In the Supreme Court of Georgia



                                            Decided: November 2, 2015


                S15A1251. KEMP v. MONROE COUNTY.
            S15A1252. BIBB COUNTY v. MONROE COUNTY.


      THOMPSON, Chief Justice.

      This is the second time this case involving a long-running boundary line

dispute between Monroe County and Bibb County has appeared before this

Court.   See Bibb County v. Monroe County, 294 Ga. 730 (755 SE2d 760)

(2014) (“Bibb County I”). In the prior appeal, we reversed the trial court’s grant

of mandamus relief and remanded the case with direction for further

proceedings consistent with our opinion. On remand, the trial court entered an

order directing Secretary of State Brian Kemp (the “Secretary”) to consider

certain evidence and to preclude him from the consideration of other evidence

in determining the true boundary line between the counties. See OCGA § 36-3-

20 et seq. Both the Secretary and Bibb County filed appeals from the trial

court’s order, and for the reasons discussed below, we reverse and remand the

case to the trial court.
The facts, as set out in our previous opinion, show that:

In 2005, Governor Sonny Perdue appointed land surveyor Terry
Scarborough to identify the boundary between the counties,
pursuant to a statutory process for settling boundary disputes first
established in the 1880s. See OCGA § 36-3-20 et seq.; Ga. L. 1887,
pp. 106-107. In April 2008, after receiving formal authorization to
proceed from the Secretary of State (“the Secretary”), Scarborough
conducted his survey work and submitted his final survey and plat
to the Secretary on March 27, 2009, delineating what he concluded
was the true boundary line separating Monroe County and Bibb
County. Bibb County filed exceptions to the final survey with the
Secretary, disputing Scarborough’s conclusion as to the location of
the northernmost terminating point of the boundary line. Monroe
County responded, defending the survey, whereupon the Secretary
referred the matter to the Office of State Administrative Hearings
for appointment of a Special Assistant Administrative Law Judge
(“SAALJ”) to hear evidence and make a recommendation. After a
three-day evidentiary hearing in February and March 2011, the
SAALJ recommended accepting the survey. The Secretary then
held oral argument and conducted a site visit to the area along the
Ocmulgee River encompassing both the terminating point identified
in the Scarborough survey and the alternative terminating point
argued for by Bibb County. On August 23, 2011, the Secretary
issued a final determination, rejecting the Scarborough survey, thus
leaving the boundary line undetermined. . . . [Scarborough
subsequently offered addendum evidence in an effort to explain his
conclusions but the Secretary refused to consider this evidence.]

Monroe County then filed a petition for mandamus, asserting that
the Secretary had exceeded his authority in refusing to accept the
Scarborough survey and failing to establish a definitive boundary
line. Following a hearing, the superior court issued its final order,
granting the mandamus petition and directing the Secretary to
record the Scarborough survey and plat, thereby establishing the

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       boundary between Monroe County and Bibb County as that
       identified by Scarborough.

Id. at 731-732.

       The Secretary and Bibb County then filed separate applications for

discretionary appeal which this Court granted and consolidated, requesting the

parties to address, in part, whether: (1) the actions of an official under OCGA

§ 36-3-20 et seq. may be the subject of a writ of mandamus; and (2) assuming

mandamus was available, the superior court erred in granting the mandamus

petition and ordering the Secretary to record the Scarborough survey. Id. This

Court answered both questions in the affirmative, reversing the trial court’s

grant of mandamus relief because, although the trial court was authorized to

grant mandamus compelling the Secretary to determine the true boundary line

between the counties pursuant to OCGA § 36-3-20 et seq., it was not authorized

to direct the Secretary to accept and record a particular boundary line. Id. at

739.

       Before the trial court entered its order on remand, the Secretary notified

the parties and the trial court of how he intended to proceed, and more

specifically, of his intent to hold a hearing allowing: (1) Scarborough to present


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his addendum evidence; and (2) to provide the parties an opportunity to respond

to Scarborough’s addendum evidence. Monroe County objected in the trial

court to the Secretary’s announced process, and the trial court asked the parties

to brief the issue of whether the Secretary was authorized to hold another

hearing and take additional evidence. After reviewing the parties’ briefs, the

trial court entered the order at issue in this appeal, prohibiting the Secretary

from holding an additional hearing and considering new evidence and also

finding that the Secretary’s prior decision not to consider the addendum

evidence was a gross abuse of discretion. These conclusions were followed by

the trial court’s direction that the Secretary “not [] allow the Counties to submit

additional evidence or hold an evidentiary hearing before deciding the true

boundary line between Bibb County and Monroe County.”

