DEPARTMENT OF TRANSPORTATION v. CITY OF ATLANTA et al., 260 Ga. 699, 398 S.E.2.d 567
Linked as:
Summary
Judgment affirmed in part and reversed in part. All the Justices concur, except Smith, P. J., and Hunt, J., who dissent.
Summary
Judgment affirmed in part and reversed in part. All the Justices concur, except Smith, P. J., and Hunt, J., who dissent.
Text
Remar & Graettinger, Robert B. Remar, Susan M. Garrett, Chamberlain, Hrdlicka, White, Johnson & Williams, Richard N. Hubert, Kendric E. Smith, for appellees.Michael J. Bowers, Attorney General, Roland F. Matson, Charles M. Richards, Senior Assistant Attorneys General, for appellant.
This appeal continues the litigation concerning the efforts of appellant Department of Transportation (DOT) to condemn portions of public parks owned by appellee City of Atlanta, for the purpose of building a limited-access highway known as the Presidential Parkway. Department of Transp. v. City of Atlanta,
The trial court held the Commission and the statutes governing it unconstitutional on all the foregoing grounds. The trial court denied DOT's motion to recuse. We reverse on the constitutional issues, but affirm the denial of the recusal motion.
In Dept. of Transp. v. City of Atlanta, supra,
OCGA
If the Commission determines that the acquisition of the public property by condemnation is reasonable, necessary, and in the public interest, it shall grant its approval for such acquisition.
The Commission is not required to hold a hearing before approving an application for condemnation. If the Commission approves the acquisition of public property by condemnation, the DOT or other agency may then acquire the public property pursuant to the procedures specified in the applicable condemnation laws. OCGA
In July 1986 DOT filed an application with the Commission, seeking approval to condemn portions of the subject parks. On September 26, 1986, the Commission approved the condemnation.
On July 25, 1988, DOT filed the instant condemnation petition. Various individual persons and civic groups moved to intervene, and the trial court granted the motions. The intervenors moved to set aside the declaration of taking, raising, inter alia, separation-of-powers and due-process issues regarding the Commission.
Subsequently, the trial court enjoined the construction of the Presidential Parkway pending a decision on the merits of appellees' motion to set aside the declaration of taking. The court also ordered the parties to participate in the process of mediation. We affirmed the injunction, and reversed the order requiring the parties to mediate. Department of Transp. v. City of Atlanta,
I do find it strange that the Ethiopians and Eritreans fought wars for 20 years and killed over a half a million people and they're still mediating this thing. The parkway -- I really wonder who is civilized.
On September 20, 1989, DOT flied a motion to recuse the trial judge, asserting bias based on the above remark. On October 2, the judge denied the recusal motion.
On February 14, 1990, the judge entered an order setting aside the declaration of taking, holding that the Commission violates the separation-of-powers clause of the 1983 Georgia Constitution, Art. I, Sec. II, Par. III, by delegating to executive branch members the legislative power of eminent domain. [3] The court also held that the Commission violated the separation-of-powers clause by delegating to the Commission the power to determine the use of municipal property, a power the court determined was exclusively within the province of the General Assembly. The court also held that the delegation to the Commission of the foregoing powers was without appropriate guidelines, and thus further constituted an unconstitutional delegation of legislative authority. In addition, the court concluded that the Act violated procedural due process because it did not give the public any notice of, or an opportunity to be heard in, the proceedings before the Commission. Finally, the court ruled the Act violated substantive due process. The court based this ruling on its conclusion that any decision under the Act was necessarily arbitrary and capricious because the General Assembly failed to provide adequate guidelines to the Commission and because the Act permitted the Commission to make its decision without taking any evidence.
DOT has appealed the denial of its recusal motion and the ruling that the Act is unconstitutional. We affirm the denial of the recusal motion, but reverse the ruling that the Act is unconstitutional.
1. The DOT first contends that the trial court erred by concluding the Act violates separation-of-powers principles. [4] We agree with this contention.
We start with the premise that the doctrine of separation of powers cannot mean a separation in all respects.
