2021 Georgia Code
Title 50 - State Government
Chapter 13 - Administrative Procedure
Article 1 - General Provisions
§ 50-13-10. Declaratory Judgment on Validity of Rules; Venue for Actions

1. The validity of any rule, waiver, or variance may be determined in an action for declaratory judgment when it is alleged that the rule, waiver, or variance or its threatened application interferes with or impairs the legal rights of the petitioner. A declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule, waiver, or variance in question.
2. The agency shall be made a party to the action and a copy of the petition shall be served on the Attorney General. The action shall be brought in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. When the petitioner is a corporation, the action may be brought in the Superior Court of Fulton County or in the superior court of the county where the petitioner maintains its principal place of doing business in this state. All actions for declaratory judgment, however, with respect to any rule, waiver, or variance of the Public Service Commission must be brought in the Superior Court of Fulton County.
3. Actions for declaratory judgment provided for in this Code section shall be in accordance with Chapter 4 of Title 9, relating to declaratory judgments.

(Ga. L. 1964, p. 338, § 11; Ga. L. 1965, p. 283, § 10; Ga. L. 1975, p. 404, § 4; Ga. L. 1992, p. 6, § 50; Ga. L. 1997, p. 1521, § 3.)

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 301 (1997). For article, "Administrative Law," see 53 Mercer L. Rev. 81 (2001). For survey article on administrative law, see 59 Mercer L. Rev. 1 (2007). For note discussing the denial of social security benefits to dependent children pursuant to substitute father provisions as violative of due process, prior to the 1967 amendments to the Georgia Public Assistance Act (O.C.G.A. Art. 1, Ch. 4, T. 49), see 15 J. of Pub. L. 349 (1966).

Ga. L. 1965, p. 283, § 10 (see O.C.G.A. § 50-13-10) must be construed in conjunction with Ga. L. 1965, p. 283, §§ 2-4 (see O.C.G.A. § 50-13-2). Irvin v. Woodliff, 125 Ga. App. 214, 186 S.E.2d 792 (1971).

§ 9-4-7(c). - Georgia Court of Appeals disagreed that the "may be determined" language in O.C.G.A. § 50-13-10(a) was evidence that the statute was but one of several methods by which to challenge the validity of an agency rule and that O.C.G.A. § 9-4-7(c), as well as case authority, impliedly contemplated the legitimacy of challenges to agency rules outside the purview of the Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq. Live Oak Consulting, Inc. v. Dep't of Cmty. Health, 281 Ga. App. 791, 637 S.E.2d 455 (2006).

- When complaint seeking declaratory judgment attacks the constitutionality of the statute under which the challenged rule was promulgated as well as the rule itself, O.C.G.A. § 50-13-10 is inapplicable. Ledford v. Department of Transp., 253 Ga. 717, 324 S.E.2d 470 (1985).

- O.C.G.A. § 50-13-10 did not authorize plaintiffs to obtain declaratory judgment as to the validity of rules enacted pursuant to the Hazardous Waste Management Act, O.C.G.A. § 12-8-60 et seq., when the plaintiffs were contending that the Act and rules promulgated thereunder were unconstitutional. George v. Department of Natural Resources, 250 Ga. 491, 299 S.E.2d 556 (1983).

- Trial court did not err in concluding that the plaintiff had standing to bring the declaratory judgment action as the plaintiff made a sufficient showing that the facts were complete and that its interest was not merely academic, hypothetical, or colorable, but actual because, as a Vidalia onion grower, the plaintiff was an interested party claiming a right to ship onions pursuant to the shipping statute - a right the plaintiff claimed was impeded by a newly enacted regulation; and because, if the plaintiff failed to comply with the new regulation, the Georgia Commissioner of Agriculture had that statutory authority to impose civil and criminal penalties. Black v. Bland Farms, LLC, 332 Ga. App. 653, 774 S.E.2d 722 (2015), cert. denied, No. S15C1669, 2015 Ga. LEXIS 713 (Ga. 2015).

- County lacked standing to challenge the state's rules restricting emissions of volatile compounds; while the county presented evidence that the rules might deter some investment in the county, there was no evidence that the rules had actually done so, and whether any economic harm to its own emission sources would be caused by the rules was speculative. Bd. of Natural Res. of Ga. v. Monroe County, 252 Ga. App. 555, 556 S.E.2d 834 (2001).

- Trial court's order granting a declaratory judgment to a developer was reversed because a case or controversy was lacking, surrounding the validity of Ga. Comp. R. & Regs. 672-9-.05, as no controversy existed after the rule's adoption and a developer filed an amended petition seeking the same, the rights of the parties accrued, and the parties' positions regarding the constitutionality and the applicability of the Department of Transportation's rule were firmly established. DOT v. Peach Hill Props., 280 Ga. 624, 631 S.E.2d 660 (2006).

