Administrative Law - Martin M. Wilson and Jennifer A. Blackburn
| Publication year | 2010 |
Administrative Law
by Martin M. Wilson* and Jennifer A. Blackburn**
I. Introduction and Overview
Even in tough economic times, the work of administrative agencies seems to continue with particularly robust growth at the state level. The number of contested agency cases seems to be rising, even those involving the most trivial details. Although the idea of more government is not fashionable in most corridors, higher levels of activity by existing governmental agencies will be the norm until the state's economic picture achieves measurable improvement.
This Article is a survey of cases from the Georgia Supreme Court and Georgia Court of Appeals from June 1, 2009 through May 31, 2010.1 The cases chosen for review were prioritized by a concentration of administrative law principles in the opinions. One will be able to find specialized subject matters—some including administrative law principles—in other articles of this volume.
This Article begins with cases under Georgia's "any evidence" rule2 and then shifts to agency defenses. Next, cases highlighting judicial review and other standards of review for agency cases are addressed.
* Partner in the firm of Troutman Sanders LLP, Atlanta, Georgia. Mercer University (B.A., 1975); Mercer University, Walter F. George School of Law (J.D., with honors, 1978). Member, State Bar of Georgia.
** Associate in the firm of Troutman Sanders LLP, Atlanta, Georgia. Georgia State University (B.A., 2000); Mercer University, Walter F. George School of Law (J.D., 2004). Member, State Bar of Georgia.
The Authors gratefully acknowledge the assistance of Troutman Sanders summer associate Courtney Ferrell in the preparation of this Article.
1. For analysis of Georgia administrative law during the prior survey period, see Martin M. Wilson & Jennifer A. Blackburn, Administrative Law, Annual Survey of Georgia Law, 61 Mercer L. Rev. 1 (2009).
2. O.C.G.A. § 50-13-19(h) (2009); see, e.g., Ga. Dep't of Human Res. v. Holland, 133 Ga. App. 616, 617, 211 S.E.2d 635, 637 (1974).
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The last section of the Article is an enumeration of legislation adding, subtracting, multiplying, and dividing administrative agencies as passed during the 2010 regular session of the Georgia General Assembly.
II. The "Any Evidence" Rule
The Georgia Court of Appeals decision in Board of Regents of the University System of Georgia v. Hogan3 is a good example of how not to follow the any evidence rule. Hogan was the registrar at one of the universities governed by the Board of Regents of the University System of Georgia (Board). She was fired by the president of the university and appealed to an administrative law judge (ALJ). Upon a failure to obtain relief, Hogan sought review by the Board, which promptly adopted the decision of the ALJ. Hogan then appealed by means of a writ of certiorari in the superior court, which overturned the prior adverse decisions. In addition, the superior court awarded damages and attorney fees to Hogan as a part of the decision. The Board filed a successful application for discretionary review in the court of appeals.4
Citing a failure to observe the any evidence rule, the court of appeals agreed with the Board and reversed the superior court's decision.5 The ALJ, with whom the Board had agreed, found Hogan to be an at-will employee and subject to discharge unless the action was "arbitrary and capricious." Because the facts showed the university president had not acted in such a manner, the ALJ upheld the termination. However, instead of relying upon the evidence produced by the ALJ, the superior court made independent findings of fact and overturned Hogan's termination.6 Consequently, because the superior court erroneously substituted its judgment for the ALJ's, the court ofappeals reversed the decision.7
Hogan had also asserted a due process claim, alleging that she had been given no reason for her termination and did not have an initial grievance hearing.8 The court of appeals was not impressed, however, because a full hearing had been convened before the ALJ.9
3. 298 Ga. App. 454, 680 S.E.2d 518 (2009).
4. Id. at 454, 680 S.E.2d at 520.
5. Id. at 454, 457-58, 680 S.E.2d at 520, 522 (quoting Profl Standards Comm'n v. Smith, 257 Ga. App. 418, 418, 571 S.E.2d 443, 444 (2002)).