"While the Constitution declares that the three departments of government shall be separate and distinct, this separation is not and from the nature of things cannot be total." Mayor &c. of Americus v. Perry,
The nondelegation doctrine is rooted in the principle of separation of powers, in that the integrity of our tripartite system of government mandates that the General Assembly not divest itself of the legislative power granted to it by Art. III, Sec. I, Par. I, of our Constitution, see generally Mistretta v. United States, ____ U. S. ____ (109 SC 647, 654, 102 LE2d 714) (1989). Recognizing that the General Assembly, in our complex society, cannot find all facts and make all applications of legislative policy, we have approved numerous delegations of legislative authority, provided the General Assembly has provided sufficient guidelines for the delegatee. See Southern R. Co. v. Melton,
This Court, however, has never addressed whether the exercise of such delegated power by executive officials violates the separation-of-powers provision of our constitution, which provides, inter alia, that "no person discharging the duties of one [branch] shall at the same time exercise the functions of either of the others except as herein provided." Art. I, Sec. II, Par. III, 1983 Georgia Constitution. We now conclude, however, that, where such delegations are made with sufficient guidelines, an executive official's exercise of the delegated power does not violate Art. I, Sec. II, Par. III of the 1983 Georgia Constitution. We reach this conclusion, because, in such cases, the executive official or commission is not "exercis[ing] the functions of" the legislature, in that it is not making a purely legislative decision, but is acting administratively pursuant to the direction of the legislature.
In the instant case, the controlling issue is thus whether the General Assembly enacted sufficient guidelines for the Commission to follow. In other cases we have specifically found that delegations of the power of eminent domain such as that here contain sufficient guidelines. E.g., Williamson v. Housing Auth. of Augusta,
4. Finally, we consider the DOT's argument that the trial judge erred in denying its motion to recuse the judge. DOT contends that the judge's in-court comment concerning the Ethiopian and Eritrean conflict warrants the judge's recusal, because, based on the comment, a reasonable person might conclude the judge has a personal bias against the DOT. See Georgia Code of Judicial Conduct, Canon 3 (C) (1) (a). [7] We conclude, however, that the comment merely indicates some irritation with DOT's refusal to mediate this dispute, and does not indicate the type of personal bias necessitating recusal. See Birt v. State,
SMITH, Presiding Justice, dissenting.
There are two equally important constitutional provisions that mandate affirmance of the trial court's order and judgment. The first is found in Art. III, Sec. I, Par. I of the 1983 Constitution of the State of Georgia; it provides:
The legislative power of the state shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives.
"This court has repeatedly held that the quoted clause of the Constitution renders void any attempt to delegate legislative powers. [Cits.]" Phillips v. City of Atlanta,
The statutes are also unconstitutional under a second constitutional provision, Art. I, Sec. II, Par. III of the 1983 Constitution of the State of Georgia, which provides:
The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the function of either of the others except as herein provided.
The first part of the strongly worded constitutional provision demands that the three branches of government "forever remain separate and distinct." The second part forbids any person from discharging the duties of one branch of state government while exercising the functions of another branch.
This Court examined the above provision in McCutcheon v. Smith,
The holdings in Greer, supra, and Murphy, supra, clearly stand for the proposition that a member of the General Assembly cannot discharge the duties or exercise the functions of an agency within the executive branch of state government.
Likewise, the clear and mandatory doctrine of separation of powers prohibits the converse; a member of the executive branch may not exercise the functions of the legislative branch.
The powers and duties granted to the members of the commission (all members of the executive branch) are legislative powers which include: "the power and duty to approve the acquisition of public property by condemnation and the power of eminent domain[,]" OCGA
The general assembly strengthened its intention to forever uphold the constitutional provisions when it enacted OCGA
(a) It shall be unlawful for:
(3) Officers or employees of the executive branch of the state government to accept or hold office or employment in the legislative or judicial branches of the state government.
(b) A person who knowingly disburses or receives any compensation or money in violation of this Code section is guilty of a misdemeanor.
