Cantrell v. Board of Trustees of the Employees' Retirement System

Deen, Presiding Judge,

dissenting.

I fully concur in all the legal reasoning and conclusions of Judge Evans’ dissent.. However, as the writer df 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 tbe 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.

Law of the Case. Let us first get straight the fact that in our case number 50243 as in our former case number 48132 we have one employee (Cantrell), one employer (State Forestry Commission), one complaint (involuntary retirement by employer) stemming from one cause (incapacity alleged to have occurred in 1972 as a result of prior operation for removal of a brain tumor).

*453In 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., 109 Ga. 616, 618 (34 SE 1024) it was clearly pointed out that it refers to any arm of the state in *454the exercise of the functions of judging and deciding rights. There the decision of the ordinary refusing to grant a homestead exemption was held properly taken up by certiorari. The Supreme Court pointed out that from the court of ordinary, which is a court, a statutory method of appeal exists, but from decisions of the ordinary as a public officer no appeal is granted, and therefore certiorari obtains. "[The ordinary] certainly acts in a judicial capacity when he passes upon applications for homestead; but he is no more a judicial officer in that case than the sheriff would have been, had the legislature conferred power upon that officer to determine the same questions with reference to homesteads.” Thus even a decision of a sheriff, if by statute empowered to decide questions of rights and duties based on factual issues, is amenable to certiorari. The question is not the name of the officer or board, but whether it has power to determine rights, duties and status under existing law.

Here, the legislature gave to the Board of Trustees of the State Retirement System the quasi-judicial power in the first instance to determine disputes between employees of the state and employing subdivisions of the state regarding disability and retirement, and the retirement system has a medical board set up for the purpose of making factual determinations on which its decisions are based. No statutory form of appeal from such decisions, which involve the termination of vested rights and compensation therefor, exists. For this reason certiorari is always a proper remedy, whether or not administrative review by another state administrative board is also construed to be permissible.

"The chief distinction between a legislative and judicial function is that the former sets up rights or inhibitions, usually general in character; while the latter interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto. . . [T]he basic distinction between administrative and judicial acts is that in the former case the law has prescribed and defined the duty to be performed with such precision and certainty as to leave no room for the exercise of judgment or discretion; whereas in the latter case the act to be done does involve the exercise of judgment or discretion.” *455South View Cemetery Assn. v. Hailey, 199 Ga. 478, 480 (34 SE2d 863). In cases of involuntary retirement, the action of the Retirement System based on examination and discretionary rulings of its Medical Board, and disposing of vested rights of the employee in job status, do not involve the mere performance of a duty without exercise of judgment or discretion, but by their very nature involve fact finding, discretionary conclusions, and disposition of property rights. The proof of this is that on the prior appeal from exactly the same procedure this court and the Supreme Court found that this employee had been deprived of his employment rights in an incorrect manner because of the failure of the Retirement System to base its findings on the type of Medical Board findings (after actual physical examination) to which he was entitled. Obviously, then, the duty is not performed "with such precision and certainty as to leave no room for the exercise of judgment or discretion.”

This is precisely the test as to whether certiorari will or will not lie.

It should further be noted that the statutes nowhere explicitly require that the losing party move from the retirement system to the personnel board, and on the former appearance of this case we merely said that such party, at his election, might pursue this additional administrative forum before applying for certiorari if he desired. But the personnel board was acting in an intermediate appellate capacity, and the issue we were fundamentally deciding was a decision of the retirement system, although to get to it we had, of course, to consider the decisions of both the personnel board on appeal and the superior court on certiorari, both of which latter were also directed to the original decision of the retirement system in the dispute between Cantrell and the Forestry Service.

The fact that we decided and reversed the case proves that we were dealing with a quasi-judicial decision in the first instance, one made by the retirement system settling the dispute between employer and employee. The personnel board did not hear the issue; it only reversed the retirement system’s decision. This court said certiorari to review the case might be had from the personnel board’s *456decision if the case had been appealed to the personnel board, or certiorari would lie from the retirement system’s decision if the movant chose this method of review.

Our original decision was correct in so holding. But if it was not, there is no way of changing it now.

I am authorized to state that Presiding Judge Pannell and Judge Evans concur in this dissent.