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

• Publication year: 2009

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

I. Introduction and Overview

Administrative procedure is rarely the topic of after-hours conversations, trailing far behind baseball scores, what to eat, and famous personalities. However, the continuing creep of influence of administrative agencies impacts daily life far beyond casual observations. It is the work of administrative agencies that propels government on all fronts. This Article surveys chosen cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2008 through May 31, 2009.¹ Cases from specific subject areas that one would expect to see in other articles contained in this volume have not been included unless points regarding administrative law or procedures were especially important.

This Article first reviews cases concerning the "any evidence" rule and then moves to exhaustion of administrative remedies. The Article then shifts to the defenses posed by agencies once proceedings have begun. Next, other standards for review of agency decisions are covered. Finally, legislation affecting the various state agencies, as passed by the Georgia General Assembly during its 2009 regular session, is noted.

II. The "Any Evidence" Rule

In several cases decided during this year's survey period, the Georgia Court of Appeals addressed the "any evidence" rule and put limits on a court's discretion in reviewing such cases. In the first case, Glass v. City of Atlanta,² the court of appeals held that the any evidence standard is applicable to the superior court's review of an Atlanta Civil Service Board's decision.³ On appeal, the board's decision is to be "[v]iewed in a light most favorable to the Board, and with every presumption in favor of the Board's decision indulged."⁴ Officer Stuart Glass, a member of the Atlanta Police Department, was alleged to have used excessive force following an altercation while on a routine patrol. After an internal review, Glass was dismissed from the Atlanta Police Department.⁵

Glass appealed his dismissal to the board. The board heard testimony from the officers involved in the incident, a police academy instructor, and the former police chief, who all testified that Glass's actions constituted impermissible excessive force. In addition, the emergency room physician who examined the victim also testified that the victim's symptoms were consistent with the use of excessive force. The board issued an order affirming Glass's dismissal. Thereafter, Glass appealed, and the superior court affirmed the board's decision.⁶

Heard on discretionary appeal, the court of appeals determined that "'[t]he appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence.'"⁷ The court further explained that, on appeal, "'our duty is not to review whether the record supports the superior court's decision but whether the record supports the initial decision of the local governing body or administrative agency.'"⁸ Glass asserted that the evidence presented to the board was insufficient to support the board's decision, "arguing that there was conflicting testimony, that some of the testimony against him constituted hearsay, and that some of the witnesses who testified against him were not credible."⁹ Dismissing these arguments, the court clarified that "'[e]ven evidence which barely meets the any evidence standard is sufficient, and the presence of conflicting evidence nonetheless meets that stan-dard.'"¹⁰ Accordingly, the court of appeals held there was sufficient evidence to support the board's decision.¹¹

Glass also contended that the board violated his due process rights by failing to conduct a hearing on the appeal within sixty days, pursuant to former City of Atlanta Code of Ordinances Sec. 5-3064(1),¹² and by failing to conduct the hearing on consecutive days.¹³ In response, the court distinguished between directory and mandatory statutory provisions.¹⁴ When there is no injury to the defendant and no penalty provided in the statute, the provision is directory.¹⁵ Because the cited provision provided no penalty for failure to comply, the statute was directory, not mandatory.¹⁶ In addition, Glass failed to cite any provision in the ordinance that required the hearing to be held on consecutive days.¹⁷ Finally, Glass did not demonstrate that he was harmed by the delay of his hearing.¹⁸ While affirming the decision of the superior court, the court of appeals reprimanded the superior court for the twelve-year delay between Glass's appeal from the board's decision and the hearing in superior court.¹⁹

In the next case decided during the survey period, Greene v. Department of Community Health,²⁰ the court of appeals held that the any evidence standard of review is not applicable to an internal agency decision.²¹ Anthony Greene appealed the termination of his medical benefits by the Department of Community Health (DCH). An evidentiary hearing was held before an administrative law judge (ALJ), who affirmed the DCH's decision.²² Greene then appealed under section 49-

