Administrative Law - Martin M. Wilson
| Publication year | 2003 |
Administrative Lawby Martin M. Wilson*
I. Introduction and Overview
Administrative law continues to be a front-burner item in the practice of law because each day more and more activities, businesses, and persons fall under a state or local agency's regulatory sphere of influence. While the number of appellate cases reviewed in this Article has dropped slightly from recent years, reports from several agency heads in state and local governments would lead one to believe that agency workloads only continue to increase. Given the current economy and resulting shortfalls of tax revenues, it will be interesting to observe what effects static or reduced levels of enforcement and regulatory officials will have on the number of agency cases and resulting appellate filings.
This Article is a review of administrative law cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2002 through May 31, 2003. It is not an attempt to review all reported cases under the amorphous grouping of administrative law. Most topics reflecting the subject matter of other survey articles in this issue have been omitted. Because of the commonality of the interpretations of governing statutes and procedures between administrative agencies and local government entities, authorities, and agencies, some local government cases reported in this Article may also be reported in the local government law article. The cases in this Article focus on processes, procedures, and prelitigation activities and should be distinguished from comparative reviews.
The first substantive portion of this Article examines cases that highlight the defenses and immunities raised by agencies when controversies occur. A trio of cases involving the Georgia Tort Claims
Act ("GTCA")1 are reported, along with one case involving the Georgia Open Meetings Act.2 The next segment of the Article contains cases in which the appellate courts have discussed the standards of review used to determine whether an agency decision should stand. The validity of underlying rules is the topic of cases reviewed in the subsequent segment, and a discussion ofrecent legislation from the Georgia General Assembly completes the Article.
II. Agency Defenses and Immunities
About the best defense an agency can have to a claim of liability asserted against it is the successful assertion of sovereign immunity under the Georgia Constitution.3 The Georgia Tort Claims Act ("GTCA")4 provides only limited exceptions to sovereign immunity, and these exceptions have been conservatively, but fairly, interpreted. Agency personnel for the Georgia Department of Transportation ("DOT"), who assigned speed limits to state roadways, were given such immunity in Department of Transportation v. Watts.5
Simply described, the complaint in Watts came from the mother of a child who was struck and killed on a state highway by an automobile traveling at a speed within the posted fifty miles per hour speed limit. The complaint alleged that the DOT personnel were negligent and should have previously lowered the posted speed limit to thirty-five miles per hour because of residential congestion and the presence of pedestrians. The DOT claimed sovereign immunity as its defense and moved to dismiss.6 At trial the DOT cited the Official Code of Georgia Annotated ("O.C.G.A.") section 50-21-24(5), which provides: "The state shall have no liability for losses resulting from . . . [a]dministrative action or inaction of a legislative, quasi-legislative, judicial, or quasi-judicial nature."7
The court of appeals had no problem reversing the trial court's denial of the DOT's motion to dismiss.8 The court began its analysis by citing a Georgia Supreme Court case holding that an agency performs a quasi-legislative function when it promulgates rules—a power statutorily authorized by the general assembly.9 In this case, state law gave the commissioners of transportation and public safety the authority to establish or alter certain speed limits, so those agencies exercised a quasi-legislative function when they established the speed limits on state highways.10 The court equated the administrative action of establishing a speed limit as a process similar to the legislative act of enacting laws.11 Because the DoT's action was quasi-legislative, the DoT could not be held liable for the adverse consequences ofsuch action, regardless of whether it was negligent.12
The ante litem notice provision of the GTCA13 seems to trip up at least one litigant in the appellate courts during every survey period. For this Article, the unlucky litigant was Jessica Dempsey. Ms. Dempsey was a University of Georgia student who was injured when a tree limb fell on her. Apparently, a grounds maintenance employee was trimming trees on the campus, and Ms. Dempsey had the misfortune of getting in the way. A university official sent a first class letter to the Department of Administrative Services Risk Management Division to relate the circumstances surrounding Ms. Dempsey's injuries and the possible need for further treatment.14 The university official purportedly told Ms. Dempsey the letter was being sent "so that her claim would comply with the notice requirements of the Georgia Tort Claims Act (GTCA)."15 After communicating with insurance adjusters for the state, Ms. Dempsey filed suit against the Board of Regents of the University System of Georgia. The trial court granted the Board's motion to dismiss premised on improper ante litem notice.16
