Administrative Law - Martin M. Wilson

• Publication year: 2001

Articles

Administrative Lawby Martin M. Wilson*

I. Introduction and Overview

The amorphous field labeled as "administrative law" is nothing like the other neat, parceled, and well-defined areas of law in this survey issue. From birth to death, regulatory agencies of various levels of government are the norm in our everyday lives.

This Article covers cases from June 1, 2000, through May 31, 2001. Conspicuously absent from this Article are cases primarily involving criminal law, local government law, torts, trial practice and procedure, and workers' compensation. In keeping with tradition, those specific areas are contained in other articles of this survey issue, but one should bear in mind that administrative law is an important component in those subjects.

This Article first examines the issue of standing to contest actions taken by agencies. Next, the status, powers, and immunities of agencies and their employees are examined through several cases decided during the survey period. The largest number of appellate cases illustrate the standards of review used by the courts in providing oversight and appeals regarding agency actions. As the last topic for appellate case reviews, the perspective of the agencies and the effects of their actions are examined. Finally, legislative developments in the area of administrative law as passed by the General Assembly at its 2001 regular session are reviewed.

II. Standing to Initiate Proceedings

For all forms of controversies, a showing of requisite standing is required before a party can successfully move forward with administrative or subsequent judicial proceedings.¹ In most cases, the administrative agency is the party originating the proceedings, and questions regarding the propriety of the parties tend to stand out.

The first case on standing involved Ramsey Agan in a reappearance in appellate court pages.² Ramsey Agan is the same person whose first appellate court case became the leading citation for Georgia's bribery statute³ when the court affirmed Agan's conviction for the quid pro quo act of making campaign contributions to DeKalb County commissioners, allegedly in return for favorable consideration of property zoning action in the county.⁴

Agan's wife, Adana, was the owner of a business that had a residential mortgage license issued by the Department of Banking and Finance. Mr. Agan was an apparent employee or agent for the licensee. Using an amendment to the Official Code of Georgia Annotated ("O.C.G.A.") section 7-1-1004(e), which was passed at the 1998 regular session of the General Assembly, the department sought to revoke the residential mortgage license and, in a second notice of intent to revoke the license, cited as a ground that Ramsey Agan "was a convicted felon and was serving as an employee or agent of Adana, in violation of O.C.G.A. Sec. 7-1-1004(e)."⁵

Mr. Agan had other ideas and filed an original action in superior court for declaratory judgment regarding the constitutionality of the 1998 amendment and for injunctive relief barring its enforcement. The superior court granted a motion to dismiss, determining that Mr. Agan was an improper party to challenge the statute.⁶

On appeal, the supreme court reversed with only brief commentary on three questions.⁷ First, citing two cases, the court said the prerequisite for bringing an action to question the constitutionality of the 1998 amendment depends upon showing that enforcement of the statute has been "hurtful" to the person⁸ or that it "adversely impacts that party's rights."⁹ Concluding ineligibility for employment or an equity position in the residential lending industry was indeed hurtful, the court found in favor of standing for Mr. Agan.¹⁰

The second question was whether a declaratory judgment action could properly be brought in this case. Citing Baker v. City of Marietta,¹¹ the court found an actual controversy needing guidance through a court ruling to protect Agan's rights.¹²

The final matter resolved by the supreme court was the question of Agan bringing an independent action while the administrative proceeding was still pending.¹³ Normally, arguments of judicial economy or failure to exhaust administrative remedies might prevail to allow dismissal of a contemporaneous court proceeding.¹⁴ The court noted, however, these principles did not apply because the residential mortgage licensee, not Agan, was a party to the administrative proceedings before the Department of Banking and Finance.¹⁵

The second case on standing¹⁶ involved an attack on regulations the Board of Natural Resources promulgated as part of its duties to administer the Georgia Motor Vehicle Emission Inspection and Maintenance Act.¹⁷ Georgia Emission Testing Company (humorously labeled "GETCo" by the appellate court) made the challenge to question provisions on mobile emissions testing and administrative fees.¹⁸

