Administrative Law

• Publication year: 2017

Administrative Law

Jennifer B. Alewine

Courtney E. Ferrell

Allison W. Pryor

Administrative Law

by Jennifer B. Alewine^* Courtney E. Ferrell^** and Allison W. Pryor^***

I. Introduction

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2016 through May 31, 2017 in which principles of administrative law were a central focus of the case.¹ The Article first discusses the exhaustion of administrative remedies, followed by decisions by state administrative agencies, then on to scope of authority, statutory construction, a review of administrative decisions, and concludes with a brief review of enactments from the 2017 regular session of the Georgia General Assembly.

II. Exhaustion of Administrative Decisions

Georgia Power Co. v. Cazier² (Cazier I) was revisited in 2016 in Cazier v. Georgia Power Co.³ (Cazier II), where the Georgia Court of Appeals again held that Georgia Power customers were not challenging the Georgia Public Service Commission's (PSC) decisions or rules, but rather

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Georgia Power's improper calculations of municipal franchise fees.⁴ The customers thus did not have to exhaust their administrative remedies since they were challenging a private party.⁵ The court reasoned that section 46-2-90 of the Official Code of Georgia Annotated (O.C.G.A.),⁶ which states companies that do not follow PSC standards are liable to their customers, "stands in contrast to other provisions of Title 46, which expressly provide for administrative petitions or hearings."⁷ Because the Fulton County Superior Court ruled that the PSC's rulings defining terms used to calculate municipal franchise fees were ambiguous and the customers were required to apply to the PSC to explain these meanings, the court of appeals vacated and remanded the trial court's decision for a second time.⁸

III. Decisions by Administrative Agencies

In State v. International Keystone Knights of the Ku Klux Klan, Inc.,⁹ the Georgia Supreme Court dismissed an appeal by the Georgia Department of Transportation (the Department) for lack of jurisdiction under the Appellate Practice Act¹⁰ due to the Department's failure to request appellate review.¹¹ The Keystone Knights filed a complaint alleging the Department wrongfully denied the group's Adopt-A-Highway application based in part on the content of the group's speech. The Department filed a motion to dismiss, asserting sovereign immunity and challenging the appropriateness of the remedies sought as the Keystone Knights could have sought judicial review under the Administrative Procedure Act.¹² The Fulton County Superior Court denied the Department's motion to dismiss, and the Department filed a notice of appeal with the court of appeals.¹³ After accepting the case on transfer from the court of appeals for subject-matter jurisdiction, the supreme court subsequently ruled that it lacked jurisdiction over the

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Department's appeal because the appeal was from a decision of the superior court reviewing a decision of a state administrative agency.¹⁴

The Appellate Practice Act provides that there is no appeal of right from the judgment of a superior court reviewing a decision of a state administrative agency; rather, appellate review must take place by way of an application for discretionary review.¹⁵ In Keystone Knights, the court provided guidance on how to determine what is a "state administrative agency" under O.C.G.A § 5-6-35(a), what is an agency "decision," and what constitutes a review by a superior court of such agency decision.¹⁶ Although no party disputed that the Department was an administrative agency, the Department argued that its denial of an Adopt-A-Highway application was not a decision because a decision refers to a determination that is made by way of a formal adjudicative procedure.¹⁷ The court agreed that a decision under O.C.G.A § 5-6-35(a) must be adjudicative in nature and be specific and immediate, not general or prospective in application.¹⁸ Nevertheless, the court rejected the Department's argument because court precedents show that a "decision" does not require formal adjudicative procedures.¹⁹ Although the court acknowledged that statutory law or due process may require formal adjudicative procedures, the court held that, for the purposes of O.C.G.A. § 5-6-35(a)(1),²⁰ "such procedures are not essential to a 'decision.'"²¹ As applied in Keystone Knights, the court held that the Department Commissioner's denial of the Adopt-A-Highway application was a decision of a state administrative agency for the purposes of O.C.G.A § 5-6-35(a)(1) because the Commissioner had the authority to speak, act, and make determinations on behalf of the Department.²²

The court also rejected the Department's argument that the superior court's judgment was not a decision reviewing an agency decision.²³ The court stated that if a party to a judicial proceeding "attacks or defends the validity of an administrative ruling and seeks to prevent or promote the enforcement thereof, the trial court must necessarily 'review' the

