Arthur K. Bolton, Attorney General, Eleanor H. Ridley, Staff Assistant Attorney General, Carl C. Jones, Assistant Attorney General, for appellee.Harrison & Garner, G. Hughel Harrison, for appellant.
The judgment of the Fulton Superior Court and that of the Board of Trustees of the Employees' Retirement System of Georgia, must be affirmed. The case is a most difficult one, involving a conscientious employee who desires to continue to work rather than being involuntarily retired due to disability, as thought best by his employer. In an age when so many able-bodied persons seem to prefer not to work if money can be had any other way, cases such as this impose difficult and unpleasant responsibilities upon those required to apply the rules of law. The resolution of this case turns on a matter of law. The factual issue has already been determined by the Board of Trustees of the Employees' Retirement System of Georgia. This court cannot substitute its judgment for theirs on questions and issues of fact.
1. It is urged that Cantrell v. State of Ga.
129 Ga. App. 465 (2) (200 SE2d 163), aff.
231 Ga. 704 (203 SE2d 493), established the law of the case for the case before us. We disagree; the present case is not the same case as that presented in Cantrell, supra. In the prior case, Cantrell sought relief through the State Personnel Board from a decision by the Board of Trustees of the Retirement System that he was disabled. This court ruled that Mr. Cantrell was improperly retired because he was not given a personal physical examination. The Board of Trustees of the Employees' Retirement System of Georgia was not a party to that case. Following the decision in Cantrell, supra, Mr. Cantrell was reinstated to his job, paid back wages, and then this case began with another application to retire the employee, this time using the guidelines from the first case that he be given a personal examination. The "law of the case rule" can only apply to the same case and is not applicable in the case sub judice. See Northwestern Mut. Life Ins. Co. v. Suttles,
114 Ga. App. 54 (150 SE2d 309), all involve writs of certiorari from the State Personnel Board to the superior court involving the discharge of an employee. The State Personnel Board and the Board of Trustees are not the same. See Code Ann. 40-3509 (Ga. L. 1972, pp. 1015, 1024) (State Personnel Board); Code Ann. 40-3507 (Ga. L. 1972, pp. 1015, 1023) (Employees' Retirement System). The State Personnel Board is specifically excluded from the Administrative Procedure Act (Code Ann. 3A-102 (a); Ga. L. 1964, pp. 338, 340; 1965, pp. 283, 284-286) while that subsection of the Act defines "agency" as "each State board, bureau, commission, department, activity or officer authorized by law expressly to make rules and regulations or to determine contested cases except . . ." Code Ann. 40-2506 (Ga. L. 1949, pp. 138, 150, as amended) defines the general duties, organization and composition of the Board of Trustees of the Employees' Retirement System of Georgia. Code Ann. 40-2523 (Ga. L. 1953, pp. 323, 324, as amended) gives the board of trustees authority to adopt tables and rates including rules and regulations. Code Ann. 40-2505 (3) (b) (Ga. L. 1949, pp. 138, 146, as amended) provides for disability retirement of an employee in application to the board of trustees.
The "law of the case" rule is simply inapplicable to the case sub judice.
2. The writ of certiorari to the superior court does not lie from action by the Employees' Retirement System of Georgia. Art. VI, Sec. IV, Par. V. of the Constitution of Georgia (Code Ann. 2-3905) provides that the superior courts "shall have power to correct errors in inferior judicatories by writ of certiorari, which shall only issue on the sanction of the Judge, and said courts, and the judges thereof shall have power to issue writs of mandamus, prohibition, scire facias, and all other writs that may be necessary for carrying their powers fully into effect, and shall have such other powers as are, or may be conferred on them by law."
Based on the foregoing constitutional provision, Code 19-101 provides, "The writ of certiorari shall lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, exercising judicial powers, including the ordinary, except in cases touching the probate of wills, granting letters testamentary and of administration; . . ."
The question then becomes: Is the Board of Trustees of the Employees' Retirement System of Georgia such a body as referred to in Code 19-101? We hold that it is not.
"In determining whether or not a proceeding be judicial in character, the question hinges not on whether the parties at interest were in fact given opportunity to be heard, since an officer cannot clothe himself with unauthorized judicial powers by mere voluntary compliance with the forms of judicial procedure, but the test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.
"If a person or tribunal has the right under proper delegated authority to act in a judicial capacity, the character of such a judicial procedure, when had as prescribed, is not impaired because under the law such tribunal might have had the alternative right to act ex parte without a trial, but refused to exercise such right . . . [Cits.]" South View Cemetery Assn. v. Hailey,
133 Ga. App. 41, 43 (
209 SE2d 651), when it stated, "The appellee relies upon several cases which concern certiorari situations. These cases are not in point as the lower court certiorari method of appeal is not applicable as this is not an appeal from an inferior judicial or quasi-judicial body but from a purely ministerial or administrative body." Here we note that in Burkhead, the statute upon which the proceeding in that case was based, specifically provides for an appeal to the superior court by either party. See Burkhead, supra, p. 42. That factual situation is not present in the case sub judice.
