author: BARNES, Presiding Judge. BLACKWELL, Judge,

text:
    A10A2167.
    GEORGIA SOCIETY OF AMBULATORY SURGERY CENTERS v. GEORGIA DEPARTMENT OF COMMUNITY HEALTH et al.
    (710 SE2d 183)
   BARNES, Presiding Judge.

This case arises out of a complaint for a declaratory judgment and injunctive relief filed by the Georgia Society of Ambulatory Surgery Centers (“GSASC”) against the Georgia Department of Community Health and its Commissioner (collectively, “DCH”). GSASC contended that a 2009 annual survey issued by DCH to ambulatory surgery centers sought information beyond the scope of OCGA § 31-6-70, and requested an interlocutory injunction to prevent its members from having to provide the information during the pendency of the litigation. The trial court denied GSASC’s request for an interlocutory injunction on the ground that the information requested in the survey was authorized under Georgia law. GSASC now appeals the trial court’s denial of its request for interlocutory injunctive relief. Because the survey sought information beyond what was permitted under OCGA § 31-6-70, we reverse.

GSASC and Its Members. The relevant facts are undisputed. GSASC is an organization whose members own and operate licensed ambulatory surgery centers throughout Georgia. An ambulatory surgery center (“ASC”) is “a public or private facility, not a part of a hospital, which provides surgical or obstetrical treatment performed under general or regional anesthesia in an operating room environment to patients not requiring hospitalization.” OCGA § 31-6-2 (1). GSASC’s members are primarily physician-owned ASCs that offer outpatient surgery in a single medical specialty, such as orthopedics, ophthalmology, or urology.

The Certificate of Need Program. DCH is the “lead planning agency for all health issues” in Georgia. OCGA § 31-2-1 (1). The heart of DCH’s health planning duties is contained in the “certificate of need” (“CON”) program codified at OCGA § 31-6-40 et seq. The CON program was adopted “to create a system for planning new health service institutions to avoid costly duplication of services where insufficient need existed.” Albany Surgical v. Dept. of Community Health, 257 Ga. App. 636 (572 SE2d 638) (2002). Under the program, those wishing to provide institutional health services must obtain a CON from DCH. OCGA § 31-6-40 (a). A CON is “an official determination by [DCH], evidenced by certification issued pursuant to an application, that the action proposed in the application satisfies and complies with the criteria [of the CON program] and rules promulgated pursuant [thereto].” OCGA § 31-6-2 (6).

Certain healthcare providers are exempt from the CON program. OCGA § 31-6-47 (a). These exemptions include single-specialty ASCs. OCGA § 31-6-47 (a) (18). ASCs must document their exemption from the CON program by obtaining a “letter of non-reviewability” (“LNR”) from DCH. OCGA § 31-6-47.1; Ga. Comp. R. & Regs. r. 111-2-2-.10. A majority of GSASC’s members operate pursuant to LNRs rather than CONs.

The Annual Reporting Requirement. One of DCH’s duties in administering the CON program is to collect data for health planning purposes through annual reports submitted by healthcare providers. See OCGA §§ 31-6-21 (b) (5); 31-6-70 (a). To effectuate this duty, DCH each year prepares an annual survey that must be filled out by healthcare providers for the prior year. See OCGA § 31-6-70 (a); Ga. Comp. R. & Regs. r. 111-2-2-.04.

Based upon 2008 amendments to the CON program, ASCs operating under LNRs are now required to provide the same information to DCH annually as healthcare facilities operating under CONs. See OCGA § 31-6-40 (c) (2) (B); Ga. L. 2008, p. 12, § 1-1. Specifically, under OCGA § 31-6-70 as amended, ASCs operating under LNRs must now respond to the annual survey issued by DCH requesting information about their operations. See OCGA § 31-6-70 (a). If an ASC fails to submit a survey that is both complete and timely, DCH can impose a fine of up to $500 a day for the first 30 days of noncompliance and $1,000 a day thereafter. OCGA § 31-6-70 (e) (1); Ga. Comp. R. & Regs. r. 111-2-2-.04 (1) (c). For repeated failures to provide the information requested in a survey, an ASC also is subject to possible revocation of its exemption from the CON program. OCGA § 31-6-47 (a) (18).

The 2009 Annual Survey. In early 2010, DCH issued its 2009 annual survey for single-specialty, physician-owned ASCs. Among other things, the survey requested that all ASCs reveal the following information: (1) the number of rooms, procedures, and patients surgically treated by the ASC; (2) the number of patients that were admitted to a hospital before the completion of or immediately following surgery; (3) the race and ethnicity of all patients; (4) the gender of all patients; (5) the top ten procedures performed by the ASC, broken down by CPT code, procedure name, number of procedures, and average charge; (6) the number of patients and procedures by payer source (such as Medicare, Medicaid, self-pay, etc.); (7) total expenses; and (8) the origin of all patients by county (collectively, “the Disputed Requests”). The instructions for the survey stated: “Providing false or inaccurate information may result in adverse regulatory action pursuant to DCH Rules 111-2-2-.04 (1) (b), 111-2-2-.05 (1) (a) (1), and 111-2-2-.05 (1) (a) (7), other regulations and statutes, and may constitute a crime under OCGA §§ 16-10-20 and 16-14-1.” Responses to the survey were due by March 12, 2010.

The Instant Lawsuit. On March 4, 2010, GSASC filed the instant lawsuit seeking a declaration that the Disputed Requests went beyond the scope of what DCH could seek in an annual survey under OCGA § 31-6-70. GSASC also sought interlocutory and permanent injunctive relief preventing DCH from requiring its members to respond to the Disputed Requests. On March 9, 2010, GSASC filed its request for an interlocutory injunction, and two days later the trial court conducted a hearing on the matter. Following the hearing, the trial court denied GSASC’s request for an interlocutory injunction based upon its conclusion that DCH was “authorized to request the information at issue under applicable law.” This appeal followed.

