Administrative Law - Martin M. Wilson

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2002
• Citation: Vol. 54 No. 1

Articles

Administrative Lawby Martin M. Wilson^*

I. Introduction and Overview

Administrative law was a fairly low-key topic during the past year, but that comparative lull should not be mistaken as inactivity in the public sector. Quite the opposite, the number and types of administrative bodies continue to grow in state and local government, and the activity level of these agencies remains high.

This Article provides a survey of administrative law cases decided by the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2001 through May 31, 2002. Respecting other topics found in this survey issue, cases primarily involving criminal law, local government law, torts, trial practice and procedure, and workers' compensation have not been covered. Many cases in this Article blur the distinction between local government law and administrative law. However, the perspective of this Article maintains a focus on the functions of the administrative agency and its procedures, thereby giving a basis for comparison among different types of administrative agencies at various levels of government.

The first segment of this Article reviews a case on standing to challenge rules that were promulgated by the Department of Natural Resources under the Georgia Administrative Procedure Act ("GAPA").¹ Agency defenses and immunities comprise the theme of the subsequent section, with many cases analyzed under the Georgia Tort Claims Act ("GTCA").² Next, this Article surveys cases involving standards of review that appellate courts give to agency decision making and actions. Cases illustrating the effects of agency actions, including several good examples of analysis regarding the validity of rules promulgated by agencies, are contained in the last section in this Article that deals with court decisions. The final section contains an analysis and enumeration of current legislative developments of the Georgia General Assembly during at the 2002 regular session.

II. Standing to Initiate Proceedings

In the only illustrative case on standing reported during the survey, Board of Natural Resources v. Monroe County,³ the good citizens of Monroe County learned, surely to their collective dismay, that they are a part of an "Area of Influence" for metropolitan Atlanta.⁴ The Department of Natural Resources had promulgated rules to help the state meet clean air standards mandated by both state and federal laws, although the primary culprit was perceived as metropolitan Atlanta. An area encompassing thirty-two outlying counties, including Monroe County, was also included because of the area's potential capacity as a contributor to detrimental air quality standards. within this "Area of Influence," the new rules regulated and restricted such things as outdoor burning and the operations of gas depots.⁵

Monroe County apparently did not play a role in the rulemaking process or contest the proposals in the administrative forum. Instead, they filed an action in superior court for a declaratory judgment on the validity of the rules. The court denied the motion to dismiss or for summary judgment, which questioned the standing of Monroe County to bring an action and formed the basis for an appeal.⁶

Just being in an Area of Influence, as the trial court stated,⁷ did not confer standing to sue.⁸ Monroe County had asserted no legal rights impaired by the new rules, and, as argued by the Board, "Monroe County's asserted rights [were] speculative, generalized economic interests contingent on hypothetical future events. In other words, its rights [were] based upon the possibility of lost industrial development or jobs and the possibility of lost revenue or taxes."⁹ The court of appeals agreed completely with the board.¹⁰ Citing, among others, the recent cases of Higdon v. City of Senoia¹¹ and Burton v. Composite State Board of Medical Examiners,¹² the court reasoned that, while declaratory relief is available under the GAPA as a means to test the validity of rules, one must show the actual impairment of legal rights as a precondition to obtaining such relief.¹³ Here, Monroe County had already admitted that only two of the nine areas of regulated activities in the rules might affect them, stating that it needed the right to conduct open burning as a part of road construction and that it also owned a fuel depot.¹⁴ The failure of the county to enumerate or articulate any actual detriment, as opposed to the possibility of some future detriment to its interests because of the enactment of the rules, meant that the county's standing to contest the rules also failed.¹⁵ Accordingly, the court of appeals reversed the trial court's failure to grant the board summary judgment in the action.¹⁶

III. Agency Defenses and Immunities

Ever since the case of Georgia Department of Human Resources v. Sistrunk,¹⁷ state agencies have seen only a few attorney members of the Georgia General Assembly as adversaries in contested cases. The case of Sistrunk, decided in 1982, barred legislators who are also attorneys from receiving any financial remuneration for representing a client against the state or its agencies in a civil matter.¹⁸