The administrative law judge upheld the rules, and GETCo appealed to superior court. On appeal, the agency contended a dismissal was in order, reasoning, "GETCo no longer had standing to challenge the regulations because it had sold its assets."¹⁹ GETCo countered that the sale of assets had not deprived it of standing. It still wanted the assessed administrative fees it previously paid to be refunded if the rules were invalid and it planned to reenter the mobile testing field, if the restrictions were lifted, by leasing software to other emission and inspection stations remaining in business.²⁰

The superior court denied the agency's motion to dismiss, and the court of appeals affirmed.²¹ The decision seemed to be based more upon the claim for refunds than upon future participation in mobile testing.²² However, both reasons were cited.²³ The court reasoned that appeals were available under the Administrative Procedure Act to persons exhausting administrative remedies who remain aggrieved by the agency action.²⁴ An aggrieved person, it was ruled, has '"an interest in the agency decision that has been specially and adversely affected thereby.'"²⁵ Having either a present or future economic injury constitutes being aggrieved.²⁶

III. Agency Defenses and Immunities

Not all persons seeking redress against an agency for legitimate complaints will find the means of redress they seek. The doctrine of sovereign immunity is alive and well in the Georgia Constitution,²⁷ and the pitfalls of utilizing the Georgia Tort Claims Act ("GTCA")²⁸ can be similarly insurmountable.

The first case involving GTCA focused on the written ante litem notice that must be sent to the State under O.C.G.A. section 50-21-26.²⁹ It began when Sheila Williams was diagnosed with breast cancer, which a health department nurse apparently overlooked. At the time of the notice to the State, Mrs. Williams and her husband specified claims of negligent failure to diagnose breast cancer, pain and suffering, and loss of consortium. Less than three months later, Mrs. Williams died. Her husband commenced an action against the nurse, the Lumpkin County Health Department, and the Department of Human Resources. A wrongful death claim was included although no new ante litem notice was sent.³⁰

Ruling on the motion to dismiss, the trial court agreed with defendants concerning the wrongful death claim, and the court of appeals subsequently affirmed.³¹ In a four-three decision, the supreme court affirmed.³² The court contrasted the GTCA with its counterparts for federal tort claims and the ante litem notice provision for lawsuits against cities.³³ In doing so, the court reasoned the detailed procedures of the statute must be strictly complied with to fairly apprise the State, especially its risk managers, of what is involved in the forthcoming litigation.³⁴

The court used the terms "claim" and "loss," within the GTCA, to point out the deficiencies in the ante litem notice.³⁵ The plaintiffs claim should have included the type of loss, and because the "loss" definition specifically included death, the failure to include the wrongful death prevented adequate notice of the claim.³⁶

Writing for the dissent, Chief Justice Benham disagreed, stating GTCA and its ante litem notice provisions should not be interpreted in such an exacting, technical manner.³⁷ His preferred focus would be on whether the defendants had been prejudiced in preparing defenses or had not received adequate notice.³⁸

Two cases brought by educators and decided during the survey period illustrate the GTCA preservation of immunities for agency officers and employees acting within the scope of their duties. In the first case, Wang v. Moore,³⁹ the instructor sued his supervisors at Gordon College after he was discharged. The instructor alleged that his improper firing was an intentional and malicious act. After the firing, the instructor did not attempt either timely administrative remedies or an ante litem notice of a claim, but instead filed a complaint in superior court. Upon the grant of summary judgment to defendants, the instructor appealed, and the court of appeals affirmed.⁴⁰

The argument presented by the instructor was that neither the GTCA nor a grant of immunity applied to persons who committed acts of malice with specific intent to cause injury.⁴¹ The court of appeals answered with a three-step approach.⁴² First, it determined the GTCA applied, because the claim arose after the statute's effective date of July 1, 1992.⁴³ Second, it was not controverted that the term "state employee," as denned in GTCA,⁴⁴ applied to the defendants.⁴⁵ Third, it was also uncontested that hiring and firing of instructors was within defendants' job description and, thus, the scope of their employment.⁴⁶ Accordingly, both defendants were immune and could not be sued for firing the instructor.⁴⁷

The second case, Hardin v. Phillips,⁴⁸ was also from Gordon College and involved a professor who was denied tenure. The professor, Phillips, carried an administrative appeal as far as the Board of Regents of the University...