1. “Generally, the trial court has broad discretion to decide whether to grant or deny an interlocutory injunction. OCGA § 9-5-8.” Madonna v. Satilla Health Svcs., 290 Ga. App. 148, 150 (658 SE2d 858) (2008). But a trial court abuses its discretion in granting or denying injunctive relief if its ruling is based on an erroneous interpretation of the law. Id. We conclude that the trial court abused its discretion in the present case because its decision to deny interlocutory injunctive relief to GSASC was based on the erroneous legal conclusion that the Disputed Requests were statutorily authorized.

“The test of the validity of an administrative rule is twofold: whether it is authorized by statute and whether it is reasonable.” (Citation and punctuation omitted.) Dept. of Human Resources v. Anderson, 218 Ga. App. 528, 529 (462 SE2d 439) (1995). In applying this test, we have explained that “the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.” (Citation and punctuation omitted.) Dept. of Community Health v. Gwinnett Hosp. System, 262 Ga. App. 879, 882 (586 SE2d 762) (2003). “However, an administrative rule which exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated is invalid.” Anderson, 218 Ga. App. at 529. See also North Fulton Medical Center v. Stephenson, 269 Ga. 540, 543 (1) (501 SE2d 798) (1998); Albany Surgical, 257 Ga. App. at 638 (1) (a). Mindful of these principles, we turn to the statute at issue here.

As previously noted, DCH’s authority to request information from ASCs in an annual survey is found in OCGA § 31-6-70. That statute provides in relevant part:

(a) There shall be required from each health care facility in this state requiring a certificate of need and all ambulatory surgical centers and imaging centers, whether or not exempt from obtaining a certificate of need under this chapter, an annual report of certain health care information to be submitted to the department. . . .
(b) The report required under subsection (a) of this Code section shall contain the following information:
(1) Total gross revenues;
(2) Bad debts;
(3) Amounts of free care extended, excluding bad debts;
(4) Contractual adjustments;
(5) Amounts of care provided under a Hill-Burton commitment;
(6) Amounts of charity care provided to indigent persons;
(7) Amounts of outside sources of funding from governmental entities, philanthropic groups, or any other source, including the proportion of any such funding dedicated to the care of indigent persons; and
(8) For cases involving indigent persons:
(A) The number of persons treated;
(B) The number of inpatients and outpatients;
(C) Total patient days;
(D) The number of patients categorized by county of residence; and
(E) The indigent care costs incurred by the health care facility by county of residence.
(c) As used in subsection (b) of this Code section, “indigent persons” means persons having as a maximum allowable income level an amount corresponding to 125 percent of the federal poverty guideline.
(d) The department shall provide a form for the report required by subsection (a) of this Code section and may provide in said form for further categorical divisions of the information listed in subsection (b) of this Code section.

OCGA § 31-6-70 (a)-(d).

GSASC contends that the Disputed Requests exceeded the scope of information that DCH was authorized to obtain under OCGA § 31-6-70 (b) and (d). In this regard, GSASC emphasizes that the Disputed Requests did not limit any of the types of information being sought to “indigent persons” as defined by OCGA § 31-6-70 (c), and thus could not be reasonably construed as seeking information that fell within OCGA § 31-6-70 (b) (8). GSASC further maintains that none of the disputed information could reasonably be construed as falling within OCGA § 31-6-70 (b) (l)-(7), the statutory subsections applicable to nonindigent persons.

It is a cardinal rule of statutory construction that “the literal meaning of the statute prevails unless such a construction would produce unreasonable or absurd consequences not contemplated by the legislature.” Johnson v. State, 267 Ga. 77, 78 (475 SE2d 595) (1996). “Moreover, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” (Citation and punctuation omitted.) Beacon Medical Products v. Travelers Cas. &c. of America, 292 Ga. App. 617, 619 (665 SE2d 710) (2008). Statutes also should be construed in a manner that gives all of the words meaning. See OCGA § 1-3-1 (b); Porter v. Food Giant, 198 Ga. App. 736, 738 (1) (402 SE2d 766) (1991) (“It is contrary to the generally accepted principles for construing statutes to ‘read out’ any part of the statute as ‘mere surplusage’ unless there is a clear reason for doing so.”).

Applying these principles to the case at hand, we agree with GSASC that the Disputed Requests were overly broad and sought information beyond what was statutorily permitted. By its plain and literal terms, OCGA § 31-6-70 (b) contains a detailed list of information that ASCs must annually report to DCH. OCGA § 31-6-70 (d) then authorizes DCH to request in its annual survey “further categorical divisions of the information listed in subsection (b),” but it does not allow DCH to go beyond those categories and add additional ones. For example, DCH could request more specific information from ASCs about the “[a]mounts of free care extended, excluding bad debts,” see OCGA § 31-6-70 (b) (3), such as by requiring providers to break down the amount of free care by type of procedure. What DCH cannot do, and what it clearly attempted to do in the Disputed Requests, is request information from ASCs that fell completely outside the specific categories set forth in OCGA § 31-6-70 (b) (l)-(8).

Nevertheless, DCH argues that it is generally empowered to request information from ASCs under OCGA § 31-6-21 (b) (5), which states: “The functions of the department shall be[ ] . . . [t]o define, by rule, the form, content, schedules, and procedures for submission of applications for certificates of need and periodic reports.” But it is axiomatic that the terms of a specific statute govern over those of a more general statute, see Glinton v. And R, Inc., 271 Ga. 864, 867 (524 SE2d 481) (1999), and thus the more specific provisions of OCGA § 31-6-70 (b) and (d) control over the more general provisions of OCGA § 31-6-21 (b) (5). Furthermore, if OCGA § 31-6-21 (b) (5) were construed as granting DCH unbridled authority to require ASCs to produce any information it wished through an annual survey, the restrictions imposed on DCH’s authority by OCGA § 31-6-70 (d) would be meaningless.

