Department of Transportation v. City of Atlanta

398 S.E.2d 567, 260 Ga. 699, 1990 Ga. LEXIS 454

Opinions

Bell, Justice.

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, 255 Ga. 124 (337 SE2d 327) (1985). Other appellees are individual persons and civic groups that the trial court permitted to intervene in the litigation.

This appeal chiefly involves issues concerning the constitutionality of the State Commission on the Condemnation of Public Property (the Commission). OCGA §§ 50-16-180 to 183. The constitutional issues concern the grant to the Commission of the power to approve the acquisition of public property by a state agency through the power of eminent domain. OCGA § 50-16-182. Pursuant to the grant of this power, the Commission, which is comprised of executive members of the government, is to approve the taking if it determines the taking is “reasonable, necessary, and in the public interest.” OCGA § 50-16-183 (b). More specifically, the constitutional issues concern whether the statutes granting to the Commission the power to approve the taking of municipal property violate Art. I, Sec. II, Par. Ill of the 1983 Georgia Constitution, which provides for the separation of the legislative, executive, and judicial branches of government,¹ and Art. Ill, Sec. I, Par. I of the 1983 Georgia Constitution, which grants the General Assembly the legislative power of the state.² Other constitutional issues concern whether the statutes governing the Commission’s approval of the acquisition of public property violate procedural and substantive due process. A final issue raised by this appeal concerns whether the trial judge should have recused himself, on the ground of alleged bias against DOT.

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, 255 Ga. 124, we held that existing statutes did not provide the DOT with specific authority and procedures to condemn public property. Thereafter, the General Assembly enacted certain laws to provide DOT and other state agencies with specific procedures to condemn public property. See Ga. L. 1986, pp. 1187-1196 (hereafter sometimes referred to as the Act). The relevant portions of the Act have been codified at OCGA §§ 50-16-180 to 183. The Act created the State Commission on the Condemnation of Public Property, comprised of the Governor, the Lieutenant Governor, the Secretary of State, the State Auditor, and the Commissioners of Agriculture, Insurance and Labor. OCGA § 50-16-181 (a).

OCGA § 50-16-183 (a) provides that if the DOT or other state agencies desire to acquire public property by condemnation, the DOT or other agencies must first obtain approval from the Commission. OCGA § 50-16-183 (b) provides that:

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 § 50-16-183 (c).

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, 259 Ga. 305 (380 SE2d 265) (1989). On September 15, 1989, following receipt of the remittitur from this Court, the trial court conducted a status conference with the parties. At the start of the hearing, the court noted that it had met with the parties to determine whether they desired to meet voluntarily with a mediator. The court stated that the city and the intervenors had agreed to mediate, but that DOT had not. The court stated it was satisfied the parties had acted in good faith in exploring the possibility of mediation, and that the court would not appoint a mediator. The court then proceeded with a hearing regarding the merits of the case. At the end of the hearing, the trial judge remarked that

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 filed 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. Ill, 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, 114 Ga. 871, 881 (40 SE 1004) (1902); Beall v. Beall, 8 Ga. 210 (1850). [Greer v. State, 233 Ga. 667, 668 (1) (212 SE2d 836) (1975).]

Moreover, because the principle that delegations of legislative power must be made with sufficient guidelines is related to the principle of separation of powers, we will discuss the nondelegation issue as well as the separation-of-powers issue in this division.⁵

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. Ill, 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, 133 Ga. 277, 281-296 (1) (65 SE 665) (1909); Russell v. Venable, 216 Ga. 137, 143-144 (5) (115 SE2d 103) (1960); Scoggins v. Whitfield Finance Co., 242 Ga. 416, 417 (1) (249 SE2d 222) (1978); Eaves v. Harris, 258 Ga. 1, 5 (3) (364 SE2d 854) (1988); State v. Moore, 259 Ga. 139, 142-143 (8, 9) (376 SE2d 877) (1989). Some of these prior cases have involved delegations to executive officers. E.g., Scoggins, supra, 242 Ga. 416.

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. Ill, 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. Ill of the 1983 Georgia Constitution. We reach this conclusion, because, in such cases, the executive official or commission is not “exercising] 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, 186 Ga. 673, 680-681 (4) (199 SE 43) (1938). Moreover, in this case, by directing the Commission to determine whether the taking of public property is in the public interest, the General Assembly has directed the Commission to consider whether the current public use of the property or the proposed public use of the property is more in the public interest. We find the guidelines in this case are sufficient under the standards enunciated in the prior cases of this court. E.g., State v. Moore, 259 Ga. at 142-143; Eaves v. Harris, supra, 258 Ga. at 5.

For the foregoing reasons we conclude that the authority granted the Commission does not amount to an improper delegation of legislative power and does not violate separation-of-powers principles.

2. The DOT next argues that the trial court erred in holding that the Act violates procedural due process. We agree.

Courts have widely recognized that determining the necessity of taking a piece of property is a legislative decision, and that therefore private property owners are not entitled to notice or an opportunity to be heard.⁶ E.g., State Highway Dept. v. Smith, 219 Ga. 800, 803-804 (1) (a) (136 SE2d 334) (1964). The appellee-intervenors argue that, as municipal property is involved, notice and an opportunity to be heard must be given. However, we can see no constitutional basis for the argument that more process is due when public property is involved than when private property is involved.

3. We next turn to DOT’s argument that the trial court erred in holding that the Act violates substantive due process. We find that it does not. Substantive due process protects property owners from the arbitrary and capricious exercise of the power of eminent domain. See Nichols on Eminent Domain, Vol. 1A, § 4.9 (3rd ed.). Here, the trial court ruled that any decision made under the Act was necessarily arbitrary and capricious, because the Act contains insufficient guidelines and does not require the taking of evidence. However, in Division 1 of this opinion we have already decided that the Act does provide sufficient guidelines. Moreover, although the Act does not require taking evidence, the Act provides that the Commission may require the submission of information from the applicable state agency that it needs to make its decision, OCGA § 50-16-183 (b), and may enact “rules and regulations as may be necessary to enable [it] to carry out” its duties, may “utilize the resources of any department or agency of the state ... to assist it in making” any of its determinations, and may appoint hearing officers and investigators “as it deems proper to receive public comment and make reports or recommendations to the commission,” § 50-16-183 (d). Thus, we find the Act provides the Commission with adequate authority to reach a reasoned decision in each request for approval that comes before it, and we are unwilling to conclude that every taking decision made pursuant to the Act is arbitrary and capricious.

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, 256 Ga. 483, 485-486 (4) (350 SE2d 241) (1986); Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67) (1981).

Judgment affirmed in part and reversed in part.

All the Justices concur, except Smith, P. J., and Hunt, J., who dissent.

Footnotes

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, 219 Ga. 800, 803 (1) (a) (136 SE2d 334) (1964); Nichols on Eminent Domain, Vol. 1A, § 3.1 (3rd ed).

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 note that it is unlike several of our prior separation-of-powers cases, in which the General Assembly took for itself the power of another branch. E.g., Greer v. State, 233 Ga. 667, 668 (1) (212 SE2d 836) (1975). Here, executive branch members have not attempted to usurp a legislative function.

6

We note that there is no discrepancy between our statement here that the taking decision is essentially legislative and our holding in Division 1 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.