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

• Publication year: 2006

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

I. Introduction and Overview

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2005 through May 31, 2006 in which principles of administrative law were either illuminated or formed an important piece of the decisionmaking. For a change, the Authors observed a significant decrease in the number of reported cases during the survey period, but that drop should certainly not be interpreted as any type of trend. No attempt has been made to survey cases that would properly fall under categories of more specific articles in this issue, although some degree of overlap is inevitable because of shared subject matter.

This Article begins with a discussion of cases on standing and moves to a review of defenses and immunities brought forward by administrative agencies. Standards of review for agency decisions are the next topic, followed by cases showing the effects of agency actions. The last topic for the survey of appellate cases reviews the differentiation between direct appeals and discretionary appeals. The Article concludes with a brief review of noteworthy enactments from the 2006 regular session of the Georgia General Assembly.

II. Standing to Initiate Proceedings

Two of the cases in this year's survey period addressed standing. Both were brought by property owners asserting their right to file suit against a government entity. In the first case, Massey v. Butts County,¹ the court of appeals affirmed the trial court's decision that the plaintiff lacked standing to bring suit because the plaintiff failed to demonstrate special damages.² The plaintiff, a property owner in Butts County, brought suit against Butts County, the Butts County Board of Zoning Appeals, and a neighboring property owner, alleging that a barn constructed on the neighbor's property violated certain zoning ordinances. The plaintiff sought removal of the barn and a permanent injunction to ensure that any future improvement to the neighbor's land would comply with applicable zoning ordinances.³ The trial court granted the neighbor's motion to dismiss for lack of standing, and the court of appeals affirmed.⁴ The court distinguished between cases brought against neighboring property owners for violations of local ordinances in which a building permit or approval from the municipality has already been issued versus those cases where the harm has not yet occurred.⁵

In cases where a plaintiff is seeking an injunction in order to protect, prohibit, or prevent from future wrongs, courts have held that the property owner does not need to show special damages.⁶ However, when a plaintiff is seeking action for harm that has already occurred and where a building permit has been issued by the municipality, the courts have held that a plaintiff must show special damages in order to achieve standing.⁷ In such a scenario, a plaintiff is essentially challenging the government's decision to grant the neighbor the building permit.⁸ Because the barn was already built and a building permit had been issued, the plaintiff was required to show special damages in order to achieve standing.⁹ In making this distinction, the court relied on the supreme court's decision in Tate v. Stephens,¹⁰ in which the court held that a property owner bringing suit over an allegedly wrongfully issued building permit must show special damages in order to gain standing.¹¹

In the second case, Couch v. Parker,¹² the supreme court upheld an administrative law judge's ("ALJ") decision that the plaintiff lacked standing to challenge the Director of the Environmental Protection Division's ("EPD") consent order because the director had not yet enforced the order.¹³ The plaintiffs were a group of residential property owners in Newton County, and the defendants were the owners of a disposal facility located on an adjoining tract. The Director of the EPD of the Department of Natural Resources determined that the defendants' disposal facility caused contamination to the plaintiffs' property.¹⁴ The director issued a consent order under authority granted to her in the Hazardous Site Response Act,¹⁵ which allowed the defendants an opportunity to correct the damage.¹⁶

The plaintiffs sought a hearing before an ALJ, claiming they were adversely affected by the consent order because the order was inadequate to repair the damage caused by the contamination.¹⁷ Relying on Official Code of Georgia Annotated ("O.C.G.A.") section 12-2-2(c)(3)(B),¹⁸ the ALJ concluded that the plaintiffs lacked standing because the director had not yet sought to enforce the order against defendants.¹⁹ Pursuant to the plaintiffs' request for judicial review, the superior court concluded that O.C.G.A. section 12-2-2(c)(3)(B) was unconstitutional and could not bar the plaintiffs' pursuit of an administrative appeal because the statute violated their right of access to the courts and their due process rights to seek redress for their grievances. The director then filed a discretionary appeal to the supreme court.²⁰