The judgment of the Superior Court of Fulton County decided the case on the merits and dismissed the petition for writ of certiorari (R. 115-118). That judgment was correct. The superior court did not dismiss the petition for certiorari on the grounds stated above. However, that issue was raised (R. 87-88) and argued (R. 89-101) in the superior court. "A judgment right for any reason will be affirmed by the appellate courts." Hill v. Willis,
224 Ga. 263, 267 (
161 SE2d 281).
CLARK, Judge, concurring specially.
Having been the author of the first Cantrell opinion, I find myself compelled to express my personal views. This is not solely because of the disagreement between my colleagues as to the impact of that ruling upon the instant appeal. My main motivation arises from a statement on page 7 of the Attorney General's brief on the rehearing motion. That statement reads: "It is respectfully submitted that Judge Clark's statement is not only dictum, but erroneous dictum, which could not possibly form the basis for 'law of the case'." Being older and wiser, I now recognize the Attorney General's assertion to be correct. I erred.
As is stated in the opening paragraph of that previous opinion reported as Cantrell v. State of Georgia,
129 Ga. App. 465, supra, there were then two issues before this court. The first was a question of jurisdiction as between the Board of Trustees of the State Employees' Retirement System and the State Personnel Board. The second question was that matter of medical procedure. The Supreme Court granted certiorari. In its affirmance (
231 Ga. 704 (203 SE2d 493)) that tribunal limited its decision to the jurisdiction issue. Since the stated two issues constituted the ratio decidendi, those were the sole matters that should be regarded as "the law of the case." Accordingly, I agree with the determination by Judge Stolz on this point.
Having further pursued the problem because of the Attorney General's declaration that I erred in writing as a dictum that the employee could have used certiorari, I confess mea culpa. The correct legal proposition on this is contained in the foregoing opinion by Judge Stolz.
DEEN, Presiding Judge, dissenting.
l fully concur in all the legal reasoning and conclusions of Judge Evans' dissent. However, as the writer of the original opinion in this case (in which there was unanimous agreement that a reversal in favor of the employee was demanded on the merits) I am distressed to find the case now being tossed out or dismissed on a technicality which I feel to be patently in error on two counts. First, certiorari is a proper remedy. Secondly, even if it were not we have no power to change the law of this case as established by this court on its former appearance.
In the first case (our
129 Ga. App. 465), affirmed with opinion by the Supreme Court (
231 Ga. 704), the reversal was predicated on incorrect procedures by the Medical Board to which the Retirement System referred the case. In this present appeal, our original opinion, now vacated, again predicated reversal on incorrect procedures by the Medical Board to which Cantrell's case was again returned by the Retirement System for another examination based on the same disability. We cannot therefore in good conscience say that this is not the same litigation. Any methodological distinctions have been added by courts and lawyers, not by the parties and the facts.
In case no. 48132 Cantrell appealed from the Retirement Board decision to the Personnel Board. The employer traveled by certiorari from the Personnel Board to the Superior Court, contending, among other things, that the employee should have gone direct instead of through the Personnel Board. This court held: "Plaintiff could have appealed from the State Retirement Board's adverse ruling by certiorari to the superior court."
In the second round of this fight, the employee has done just this.
"Any ruling by . . . the Court of Appeals . . . shall be binding in all subsequent proceedings in that case . . . in the Court of Appeals." Code Ann. 81A-160 (h).
Certiorari. Certiorari is a constitutional remedy in all cases where no other remedy exists for appeal from, among other things, decisions where property rights are being decided. It cannot be invoked where the ruling is merely ministerial or procedural. The decision, based on a hearing, reference to Medical Board, and further findings, which deprives an employee of earned tenure within the state system is a quasi-judicial decision involving a property right. No method of appeal, either administrative or judicial, is provided by statute; therefore, certiorari is the proper remedy.
"Inferior judicatory" as used in the constitutional grant of certiorari (Code Ann. 2-3905) does not mean simply a lower court. For example, in Cunningham v. U. S. Savings &c. Co.,
129 Ga. App. 465 (200 SE2d 163), and affirmed in State of Ga. v. Cantrell,
231 Ga. 704 (203 SE2d 493), and there the law of this case was established, in the following language to wit: "Plaintiff could have appealed from the State Retirement Board's adverse ruling by certiorari to the superior court . . ." See page 467 (2), Cantrell v. State,
129 Ga. App. 465, supra. (Emphasis supplied.)
We recognize that a full-bench (and only a full-bench) of the Supreme Court can overrule the decision in State v. Cantrell,
231 Ga. 704, supra, which would in effect overrule Cantrell v. State,
129 Ga. App. 465, supra. But there is no authority on earth that can repeal or undo the "law of the case" as established by the Supreme Court as to a former trial by the same litigants on the same question. In Turner v. Davidson,
224 Ga. 648 (1) (164 SE2d 112).
In my opinion the first decision on the question of appellate review was sound. But that is completely immaterial at this point. This plaintiff in this case has the right to certiorari as he did, under express directions so to do from this Court of Appeals, and we can no more violate the statute and our solemn judgments than we can eat again yesterday's dinner. The Attorney General's reversal of position on the question of certiorari should be brought to a sudden and definite halt. For this court to follow his lead is both indefensible and illegal.
For the foregoing reasons, I dissent.
1975
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