Administrative Law - Martin M. Wilson and Jennifer A. Blackburn

• Publication year: 2011

Administrative Law

by Martin M. Wilson* and Jennifer A. Blackburn**

I. Introduction

The difficult economic times and resulting budget cuts to many state agencies were evident in the reduced number of high-level administrative law cases brought before the courts during this survey period. It seems in tough times such litigation is often not pursued to the degree it is in a more comfortable economic climate. As the economy begins to recover, we will likely see an increase in the number and complexity of administrative law cases brought before the appellate courts.

This Article is a survey of cases from the Georgia Supreme Court and Georgia Court of Appeals from June 1, 2010 through May 31, 2011.¹ The cases included in this Article were selected based on the concentration of administrative law principles in the opinions. one will be able to find specialized subject matters-some including administrative law principles-in other articles in this volume.

This Article begins with a discussion of judicial review of administrative decisions and exhaustion of administrative remedies. Next, the cases distinguish between discretionary and direct appeals. The Article then addresses statutory construction, procedures regarding administrative rules, and sovereign immunity. The last section provides an

* Partner in the firm of Troutman Sanders LLP, Atlanta, Georgia. Mercer University (B.A., 1975); Mercer University, Walter F. George School of Law (J.D., with honors, 1978). Member, State Bar of Georgia.

** Associate in the firm of Troutman Sanders LLP, Atlanta, Georgia. Georgia State University (B.A., 2000); Mercer University, Walter F. George School of Law (J.D., 2004). Member, State Bar of Georgia.

The Authors gratefully acknowledge the assistance of Troutman Sanders summer associate (and soon to be associate) Nick Phillips in the preparation of this Article.

1. For analysis of Georgia administrative law during the prior survey period, see Martin M. Wilson & Jennifer A. Blackburn, Administrative Law, Annual Survey of Georgia Law, 62 Mercer L. Rev. 1 (2010).

enumeration of legislation adding, subtracting, and dividing administrative agencies as passed during the 2011 regular session of the Georgia General Assembly.

II. Judicial Review of an Agency Decision

This section addresses the judicial review of an administrative decision and focuses on the well-established "any evidence" rule, which requires the reviewing court to "defer to the agency's judgment regarding the weight of the evidence and affirm the [agency's] findings if supported by any evidence."² An exception exists where the agency's decision is determined to be arbitrary and capricious.³ However, as the Georgia Court of Appeals recognized in Professional Standards Commission v. Adams,⁴ this exception has very limited application.⁵ The superior court is required to defer to an agency decision where it is supported by any evidence and may "not substitute its [own] judgment for that ofthe agency as to the weight of the evidence on questions of fact."⁶ Only where the agency determination is arbitrary and capricious may the court revoke or modify that decision.⁷ To be arbitrary and capricious the determination must lack a rational basis.⁸

in Adams, the superior court affirmed the agency's determination that a principal violated Standard 10 of the Code of Ethics for Educators⁹ but reversed the revocation of her educator's certificate, finding the agency had arbitrarily and capriciously revoked the principal's certificate out of retaliation over her appeal.¹⁰ However, the court of appeals held that no evidence in the record supported such a finding.¹¹ Instead, the record demonstrated that, following the administrative law judge's hearing, the agency rationally determined the principal's conduct was far more severe than it had originally believed.¹² The principal's conduct justified an increased sanction, which is permitted under Georgia law.¹³

2. Profl Standards Comm'n v. Adams, 306 Ga. App. 343, 346, 702 S.E.2d 675, 678 (2010) (citing Bd. of Regents of the Univ. Sys. of Ga. v. Hogan, 298 Ga. App. 454, 454, 680 S.E.2d518, 520 (2009)).

3. Id.

4. 306 Ga. App. 343, 702 S.E.2d 675 (2010).

5. See id. at 346, 702 S.E.2d at 678.

6. Id. (internal quotation marks omitted); O.C.G.A. § 50-13-19(h) (2009).

7. Adams, 306 Ga. App. at 346, 702 S.E.2d at 678.

8. Id.

9. Ga. Comp. R. & Regs. 505-6-.01(3)(j) (2009).

10. 306 Ga. App. at 345-46, 702 S.E.2d at 678.

