what the General Assembly sought to achieve by enacting the Georgia APA and OCGA §
50-13-9....
...Thus, the selection of an improper remedy in the Rule 8(a)(3) demand for relief will not be fatal to a party's pleading if the statement of the claim indicates the pleader may be entitled to relief of some other type.") (footnotes omitted). [12] See Ga. Comp. R. & Regs. 183-1-6-.03. [13] See OCGA §
50-13-4. [14] OCGA §
50-13-9 provides in full as follows: An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule....
...See OCGA §
9-11-9(b) (requiring circumstances constituting fraud or mistake to be pled with particularity), (g) (same for items of special damage). [19] The Board does not dispute that the Wesley Foundation qualifies as an "interested person" under OCGA §
50-13-9. [20] OCGA §
50-13-9. See 1 Richard J. Pierce, Jr., Administrative Law Treatise § 6:10, at 388 (4th ed. 2002) ("At a minimum, the right to petition for rulemaking entitles a petitioning party to a response to the merits of the petition."). [21] OCGA §
50-13-9....
...Where the delay is unjustified or contrary to statute, it should be reviewed at least for arbitrariness. . . . Of course, where the statute provides a deadline, a court has authority to hold the agency to that deadline."). [24] The April 7, 2006 letter cannot, in and of itself, satisfy the requirements of OCGA §
50-13-9....
...City of Brunswick v. Anderson,
204 Ga. 515, 515(1),
50 S.E.2d 337 (1948). The second involved a controversy over the "mere privilege" of selling malt beverages in the city. Hudon v. North Atlanta,
108 Ga.App. 370, 371,
133 S.E.2d 58 (1963). By contrast, OCGA §
50-13-9 gives the Wesley Foundation a statutory right to a decision on its rulemaking petition, not a mere legal privilege that the Board is free to bestow or withhold in its sole discretion....