DCH also points to OCGA § 31-6-21 (b) (8) as a source of general authority to request information from ASCs. That subsection provides in relevant part:

The functions of the department shall be . . . [t]o establish, by rule, need methodologies for new institutional health services and health facilities. In developing such need methodologies, the department shall, at a minimum, consider the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, financial and geographic accessibility, and market economics. ...

OCGA § 31-6-21 (b) (8). By its plain and literal terms, OCGA § 31-6-21 (b) (8) discusses DCH’s responsibility to develop certificate of need methodologies; it is silent as to the authority of DCH to request information from ASCs or other institutions. That authority instead is delineated expressly in OCGA § 31-6-70. When read in conjunction with OCGA § 31-6-70, the provisions of OCGA § 31-6-21 (b) (8) cannot be construed as endowing DCH with general authority to request any information it chooses from ASCs through its annual survey.

Additionally, while DCH cites to its own administrative rules and regulations to support its contention that it had general authority to seek information from ASCs, “an administrative rule which exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated is invalid.” Anderson, 218 Ga. App. at 529. Thus, DCH’s rules and regulations could not empower it to issue an annual survey seeking information beyond what was authorized in OCGA § 31-6-70.

For these reasons, the trial court erred by concluding that DCH had statutory authority to include the Disputed Requests in the 2009 annual survey issued to ASCs. Accordingly, the trial court’s denial of GSASC’s request for an interlocutory injunction was based on an erroneous interpretation of the law and must be reversed.

2. DCH argues that we should affirm the trial court’s denial of GSASC’s request for an interlocutory injunction on the alternative basis that GSASC failed to exhaust its administrative remedies. DCH notes that if an ASC is fined, sanctioned, or has its exemption status revoked for failure to fully respond to an annual survey, the ASC is entitled to notice and an administrative hearing under the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq., before any such fine or sanction is exacted. See OCGA §§ 31-6-40 (c) (2); 31-6-47 (a) (18). After an administrative hearing, the ASC may appeal to the Commissioner of DCH, and then petition for judicial review. See OCGA § 50-13-19; Ga. Comp. R. & Regs. r. 111-2-2-.05 (2) (e). According to DCH, these procedures provide an adequate administrative remedy such that the trial court lacked subject matter jurisdiction in this case. We are unpersuaded.

It is true that “[l]ong-standing Georgia law requires that a party aggrieved by a state agency’s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency’s decision.” Cerulean Co. v. Tiller, 271 Ga. 65, 66 (1) (516 SE2d 522) (1999). But exhaustion of administrative remedies is not required where resorting to the remedy would be futile. See Hall v. Nelson, 282 Ga. 441, 443 (3) (651 SE2d 72) (2007); Powell v. City of Snellville, 266 Ga. 315, 316 (467 SE2d 540) (1996). Nor is exhaustion required where an agency’s power to act is challenged in a declaratory judgment action. See City of Atlanta v. Hotels.com, LP, 285 Ga. 231, 233-234 (674 SE2d 898) (2009).

(a) Futility. Our Supreme Court applied the futility exception in Glynn County Bd. of Ed. v. Lane, 261 Ga. 544, 545-546 (1) (407 SE2d 754) (1991), a case materially similar to the present one. In Lane, the issue was whether the conduct of a county board of education was inconsistent with the plain and unambiguous language of a general statute and local act, and the case turned purely on a question of statutory construction rather than on any factual matters. Id. at 544-545, 546 (2), (3). The county board argued that before pursuing a mandamus action in superior court, the appellees were required to seek relief through an administrative hearing before the board. Id. at 545 (1). Our Supreme Court disagreed: “The sole issue in this case involves conduct of the [county board]. It is unreasonable to require of appellees the futile act of participating in a hearing before that body on the question of its own conduct.” Id. at 546 (1). Accordingly, our Supreme Court concluded that the appellees were entitled to pursue an action before the superior court without exhausting administrative remedies. Id. See also 7 Ga. Procedure: Special Remedies and Proceedings § 6:28 (exhaustion not required “where it is unreasonable to expect that resort to the alternative remedy would serve any useful purpose in view of the conduct of the person or persons responsible for providing the alternative relief”).

The instant case is controlled by Lane. Here, the issue is whether DCH had statutory authority to include the Disputed Requests in the 2009 annual survey issued to ASCs; as in Lane, the sole issue is whether an administrative agency’s conduct was inconsistent with plain and unambiguous statutory language, and the case turns purely on a question of statutory construction rather than on factual matters. DCH and its Commissioner have repeatedly made clear their position that the agency had statutory authorization to request the disputed information and would now have to abandon that position, and thus conclude that the agency’s conduct was illegal, for ASCs to prevail before the agency. This, to say the least, seems highly implausible. Similar to Lane, it would serve no purpose, and would only lead to a repeat of the present litigation after further delay and cost, if ASCs were required to participate in an administrative hearing “before [DCH] on the question of its own conduct.” 261 Ga. at 546 (1). Consequently, GSASC and its members were not required to exhaust administrative remedies because doing so would be a futile and useless act under the reasoning of our Supreme Court’s decision in Lane.

The dissent argues that Lane is distinguishable because ASCs are entitled to a hearing before an administrative law judge (“AU”), which is then appealable to the Commissioner of DCH, and “nothing in the record suggests that the ALJ that might be assigned to hear the matter or the Commissioner personally has prejudged the issue.” But the Commissioner of the DCH is named as a party in this case, joined DCH’s brief in opposition to GSASC’s request for an interlocutory injunction filed in the trial court, and joined DCH’s brief filed in this appeal. It follows that the positions asserted by DCH in this litigation are also asserted by its Commissioner. Furthermore, on appeal from the initial decision of an AU, the Commissioner “shall have all the powers [she] would have in making the initial decision[.]” OCGA § 50-13-17 (a). Hence, the Commissioner would owe no deference to the AU’s initial decision regarding the statutory interpretation questions at issue here.