11. Id. at 347-48, 702 S.E.2d at 679.

12. Id. at 346-47, 702 S.E.2d at 678-79.

13. Id.

Because there was evidence in the record to support the agency's determination and a rational basis for the sanction imposed, the superior court exceeded its authority in overturning the agency's decision and the order was reversed.¹⁴

In City of Atlanta v. Starship Enterprises of Atlanta, Inc.,¹⁵ the superior court applied the proper standard of review but erred in its application of that standard.¹⁶ The board of zoning adjustment affirmed the city's revocation of Starship Enterprises' building permit, finding the nonconforming use as an adult business had been interrupted by a permitted use as a used furniture store and therefore could not be resumed. The superior court reversed the board's decision and ordered that the building permit be reinstated.¹⁷

While the superior court recognized the any evidence standard as the proper standard of review, the court incorrectly applied the standard by determining that the board presented "'no evidence at all' in support of its finding of an intervening use."¹⁸ The record contained testimony from residents regarding the removal of old signs, installation of new signs, and "what appeared to be commerce going on at that location" for approximately six months.¹⁹ Such testimony clearly satisfied the any evidence standard, and the court ofappeals reversed the superior court's judgment.²⁰

Surprisingly, in the next case, the court of appeals was required to clarify the common understanding that the any evidence rule only applies to cases "involv[ing] rules or regulations promulgated by administrative agencies or entities performing non-profit governmental functions . . . ."²¹ In Savannah Cemetery Group, Inc. v. DePue-Wilbert Vault Co.,²² the cemetery group argued that, since evidence was presented at trial to show that a rule the group implemented was reasonable, the superior court was required to uphold such rule prohibiting the use of concrete burial vaults in its cemeteries.²³ However, the cemetery group's reliance on the any evidence rule was

14. Id. at 348, 702 S.E.2d at 679.

15. 308 Ga. App. 700, 708 S.E.2d 538 (2011).

16. Id. at 701, 708 S.E.2d at 539.

17. Id. at 700-01, 708 S.E.2d at 538.

18. Id. at 701, 708 S.E.2d at 539.

19. Id. (internal quotation marks omitted).

20. Id. at 702, 708 S.E.2d at 539.

21. Savannah Cemetery Grp., Inc. v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 209,

704 S.E.2d 858, 864 (2010).

22. 307 Ga. App. 206, 704 S.E.2d 858 (2010).

23. Id. at 209, 704 S.E.2d at 863.

misplaced since it was a private, for-profit business.²⁴ Accordingly, the court of appeals held that "the cemetery group's rule was not entitled to the deference afforded a rule promulgated by administrative agencies or governmental entities."²⁵

In the next case, the Georgia Supreme Court determined that, under section 50-13-19(h) of the Official Code of Georgia Annotated (O.C.G.-A.),²⁶ the superior court does not have the power to enjoin an agency from exercising its discretion and is instead limited to reviewing the action after the agency exercises its discretion.²⁷ In Scarborough v. Hunter,²⁸ the superior court issued a temporary restraining order preventing the board of commissioners from holding a hearing or taking a vote on the abandonment of a public road.²⁹ Georgia law provides counties with the discretion to abandon former public roads when such abandonment is in the best interest of the public.³⁰ Because the county did not have the necessary funds to maintain the road, the board determined that abandonment was in the county's best interest.³¹

O.C.G.A. § 50-13-19(h) provides that "[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings."³² The statute clearly does not give the superior court power to enjoin an agency's discretion.³³ Instead, it indicates that the superior court's duty is to review the agency's decision "after [it] exercises its discretion, not prevent the [agency] from using its discretion at all."³⁴ Because the superior court "put the cart before the horse" in granting the temporary restraining order, the judgment was reversed.³⁵

III. Exhaustion of Administrative Remedies

The next case also analyzes O.C.G.A. § 50-13-19,³⁶ but with the focus on standing to seek judicial review of an agency decision. In Fulton

24. Id. at 209-10, 704 S.E.2d at 864.

25. Id. at 210, 704 S.E.2d at 864.

26. O.C.G.A. § 50-13-19(h) (2009).

27. Scarborough v. Hunter, 288 Ga. 687, 689, 706 S.E.2d 650, 652 (2011).

28. 288 Ga. 687, 706 S.E.2d 650 (2011).

29. Id. at 688, 706 S.E.2d at 651.

30. See O.C.G.A. § 32-7-2(b)(1) (1995 & Supp. 2011).

31. Scarborough, 288 Ga. at 688-89, 706 S.E.2d at 651.

32. O.C.G.A. § 50-13-19(h).

33. Scarborough, 288 Ga. at 689, 706 S.E.2d at 652.

34. Id.

35. Id. at 690, 706 S.E.2d at 652.

36. O.C.G.A. § 50-13-19 (2009).

County Taxpayers Foundation, Inc. v. Georgia Public Service Commis-sion,³⁷ the Fulton County Taxpayers Foundation (Foundation) asserted that the superior court improperly determined that the Foundation lacked standing to seek judicial review of a Public Service Commission (PSC) certification order.³⁸ Under O.C.G.A. § 50-13-19(a), two requirements must be met to seek judicial review of an agency decision: (1) "a person must have exhausted all administrative remedies available within the agency and [(2) the person] [must be]...