      The Secretary and Bibb County filed applications for interlocutory appeal

which this Court granted to consider whether the trial court erred by including

in its order language proscribing the Secretary from holding a new hearing or

considering additional evidence before making his final determination.

      1. The trial court based its ruling as to the scope of the proceedings

following remand on its conclusion that our opinion in Bibb County I precluded

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the actions announced by the Secretary. Our analysis, therefore, begins with a

review of our decision in Bibb County I.

      As previously stated, we were called upon in Bibb County I to determine,

in part, whether the trial court was authorized to dictate the results of the

statutory review process by directing the Secretary to record the Scarborough

survey. We concluded that there are “three clear legal rights afforded to

counties involved in a boundary dispute: (1) the right to file a protest to

challenge the appointed surveyor’s survey and plat; (2) the right to have the

Secretary determine the true boundary line in accordance with the law and

evidence; and (3) the right to have the Secretary record the survey and plat

establishing that boundary line.” Bibb County I, 294 Ga. at 737. We, thus,

reversed the trial court’s grant of mandamus to the extent it directed the

Secretary to record the survey prepared by Scarborough because while OCGA

§ 36-3-20 et seq. provides counties a clear legal right to a process that results in

a definitive determination of a disputed boundary line, it does not grant counties

a clear legal right to any particular result of the Secretary’s review process. Id.

at 738. We further noted in that opinion that the statutory process does not grant

counties the right to a “particular process by which the Secretary is to receive

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evidence and reach a decision, as these matters fall within the Secretary’s

discretion.” Id. As examples of the exercise of the Secretary’s discretion, we

recognized that the Secretary had referred the matter to a SAALJ for the making

of specific findings, had undertaken additional investigation, and had visited the

alternative terminating points argued by each county. Id. In the order being

appealed, the trial court construed our acknowledgment of these examples as a

substantive legal ruling intended to “expressly preclude the Secretary from

allowing the record to be reopened and new evidence developed.” This was not

our intent.

      Our acknowledgment in Bibb County I of the Secretary’s prior

discretionary actions was not an express holding as to any issue then before us

and was not intended, either explicitly or implicitly, to address the manner in

which the Secretary was authorized to proceed in the exercise of his discretion

as he continued to perform his statutory duties on remand. Thus, to the extent

the trial court felt constrained by Bibb County I to conclude that the Secretary

was without authority to hold another hearing and receive new evidence, the

trial court erred.

      2. The trial court also found that allowing the parties to present new

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evidence would be unfair and undermine the statutory process because it would

give Bibb County a second opportunity to challenge the Scarborough survey.

In support of this ruling, Monroe County argues that the Secretary was divested

of all discretion with regard to the proceedings because a hearing already had

been held and the record had been closed. We disagree.

      In enacting the provisions related to county boundary-line disputes, the

legislature did not contemplate a lawsuit between the counties, thereby imposing

upon such proceedings the rules and requirements applicable in judicial

proceedings. Instead, the legislature devised a means by which the State can

delineate, ascertain, and make certain the boundaries between counties which

are its political subdivisions. See Fine v. Dade County, 198 Ga. 655, 665 (32

SE2d 246) (1944); Early County v. Baker County, 137 Ga. 126, 128 (72 SE

905) (1911). For the purpose of these political proceedings, the legislature

vested in the Secretary of State the authority to determine the true boundary line

between counties where the boundary is in dispute and the discretion to fashion

a process by which the Secretary is to receive evidence and reach a decision.

OCGA § 36-3-24. The language of the statutes creating the scheme for

determining county boundary lines, however, prescribes no particular process

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but confers upon the Secretary the broad and undirected discretion to “determine

from the law and evidence the true boundary line in dispute between the

respective counties.” Id. Thus, while the Secretary, in his discretion, may

incorporate some or all of the rules and processes found in judicial proceedings

when making a determination under OCGA § 36-3-24 as to the true boundary

line, including procedures related to the opening and closing of the record and

rules related to the time and process within which a decision must be made, the

Secretary is not constrained to do so. See Fine, 198 Ga. at 665 (stating on

motion for reconsideration that procedural requirements applicable in judicial

proceedings do not apply in proceedings to determine a county boundary line

because the Secretary of State does not act judicially under the statutes, but acts

politically). See generally OCGA § 36-3-25 (imposing upon Secretary of State

the obligation to record the survey and plat not within any particular time but

“[u]pon the making of a decision pursuant to Code Section 36-3-24"). The

Secretary, in fact, is not bound to any one process or even to follow the same

process each time he is called upon to determine a true boundary line. Instead,

the statutes grant the Secretary the freedom to determine in his discretion the

particular process to be followed in each case.