(b) Agency’s Power to Act. In Hotels.com, our Supreme Court explained that administrative exhaustion is not required where the plaintiff brings a declaratory judgment action challenging the agency’s authority or power to act:

This Court has recognized that the exhaustion doctrine “does not apply where the defect urged by the complaining party goes to the jurisdiction or power of the [involved] agency.... [Cits.]” Cravey v. Southeastern Underwriters Assn., 214 Ga. 450, 457 (3) (105 SE2d 497) (1958). See generally City of Waycross v. Reid Rental Co., 186 Ga. App. 452, 454 (367 SE2d 305) (1988) (adopting rationale in Cravey, supra, in sustaining claim for declaratory judgment). The Court of Appeals has likewise recognized that a failure to exhaust administrative remedies does not preclude a declaratory ruling to determine a party’s authority to act. See DBL, Inc. v. Carson, 284 Ga. App. 898 (2) (645 SE2d 56) (2007) (declaratory judgment properly granted despite failure to exhaust administrative remedies where claimant challenged commission’s authority to issue water bottom lease); AT&T Wireless PCS v. Leafmore Forest Condominium Assn., 235 Ga. App. 319 (2) (509 SE2d 374) (1998) (declaratory judgment properly granted despite failure to exhaust administrative remedies where claimant challenged department’s authority to issue building permit).

Hotels.com, LP, 285 Ga. at 233-234. Here, GSASC brought a declaratory judgment action challenging DCH’s authority and power to issue the Disputed Requests to ASCs. Consequently, GSASC was not required to exhaust administrative remedies under Hotels.com and the line of authority discussed in that decision.

Judgment reversed.

Smith, P J., Mikell and Adams, JJ., concur. Andrews, Blackwell and Dillard, JJ., dissent.

BLACKWELL, Judge,

dissenting.

In this case, the Georgia Society of Ambulatory Surgery Centers represents the interests of members that appear to have adequate administrative remedies, and it is undisputed that these members have not exhausted their administrative remedies. Consequently, I conclude that both this Court and the trial court lack jurisdiction of the subject matter, and for this reason, we ought to dismiss this appeal and remand with instructions to dismiss the case below. Because the majority' instead proceeds to address the merits, I dissent.

As our Supreme Court has explained,

Georgia law requires that a party aggrieved by a state agency’s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency’s decision. As long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in the superior court.

Cerulean Companies v. Tiller, 271 Ga. 65, 66 (1) (516 SE2d 522) (1999). This requirement respects the constitutional prerogatives of the executive branch and its agencies, permits an agency to apply its expertise to the resolution of disputes, promotes a more efficient resolution of disputes, and encourages the uniform and consistent resolution of disputes of a similar nature. See id. at 67 (1). When a person aggrieved by agency action has adequate administrative remedies, but files a lawsuit before exhausting his administrative remedies, the courts cannot entertain the suit. See Northeast Georgia Cancer Care v. Blue Cross & Blue Shield of Georgia, 297 Ga. App. 28, 32 (1) (676 SE2d 428) (2009); see also Cerulean Companies, 271 Ga. at 68-69 (2). “When an adequate administrative remedy exists that has not been taken, dismissal of any declaratory judgment or equitable action is appropriate.” USA Payday Cash Advance Centers v. Oxendine, 262 Ga. App. 632, 635 (585 SE2d 924) (2003).

Citing City of Atlanta v. Hotels.com, 285 Ga. 231 (674 SE2d 898) (2009), the majority says that the exhaustion requirement does not apply at all in this case because the Society challenges the power of the Department of Community Health, not merely the way in which it has exercised its power. I agree that a lawsuit asserting that an administrative agency is without any power to do what it has done usually does not require the exhaustion of administrative remedies, see 285 Ga. at 233, but I do not think this is such a case. The Department clearly has statutory authority to collect information about “the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, financial and geographic accessibility, and market economics,” OCGA § 31-6-21 (b) (8), to require ambulatory surgery centers to submit annual reports, OCGA § 31-6-70 (a), and to penalize ambulatory surgery centers that fail to do so. OCGA § 31-6-47 (a) (18), (19). The dispute in this case involves whether the Department properly exercised these powers when it issued its 2009 survey of ambulatory surgery centers, which contains requests for information that is not specifically identified in OCGA § 31-6-70 (b). I think this case, therefore, is more properly characterized as a challenge to the way in which the Department has exercised its authority, not the scope of its authority.

I turn now to the adequacy of the administrative remedies available to the Society and its members. The Society is bothered, of course, not so much by the fact that the Department has asked certain questions of its members, but instead by the prospect that the Department might penalize them — by imposing fines or by revoking their exemptions from certificate of need requirements — if they fail to answer these specific questions. At this time, no such sanctions have been imposed against any member. But if the Department were to seek to impose such sanctions, the members against whom sanctions were sought would be entitled to notice, a hearing before an administrative law judge (“ALJ”) pursuant to the Administrative Procedure Act, an opportunity to appeal the decision of the AU to the Commissioner of the Department, and an opportunity to seek judicial review of the decision of the Commissioner. See OCGA §§ 31-6-40 (b) (2), 31-6-47 (a) (18); DCH Rules 111-2-2-.05, 111-2-2-.10. Because these proceedings are available to the members of the Society prior to the Department taking any final, adverse action against them for failing to provide the information requested by the Department, these administrative remedies appear adequate.

The majority does not dispute that these administrative remedies are facially adequate, but the majority, relying on Glynn County Bd. of Ed. v. Lane, 261 Ga. 544, 545-546 (1) (407 SE2d 754) (1991), says that requiring the members of the Society to exhaust these administrative remedies would be futile because the Department already has prejudged its authority to sanction the members for failing to answer the survey. I disagree. Lane stands for the proposition that, when the available administrative remedy consists of a hearing before a particular judicial decision maker, but the judicial decision maker already has prejudged the issue, it would be futile to require the aggrieved person to exhaust his remedy. See 261 Ga. at 545-546 (l). “Exhaustion of administrative remedies is futile only where further administrative review would result in a decision on the same issue by the same body.” Little v. City of Lawrenceville, 272 Ga. 340, 342 (3) (528 SE2d 515) (2000) (citation and punctuation omitted).

