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Released Opinions

February 4, 2016
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On February 1, 2016, the Supreme Court of Georgia issued 18 opinions, of which three are within the scope of our coverage. Summaries of the cases and the opinions are below.

S15G1130 Olvera, et al. v. University System of Georgia’s Board of Regents, et al.

In a unanimous opinion by Justice Melton, the Supreme Court of Georgia held that the State’s sovereign immunity barred an action by non-citizen beneficiaries of the Deferred Action for Childhood Arrivals program seeking a declaration that they are entitled to in-state tuition at schools within the University of Georgia system. The Court affirmed the decision of the Court of Appeals, which had affirmed the trial court’s decision to grant summary judgment in favor of the University system.

The Court explained that the State’s sovereign immunity “sweep[s] … broad[ly].” The Board of Regents is a State agency that is entitled to sovereign immunity. The Court rejected the contention that the Board’s decision was reviewable under the Georgia Administrative Procedure Act because it did not take any action that was reviewable under the APA. It did not issue the residency requirements or any rule.

S15G1168 Barrow v. Mikell, et al.

In a unanimous decision by Justice Blackwell, the Supreme Court of Georgia held that a Gambian national (Barrow) whose driver’s license was cancelled in 2010 could appeal from the denial of his application for a new license in 2013. Barrow premised his application for a new license on the claim that his immigration status had changed since the earlier license was cancelled. The Court held that his appeal from the denial of his application for a new license was timely and reversed the decision of the Court of Appeals.

In pertinent part, O.C.G.A § 40-5-66(a) establishes a 30-day jurisdictional limit for the filing of an appeal from “any decision” by the Department of Driver Services denying an application for a driver’s license. The Court rejected the contention that Barrow was obligated to file his appeal in April 2010 and distinguished two of its earlier decisions, on which the Court of Appeals relied in ruling against Barrow, Earp v. Angel, 257 Ga. 333, 357 SE 2d 596 (1987), and Earp v. Lynch, 257 Ga. 633, 362 SE2d 55 (1987).

In each of those cases, the petitioners sought relief from the revocation of the driver’s licenses and did so by filing a petition for writ of habeas corpus. The Court observed that, because the petitioners sought relief though a petition for writ of habeas corpus, the decision said nothing about the timing of a petition for administrative review under O.C.G.A § 40-5-66. In addition, both of those decisions involved the revocation of a driver’s license, not its cancellation. A revoked license is not subject to restoration until “after the expiration of the applicable period of time prescribed….”  O.C.G.A § 40-5-1(16). In contrast, “a cancellation is without prejudice, and application for a new license can be made at any time after such cancellation.” O.C.G.A § 40-5-1(3).

A15A1901 GeorgiaCarryOrg, Inc. v. James

In a unanimous opinion by Chief Justice Thompson, the Supreme Court of Georgia upheld the denial of a motion seeking the recusal of a Superior Court judge from a case brought against the same county’s Probate Judge on the ground that it was untimely. Uniform Superior Court Rule 25.3 requires that such a recusal motion be filed “not later than five (5) days after the affiant first learned of the alleged grounds for disqualification … unless good cause be shown for failure to meet such time requirements.” Here, even though the basis for a motion was known “as soon as appellants chose the forum,” the motion was not filed for more than two months after the case was filed.

The Court distinguished cases in which the timeliness of the motion’s filing was not in issue and overruled Georgia Transportation Corp. v. Dixon, 267 Ga. App. 575, 600 SE 2d 381 (2004), “[i]nsofar” as it held that a “motion to recuse a judge sitting in a case in which another judge in the same circuit is a party can be filed at any time.”

The underlying case was a mandamus action directed at the Probate Judge for allegedly wrongly refusing to issue temporary renewal weapons carry licenses. Sometime, and the Court assumed it was “after — and because” the case was filed, the Probate Judge began issuing such temporary renewal licenses to some applicants. And he issued a temporary license within the statutory 30 days after the application was filed to the named individual plaintiff.

The Court held that the individual plaintiff’s action was moot and that the GeorgiaCarry organization lacked standing. Under those circumstances, the plaintiffs could not be considered prevailing parties for the purpose of an attorneys’ fee award. The Court vacated the order granting summary judgment to the Probate Judge and remanded for entry of an order of dismissal.

 

 

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