In Georgia Ports Authority v. Harris,¹⁹ counsel for defendant Harris, The Honorable Thomas C. Bordeaux, Jr., a state representative from District 151 and the current chairman of the House Judiciary Committee, requested that the supreme court revisit the Sistrunk holding. The supreme court did so.²⁰ The Georgia Ports Authority had moved to disqualify Mr. Bordeaux as counsel for Harris. when Bordeaux responded that if the Sistrunk holding was not reconsidered and, accordingly, a conflict was found, he would waive his fee and remain as counsel, this action placed the matter squarely before the supreme court for an updated analysis.²¹ First, the court noted that just one year after Sistrunk, the Georgia legislature enacted conflict of interest statutes found at official Code of Georgia Annotated ("O.C.G.A.") sections 45-10-20 through 45-10-28.²² Next, after finding that the Sistrunk rule of blanket disqualification of legislator attorneys having a financial interest in a case against the state was not required under the Georgia Constitution,²³ the court proceeded to overturn its prior strict and rigid rule.²⁴ It seemed apparent to the court that the Sistrunk rule was not accomplishing the ends envisioned by the sentiment of its ruling in 1982.²⁵ Not only is there a different treatment for such attorneys in criminal defense matters when the state naturally is adverse, but it is only the conflict created by a financial interest that otherwise would keep the legislator, who is also an attorney, from accepting a representation of any type of matter against the state.²⁶ Absent a financial interest, there was no other specified impediment preventing influence or acts by a legislator that would be contrary to the public trust he had sworn to uphold.²⁷ Because of the perceived ineffectiveness of a blanket disqualification, the court adopted an "ad hoc conflicts of interest standard"²⁸ requiring a determination that an actual conflict of interest exists before resorting to disqualification of counsel.²⁹ Because the record contained no evidence of such violations by Representative Bordeaux, the motion to disqualify him was denied.³⁰

Lest we forget, there was an actual case here. The issue in the case developed under the Georgia Tort Claims Act ("GTCA")³¹ because the claimant sent his ante litem notice by overnight delivery instead of by certified mail or personal delivery.³² The court upheld this manner of giving notice and provided the analogy that personal delivery had been made by the overnight delivery man hired by the claimant's counsel.³³ The date and fact of personal delivery had been stamped on the letter copy to be returned to claimant's counsel, and that was enough of a proper receipt for the appellate court.³⁴

Another action involving GTCA notice procedure was filed against the Department ofTransportation by Lynn and Steven Sylvester based upon a hydroplaning accident allegedly due to the negligent maintenance of a highway.³⁵ From the initial service of defendants in the action, the Risk Management Division of the Department of Administrative Services did not receive the required ante litem notice.³⁶ A voluntary dismissal without prejudice was taken by the Sylvesters, and the case was refiled and served correctly, but after the original statute of limitations on the claim had already expired.³⁷

The Department of Transportation moved for summary judgment, which was granted by the trial court.³⁸ On appeal, the court of appeals had very little trouble affirming the grant of summary judgment.³⁹ Because there was not proper service ofprocess in the original action, it was a nullity and there was nothing to renew within the six-month grace period after the expiration of the limitations period.⁴⁰ As the appellate court put it, "If a condition precedent to waiver of sovereign immunity has not been satisfied, then the trial court lacks subject matter jurisdiction and no valid action is pending to toll the running of the statute of limitation."⁴¹

GTCA defenses proved only partially successful in the case of Smith v. Department of Human Resources.⁴² The Department of Medical Assistance terminated Smith's license as a Medicaid provider because of a report filed by the Department of Human Resources ("DHR"). That report, listing deficiencies in an assisted living facility Smith maintained, was based upon an anonymous complaint. Smith sued both state agencies, a contract private case manager acting on behalf of the DHR, and an employee of the case manager. In a later amendment articulating Smith's claim against the state agencies, Smith included a cause of action under the GTCA.⁴³

The trial judge had apparently handled all of the issues enumerated in the appeal by motion practice. The case manager and its employee won on their summary judgment...