Here, the administrative remedies available to members of the Society are a hearing before an ALJ and an appeal to the Commissioner. Although some of the Department staff may have prejudged the issue and determined that the Department can sanction members of the Society for failing to complete the questionnaire, nothing in the record suggests that the ALJ who might be assigned to hear the matter or the Commissioner personally has prejudged the issue. In the absence of evidence of predisposition, I cannot say that exhaustion of administrative remedies would be futile.

Decided March 30, 2011

McGuire Woods, Victor L. Moldovan, Kevin C. Watters, for appellant.

Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr., Senior Assistant Attorney General, Alex F. Sponseller, Assistant Attorney General, for appellees.

We should view with grave concern the interference with the executive branch that would follow if courts, including this Court on appeal, exercised jurisdiction to make decisions that are committed by law in the first instance to the jurisdiction of administrative bodies. See George v. Dept. of Natural Resources, 250 Ga. 491, 492 (299 SE2d 556) (1983). And we should defer to an agency in matters involving the interpretation of the statutes that it is authorized to enforce. See Albany Surgical v. Dept. of Community Health, 257 Ga. App. 636, 638 (1) (a) (572 SE2d 638) (2002). Because the members of the Society have available administrative remedies that they failed to exhaust, and because the Society has failed to show that these remedies are inadequate or that their exhaustion would be futile, we must, I think, dismiss this appeal. Because the majority does not, I dissent.

I am authorized to state that Judge Andrews and Judge Dillard join in this dissent.

       The trial court also temporarily enjoined any enforcement actions by DCH against the ambulatory surgery centers for failure to provide the requested survey information during the pendency of this appeal.

       OCGA § 16-10-20 provides criminal penalties for a person who knowingly and willfully makes false statements to, or conceals material facts from, a government department or agency. Georgia’s Racketeer Influenced and Corrupt Organizations Act is codified at OCGA § 16-14-1 et seq.

       GSASC did not challenge the contents of the 2009 annual survey beyond the Disputed Requests.

       After conducting independent online research, the dissent notes that a new Commissioner has recently been appointed to DCH and speculates that he might at some point adopt a different position than that consistently asserted by the Commissioner and DCH throughout this litigation. Any change in the Commissioner at the DCH is not a part of the record, and neither party has asked this court to take judicial notice of any change in this respect. Furthermore, the new Commissioner has not moved to withdraw as an appellee to this appeal; has not filed a supplemental brief asserting a new position; has not moved to have this case remanded due to a change in position adopted by the Commissioner; and has not otherwise indicated that he is now taking a position contrary to that maintained throughout the trial and appellate proceedings in this case.

       I do not think the majority’s characterization of this case is an unreasonable one, but I think mine is more accurate and faithful to the separation of powers that the exhaustion requirement is meant to safeguard. I readily admit, however, that properly characterizing a dispute like this one-determining whether it involves a challenge to the scope of power or a mere challenge to the exercise of power-is something about which reasonable people of good faith can disagree. Some disputes clearly should be characterized as one or the other, but in most disputes, like this one, a fair case can be made for characterizing the dispute in either way, and the question ultimately comes down to a matter of semantics.

       The Society also claims that its members might be prosecuted for violations of the criminal law if they give false answers to these questions. But no one contends that the members of the Society have a right to give false information to the Department; the Society merely contends that its members have a right to give no information at all in response to these questions. So, I do not think the threat of criminal prosecution for giving false information has any bearing upon the effectiveness of administrative remedies in this case.

       The Society points us to Thomas v. Georgia Bd. of Dentistry, 197 Ga. App. 589 (398 SE2d 730) (1990), and Moss v. Central State Hosp., 255 Ga. 403 (339 SE2d 226) (1986), on the question of adequacy. I think those cases are distinguishable. In Thomas, we concluded that administrative remedies were inadequate because awaiting an administrative remedy would expose the aggrieved person to a risk of criminal prosecution or the revocation of his license to practice dentistry, which would result in a loss of his livelihood. See 197 Ga. App. at 590 (1). And in Moss, our Supreme Court concluded that administrative remedies were inadequate because they would expose the aggrieved person to the loss of her job and, thus, a complete loss of her livelihood. See 255 Ga. at 404. Here, as I have already noted, no risk of criminal prosecution is relevant to our assessment of the adequacy of the administrative remedies. See note 6, supra. And the record does not show that even a revocation of an exemption from certificate of need requirements would likely result in a complete loss of livelihood for the members of the Society. I am not convinced that the administrative remedies are inadequate.
      To the extent that the Society might be capable of making a showing of inadequacy if this case were remanded, I note that the Society does not ask us to remand this case or suggest that the record on the adequacy of administrative remedies is incomplete. Because the Society does not ask, I would not remand.

       In Lane, the Supreme Court found that appealing a decision of a board of education to the same board of education would be futile. 261 Ga. at 546 (1).

       The majority says that, because the Society sued both the Department and, in an official capacity only, the Commissioner, the briefs filed in this case by the Department necessarily reflect the views of the Commissioner personally, demonstrating that the Commissioner has prejudged the issue. I am not convinced that the requirement of exhaustion is so easily circumvented and that an aggrieved person can manufacture futility simply by naming the judicial decision makers for the agency as additional parties in a lawsuit. No party to this case has urged that the filing of papers in response to litigation is evidence of futility, and the majority cites no authority for its novel theory. Exhaustion, like other jurisdictional issues, must be assessed as of the time a lawsuit is filed. Consequently, developments occurring after the initiation of litigation cannot breathe life into a lawsuit of which the courts had no jurisdiction when it was filed. See McNeil v. United States, 508 U. S. 106, 112 (113 SC 1980, 124 LE2d 21) (1993); see also Busch v. Jones, 184 U. S. 598, 599 (22 SC 511, 46 LE 707) (1902). And I note in passing that, even if we were to assess exhaustion as of today, and not as of the time the complaint in this case was filed, the Commissioner on whose watch the briefs in this case were filed no longer occupies the office, and nothing suggests that the new Commissioner, who took office after all briefs in this case were filed, has taken any position on the issue.