- Trial court erred in dismissing claim for injunctive relief because the issuance of letters of permission by the Department of Natural Resources or activities that required a permit under the Shore Protection Act, O.C.G.A. § 12-5-237, were subject to challenge under O.C.G.A. § 12-5-245 the center's claim for declaratory relief from letters already issued was properly dismissed because a justiciable controversy no longer existed for which a declaratory judgement would have been appropriate. Ctr. for a Sustainable Coast, Inc. v. Ga. Dep't of Natural Res., 319 Ga. App. 205, 734 S.E.2d 206 (2012).

- An "ST-1 form," which corporations are required by the Department of Revenue to use when applying for a certificate of registration, was not a "rule" within the purview of O.C.G.A. § 50-13-10. Roy E. Davis & Co. v. Department of Revenue, 256 Ga. 709, 353 S.E.2d 195 (1987).

- Department of Medical Assistance (now Department of Community Health) manual, which contained "the terms and conditions for receipt of medical assistance reimbursement in Georgia," was not a "rule" and therefore could not be reviewed in a declaratory judgment action. Georgia Dep't of Medical Assistance v. Beverly Enters., Inc., 261 Ga. 59, 401 S.E.2d 499 (1991).

- Appeal from a ruling on a declaratory judgment action that was essentially an appeal from an administrative decision to suspend a driver's license was dismissed since the driver was required to proceed by application for discretionary appeal. Miller v. Georgia Dep't of Pub. Safety, 265 Ga. 62, 453 S.E.2d 725 (1995).

- Plaintiff teachers denied renewable teaching certificates mistakenly failed to pursue the available remedy under O.C.G.A. § 50-13-10 when the teachers instead waited until after the education board's rules had already been declared invalid to bring an action seeking damages as the state had not "consented" to be sued for damages based upon the alleged invalidity or unconstitutionality of the rules and regulations promulgated and implemented by the state's departments and agencies. State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993).

Trial court properly denied the defendant's amended motion for a new trial holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I given that: (1) the claim was raised for the first time in the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., by filing an action for a declaratory judgment; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when the division promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006).

- Trial court properly dismissed a declaratory judgment action brought by a bank and a cash advance lender, which was operating as an agent for the bank, to stop the Georgia Industrial Loan Commissioner from conducting an investigation of their lending activities because the Commissioner was authorized to conduct an investigation of the two entities' loan activities, in spite of the lender's claim that the bank and the lender were operating under the authority of federal banking law. BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 598 S.E.2d 343 (2004).

- Trial court did not err in finding that the APA governed a declaratory judgment action filed against a state agency, and that sovereign immunity barred any further discovery, pursuant to O.C.G.A. § 50-13-10; hence, as a result, when plaintiff consultant failed to comply with § 50-13-10, the trial court could do no more than grant the agency a protective order, and could not take any action beyond that, including declaring that the department's rules regarding health benefits could not be challenged. Live Oak Consulting, Inc. v. Dep't of Cmty. Health, 281 Ga. App. 791, 637 S.E.2d 455 (2006).

Trial court did not err in finding that sovereign immunity barred the declaratory action because the court correctly treated the policies of the board of regents regarding non-citizen eligibility for in-state tuition as falling outside the waiver of sovereign immunity found in O.C.G.A. § 50-13-10, thus, the students did not meet the students' burden of showing that the policies at issue were agency rules adopted pursuant § 50-13-10's waiver, rather than interpretive rules exempt from § 50-13-10. Olvera v. Univ. Sys. of Georgia's Bd. of Regents, 331 Ga. App. 392, 771 S.E.2d 91 (2015).

Cited in Pope v. Cokinos, 231 Ga. 79, 200 S.E.2d 275 (1973); Caldwell v. Liberty Mut. Ins. Co., 248 Ga. 282, 282 S.E.2d 885 (1981); Outdoor Adv. Ass'n v. DOT, 186 Ga. App. 550, 367 S.E.2d 827 (1988); State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993); SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 770 S.E.2d 832 (2015); Lathrop v. Deal, 301 Ga. 408, 801 S.E.2d 867 (2017); Ga. Dep't of Human Servs. v. Addison, 304 Ga. 425, 819 S.E.2d 20 (2018); Moosa Co. LLC v. Dep't of Revenue, 353 Ga. App. 429, 838 S.E.2d 108 (2020), cert. denied, No. S20C0816, 2020 Ga. LEXIS 679 (Ga. 2020).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22A Am. Jur. 2d, Declaratory Judgments, § 81 et seq.

24A Am. Jur. Pleading and Practice Forms, Venue, § 1 et seq.

- 26 C.J.S., Declaratory Judgments, § 34.

- Model State Administrative Procedure Act (U.L.A.) § 3-101 et seq.