Department of Public Safety v. Foreman, 48665
| Decision Date | 24 October 1973 |
| Docket Number | No. 48665,No. 3,48665,3 |
| Citation | 202 S.E.2d 196,130 Ga.App. 71 |
| Parties | DEPARTMENT OF PUBLIC SAFETY v. James P. FOREMAN |
| Court | Georgia Court of Appeals |
Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Dorothy T. Beasley, Asst. Attys. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellant.
McDonald & Dupree, James D. Stokes, Marietta, for appellee.
Syllabus Opinion by the Court
The appellee appealed directly to the superior court from the hearing officer's initial decision upholding the suspension of the appellee's motor vehicle operator's permit by the appellant department under the 'Implied Consent Law' (Ga.L.1968, pp. 448, 452; Code Ann. § 68-1625.1). The trial court granted the department's motion to dismiss the appeal as to all matters contained therein, except as to questions (raised for the first time in that court) as to the constitutionality of the said 'Implied Consent Law' and of the department's rules and regulations. The department appeals from the failure to grant its motion in toto. Held:
1. 'Exhaustion of all administrative remedies available within the Department of Public Safety is necessary for judicial review of a final decision in a contested case under the Georgia Administrative Procedure Act (Ga.L.1964, pp. 338, 339; 1965, pp. 283, 284; Code Ann. Ch. 3A-1).' (Emphasis supplied.) Dept. of Public Safety v. MacLafferty, 230 Ga. 22(1) 195 S.E.2d 748. '. . . (A)gency review provided in the Georgia Administrative Procedure Act is a necessary step in the exhaustion of administrative remedies required by the Act as a prerequisite to judicial review. . . .' (Emphasis supplied.) MacLafferty, supra, p. 25, 195 S.E.2d, p. 750.
2. 'The scope of judicial review is limited under the aforesaid Act to those objections upon which the agency has had an opportunity to rule.' MacLafferty, supra, (2), 195 S.E.2d 750. The fact that one basis, or even the sole basis, of a respondent's complaint as to the hearing officer's initial decision is a constitutional attack, does not eliminate the necessity for agency review as a prerequisite to judicial review. One of the reasons given for the ruling in MacLafferty was that the respondent 'did not complain to the agency of the specific matters sought to be litigated in court as required by Code Ann. § 3A-120(c).' MacLafferty, supra, p. 28, 195 S.E.2d p. 751. We note that one of the complaints alleged in MacLafferty, supra, was the violation of her right to due process-a constitutional question.
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