       Again, the Society does not ask us to remand or suggest that the record is not sufficiently developed to permit a decision on the question of futility. Because it does not ask, I would not remand.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A2224.
    ESKEW v. THE STATE.
    (709 SE2d 893)
   PHIPPS, Presiding Judge.

On April 2, 2008, six-month-old D. O. was seriously injured while in the care of his mother’s boyfriend, Michael Eskew. Eskew was indicted on two counts of aggravated battery, for allegedly: (i) having violently shaken D. O.; and (ii) having fractured the baby’s skull. Eskew testified at the trial that D. O.’s injuries occurred when he accidentally dropped the baby. He was convicted of and sentenced on both counts of aggravated battery. On appeal, he contends that the trial court erred in denying his motion for continuance; refusing to give his requested jury charge on reckless conduct; denying his motion for mistrial; failing to merge his convictions; and rejecting his claim of ineffective assistance of counsel. We find no merit in these contentions, and affirm.

The evidence demonstrated that, on the afternoon of April 2, 2008, Eskew offered to care for D. O. at his house while the baby’s mother ran an errand. Eskew’s grandmother and cousin, who also lived at the house, were present, as was a friend who was performing yard work. At some point, while D. O. was lying on the floor of Eskew’s bedroom with a bottle, Eskew asked his grandmother to monitor the baby while he used the restroom.

Very shortly thereafter, Eskew ran out of the house with D. O. in his arms, yelling that the baby was not breathing. Eskew and his cousin began performing CPR on D. O. while the yard worker spoke to a 911 operator. Emergency responders arrived, and when they asked what had happened, Eskew told them that he was giving D. O. a bottle when the baby cried out and fell from a futon to the floor, landing on some pillows and blankets.

D. O. was transported to a local hospital; at that point, he was in critical condition and showed signs of trauma. He was then flown to a second hospital, where he was admitted to the ICU. Doctors who treated him at that hospital and two pediatric ophthalmologists who examined D. O. shortly after he was injured testified to the nature and extent of his injuries, which were severe.

Eskew testified at trial that he initially lied about how D. O. had been injured. At the local hospital, Eskew first told a doctor that D. O. had fallen onto some pillows on the floor, and later stated that he thought D. O. had experienced an allergic reaction to baby formula. In an interview with the police, Eskew first stated that D. O. had fallen a short distance onto some pillows and later had cried and become limp after choking on baby formula. He later said in a police interview that he had been sitting on a futon playing with D. O. by tossing him in the air and he failed to catch the baby, causing D. O. to hit the right side of his head forcefully on the metal futon arm. Eskew denied having violently shaken D. O.

Physicians who examined and treated D. O. testified that the baby’s injuries were inconsistent with Eskew’s accounts and consistent with the baby having been violently shaken. Eskew’s expert witness, however, testified that D. O.’s injuries were consistent with Eskew’s account of having dropped the baby, and were not probative of whether he had been violently shaken.

1. Eskew contends that the court erred in denying his motion for continuance, in which he claimed that he had insufficient time to review medical records in preparation for trial.

Pertinently, the record shows that Eskew was indicted on June 2, 2008 and retained counsel who entered an appearance on June 5. At an October 9, 2008 hearing, at Eskew’s request, the trial court granted his counsel’s motion to withdraw and appointed new counsel for him. Also at this hearing, both the state and Eskew stated their intent to present testimony from medical experts. The court acknowledged that Eskew’s new counsel would need time to prepare and issued a scheduling order setting the case for trial on December 1, 2008.

Beginning on October 9, and continuing into November, the state produced various medical records to Eskew. On November 3, at Eskew’s request, the trial court ordered the production of records from two medical institutions, including the second hospital to which D. O. had been taken after his injury. On November 14, Eskew moved to have his case removed from the December 1 trial calendar and continued pending the completion of discovery; he cited the failure of the second hospital to comply with the court’s order to produce records and the need for sufficient time for his medical expert to review all records and assist in the defense.

On November 19, Eskew’s counsel received more than 2,000 pages of medical records from the second hospital; he sent these records to his expert witness, who received them on November 21. On November 24, Eskew amended his motion for continuance, asserting that, with weekends and the Thanksgiving holidays there were only three “normal business days” before the scheduled December 1 trial date, which did not give him adequate time to have his expert review all of the medical evidence and assist him in his defense.

On December 1, the court heard argument on the motion for continuance. After recounting his efforts to prepare for trial, Eskew’s counsel stated that the defense was not prepared to go forward because counsel believed that he had not had adequate time to review the medical records. The court denied the motion for continuance, stating to counsel: “I think you’ve done a good job and acted in good faith, and I think you’re sufficiently prepared and that the defense is not prejudiced.”

“Motions for continuance seeking additional time to prepare for trial are addressed to the sound discretion of the trial court.” We will uphold a trial court’s ruling on a motion for continuance absent a clear abuse of discretion.

Here, the record shows that Eskew’s counsel had received the medical records at issue by November 19, nearly two weeks before the scheduled trial date. The record does not indicate that the state played a role in delaying the production of the medical records received on November 19. Eskew’s expert witness testified that he had reviewed all of the medical records that he had been given, including those produced on November 19, in preparing for the trial. And while Eskew asserts that a continuance would have afforded his trial counsel more time to work with the expert witness to thoroughly prepare cross-examinations of the state’s witnesses, Eskew has made no showing that his trial counsel’s cross-examinations were somehow inadequate, nor has he pointed to any additional challenges or defenses that could have been presented on his behalf. Under these circumstances, the trial court did not abuse its discretion in denying the motion for a continuance.

2. Eskew argues that the court erred in refusing to give a jury charge on the lesser included offense of reckless conduct. He did not submit a written request for a reckless conduct charge, but orally requested such charge at the close of the evidence.

