Rigby v

Boatright, 294 Ga. 253, 751 S.E.2d 851, 2013 Ga. LEXIS 996 (2013). Mandamus properly dismissed where no legal duty imposed on official to issue salary vouchers. — Where no duty was imposed by law upon the Secretary of State to issue vouchers for salary due to members of the State Board of Barber and Hair-Dresser Examiners, the trial judge did not err in dismissing on general demurrer (now motion to dismiss), the petition of a former member of that board for a writ of mandamus to require the Secretary of State to issue a check or voucher for a balance of the salary claimed by the plaintiff. Williamson v. Wilson, 189 Ga. 652, 7 S.E.2d 241, 1940 Ga. LEXIS 356 (1940). Mandamus improper where city’s grant of conditional use permit excluded authorization to build stadium. — Trial court erred in granting mandamus relief to a school based on the city’s act of granting a conditional use permit, but disallowing the school to build a football stadium as part of the permit, as the increased traffic conditions that would result if the stadium were allowed supported the action. City of Roswell v. Fellowship Christian Sch., Inc., 281 Ga. 767, 642 S.E.2d 824, 2007 Ga. LEXIS 254 (2007). Mandamus not appropriate if state revenue commissioner could be made party to county tax appeal. — In a gas company’s suit against the state revenue 507 Cases Where Mandamus Improper (Cont’d) commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and 48-5-511(a), remand was proper to determine if the company had an acceptable alternative remedy in its pending county tax appeals under O.C.G.A. § 485-311, as required by O.C.G.A. § 9-6-20, if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 755 S.E.2d 683, 2014 Ga. LEXIS 168 (2014). State treasurer had no duty to pay out funds. — Petition seeking a writ of mandamus directing the state treasurer to honor and pay a warrant for state funds which the petition failed to show had been executed as required by law, so that there was no failure of the treasurer to perform the treasurer’s official duty in paying a warrant properly executed and presented to the treasurer, alleged no cause of action, and was properly dismissed on demurrer (now motion to dismiss). Barwick v. Roberts, 188 Ga. 655, 4 S.E.2d 664, 1939 Ga. LEXIS 614 (1939). Mandamus not available to compel county to pay personal injury judgment. — Writ of mandamus to compel a county to pay the entire judgment entered against a former employee was properly denied as the underlying accident claim was covered by the county’s self-insurance plan; Fulton County, Ga., Code of Resolutions § 102-81(e) excluded the claim from those the county was required to pay in full, and the county was responsible only for the amount of the self-insurance limits. Thomason v. Fulton County, 284 Ga. 49, 663 S.E.2d 216, 2008 Ga. LEXIS 529 (2008). Remedy of mandamus cannot avail where the Constitution prohibits payment of tort claims from school taxation. Sheley v. Board of Pub. Educ., 132 Ga. App. 314, 208 S.E.2d 126, 1974 Ga. App. LEXIS 1681 (1974), cert. dismissed, 233 Ga. 487, 212 S.E.2d 627, 1975 Ga. LEXIS 1354 (1975). Writ of mandamus against taxpayer is not a remedy provided by statute 9-6-20 for collection of taxes. Richmond County v. Steed, 150 Ga. 229, 103 S.E. 253, 1920 Ga. LEXIS 122 (1920). Where petitioners seek to compel officials to enforce liquor laws, mandamus is improper remedy since the law provides for a citizen’s arrest of the offenders or for the issuance of a warrant upon complaint by the citizen for the arrest of the violators. Mandamus will not lie where there is an adequate legal remedy. Solomon v. Brown, 218 Ga. 508, 128 S.E.2d 735, 1962 Ga. LEXIS 547 (1962). Issuance of a retail off-premises beer and wine license by a county commission could not be compelled by a writ of mandamus. Dickerson v. Augusta-Richmond County Comm’n, 271 Ga. 612, 523 S.E.2d 310. Inapplicable to private citizens. — Where a road was abandoned after an owner filed a petition for mandamus, the constitutionality of O.C.G.A. § 9-6-21(b) was moot; pursuant to O.C.G.A. § 9-6-20, mandamus was not applicable to a neighbor or to claims for injunctive or monetary relief. Gaw v. Telfair County Bd. of Comm’rs, 277 Ga. 157, 587 S.E.2d 50, 2003 Ga. LEXIS 836 (2003). Mandamus unavailable to terminated teacher prior to use of administrative process. — Mandamus will not lie where it appears that the complainant has not availed oneself of the administrative remedies available under O.C.G.A. § 20-2-1160, which provides for an appeal to the State Board of Education from decisions concerning the termination of teachers pursuant to the Fair