The supreme court determined that the superior court improperly based its conclusion that O.C.G.A. section 12-2-2(c)(3)(B) was unconstitutional on the plaintiffs' right under the Georgia Constitution to unfettered access to the courts.²¹ Furthermore, the court reiterated that there is no express constitutional right to unfettered access to the courts under the Georgia Constitution.²² In addition, the supreme court held that while Georgia has "long recognized that '[t]he right to be heard in matters affecting one's life, liberty, or property is one of the essential elements of due process of law,'" that right is not absolute.²³ Instead, it is qualified by those limitations constitutionally established by the Georgia General Assembly.²⁴ The supreme court noted that "[t]he power of the legislature to create, modify or abolish rights to sue have been clearly and repeatedly recognized both by the U.S. Supreme Court and by this Court."²⁵ The enactment of a statute that lessens or abolishes a cause of action deprives the plaintiff of no vested right.²⁶ The court further noted that O.C.G.A. section 12-2-2(c)(3)(B) does not prevent a plaintiff from seeking redress in the courts.²⁷ Instead, it provides that no person is considered to be aggrieved by an order entered by the director unless and until she seeks to enforce that order.²⁸ Thus, O.C.G.A. section 12-2-2(c)(3)(B) is simply a legislative limitation on standing to appeal the director's order, not an absolute bar to pursuit of an administrative remedy.²⁹ The court noted the General Assembly's intent in limiting the right to challenge an order until after it has been enacted was to enable the director to protect the public by facilitating the expeditious completion of those corrective measures ordered by the director.³⁰

III. Agency Defenses and Immunities

The next line of cases revisits a topic discussed in depth in last year's survey³¹ —the scope of sovereign immunity for municipalities and for employees acting within their official capacity. The first case discusses the far-reaching scope of sovereign immunity and the procedural requirements of the Open Records Act ("ORA").³² In Wallace v. Greene County,³³ the court of appeals affirmed the trial court's grant of the defendants' motion for summary judgment, holding that sovereign immunity barred the plaintiff's suit against the county, the county manager, and the county attorney.³⁴ The case was remanded to determine whether the defendants' noncompliance with the ORA entitled the plaintiff to attorney fees under O.C.G.A. section 50-18-73(b).³⁵ The plaintiff, a disgruntled county employee, sought damages against the county, county manager, and county attorney, alleging that the county officials violated O.C.G.A. section 9-11-65(b)³⁶ by obtaining an ex parte temporary restraining order ("TRO") against the plaintiff without notice, and that the defendants further violated the ORA by failing to timely respond to the plaintiff's request for a copy of his personnel record.³⁷

The plaintiff asserted that the trial court erred in granting summary judgment to the defendants under the doctrine of sovereign immunity.³⁸ The court of appeals, however, affirmed the trial court's opinion for all of the defendants, holding that under the Georgia Constitution, the county was entitled to sovereign immunity for damage claims.³⁹ Furthermore, the court of appeals held that the plaintiff's suit against the defendants in their official capacity was also barred.⁴⁰ The court explained, "[A] suit brought against a county employee in his official capacity is in reality a suit against the county itself."⁴¹ In such a case, sovereign immunity extends to employees who are acting within their official capacity.⁴²

The plaintiff also sued the defendants in their individual capacity; however, the court held that these claims were also precluded by official immunity.⁴³ As explained in last year's survey, "Georgia law provides that a public officer may be personally liable only for 'ministerial acts' negligently performed or acts performed with malice or intent to injure, but cannot be personally liable for 'discretionary acts.'"⁴⁴ A ministerial act is defined as "one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty," and a discretionary act is defined as one that "calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed."⁴⁵ After the defen- dants received information on the plaintiff's disciplinary problems, the defendants exercised discretion in determining what actions to take to protect the public and workplace against the plaintiff's alleged threats.⁴⁶ The court reasoned that the decisions made by the...