In State v. Stonaker, the Supreme Court of Georgia set forth rules governing jury charges on lesser included offenses, including the rule that a trial court’s failure to charge on a lesser included offense, without a written request by the state or the accused, is not error. The “very well settled” rules set forth in Stonaker have been applied in instances where, as here, a party made an oral request for a charge on a lesser included offense. Accordingly, Eskew cannot prevail on appeal on this ground.

3. Eskew argues that the court erred in denying his motion for mistrial, which he made during the testimony of one of the state’s expert witnesses. We review for abuse of discretion the court’s denial of a motion for mistrial. For the following reasons, we find no such abuse here.

(a) Eskew argues that the court erred in refusing to grant a mistrial after one of the state’s expert witnesses testified regarding a medical examination he made of D. O. that was not reflected in the records the state produced before trial. The expert testified that, in addition to examining D. O. around the time of the injury, he also had examined the baby shortly before trial. Based on this later examination, at which D. O. had not demonstrated the ability to meet numerous developmental milestones for a child his age, the witness opined that D. O. had exhibited symptoms of a permanent brain injury.

Assuming, without deciding, that the court should have excluded the witness’s testimony about the later examination based on the state’s failure to produce records of the examination, the trial court nevertheless did not abuse its discretion in denying the motion for mistrial. Doctors who examined D. O. shortly after he had been injured testified to finding cell death in portions of D. O.’s brain, resulting in irreversible brain damage. The expert’s testimony that the later examination also indicated a permanent brain injury was cumulative of the other medical evidence.

(b) Eskew argues that the court erred in refusing to grant a mistrial after allowing the use of a demonstrative exhibit during the testimony of one of the state’s expert witnesses. He contends that the demonstrative exhibit — “an animated video of a human skull” that was neither tendered nor admitted into evidence — was “better characterized as new evidence that should have been served on [him] in advance of trial.” Although Eskew’s counsel initially objected to the use of the demonstrative exhibit on the ground that the state had not produced it prior to trial, after counsel had the opportunity to review the demonstrative exhibit he did not make any further objection. Instead, he used the demonstrative exhibit to cross-examine the state’s expert witness. Eskew’s own expert witness, who was familiar with the demonstrative exhibit, testified about it on direct examination, as well. And Eskew did not assert the use of the demonstrative exhibit as a ground for his motion for mistrial. Consequently, Eskew’s' claim that the court erred in denying his motion for mistrial on this ground has been waived.

4. Eskew argues that the court erred in failing to merge, for sentencing purposes, his convictions on the two counts of aggravated battery. In State v. Marlowe, the Supreme Court of Georgia addressed the circumstances under which a defendant could receive multiple punishments for violations of the same criminal statute, noting that “this question requires a determination of the ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” “Without evidence of a legislative intent to allow multiple punishments for the same course of conduct, . . . acts that constitute a continuing criminal course of conduct are not punishable separately.”

Under OCGA § 16-5-24 (a), “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” The indictment in this case alleged that Eskew committed two separate acts against D. O. that caused him bodily harm: (1) the act of “violently shaking him,” and (2) the act of “fracturing his skull.” Evidence was presented to show that the act of fracturing the child’s skull was separate from the act of violently shaking the baby — one of the state’s expert witnesses testified that, based on D. O.’s injuries, there had been both a “very forceful shaking of the child” and “some type of impact as well to account for the fracture to the skull.” The trial court did not err in sentencing Eskew on both aggravated battery counts.

5. Eskew argues that he received ineffective assistance of counsel. To prevail on this claim, Eskew

must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

We need not address both components of the Strickland test if the showing on one is insufficient, nor must we address the components in any particular order.

(a) Eskew asserts that his counsel admitted to being unprepared for trial because of the thousands of pages of medical records he received shortly beforehand. Counsel testified at the hearing on Eskew’s motion for new trial that he felt that he had not “had enough time to prepare because of the voluminous records.” He testified at that hearing, however, that he did the following to prepare for trial regarding the medical evidence: he obtained an expert witness, he requested records from various doctors and hospitals, he sought a court order for the production of records from the second hospital, he provided the expert witness with the records for his review, he discussed the case with the expert witness, and he reviewed with the expert witness those records that the expert believed were important to the case. Eskew has not shown that the receipt of the medical records shortly before trial was the fault of his counsel, and to the extent his counsel’s preparation was affected thereby, that preparation did not constitute deficient performance on his counsel’s part.

(b) Eskew asserts that his counsel failed to perfect the record for appeal, citing five instances: (1) “during a bench conference about the centerpiece of [the state’s] prosecution theory: shaken baby syndrome”; (2) “regarding an issue in the indictment”; (3) “concerning what was said during a bench conference about a recording of the 9-1-1 call just before it was published, without objection, to the jury”; (4) “with respect to [counsel’s] exceptions to the jury charge”; and (5) “with respect to whether [counsel] attempted to poll the jury after its verdict.” But at the hearing on his motion for new trial, Eskew made no showing that anything improper had occurred during these portions of the trial, nor did he present any evidence that the manner in which his trial counsel addressed these cited instances constituted deficient performance. Consequently, Eskew has failed to demonstrate deficient performance.

(c) A redacted video recording of Eskew’s police interview was played to the jury. This recording, which was over two hours in length, contained a brief reference to Eskew having taken a prescription medication. Trial counsel neither reviewed the redacted version of the recording before it was played at trial nor objected to it, as the court had instructed counsel to do, when the reference to the medication occurred within the recording. Eskew argues that this constituted ineffective assistance of counsel.

Assuming, without deciding, that trial counsel’s performance was deficient in this regard, Eskew has not satisfied Strickland’s prejudice prong. Although he argues in his appellate brief that the reference concerned “illegal use of prescription drugs” and was prejudicial character evidence, no mention was made in the interview of whether he had been prescribed the drug or was consuming it illegally. Under these circumstances, Eskew has not shown “a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Decided March 30, 2011.

Herbert Adams, Jr., for appellant.

Peter J. Skandalakis, District Attorney, for appellee.