Dismissal Act. Lansford v. Cook, 252 Ga. 414, 314 S.E.2d 103, 1984 Ga. LEXIS 698 (1984). Mandamus against sheriff to compel rearrest improper where bench warrant was adequate. — Where issuance of a bench warrant was adequate to enforce sentence, by having sheriff arrest defendant and turn the defendant over to chain-gang authorities, mandamus proceedings against the sheriff to compel the sheriff to rearrest defendant would not lie. Porter v. Garmony, 148 Ga. 261, 96 S.E. 426, 1918 Ga. LEXIS 286 (1918). Mandamus not available to compel county to re-hire former employee to unspecified job. — Trial court erred by granting a former employee a writ of man- 508 damus requiring a county to give an unspecified job because there was nothing in the record establishing that an available job was sufficiently similar to the former employee’s prior job as to provide a clear legal right to that job, which the former employee was required to show for the grant of a writ of mandamus. Clayton County Bd. of Comm’rs v. Murphy, 297 Ga. 763, 778 S.E.2d 193, 2015 Ga. LEXIS 693 (2015). Mandamus not available to compel completion of illegal sale. — Where sheriff, by mistake, sold property on the first Tuesday in May, but discovered the mistake before the money was paid by the holder, the sheriff could not be compelled by mandamus to make a deed and deliver possession to the bidder on the bidder’s tender of the amount of the bid. State ex. rel Collins v. Byrd, 42 Ga. 629, 1871 Ga. LEXIS 117 (1871). County judge acting as agent of board of county commissioners cannot be compelled to perform their duties. Holtzclaw v. Riley, 113 Ga. 1023, 113 Ga. 4023, 39 S.E. 425, 1901 Ga. LEXIS 464 (1901). No power to compel fellow judge to perform duties. — When duties are imposed on a judge of the superior court as an officer, another judge of the superior court has no power to issue a mandamus to compel performance of such duties. Justices of Inferior Court v. Orr, 12 Ga. 137, 1852 Ga. LEXIS 103 (1852). Motion to recuse judge. — Because an affidavit in support of a judge’s recusal was insufficient on its face, and the proper remedy for challenging the denial of a motion for recusal was an appeal, not an action for a writ of mandamus, the presiding judge properly denied a pro se litigant’s motion to recuse and declined the litigant relief. Gray v. Manis, 282 Ga. 336, 647 S.E.2d 588, 2007 Ga. LEXIS 527 (2007). Appointment of permanent process servers. — Mandamus did not lie to require a state court judge to appoint permanent process servers pursuant to O.C.G.A. § 9-11-4(c) since, even if the petitioners had no other specific legal remedy, the statute provided a trial court with the authority as well as the discre- 9-6-20 tion to appoint disinterested persons, who are citizens of the United States and at least 18 years of age, as permanent process servers, but did not mandate that the trial court make such an appointment when the statutory requirements have been satisfied. Tamaroff v. Cowen, 270 Ga. 415, 511 S.E.2d 159. Dismissal of assistant principal. — Where the school board had not admitted that it let an assistant principal go for unlawful reasons and the petitioner had not presented any evidence to substantiate their claim that the assistant principal was not rehired as a result of the assistant principal’s exercise of constitutionally protected activities, the petitioner had not shown any facts which would remove the decision not to renew the contract from the realm of policy into the realm of law; hence, since the assistant principal had not established any right to a school board hearing under O.C.G.A. § 20-2-1160, the trial court should not have granted the petition for a writ of mandamus. Dalton City Bd. of Educ. v. Smith, 256 Ga. 394, 349 S.E.2d 458, 1986 Ga. LEXIS 889 (1986). School district with no right to relief from State Board of Education decision. — Local school district was not entitled to mandamus relief compelling the State Board of Education (Board) to determine the amount of transportation funding it provided to the district based on the schools students actually attended because the Board’s interpretation of the phrase “school to which they are assigned,” in O.C.G.A. § 20-2-188(d), to mean a school in the student’s attendance zone, regardless of the school attended, was reasonable and the district had no clear legal right to the relief it sought, nor did it show a gross abuse of discretion by state officials. Schrenko v. DeKalb County Sch. Dist., 276 Ga. 786, 582 S.E.2d 109, 2003 Ga. LEXIS 552 (2003). Discovery, continuance in criminal proceedings unauthorized. — The defendant filed a suit for