Administrative Law - Martin M. Wilson

• Publication year: 2004

Administrative Lawby Martin M. Wilson^*

I. Introduction and Overview

This Article surveys the Georgia Supreme Court and Georgia Court of Appeals administrative law cases from June 1, 2003 through May 31, 2004. Over two dozen pertinent cases were decided during the survey period, many of them containing highly novel elements. The novelty of certain facets of the cases only stands to reason, as all levels of government continue to increase reliance upon administrative agencies to perform necessary functions. The regulatory framework imposed by these agencies never fills in all the blanks regarding those functions. The unanswered questions invariably invite appellate court decision-making.

No attempt has been made in this Article to review cases that are administrative in nature but fall under another specific subject matter of this issue. Rather, the central themes for this Article are appellate cases highlighting the administrative procedures of agencies, the ramifications of agency decisionmaking, and, as noted above, appellate attempts to fill in the blanks for administrative agencies.

This Article begins with two cases regarding standing to initiate proceedings and then moves to the defenses and immunities posed by agencies and their personnel. Next, the Article covers standards for review and other appellate interpretative tools, with three general divisions of cases. The effect of agency actions and the questions arising therefrom are then covered, followed by a section dedicated to cases in which the manner of appeal is featured. Finally, this Article enumerates legislation relating to administrative agencies and procedures from the Georgia General Assembly during the 2004 regular session.

II. Standing to Initiate Proceedings

In the first of two cases during the survey period dealing with standing decisions, a nonresident alien attempted to bring a wrongful death action under the Georgia Tort Claims Act ("GTCA")¹ against the Department of Transportation ("DOT").² In Gonzalez v. Department of Transportation,³ plaintiff's husband was killed in a traffic accident allegedly due to negligence on the part of the DOT. The DOT moved for summary judgment, claiming that plaintiff had no standing to bring an action under the GTCA because of her status as a nonresident alien.⁴ The superior court granted the summary judgment motion, and the court of appeals affirmed.⁵

The appellate court began its analysis by examining the recent controlling supreme court case, AT&T Corp. v. Sigala,⁶ in which the supreme court interpreted the provisions of the Official Code of Georgia Annotated ("O.C.G.A.") sections 1-2-10 and 1-2-11,⁷ as granting resident aliens the right to access state courts, but not extending that right to nonresident aliens.⁸ Next, citing the venue provision of the GTCA,⁹ the court determined that a suit against the DOT would only lie in the county of the accident, which was obviously within the state.¹⁰ Thus, plaintiff could not properly bring suit under the GTCA in the appropriate county in Georgia, and sovereign immunity would otherwise protect the DOT.¹¹

The second case in which standing was an issue dealt with a tree protection ordinance passed by the Dekalb County Board of Commissioners.¹² In Greater Atlanta Homebuilders Ass'n v. DeKalb County,¹³ plaintiffs were primarily developers and builders who wished to overturn the tree ordinance on the grounds that it had not been properly promulgated.¹⁴ The superior court upheld the ordinance, and the supreme court heard the appeal.¹⁵ In affirming the decision, the court noted a subsidiary contention raised by the builders. The elements for decisionmaking under the ordinance lacked necessary limitations on the discretion granted to the officer, namely the county arborist.¹⁶ The only problem with this contention was that none of the builders and developers were appealing an adverse ruling from the arborist, thus, plaintiffs had no standing to bring suit.¹⁷

III. Agency Defenses and Immunities

How much immunity is enough? In Georgia Department of Defense v. Johnson,¹⁸ the state's sovereign immunity proved unnecessary, as intramilitary immunity protected the State Adjutant General.¹⁹ Plaintiff, Johnson, was a civil technician at Dobbins Air Force Base and maintained membership in the Georgia National Guard. He filed a GTCA claim against the Georgia Department of Defense ("Department") because of a workplace injury, using the theory that the State Adjutant General had either trained or supervised him improperly in his work. The Department's motion for summary judgment was denied, and the ruling was subsequently appealed.²⁰