The conflict in this case is far greater than other conflicts that have been seen by this Court. When Ms. Mary Jane Galer, tenured associate professor and librarian at Columbus College, was elected to represent the 97th District in the Georgia House of Representatives, this Court, relying on the separation of powers provision, held that Ms. Galer could hold either her position at Columbus College [8] or serve in the General Assembly, but "she may not hold them at the same time." Galer v. Board of Regents,
[T]his doctrine is the means by which "democracy undertakes to preserve the liberties of the people from excessive concentrations of authority." [Cit.] Common sense suggests that this doctrine as applied through [OCGA
More recently the inherent evil of allowing persons to discharge the duties of one branch of government while exercising the functions of another was discussed in Fowler v. Mitcham,
This is analogous to the effect of [OCGA
The above constitutional provisions mandate this Court's affirmance of the trial court's order and judgment. Members of the executive branch of state government are constitutionally prohibited from making final legislative decisions regarding the condemnation of public property. Legislative acts can only be delegated to administrative officers after the requirements established by our previous decisions have been accomplished.
HUNT, Justice, dissenting.
The commission is established, by delegation of legislative power, to exercise the function of eminent domain. In the context of a separation of powers dispute, a proper delegation of legislative authority is accomplished only when the body to whom such authority is delegated is bound by guidelines so that its duties are merely administrative, not legislative. Thus, in this case, assuming the existence of sufficient and specific guidelines, the function of the commission would be administrative, and the fact that some of its members were from the executive branch would be of no consequence. But here no such guidelines exist. The standard set forth in OCGA
The effect of this departure cannot be underestimated. As pointed out by the intervenors, while most citizens are accustomed to their local legislators participating in what might be unpopular decisions as to what is "reasonable, necessary, and in the public interest," it is unprecedented that an ad hoc commission have the power to destroy, alter, and abolish municipal park lands with no guidance whatsoever.
For the foregoing reasons, I respectfully dissent.
1990
Notes:
1. Art. I, Sec. II, Par. III provides as follows:
The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.
2. Art. III, Sec. I, Par. I, provides as follows:
The legislative power of the state shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives.
3. The parties do not dispute that the exercise of the power of eminent domain is a legislative function. See State Highway Dept v. Smith,
4. In our analysis we refer only to the delegated power of eminent domain. As the same analysis would apply to the power to regulate municipal property, we do not deal with that power separately.
5. Because this case involves a question regarding the delegation of legislative powers, we
6. We note that there is no discrepancy between our statement here that the taking decision is essentially legislative and our holding in Division I that the Commission was acting administratively. The taking decision is legislative in nature, but, with proper guidelines, may be accomplished administratively. The fact that it is accomplished administratively does not change the legislative nature of the decision.
7. Canon 3 (C) (1) (a) provides that
(1) Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer.
8. "Columbus College, a member institution of the University System, is an agency of the executive branch of the state government. . . ." Galer, 239 Ga. at 269. How can this Court allow the top executive officers of the State to serve in a legislative function while performing their executive duties when it forbid Ms. Galer? Either, 1) this Court viewed a librarian who wished to serve in the House of Representatives as more of a threat to the "excessive concentrations of authority" and as creating an "obvious conflict[] of interest" than the top executive officers of the State functioning as legislators while deciding what public property should be condemned, or 2) this Court has just expunged two constitutional provisions by judicial fiat. Either way, the majority is wrong.
Sponsored links
This document cites
- Supreme Court of Georgia - STATE OF GEORGIA v. JONES., 259 Ga. 139, 376 S.E.2.d 877
- Supreme Court of Georgia - DEPARTMENT OF TRANSPORTATION v. CITY OF ATLANTA et al., 259 Ga. 305, 380 S.E.2.d 265 (1989)
- Supreme Court of Georgia - EAVES et al. v. HARRIS et al., 258 Ga. 1, 364 S.E.2.d 854 (1988)
- Supreme Court of Georgia - AMOS v. PARKER et al., 258 Ga. 608, 372 S.E.2.d 432
- Supreme Court of Georgia - BIRT v. THE STATE., 256 Ga. 483, 350 S.E.2.d 241 (1986)
See other documents that cite the same legislation
