State v. Ponce

619 S.E.2d 682 (2005)

279 Ga. 651

The STATE v. PONCE.

No. S05G0878.

Supreme Court of Georgia.

September 19, 2005.

Timothy G. Madison, Dist. Atty., Robin R. Riggs, Tamara Nowlin, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., for Appellant.

Jennifer S. Hanson, Bruce S. Harvey, David W. Martin, Kimberly A. Dymecki, Atlanta, for Appellee.

Denise D. Fachini, Dist. Atty., Amicus Curiae.

HUNSTEIN, Presiding Justice.

We granted the State's petition for writ of certiorari to consider whether the Court of Appeals correctly found that Georgia's statutory or regulatory scheme concerning the safety inspection of commercial vehicles failed to provide a constitutionally adequate substitute for a warrant. Ponce v. State, 271 Ga.App. 408(2), 609 S.E.2d 736 (2005). Although the Court of Appeals analyzed Georgia's statutory scheme, we need not reach that ruling because we find that the court improperly failed to consider Georgia's regulatory scheme. The Court of Appeals declined to consider rules and regulations promulgated or adopted by the commissioner of the Department of Motor Vehicle Safety, see OCGA §§ 46-7-26, 46-7-27, because the State "has not included in the record any rules and regulations that may have been promulgated by the commissioner regarding inspections of commercial vehicles," with a footnote reference to the holding in Lemon v. *683 Martin, 232 Ga.App. 579, 581-582(1), 502 S.E.2d 273 (1998). Ponce, supra, 271 Ga. App. at 413, 609 S.E.2d 736. However, under the Administrative Procedure Act, OCGA § 50-13-1 et seq., "[t]he courts shall take judicial notice of any rule which has become effective pursuant to this chapter." OCGA § 50-13-8. Neither the DMVS nor the Public Service Commission falls within the group of government entities explicitly excluded by OCGA § 50-13-2(1) from the APA's provisions. Thus, rules and regulations promulgated pursuant to the APA by DMVS or the PSC and thereafter properly adopted by DMVS are required to be judicially noticed by the courts. OCGA § 50-13-8.[1]

Accordingly, we hereby vacate the holding of the Court of Appeals in Division 2 of Ponce, supra, and remand the case for that court's consideration of the constitutionality of the State's warrantless search of Ponce's commercial vehicle in light of this opinion.

Judgment vacated and case remanded.

All the Justices concur.

[1] Nothing in Lemon, supra, 232 Ga.App. at 581, 502 S.E.2d 273, supports a contrary holding. Lemon involved the issue of judicial notice of county ordinances. The pertinent judicial notice cases it cited either involved one of the government entities explicitly excluded by OCGA § 50-13-2(1) from the APA's provisions, see Beall v. Dept. of Revenue, 148 Ga.App. 5, 251 S.E.2d 4 (1978) (State Personnel Board); Staggers v. State, 119 Ga.App. 85, 166 S.E.2d 411 (1969) (State Board of Education); or else pre-dated or relied on cases pre-dating the enactment of the APA in 1964. See Davis v. Gen. Gas Corp., 106 Ga.App. 317, 126 S.E.2d 820 (1962); Atlanta Gas Light Co. v. Newman, 88 Ga.App. 252, 76 S.E.2d 536 (1953); Joel Properties v. Reed, 203 Ga.App. 257, 416 S.E.2d 570 (1992) (refusing to take judicial notice of the "Georgia State Building Code" and citing in support of its ruling the 1953 case of Atlanta Gas Light Co. v. Newman, supra)). To the extent language in Lemon or cases such as Joel Properties v. Reed, supra, 203 Ga.App. at 258(1), 416 S.E.2d 570, can be read as authority for the proposition that the courts cannot take judicial notice of the rules and regulations of those state agencies that promulgate rules and regulations pursuant to the APA, that language is hereby disapproved.