Brissey v. Ellison
Brissey v. Ellison
Opinion of the Court
Appellant Thomas E. Brissey, a resident of Glynn County, Georgia, filed a petition for writ of mandamus in the Superior Court of Glynn County, seeking an order compelling the superior court clerk to cancel all notices of federal tax liens recorded in the Superior Court of Glynn County.
A writ of mandamus may issue to compel a due performance of an official duty. OCGA § 9-6-20. It is “the remedy for inaction of a public official.” Hilton Constr. Co. v. Rockdale County Bd. of Ed., 245 Ga. 533 (4) (266 SE2d 157) (1980). In most instances in which a writ of mandamus is sought, the petitioner must have a heightened interest in the outcome in order to have standing to bring the petition: to enforce by mandamus a corporation’s performance of a public duty, an individual must have a “special interest” (OCGA § 9-6-23); to use mandamus to enforce a private right, one must show a pecuniary loss not compensable in damages. OCGA § 9-6-25. However, OCGA § 9-6-24, upon which appellant Brissey relies, confers standing to seek mandamus on one who does not have a “special interest” in the circumstances that give rise to the petition for judicial relief: “Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced.” OCGA § 9-6-24. The statute is the codification of a principle set out in Bd. of Commrs. of Manchester v. Montgomery, 170 Ga. 361 (153 SE 34) (1930) (see Head v. Browning, 215 Ga. 263 (2) (109 SE2d 798) (1959)), whereby a citizen/resident/taxpayer whose “interest” is in having the laws executed and a public duty enforced may turn to the judicial branch to seek to compel or enjoin
In the case at bar, appellant Brissey’s petition for writ of mandamus does not meet the necessary prerequisites to exercise § 9-6-24
Judgment affirmed.
Appellant’s petition sought “an Order canceling all federal tax liens of [Glynn] County, and/or ... [a] Writ of Mandamus requiring the Defendant Clerk ... to cancel of record all uncertified federal tax liens.”
OCGA § 44-14-572 states: “Certification by the secretary of the treasury of the United States or his delegate of notices of liens, certificates, or other notices affecting tax hens entitles them to be filed; and no other attestation, certification, or acknowledgment is necessary.”
After ruling that Brissey lacked standing to bring the mandamus action, the trial
While OCGA § 9-6-24 has been codified in the “Mandamus” article of Chapter 6 of Title 9, this Court has held that its principles are not confined to mandamus cases, and has authorized its use as a basis for standing to seek injunctive relief to restrain allegedly ultra vires acts of public officials where the question is one of public right and the object is to procure enforcement of a public duty. Moore v. Robinson, 206 Ga. 27 (55 SE2d 711) (1949). See also Head v. Browning, supra, 215 Ga. 263 (2).
Concurring Opinion
concurring.
I concur in the court’s judgment. I also note that there is an additional reason that the trial court must be affirmed. Brissey seeks to have the federal tax liens cancelled because they are not in compliance with OCGA § 44-14-572, which states that a “certification by the secretary of the treasury of the United States or his delegate” entitles federal tax liens to be filed. The eligibility for filing of a federal tax lien, however, is controlled by federal law
26 U.S.C. § 6323 ffl.
26 U.S.C. § 6323 (0 (3).
368 U.S. 291 (82 SC 349, 7 LE2d 294) (1961).
Krueger v. Kennedy, No. 2:96-CV-109 (1998 WL 641985) (W.D. Mich. 1998); Cleveland v. United States, No. CV94-157-BLG-JDS (1995 WL 710780) (D. Mont. 1995).
Reference
- Full Case Name
- BRISSEY v. ELLISON Et Al.
- Cited By
- 12 cases
- Status
- Published