mandamus and prohibition against the solicitor and the judge to whom the defendant’s case was assigned, seeking the solicitor’s compliance with the defendant’s requests for discovery, as well as a continuance of the 509 Cases Where Mandamus Improper (Cont’d) criminal proceedings against the defendant until the solicitor complied with the defendant’s discovery requests. Since the court was under no duty to grant a continuance and the solicitor was under no duty to provide discovery, such extraordinary relief was not authorized and the court correctly dismissed the petition for failure to state a claim. Scott v. McLaughlin, 258 Ga. 407, 369 S.E.2d 257, 1988 Ga. LEXIS 264 (1988). To compel coverage of defense and indemnification. — Trial court’s denial of a county employee’s request to amend the employee’s complaint to add a claim for mandamus, pursuant to O.C.G.A. § 96-20, was proper because the employee did not have a clear legal right to coverage of the employee’s defense and indemnification in an action brought against the employee, as the county could terminate such coverage where it was found that the employee’s responses to interrogatories and answers to deposition questions were inaccurate or false; accordingly, the county attorney had a reasoned and articulable basis to terminate the employee’s coverage and mandamus would not have provided any relief. Baker v. Gwinnett County, 267 Ga. App. 839, 600 S.E.2d 819, 2004 Ga. App. LEXIS 805 (2004). Mandamus to vacate convictions not available. — Mandamus seeking damages and ruling compelling officials to vacate convictions for simple battery and obstruction of an officer was not available to defendant. Lewis v. Schreeder, Wheeler & Flint, 265 Ga. 349, 455 S.E.2d 588, 1995 Ga. LEXIS 163 (1995). Mandamus to control manner of city’s entry into contracts denied. — Based on the Georgia legislature’s explicitly stated intention in the Georgia Local Government Public Works Construction Law, O.C.G.A. § 36-91-1 et seq., that local laws and ordinances controlled the manner of the city’s execution of and entry into contracts, a contractor was not entitled to a writ of mandamus requiring the city to execute a contract in its favor, as neither the mayor nor the city council exercised their discretionary authority to approve 9-6-20 any award which might or might not have resulted from the competitive sealed proposals process. Duty Free Air & Ship Supply Co./Franklin Wilson Airport Concession, Inc. v. City of Atlanta, 282 Ga. 173, 646 S.E.2d 48, 2007 Ga. LEXIS 350 (2007). Recomputation of criminal sentence. — The court correctly dismissed a petition for mandamus against the State Board of Pardons and Paroles and its chairman, seeking an order requiring them to recompute the petitioner’s sentences resulting from the petitioner’s convictions as a habitual violator. The duty to award credit for time served lies with the Department of Corrections, not the board. Further, mandamus lies against an official to require the performance of a clear legal duty, but does not reach the office. Harper v. State Bd. of Pardons & Paroles, 260 Ga. 132, 390 S.E.2d 592, 1990 Ga. LEXIS 161 (1990). Mandamus to compel criminal charges. — Petition seeking mandamus to compel a prosecutor to bring a criminal perjury charge was properly denied since the claim of alleged perjury, and the effect it may have had upon the criminal trial of one of the appellants who brought the mandamus petition, were claims that should have been raised either in the context of a habeas corpus proceeding or, in the case of newly discovered evidence, through an extraordinary motion for a new trial. Mayo v. Head, 280 Ga. 793, 631 S.E.2d 108, 2006 Ga. LEXIS 354 (2006). Discretionary nature of judge’s decision. — Grant of writ of mandamus to the defendant was reversed because mandamus was not an allowable remedy since the opportunity for review via a writ of certiorari existed as to the municipal judge’s decision as the municipal court’s duty under O.C.G.A. § 36-32-6(c) as to the defendant’s marijuana possession was a discretionary act allowing the opportunity for review via a writ. Schaeffer v. Kearney, 355 Ga. App. 449, 844 S.E.2d 515, 2020 Ga. App. LEXIS 332 (2020). Unauthorized appeals. — Where defendant had no clear legal right to compel the judge to allow the defendant to pursue the defendant’s unauthorized appeal, the trial court correctly refused to grant man- 510 damus. Grant v. Gaines, 265 Ga. 159, 454 S.E.2d 481, 1995 Ga. LEXIS 140 (1995), overruled in part, Jones v. Peach Trader Inc., 302 Ga. 504, 807 S.E.2d 840, 2017 Ga. LEXIS 944 (2017). Retailer incorrectly sought mandamus