A question presented by this case is whether the Judicial Council of Georgia and the Board of Court Reporting of the Judicial Council of Georgia fall within “the judiciary,” as that term is used in OCGA § 50-13-21 of the Administrative Procedure Act and therefore are exempt from the coverage of the Act.1 We hold that they are part of the judiciary as that term is used in OCGA § 50-13-21 and reverse the judgment of the Court of Appeals. This appeal arose when Brown & Gallo, an independently-owned court reporting agency, filed an action for declaratory judgment pursuant to OCGA § 50-13-10 of the Administrative Procedure Act, alleging that a portion of the code of professional ethics for court reporting adopted by appellant Board of Court Reporting of the Judicial Council of Georgia “the Board” in 1994 and favorably reviewed by appellant Judicial Council of Georgia “the Council” was invalid because it was vague, ambiguous, unreasonable, arbitrary and capricious, overbroad and beyond the scope of the Board’s authority, and that the application of the rule to Brown & Gallo was unreasonable, arbitrary and capricious, and beyond the scope of the Board’s authority.2 Brown & Gallo also sought a stay of the grievance procedure initiated by the Board 34 days earlier that alleged a possible violation by Brown & Gallo of the same portion of the ethics code.3 The Council and the Board sought dismissal of the declaratory judgment action on several grounds, one of them being that the action was barred by sovereign immunity. See Ga. Const. 1983, Art. I, Sec. II, Para. IX. Appellees reasoned that the Administrative Procedure Act was a waiver of sovereign immunity that specifically exempted “the judiciary” from its coverage and, as part of the judiciary, the Council and the Board were therefore exempt from the waiver of sovereign immunity. The trial court denied the motion to dismiss, ruling, among other things, that the Administrative Procedure Act’s exclusion of “the judiciary” from its definition of “agency” in OCGA § 50-13-214 did not include the Council and the Board because they were formed to define and regulate the practice of court reporting and to make all necessary rules and regulations to do so and, while an “agency of the judicial branch OCGA § 15-14-23, they were not “the judiciary.”5 The trial court’s order did not contain the definition of “judiciary” it employed. Using Court of Appeals Rule 36, the Court of Appeals issued a non-precedential affirmance of the trial court without opinion. Judicial Council of Georgia v. Brown & Gallo, LLC , 299 Ga. App. XXII 2009.6 We granted the petition for a writ of certiorari filed by the Council and the Board to determine whether the Court of Appeals erred in affirming the trial court’s denial of the motion to dismiss filed by the Council and the Board.
OCGA § 50-13-10 is part of the Administrative Procedure Act and authorizes the filing of a declaratory judgment action questioning the validity of any rule that allegedly interferes with or impairs legal rights, without the petitioner having first requested the agency to pass upon the validity of the rule. “Rule” is statutorily defined in OCGA § 50-13-26 as meaning “each agency regulation, standard, or statement of general applicability. . .,” and, as previously noted, “agency” is statutorily defined in OCGA § 50-13-21 as “each state board, bureau, commission, department, activity, or officer expressly authorized by law to make rules and regulations or to determine contested cases, except the General Assembly; the judiciary; the Governor; . . . .” It is without question that the Board and the Council are authorized by law to make rules and regulations with regard to the practice of court reporting in Georgia; the question presented is whether the Council, an agency of the judicial branch OCGA § 15-14-23, and the Board, appointed by the Council to carry out its duties with regard to the regulation of court reporting OCGA § 15-14-26, are within “the judiciary” as that term is used in OCGA § 50-13-21.
