Kemp v. Monroe County; Bibb County v. Monroe County, 298 Ga. 67

Background

Long-running boundary dispute between Monroe County and Bibb County resolved initially by appointed surveyor Terry Scarborough, who submitted a final survey and plat in 2009 identifying the boundary.
Bibb County filed exceptions to Scarborough’s survey; Secretary of State referred the matter to a SAALJ, which recommended accepting the survey after a hearing.
The Secretary rejected Scarborough’s survey in a 2011 final determination, leaving the boundary undetermined; Scarborough later submitted addendum evidence which the Secretary refused to consider.
Monroe County obtained mandamus directing the Secretary to record Scarborough’s survey; this Court in Bibb County I reversed, holding the trial court could compel the Secretary to determine the boundary but could not order acceptance/recording of a particular survey.
On remand the Secretary announced he would allow Scarborough’s addendum and permit responses/new evidence; the trial court prohibited the Secretary from reopening the record and found the Secretary grossly abused discretion in initially refusing the addendum.
The Secretary and Bibb County appealed the trial court’s interlocutory order prohibiting the Secretary from holding further hearings or considering additional evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court could bar the Secretary from reopening the record or receiving new evidence on remand	Monroe: Record was closed; reopening gives Bibb another bite; trial court should forbid further evidence	Secretary (and Bibb): Secretary has statutory discretion to determine process and may reopen evidence and allow responses	Reversed: Secretary may, in his discretion, reopen the record and consider addendum or new evidence on remand
Whether Bibb County I precluded the Secretary from taking additional discretionary actions on remand	Monroe: That opinion’s examples showed the Secretary’s prior steps are exclusive and binding	Secretary: Bibb County I did not decide the procedures the Secretary must follow; it left process to Secretary’s discretion	Court: Bibb County I did not constrain the Secretary’s procedural discretion; trial court erred in so construing it
Whether allowing new evidence is procedurally unfair or tantamount to a second determination	Monroe: Allowing new evidence is unfair and effectively reopens challenge to survey	Secretary: Statute grants broad discretion; procedural fairness questions are for the legislature unless arbitrary or capricious conduct is shown	Court: Procedural fairness concerns do not bar Secretary from exercising discretion; courts may disturb only arbitrary, capricious, or gross abuse
Availability of mandamus to control Secretary’s procedural choices	Monroe: Trial court acted properly to control Secretary’s process	Secretary: Mandamus only appropriate for gross abuse or arbitrary action, not to direct process	Court: Agrees mandamus is available only when Secretary acts arbitrarily or grossly abuses discretion; parties may seek mandamus after final decision if such abuse occurs

Key Cases Cited

Bibb County v. Monroe County, 294 Ga. 730 (755 S.E.2d 760) (2014) (prior appellate decision clarifying limits of mandamus and Secretary’s discretion)
Fine v. Dade County, 198 Ga. 655 (32 S.E.2d 246) (1944) (proceedings to determine county boundaries are political, not judicial)
Early County v. Baker County, 137 Ga. 126 (72 S.E. 905) (1911) (legislative scheme for boundary determinations vested authority in Secretary)
Gilmer County v. City of East Ellijay, 272 Ga. 774 (533 S.E.2d 715) (2000) (standard that courts may disturb administrative discretion only for arbitrary, capricious, or gross abuse)
The Citizens & Southern Nat. Bank v. Independent Bankers Assn. of Georgia, Inc., 231 Ga. 421 (202 S.E.2d 78) (1973) (limits on courts directing the manner of executive action)
City of Atlanta v. Wright, 119 Ga. 207 (45 S.E. 994) (1903) (mandamus to control discretion only on gross abuse or arbitrary action)