(d) Eskew asserts that his counsel also provided ineffective assistance during the sentencing phase of his trial by “fail[ing] to provide some mitigation or say anything at sentencing.” Eskew himself addressed the court at the sentencing hearing and asked for mercy.

At the hearing on his motion for new trial, Eskew’s post-conviction counsel asked trial counsel whether he could have “suggested to the Court or offered to the Court... that. . . Eskew had no prior violent offenses on his record or that he was a father and had children and family members in court,” to which trial counsel responded, “I agree with you that [there are] probably things I could have said... in mitigation.” No other evidence was adduced regarding what trial counsel might have presented or argued, or how any such omitted evidence or argument might have affected the court’s sentencing decision. Consequently, Eskew has not shown prejudice from the alleged professional error by his counsel during sentencing.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

        McIntyre v. State, 302 Ga. App. 778, 781 (2) (691 SE2d 663) (2010) (citation omitted); see OCGA § 17-8-22.

        Carter v. State, 285 Ga. 394, 398 (7) (677 SE2d 71) (2009); White v. State, 304 Ga. App. 158, 159 (2) (695 SE2d 425) (2010).

       Compare Livingston v. State, 266 Ga. 501, 502-503 (1) (467 SE2d 886) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance).

       See McIntyre, supra.

       See Carter, supra at 398-399 (7) (court did not abuse discretion in denying defendant’s motion for continuance for, inter alia, more time to obtain and review medical reports; although state did not initially produce them because it did not deem them important to prosecution of the case, once requested, the state asked the hospital to provide them to the defendant; moreover, the defendant failed to demonstrate harm from the denial of her motion); Columbus v. State, 270 Ga. 658, 665 (4) (513 SE2d 498) (1999) (court did not abuse discretion in denying defendant’s motion for continuance; although defendant’s counsel did not receive state’s timely-served discovery responses until a few days before trial, counsel had prepared exclusively for defendant’s trial upon receiving the materials and had been able to interview the state’s three main witnesses before trial); Byrer v. State, 260 Ga. 484, 485 (2) (397 SE2d 120) (1990) (court did not abuse discretion in denying defendant’s motion for continuance where counsel had been appointed slightly more than one month before the trial date and cited only to the general press of business as the reason he was unprepared).

       236 Ga. 1 (222 SE2d 354) (1976).

       Id. at 2; see Prater v. State, 273 Ga. 477, 480 (3) (545 SE2d 864) (2001).

        Brown v. State, 285 Ga. 324, 327 (3) (676 SE2d 221) (2009).

       See Daniel v. State, 248 Ga. 271, 272 (1) (282 SE2d 314) (1981); Johnson v. State, 207 Ga. App. 34, 36-37 (2) (d) (427 SE2d 29) (1993). Compare Kendrick v. State, 287 Ga. 676, 678-679 (3) (699 SE2d 302) (2010) (allowing for appellate review of denial of request to charge on a specific defense - not a lesser included offense - although charge was not submitted in writing, where defendant identified the pattern jury charge he sought and read the language of that charge into the record).

       See Daniel, supra; Stonaker, supra.

        James v. State, 270 Ga. 675, 677 (4) (513 SE2d 207) (1999).

       See Green v. State, 194 Ga. App. 343, 346 (6) (390 SE2d 285) (1990).

       See McDaniel v. State, 289 Ga. App. 722, 725 (3) (658 SE2d 248) (2008).

       277 Ga. 383 (589 SE2d 69) (2003).

       Id. at 384 (1) (footnote omitted).

        McKee v. State, 275 Ga. App. 646, 650 (5) (621 SE2d 611) (2005) (citations omitted).

       Compare Gonzales v. State, 298 Ga. App. 821, 823-824 (1) (681 SE2d 248) (2009) (convictions on two counts of aggravated battery merge for sentencing where both convictions were based on the defendant’s single act of pushing the victim out of a moving car).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnotes omitted).

        Turner v. State, 253 Ga. App. 760, 763 (6) (560 SE2d 539) (2002).

       See Childs v. State, 287 Ga. 488, 494 (7) (696 SE2d 670) (2010) (defense counsel’s alleged lack of preparation, occasioned by state’s failure to disclose a witness which was not counsel’s fault, did not constitute deficient performance). Compare Johnson v. State, 284 Ga. App. 147, 150-152 (2) (643 SE2d 556) (2007) (finding defendant received ineffective assistance of counsel due to counsel’s lack of preparation for trial and failure to prepare a defense, where counsel testified that he prepared only minimally for trial because he expected a motion for continuance to be granted).

       See Sharp v. State, 278 Ga. 352, 354 (3) (602 SE2d 591) (2004); Frazier v. State, 263 Ga. App. 12, 16 (3) (d) (587 SE2d 173) (2003).

       See generally Brock v. State, 179 Ga. App. 519, 520 (1) (347 SE2d 230) (1986) (evidence that defendant had received large quantities of prescription drugs “did not necessarily place [defendant’s] character in issue,” where there was no evidence that defendant had obtained the drugs illegally).

        Schofield v. Holsey, 281 Ga. 809, 811-812 (II) (642 SE2d 56) (2007) (citation, punctuation and footnote omitted). See Flemming v. State, 301 Ga. App. 711, 713-714 (2) (688 SE2d 653) (2009) (defendant failed to show prejudice regarding counsel’s alleged professional error - failing to redact from an audiotape an informant’s remark regarding a “big time drug dealer” or to seek a curative instruction thereon - where it was unclear to whom remark referred and where the state had presented strong evidence of defendant’s guilt of the charged offense); Adams v. State, 276 Ga. App. 319, 324 (6) (a) (623 SE2d 525) (2005) (in view of overwhelming evidence supporting jury verdict, defendant failed to show prejudice from counsel’s alleged error in neither objecting to nor moving for a mistrial based on witness’s passing reference to defendant’s prior arrest).

       See Shuler v. State, 306 Ga. App. 820, 823-824 (3) (703 SE2d 382) (2010).