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

• Publication year: 2008

Administrative Lawby Martin M. Wilson^* and Jennifer A. Blackburn^**

I. Introduction and Overview

Today, the topic may be voter photo identification cards. Tomorrow, teacher discipline may be on the agenda. With administrative law, many of the front-burner issues that appear in the news are decided according to administrative procedures, and those cases generally are well ahead of litigation entering the court system. This Article surveys cases from the Georgia Supreme court and the Georgia court ofAppeals from June 1, 2007 through May 31, 2008. There has been a deliberate attempt to omit cases that would likely be included in other traditional topics for articles in this volume. While there may be cases in this Article that appear in others, the reader will find that the analysis contained in this Article is generally confined to the administrative law aspects of the subject matter.

This Article begins with cases illustrating standing issues and moves to the defenses and immunities asserted by agencies in various cases. The standards of review used in determining agency actions follow, and then come cases on the choice of a direct or discretionary appeal. At the end, developments from the 2008 regular session of the Georgia General Assembly regarding state agencies are reviewed.

II. Standing Issues

Several cases hit the appellate courts during this survey period regarding standing to initiate proceedings against governmental entities.

The first case was Newton County Home Builders Ass'n v. Newton County.¹ The Newton County Home Builders Association and the Home Builders Association of Georgia brought an action in superior court to have an ordinance containing an impact fee program declared illegal. They sought an order to have all the fees that had been collected since the inception of the ordinance and those collected after the filing of the action to be held until the matter was decided. After discovery, the county moved for summary judgment regarding the requested reliefand cited a lack of standing as the basis. Factually, neither association had paid impact fees; rather, the claims were based upon fees paid by the membership of each of the plaintiffs. The superior court granted summary judgment to the county, and the associations appealed.²

The Georgia Court of Appeals had little problem affirming the superior court.³ As explained by the court, the associations had to rely upon claims that actually belonged to the membership because the impact fees had been charged to those builders and developers.⁴ Citing a case from the United States Supreme Court for the proposition that an appropriate request for relief by an association could only be in the form of prospective relief, the court said that a claim for damages was not allowable.⁵ The court held that seeking the collection of past impact fees equates to a claim for damages, which can only be maintained by the persons who actually paid the fees.⁶ Accordingly, the plaintiffs had no standing to maintain the action.⁷

A recurring line of cases contesting the requirement of state-issued identification cards for voters was the next standing case. In Perdue v. Lake,⁸ there was one plaintiff left in the case by the time it reached the Georgia Supreme Court. On the date the case was originally filed, the plaintiff had just moved from Florida and could have shown any one of a number of types of identification to vote, not just a state identification card with a picture. It was the plaintiff's contention, however, that standing was conferred upon her on a later voting date because she voted in person by filing an affidavit (meaning her ballot was contestable).⁹

In a very short opinion, the court vacated the judgment of the superior court, which found standing for the plaintiff, and the case was remanded with instructions to dismiss it.¹⁰ The court noted that standing must be intact on the date the action is filed.¹¹ (Of course, the plaintiff did not help her case by possessing a government identification card with her photograph as issued by MARTA.)¹²

The next standing case was somewhat of a garden variety decision, but it is still a good example of the enforcement link between local and state agencies regarding standing that may exist in litigation. In Smith v. DeKalb County,¹³ an Open Records Act¹⁴ request was made for a CD-ROM originally compiled by the local elections superintendent. The county personnel replied to the requester that the CD-ROM would be produced but also stated that the secretary of state, as the state official in charge of elections, and the attorney general would also be notified. The secretary of state sought to block the release by filing for a temporary restraining order and permanent injunction. The requesting party questioned the standing of the secretary of state to bring the action, especially because the requested record was not in the custody of that state official.¹⁵ Both the trial court and the court of appeals disagreed, based upon extensive statutory citations regarding the duties of the secretary of state.¹⁶