4-153(b)(1) of the Official Code of Georgia Annotated (O.C.G.A.),²³ "which authorizes an aggrieved recipient of medical assistance to obtain the [Georgia Insurance] Commissioner's review of a recommended decision by an ALJ."²⁴ In affirming the ALJ's decision, the commissioner relied on Commissioner of Insurance v. Stryker²⁵ for the proposition that "findings of fact of the ALJ must be upheld unless they are not supported by any evidence."²⁶ The superior court then affirmed the commissioner's decision.²⁷

The court of appeals clarified that while Stryker applies to the superior court's review of an agency's decision, it does not apply to an agency's review of an ALJ's recommendation.²⁸ The ALJ's role is "to make a recommendation, and if the aggrieved party challenges the recommendation, it is then up to the Commissioner . . . to 'affirm, modify, or reverse'" the ALJ's recommendation.²⁹ By this process, it is the agency head "that makes the ultimate decision as to how to resolve the aggrieved party's claim."³⁰ Because the commissioner applied an incorrect standard of review, the court of appeals vacated the superior court's holding and remanded the case for review under the proper standard.³¹

The court warned that it in no way intended to indicate how the DCH should rule after the case was remanded.³² Quoting from Glass v. City of Atlanta,³³ the court of appeals noted that in the context of judicial review of an administrative decision, "'[n]either this Court nor the superior court is authorized to substitute its judgment as to weight and credibility of witnesses.'"³⁴ Furthermore, the court has no authority to dictate a department's manner or standard of review as long as the department acts within its statutory authority.³⁵

The court of appeals further solidified the any evidence standard and its application to a superior court's review of an agency decision in

Unified Government of Athens-Clarke County v. Georgia Public Service Commission.³⁶ The appeal arose "from a decision of the Georgia Public Service Commission [(PSC)] to reduce the amount ofmunicipal franchise fees the Georgia Power Company [could] recover from its rate base."³⁷ Following the PSC's decision, the Georgia Municipal Association (GMA) filed a petition for judicial review and declaratory relief in the superior court, which affirmed the PSC's decision.³⁸ The GMA appealed, contending "that the PSC's decision was arbitrary and not supported by any evidence."³⁹ The court of appeals affirmed the superior court's decision, holding that the GMA failed to show the superior court's decision was arbitrary, capricious, or unreasonable.⁴⁰

When reviewing a superior court's order in an administrative proceeding, the appellate court is to determine "'whether the record supports the final decision of the administrative agency.'"⁴¹ The court must affirm "ifany evidence on the record substantiates the administrative agency's findings of fact and conclusions of law."⁴² Following significant testimony from all parties, the PSC, noting its authority under O.C.G.A. Sec. 46-2-23(a)⁴³ to determine "just and reasonable" rates for electric service, modified the Georgia Power Company franchise fee system.⁴⁴ The court of appeals held that the evidence before the PSC formed a sufficient basis for its decision to reallocate the franchise fees, and the GMA failed to show that this decision was arbitrary, capricious, or unreasonable.⁴⁵

In Surgery Center, LLC v. Hughston Surgical Institute, LLC,⁴⁶ the court of appeals reigned in the superior court after determining that it had exceeded its authority by substituting its own judgment for that of an agency.⁴⁷ The DCH denied a request by Hughston Surgical Institute, LLC (HSI) for a certificate of need to develop an orthopedic ambulatory surgery center in Columbus, Georgia. The hearing officer and State Health Planning Review Board affirmed the denial of the application.⁴⁸ Subsequently, "HSI . . . appealed the Review Board's decision to the superior court, which held that the [DCH] had abused its discretion in denying HSI's application."⁴⁹ The court of appeals reversed the decision, reasoning that the superior court "improperly substituted its own judgment for that of the [DCH]."⁵⁰

Because "'agencies provide a high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches,'" the court ofappeals treated the review board's decision with deference as the final decision of the DCH.⁵¹ Accordingly,

the superior court [could] reverse or modify the [DCH's] decision "only if the appellant's substantial rights [had] been prejudiced because the procedures used (1) violated constitutional or statutory provisions; (2) exceeded the [DCH's] statutory authority; (3) were unlawful; (4) were affected by legal error; (5) were...