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administrative decision [to resolve the merits of the case]."²⁴ The Department also argued that the judgment from which it appealed was not entered in a proceeding under the Administrative Procedures Act or any statute authorizing judicial review of its denial of the Keystone Knight's application.²⁵ In rejecting the State's position, the court held that when it "consider[s] the nature of the proceedings in the superior court for the purposes of OCGA § 5-6-35(a)(1)," it looks to "the substance of those proceedings, not merely the form of the relief sought."²⁶ Therefore, "[n]otwithstanding that the proceedings and judgment below were only for injunctive and declaratory relief, the proceedings and judgment amounted to a review of a decision to deny a particular Adopt-A-Highway application."²⁷ In conclusion, the court held that, because the Department appealed a decision of a superior court reviewing a decision of a state administrative agency, it was required under O.C.G.A. § 5-6-35(a)(1) to file an application for discretionary review to seek appellate review.²⁸

A few months later, in Wolfe v. Board of Regents of the University System of Georgia,²⁹ the Georgia Supreme Court reiterated the necessity of filing an application for discretionary appeal pursuant to O.C.G.A. § 5-6-35(a)(1) when a party appeals a superior court's affirmation of an adjudicative agency decision.³⁰ The president of Georgia Southern University, Brooks A. Keel, fired Lome Wolfe, a tenured professor, for violation of university policies. Following the denial of Wolfe's application to review his termination by the Board of Regents of the University System of Georgia (Board of Regents), Wolfe filed suit in the Fulton County Superior Court for breach of contract and mandamus against President Keel and the Board of Regents seeking reinstatement and other relief. The superior court granted the motion for summary judgment filed by the Board of Regents, which Wolfe appealed to the Georgia Supreme Court.³¹ To determine whether it had jurisdiction and whether a discretionary application to appeal was required under O.C.G.A. § 5-6-35(a)(1), the court applied the guidance laid out in

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Keystone Knights to determine whether (i) a state administrative agency, (ii) made a decision, (iii) that was reviewed by the superior court.³²

The supreme court held that the Board of Regents is a state administrative agency with statutory authority to discontinue or remove professors as the good of an institution may require and make rules and regulations for the performance of its duties.³³ The Board of Regents exercised its authority when it adopted the standards of conduct and procedural policies for universities which applies when entering into and terminating contracts of employment with professors.³⁴ Next, the court determined that the Board of Regents made a "decision" in terminating Wolfe.³⁵ Consistent with the holding in Keystone Knights, the decision was adjudicative in nature rather than executive or legislative because "it was based on an assessment of the particular facts surrounding a single person's past conduct, it involved an application of [the] Board [of Regents'] rules and policies to that conduct, and it had the immediate and specific consequence of terminating Wolfe's contract."³⁶

Finally, the court determined the decision of the superior court was one that reviewed the decision of the Board of Regents.³⁷ The court rejected Wolfe's argument that the superior court did not review an agency decision because it failed to mention the Board of Regents' denial of Wolfe's application for discretionary review of President Keel's decision to terminate him.³⁸ The procedures adopted by the Board of Regents authorized a university president to terminate a professor's contract.³⁹ The Board of Regents exercised its discretion not to review President Keel's decision when it declined Wolfe's application, thereby making his decision to terminate the operative decision of the agency.⁴⁰ Further, the court reiterated its holding in Keystone Knights that "[i]f a party to a judicial proceeding 'attacks or defends the validity of an administrative ruling and seeks to prevent or promote the enforcement thereof, the trial court must necessarily "review" the administrative decision (to resolve the merits of the case).'"⁴¹ The court summarized that "Wolfe's complaint asked the superior court to review a decision of a state administrative

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agency; the superior court reviewed that decision" and denied relief, and Wolfe appealed that decision to the supreme court.⁴² As a result, Wolfe was required to file a discretionary application to appeal under O.C.G.A. § 5-6-35(a)(1).⁴³

IV. Scope of Authority

In Bender v. Southtowne Motors of Newnan, Inc.,⁴⁴ the Georgia Court of Appeals held that where a private right of action is only authorized by statute, a party's failure...