Going back to Feres v. United States,²¹ the Department contended that no claim could be asserted by plaintiff as a result of workplace injuries.²² Obviously, a military force would be hard to maintain for very long if each and every injury that incurred could result in a lawsuit. The court of appeals had little problem applying a Feres analysis and saw the matter as containing two questions: "(1) whether the State Adjutant General and Johnson were acting in the course of military service at the time of his injury and (2) whether the allegedly negligent acts of insufficient training and supervision arose from military rules and decisions."²³

Regarding the first question, the relevant facts were that plaintiff, a federal employee required to be a member of the Georgia National Guard, was repairing a military helicopter at the time of his injury.²⁴ These facts indicated to the appellate court that his act was indeed military service.²⁵ Likewise, the court had little problem determining that the National Guard and its staff and operations, by their very origins and federal relationships, must be military in nature.²⁶ Accordingly, the training, supervision, and background relationships leading to the training and supervision decisions were all military functions.²⁷ The trial court was thus reversed.²⁸

Back in the civilian world, the court in Smith v. Chatham County²⁹ ruled on the immunity defense of a county and its police officers.³⁰ The Smiths sued Chatham County as a result of a wreck in which their automobile had been hit by a criminal suspect's pick-up truck during a chase with a county police officer. Summary judgment was granted to the county, and plaintiffs appealed.³¹

The court of appeals sought answers to two basic questions regarding immunity. First, plaintiffs argued that the county waived its sovereign immunity under O.C.G.A. section 33-24-51³² by purchasing liability insurance.³³ The county successfully showed, however, that there was no such policy of liability insurance, and that it had merely budgeted amounts for liability claims in order to make payments on claims that the county felt were justified.³⁴ In short, self-insurance was not insurance as envisioned by the statute, so the county had not waived immunity.³⁵

Second, plaintiffs alleged that the police officers had no immunity because the pursuit and apprehension of the pick-up truck driver was a ministerial duty or, if it indeed was a discretionary duty, had been committed with malice.³⁶ In affirming the trial court's position on the immunity of the officers, the court of appeals noted, in addition to case law, that the county's official policies on police chases made the decision to initiate a chase a discretionary one.³⁷ The second argument also failed because nothing in the record suggested to the court the presence of actual malice or intentional wrongful actions.³⁸

Board of Regents of the University System of Georgia v. Oglesby³⁹ started as a GTCA case, but that is not how it ended. Oglesby's mother died in 1949 from Paget's disease, a rare condition in which the skeletal bones grow abnormally large. The former Medical College of Georgia obtained the body, and doctors subsequently wrote research articles and placed the skeletal remains on display. Oglesby first contacted the Medical College of Georgia about her mother's remains in approximately 1987. However, her ante litem notice under the GTCA was not served on the Board of Regents until 2000. After an apparent breakdown in negotiations for a settlement regarding the cause of action, suit was filed on November 1, 2001, under a variety of tort theories. The Board of Regents filed both a motion to dismiss and a motion for summary judgment, which the trial court denied.⁴⁰

The court of appeals accepted an interlocutory appeal and reversed.⁴¹ The Board of Regents relied upon three defenses, which it brought to the attention of the trial court: (1) lack of subject matter jurisdiction based on sovereign immunity, (2) plaintiff's failure to file her case within the statute of limitations, and (3) the more traditional defense that no facts had been produced to show tortious acts.⁴²

The court viewed all of the acts complained of as occurring in 1949 and within the knowledge of plaintiff by 1987.⁴³ Additionally, the burden was on plaintiff to establish a waiver of sovereign immunity by the Board of Regents, and the appellate court concluded there was no such evidence.⁴⁴ The trial court erroneously ruled that plaintiff did not become aware of the fate of her mother's remains until 1999, meaning that the application of the GTCA provision on limitations would have otherwise been authorized.⁴⁵ This ruling, however, was cited by the court of appeals as unsupported and, because the GTCA contains an effective date and application provisions barring retroactive application before January 1, 1991, the existence of immunity meant no cause of action would be recognized.⁴⁶

A good case on the application of the GTCA to relationships between state agencies and vendors was decided by the court of appeals during the survey period. In Department of Human Resources v. Johnson,⁴⁷ plaintiff brought a wrongful death action against the Department of Human Resources ("DHR"), the Department of Juvenile Justice ("DJJ"), and a child care...