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       Here, the Secretary exercised his discretion by deciding on remand to

consider the Scarborough addendum evidence he originally rejected and to grant

the parties the opportunity to respond, including, if necessary, the opportunity

to present new evidence.1 Contrary to the trial court’s order, we find nothing in

the process announced by the Secretary that contravenes his broad statutory

discretion, and more specifically, we find nothing in the language of the

statutory scheme that indicates a legislative intent to preclude the Secretary from

exercising his discretion to re-open the evidence on remand or that imposes

upon the Secretary the obligation to receive evidence and determine the

boundary line within a single hearing. Accordingly, the statutory process does

not prohibit the Secretary from exercising his discretion in the chosen manner.

       Nor does the procedural posture of this case support the argument offered

by Monroe County that the Secretary is, by considering additional evidence,



       1
          The propriety of the trial court’s ruling that the Secretary acted arbitrarily and
capriciously and grossly abused his discretion by refusing to consider Scarborough’s
addendum evidence has not been challenged by the Secretary or Bibb County, and therefore,
we do not address this issue on appeal. We note, however, that inasmuch as the trial court
directed the Secretary to consider the addendum evidence in making his final decision, it
appears the trial court was not concerned with the presentation of all new evidence but with
the Secretary’s decision to allow the parties to respond to Scarborough’s newly admitted
addendum evidence.

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making a second determination as to the true boundary line. In fact, it was the

Secretary’s initial failure to make a final determination as to the boundary line

between the counties that supported the grant of mandamus relief in Bibb

County I and that gave rise to the proceedings on review in this appeal.

      As for the trial court’s finding that the Secretary’s decision to hold another

hearing at which the parties would be allowed to present new evidence was

generally “unfair,” that is a question for the legislature, not the courts. The trial

court is authorized under Georgia law to disturb the Secretary’s exercise of

discretion only if the Secretary’s actions are found to be arbitrary and

capricious, amounting to a gross abuse of discretion. See Gilmer County v. City

of East Ellijay, 272 Ga. 774, 777 (533 SE2d 715) (2000). No such finding was

made by the trial court in this case.

      It follows that the trial court erred by entering an order proscribing the

Secretary from holding a hearing and considering new evidence before reaching

a final decision. While the court would have been authorized on remand to

direct the Secretary to make a determination as to the true boundary line, it was

not authorized to direct the Secretary as to the manner in which evidence was

to be received or the process by which the Secretary was to make his decision.

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See Bibb County I, 294 Ga. at 736. See also The Citizens & Southern Nat. Bank

v. Independent Bankers Assn. of Georgia, Inc., 231 Ga. 421, 425 (202 SE2d 78)

(1973). We, therefore, reverse the trial court’s order and remand to the trial

court for proceedings consistent with this opinion. We reiterate that to the

extent either party wishes to challenge the Secretary’s final decision or the

process by which it ultimately is made, it will be entitled to mandamus relief if

it can be shown that the Secretary, in performing his statutory duties, acted

arbitrarily and capriciously or grossly abused his discretion. See Bibb County

I, 294 Ga. at 739 n.6 (stating that once the Secretary resumed the process for

resolving the boundary dispute, “either county would be entitled to seek

mandamus again if the Secretary were then to act arbitrarily and capriciously in

determining the boundary line”); City of Atlanta v. Wright, 119 Ga. 207, 212,

(45 SE 994) (1903) (recognizing that mandamus may be used to control an

officer’s discretion only “where the discretion reposed in the officer has been

grossly abused, or has been arbitrarily and capriciously exercised.”).

      Judgment reversed and case remanded. Hines, P.J., Benham, Hunstein,

Melton and Blackwell, JJ., and Judge Carla Wong McMillian concur. Nahmias,

J., disqualified.

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