relief from a board of zoning appeals’ denial of its application for a variance from the county’s sign ordinance because the applicable ordinance specified that a writ of certiorari was the sole means of obtaining judicial review of such a decision, and the fact that the ordinance was amended while litigation was pending did not allow the retailer to pursue mandamus, nor was certiorari an inadequate remedy because the board could not rule on the retailer’s challenge to the constitutionality of the ordinance, as that argument could be raised when seeking a writ of certiorari. DeKalb County v. Wal-Mart Stores, Inc., 278 Ga. 501, 604 S.E.2d 162, 2004 Ga. LEXIS 828 (2004). Verification letter for proposed landfill. — Trial court properly entered a declaratory judgment against a limited liability limited partnership (LLLP) and properly denied the LLLP’s request for a writ of mandamus as the LLLP was not entitled to a verification letter since the county’s zoning ordinance was properly enacted, and the LLLP’s land was not zoned for a landfill. Mid-Georgia Envtl. Mgmt. Group, L.L.L.P. v. Meriwether County, 277 Ga. 670, 594 S.E.2d 344, 2004 Ga. LEXIS 264 (2004). Mandamus to require in-state tuition for noncitizen students. — Noncitizen students failed to show that the Deferred Action for Childhood Arrivals (DACA) policy had the force and effect of a federal law that would support a mandamus order requiring state universities to grant the students in-state tuition, and even if DACA had the force of law, DACA did not create a clear legal duty to grant the students in-state tuition. Alford v. Hernandez, 343 Ga. App. 332, 807 S.E.2d 84, 2017 Ga. App. LEXIS 494 (2017), cert. denied, No. S18C0459, 2018 Ga. LEXIS 327 (Ga. May 7, 2018). Mandamus cannot dictate where boundary line to be located. — Trial court erred by granting a county mandamus relief in a county boundary line dis- 9-6-20 pute action pursuant to O.C.G.A. § 363-20 et seq. because while mandamus was authorized to compel the Georgia Secretary of State to do certain tasks, it was not authorized to dictate where the boundary line was to be located. Bibb County v. Monroe County, 294 Ga. 730, 755 S.E.2d 760, 2014 Ga. LEXIS 191 (2014). Petition for mandamus properly dismissed. — The trial court properly dismissed a landowners’ petition for mandamus filed against a judge as premature and for failing to state a claim, because the landowner opted to file the petition, but could have requested a hearing to allow the judge an opportunity to rule on the previously filed motions; the 90-day ruling period applicable to the motions pursuant to O.C.G.A. § 15-6-21(b) had not yet expired at the time the petition had been filed. Voyles v. McKinney, 283 Ga. 169, 657 S.E.2d 193, 2008 Ga. LEXIS 23 (2008). In a case arising from a taxpayer grievance concerning whether the Fulton County Board of Tax Assessors had been diligent in determining that the stadium company had a usufruct interest in the new football stadium that was not subject to ad valorem taxation, the appellants’ mandamus claim was properly dismissed because the allegations of the fourth amended petition disclosed with certainty that the appellants would not be entitled to relief under any state of provable facts asserted in support of their mandamus claim. Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 859 S.E.2d 33, 2021 Ga. LEXIS 294 (2021). Discretionary standard required application. — Trial court erred by granting mandamus relief under O.C.G.A. § 9-6-20 with regard to a property owner seeking to compel a county to maintain roads in a subdivision because while the county had accepted dedication of the streets, the county still was vested with the discretion to decide whether to open all the roads or close any of the roads, and the trial court was required to determine whether the county’s decisions were arbitrary, capricious, and unreasonable or a gross abuse of discretion as nowhere in the judgment was that standard articulated. Burke County v. Askin, 291 Ga. 697, 511 Cases Where Mandamus Improper (Cont’d) 732 S.E.2d 416, 2012 Ga. LEXIS 776 (2012). Out of state attorney lacked standing. — Florida attorney who had been admitted pro hac vice to represent a defendant in a tire case, but whose duties were limited by the trial court due to the 9-6-20 attorney’s misleading statements, and whose client was later dismissed from the case, did not have standing to seek mandamus compelling the trial court to rule on motions under O.C.G.A. § 15-6-21(b) so the attorney could appeal the ruling as to the attorney’s conduct. Fein v. Bessen, 300 Ga. 25, 793 S.E.2d 76, 2016 Ga. LEXIS 704 (2016).