On appeal Dempsey argued three propositions: (1) substantial compliance, (2) reliance on the actions of a university official, and (3) actual notice of the claim.17 The court of appeals decided against the first argument, citing a string of appellate court cases mandating a strict interpretation of the notice requirement and requiring that strict compliance be demonstrated.18 With respect to the second argument, the court refused to allow waiver to be asserted against the agency employee, even though plaintiff relied on the university official to give proper notice.19 Finally, the court deemed the actual notice argument irrelevant.20 Accordingly, because subject matter jurisdiction was dependent upon giving proper ante litem notice, the trial court's dismissal was affirmed.21
The last GTCA case during the survey period was Department of Transportation v. Montgomery Tank Lines, Inc.22 This was an admittedly novel case before the supreme court. Certiorari was granted to settle whether the GTCA allows the state to be held liable for contribution or indemnity claims based upon an agency's or employee's status as a joint tortfeasor.23 In the cases combined on appeal, defendant tortfeasors in the original pleadings settled wrongful death actions and subsequently sought contribution or indemnity from the DOT based upon negligent design and maintenance of an intersection.24
The DOT defended the actions by urging a narrow interpretation of the term "loss," as defined in the GTCA.25 Under the DOT's view, contribution or indemnity could not be a recoverable loss because the statutory definition is limited to first-party losses.26 Because contribution and indemnity payments are not included in the statute's definition, and because the enlargement clause of the list provided in that definition pertains only to other first-party losses, no recognized loss could be proven or awarded in these cases.27
The court of appeals rejected the DOT's argument, stating that the DOT could be held liable for contribution or indemnity if it could have been named under the GTCA as a defendant tortfeasor in the original action.28 The supreme court arrived at the same conclusion, citing a consistent holding from the United States Supreme Court.29 According to the court, ifthe DOT could have been sued in an original action under one of the causes of action listed as exceptions under O.C.G.A. section 50-21-24, then bringing a subsequent claim for contribution or indemnity is not barred by sovereign immunity.30
As illustrated above, sometimes the defenses and immunities asserted by agencies are not successful. The Evans County Board of Commissioners had such an experience when it was sued by the local newspaper for a violation of the Open Meetings Act.31 After the trial court found a violation of the Act, the court of appeals entertained questions concerning the violation and remanded the case to the trial court with instructions to consider whether to award attorney fees.32 The trial court held a hearing, and it was stipulated that the local newspaper had attorney fees totaling $21,320.63. Of this total, $9,699.88 was for the lower court litigation. The trial court awarded the newspaper attorney fees for both the trial work and the first appellate case, despite the board of commissioners argument that only the trial court litigation should be subject to the award. In compliance with the appellate court's instructions, the trial court found that the violation of the Open Meetings Act by the board of commissioners lacked substantial justification. In response the board of commissioners reminded the trial court of its prior finding that there had been no bad faith exhibited by the board of commissioners in its actions, and argued that this must preclude the trial court's finding that the board's actions were without substantial justification.33
The court of appeals had explained the difference between acting without substantial justification and exhibiting bad faith in the prior appeal.34 The question of first impression in the second appeal was whether a trial court could award attorney fees for the appellate work occasioned by the appeal of the original judgment by the board of commissioners.35 Ruling in accordance with what the appellate court felt was a consensus of opinion under open government laws from other states, the pronouncement was as follows: "We hold that the Act permits recovery of costs and attorney fees for...
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