6. Id. at 456, 680 S.E.2d at 521.
7. Id. at 457-58, 680 S.E.2d at 522.
8. Id. at 457, 680 S.E.2d at 521.
9. Id. at 457, 680 S.E.2d at 522.
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In Georgia Real Estate Appraisers Board v. Krouse,10 another reversal by the court ofappeals, the any evidence rule played an important part. Krouse had a license as a real estate appraiser. He assigned a value of $113,000 to a parcel of property, although he knew that the market value was around $20,000-$25,000. The property was immediately donated to charity, which Krouse knew would happen, and the donor took a $113,000 charitable deduction on the donor's next filed federal tax return. As soon as the donation had been made, Krouse's wife bought the property for $25,000. In about two years, she sold the property to the Georgia Department ofTransportation for over $250,000. When the local newspaper later reviewed the transactions by Mr. and Mrs. Krouse, the Georgia Real Estate Appraisers Board (Board) investigated. The Board initiated disciplinary proceedings to revoke Krouse's license, and a hearing was held before an ALJ. The ALJ recommended revocation, which was confirmed by the Board's final review.11
Krouse appealed to the superior court, which reversed the Board on multiple issues. First, the superior court decided that the Board should have required expert testimony to establish Krouse's violations.12 The court of appeals disagreed and articulated the issue as "whether the violations for which Krouse was charged are of a complicated nature so as to require highly specialized knowledge and explanation by an expert to understand the parameters of acceptable conduct."13 The court held that Krouse's behavior and the sheer number and type of charged violations obviated any need for an expert because violations were clearly shown.14
Alternatively, the Board also relied upon the position that the superior court had ignored the any evidence rule in making its determinations.15 The court of appeals found multiple instances of evidence in the record to support the revocation and agreed that error had been committed.16 Because the superior court failed to apply the any evidence rule when evidence existed to support the revocation of Krouse's license, the court of appeals reversed the ruling of the superior court.17
Yet another reversal of a superior court judgment, the case of Davane v. Thurmond18 revolved around the payment of unemployment benefits.
10. 299 Ga. App. 73, 681 S.E.2d 737 (2009).
11. Id. at 73-76, 681 S.E.2d at 738-40.
12. Id. at 76, 681 S.E.2d at 740-41.
13. Id. at 76-77, 681 S.E.2d at 740-41.
14. Id. at 78-79, 681 S.E.2d at 742.
15. Id. at 79, 681 S.E.2d at 743.
16. Id. at 79-82, 681 S.E.2d at 743-45.
17. Id. at 82, 681 S.E.2d at 745.
18. 300 Ga. App. 474, 685 S.E.2d 446 (2009).
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In 2007 Davane was employed by a software company in a position that required a lot of travel. Shortly after getting the job, she had to stop the out-of-town work because of problems with child care. The employer gave her a temporary assignment that allowed her to work from home, but the employer inquired about her return to her original position a few months later. In 2008 when a new out-of-town project came up, Davane was assigned to the job, but she could not arrange for child care. The employer said that he had given roughly two-weeks' notice of the assignment, but Davane testified that the employer gave only two-days' notice. Since Davane could not arrange for child care, she was discharged from her position. Upon application for unemployment benefits, Davane was turned down. The Board of Review (Board) for the Georgia Department of Labor disqualified Davane from unemployment compensation on the basis that she should have procured child care and was at fault for not doing so.19 The superior court affirmed the Board's findings, which included a finding that there was evidence to support the Board's decision, and Davane appealed.20
The court of appeals reversed, using an analysis that basically incorporated the any evidence rule.21 The evidence before the Board concerning Davane's time to respond to the out-of-town assignment was conflicting.22 However, the court of appeals held that the employer's testimony that Davane was notified two weeks before the out-of-town assignment was based on information provided to the employer by a third party and therefore constituted hearsay.23 The hearsay evidence was neither competent nor probative to support a finding that Davane had been given ample notice to secure child care.24 Accordingly, Davane was not disqualified from receiving unemployment benefits because the only competent evidence showed that she had been given only two- or three-days' notice.25 She was not intentionally failing to comply with the directions of the employer because she could not have been reasonably expected to procure child care in such a short period of
time.26
A case was reversed for the fourth time in Trawick Construction Co. v. Georgia Department of Revenue,27 this time by the supreme court.
19. Id. at 474-75, 685 S.E.2d at 447-48.
20. Id. at 474, 685 S.E.2d at 447.
21. Id. at 476, 685 S.E.2d at 448-49.
22. Id. at 475-76, 685 S.E.2d at 448.
23. Id. at 476, 685 S.E.2d at 448.
24. Id.
25. Id. at 476-78, 685 S.E.2d at 448-50.
26. Id. at 477-78, 685 S.E.2d at 449-50.
27. 286 Ga. 597, 690 S.E.2d 601 (2010).
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In Trawick the court decided that a federal income tax election of tax treatment made by a corporation does not apply to a state income tax election in the same situation.28 Trawick was an out-of-state Subchap-ter S corporation for federal tax purposes, meaning that...
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