The last case on standing was a coastal neighbor dispute that originally involved the Department of Natural Resources (the Depart-ment).¹⁷ The vasarhelyi family applied to build a dock over state property to a coastal waterway. The application process involved obtaining a permit and license first from the Department and then the actual dock permit from the Army Corps of Engineers. When the Corps subsequently approved the dock application, the Hitches became alarmed and filed an action in superior court against the Vasarhelyis and the Department. From the Hitches' perspective, that dock would take away their scenic view.¹⁸

The Department successfully moved to dismiss based on a lack of standing, and the court of appeals upheld the dismissal.¹⁹ Citing Hollberg v. Spalding County,²⁰ the appellate court stated that "a property owner must demonstrate both that he or she has a substantial interest in the governmental decision and that the property owner has sustained special damages."²¹ Because the Department had only given the Vasarhelyis a license to build a dock, which had not been constructed, standing had not been conferred.²²

III. Agency Defenses and Immunities

This section is generally the busiest in terms of number of cases contained in the survey article, and the current survey period was no exception. The first case, Georgia Pines Community Service Board v. Summerlin,²³ involved the Georgia Tort Claims Act (GTCA)²⁴ and how state defendants must be served. Summerlin was the mother of a child who died at a facility under the control of the Georgia Pines Community Service Board. She brought a wrongful death action under the GTCA but lost in superior court on a motion for summary judgment filed by the board. The superior court found that the personnel manager at the facility was the one served with notice, and not the director of the facility or some other equivalent figure for the board. Therefore, the service was deemed to violate the GTCA provisions found in the Official Code of Georgia Annotated (O.C.G.A.) Sec. 50-21-35.²⁵

Summerlin brought the case to the Georgia Court of Appeals, which reversed and held that the Civil Practice Act,²⁶ under O.C.G.A. Sec. 9-11-4(e)(5),²⁷ would be applicable and, thus, service was adequate.²⁸ The board brought the case to the Georgia Supreme Court, questioning whether the GTCA should receive a more liberal interpretation of what should constitute service outside of O.C.G.A. Sec. 50-21-35.²⁹ The supreme court reasoned that an interpretation relying upon the Civil Practice Act service provisions was not an unwarranted liberal construction of provisions waiving sovereign immunity.³⁰ Instead, because the GTCA does not contain its own procedural instructions for civil actions, the statute should necessarily be supplemented by using the Civil Practice Act.³¹ Thus, the court of appeals judgment was affirmed.³²

In what almost appears to be an afterthought, the supreme court added that the board could be viewed as waiving any defense regarding the waiver of process by not responding to interrogatories from Summerlin which specifically asked if the board believed that there were any deficiencies regarding service.³³ It is quite possible that the court added the additional ground because of a strong special concurrence by Justice Melton.³⁴ Justice Melton saw the matter as requiring strict construction under the GTCA, especially the service provisions of

O.C.G.A. Sec. 50-21-35.³⁵

This Author is certain that the next case was a procedural nightmare. Hall v. Nelson³⁶ involved a primary school principal that the Atlanta Independent School System (AISS) sought to fire. An independent tribunal conducted a hearing and agreed with AlSS's decision not to renew Nelson's contract, as did the Atlanta Board of Education. However, a subsequent appeal to the State Board of Education brought a reversal of the decision, which was affirmed by the Fulton County Superior Court.³⁷

Nelson was supposed to be reinstated but was instead made a primary school teacher at a lesser rate of pay. He returned to superior court for a writ of mandamus against the school superintendent to command her to act in accordance with the prior rulings. That petition was granted, and the school superintendent appealed.³⁸

Multiple defenses were offered by the school superintendent, and chief among them was that mandamus should not have been available because Nelson had an adequate remedy at law, which had not been exhausted. It was argued that Nelson should have used the administra- tive hearing procedures prior to the action seeking a mandamus.³⁹ The supreme court noted that because of past decisions from the board, the supposedly adequate remedy was, in actuality, a futile act.⁴⁰ Accordingly, Nelson did not have to carry out the charade of going before the board, knowing beforehand what its decision would be because of prior...