*1 wronged prepara- cessful bidder of its costs connected with the concerning Likewise, tion of its bid. there is no fact issue this case by way equitable what the bidder seeks of relief. To decide whether remedy legal adequate certainly discretionary the is indeed is func- judge. not, however, tion to be exercised the trial It is a fact-find- (or ing “substance”-finding!) suggested function as is the reversal summary judgment of in this division. Because the trial court did not holding have the remand is ruled, benefit the in the Jones case at the time it necessary.10 —
Decided December Reconsideration denied December 1990. Sutherland, Brennan, Lester, Jr., Asbill & Charles T. Richard L. appellant. Robbins, Wildman, William R. for Attorney Bowers, General, Michael J. Dauis, Lawson & G. King Spalding, Clineburg, Davis, Thomas & Jr., A. William Michael appellees. Ross, Eric
Dow, Albertson, Adamson, Lohnes & Terrence B. Peter C. Can- Carolyn field, Forrest, Y. amici curiae.
S90A0791.DEPARTMENT OF TRANSPORTATION v. CITY OF
ATLANTA et al.
Justice.
Bell,
appeal
litigation concerning
ap-
This
continues the
the efforts pellant
(DOT)
Department
Transportation
portions
to condemn
public parks
by appellee purpose
owned
for the
building
highway
Parkway.
a limited-access
known as the Presidential
Department
Transp.
City Atlanta,
power, comprised Commission, of executive members of taking government, approve taking if is to it determines necessary, “reasonable, in the interest.” OCGA 50-16-183 (b). specifically, the constitutional issues concern whether the More approve taking granting to the statutes of Commission municipal property Ill violate Art. 1983 Geor- *2 provides separation legislative, gia Constitution, for the of the which government,1 judicial I, executive, Par. of the 1983 sembly and Art. Sec. and branches grants Constitution, I the As- which the state.2 Other constitutional issues the approval governing the concern whether the statutes Commission’s prоcedural public property acquisition violate and substantive the process. appeal due A final raised concerns whether the issue ground judge alleged himself, on trial should have recused the bias against DOT. governing held Commission and the statutes
The trial court the foregoing grounds. all The trial it nied but on the court de- unconstitutional issues, motion to We reverse on the constitutional DOT’s recuse. affirm recusal motion. the denial the Transp. Dept. supra, Ga. In 255 we specific provide existing held thority DOT with au statutes did the public procedures property. Thereafter, the
and to condemn Assembly provide DOT еnacted certain laws to and other General state See specific public agencies procedures property. with condemn (hereafter pp. L. 1187-1196 sometimes referred to as the Act). portions §§ at The relevant of the Act have codified OCGA been The on 50-16-180to 183. Act created the State Commission the Con comprised Property, Governor, Lieu demnation of Public of the the Secretary Auditor, Governor, State, tenant the State Agriculture, § Insurance OCGA Commissioners of and Labor. 50-16- (a). (a) provides § OCGA 50-16-183 that if DOT or other state agencies acquire public property by condemnatiоn, the DOT desire approval agencies or other must first obtain from the Commission. (b) provides § OCGA 50-16-183 that: acquisition
If the Commission determines that the public necessary, property reasonable, condemnation I, provides Art. Sec. Par. as follows: III separate judicial, powers legislative, remain and executive shall forever distinct; person discharging time duties of one the same exercise and no shall at except provided. as herein functions of either of the others III, I, provides Art. as follows: legislative power in General of the state shall vested Representatives. shall consist of a Sеnate and a House of interest, grant approval it shall its for such acquisition. required hearing approving to hold a before
The Commission is not approves If the ac- application an for condemnation. the Commission condemnation, quisition public property by the DOT or other may acquire public property pursuant proce- to the then specified applicable dures condemnation laws. OCGA 50-16- (c). Commission, July application 1986 DOT filed an with the seeking approval portions subject parks. Sep- to condemn On 26, 1986, approved the tember the Commission condemnation. 25, 1988, July рetition. On DOT filed the instant condemnation intervene, persons groups Various individual and civic moved to granted the trial court the motions. The intervenors moved to set alia, taking, raising, separation-of-pow- aside the declaration of inter due-process regarding ers issues the Commission.
Subsequently,
enjoined
the trial court
the construction of the
Parkway pending
appellees’
Presidential
a decision on the merits of
taking.
The court also ordered
motion to set aside the declaration
parties
participate
process
affirmed the
of mediation. We
*3
injunction,
parties
requiring
and reversed the order
the
to mediate.
Department
Transp. v.
I strange Ethiopians fought do find it and Eritreans that the years people wars for 20 killed over a half a million — really I they’re thing. parkway mediating still this wonder who is civilized. 20, 1989, September
On to recuse the trial DOT filed motion 2, the judge, asserting on the above remark. On October bias based judge denied the recusal motion. 14, 1990, aside February setting
On an order judge the entered the the Commission violates taking, holding declaration of that 702 Constitution, Art. of the 1983
separation-of-powers clause legis- branch members the by delegating to executive the Com- The court also held that domain.3 power of eminent lative to the delegating clause separation-of-powers violated the mission municipal property, the use power to determine Commission the province of the exclusively within the was court determined power the to the delegation that Assembly. The court also held appropriate guide- powers was without foregoing Commission delegation of lines, an unconstitutional further constituted and thus addition, that the Act vi- authority. the court concluded public any give it process because did procedural due olated in, before the of, proceedings be heard opportunity to notice or an Act substantive due Finally, court ruled the violated Commission. conclusion that deci- ruling this on its process. The court based necessarily arbitrary capricious because under the Act was sion adequate guidelines to the provide failed the General to make permitted Act the Commission and because the Commission any evidence. taking its decision without ruling of its recusal motion and appealed the denial DOT has the recusal We affirm the denial of is unconstitutional. that motion, the Act Act is unconstitutional. ruling but reverse errеd conclud- contends that the trial court 1. The DOT first principles.4 agree We with separation-of-powers ing the Act violates this contention. pow- separation of premise that the doctrine of
We start with the respects. separation in all ers cannot mean a departments declares that the three “While the Constitution distinct, separation separate and shall be Mayor things cannot be total.” is not and from the nature of 1004) Perry, &c. v. SE Americus Ga. State, Beall, (1850). Beall v. (1902); [Greer (1) (212 (1975).] Moreover, principle delegations because princi- to the guidelines is related power must be madе with sufficient nondelegation issue as ple separation powers, we will discuss *4 issue this division.5 separation-of-powers well as the 3 legis power parties dispute domain is a of the of eminent do not that the exercise 334) (136 (1) (a) 800, Dept. Highway SE2d v. 219 Ga. 803 State lative function. See Domain, 1A, (3rd ed). (1964); Eminent Vol. 3.1§ Nichols on 4 only power same analysis delegated As the of eminent domain. we refer to the our municipal property, that analysis apply power regulate do not deal with we to the would power separately. 5 powers, legislative delegation we question regarding the Because this case involves a
703
separa
principle
in the
nondelegation doctrine is rooted
system
tripartite
govern
integrity
of our
powers,
tion
Assembly
leg
itself of the
General
not divest
mandates that the
ment
I,
I,
Ill,
our
by Art.
Sec.
Par.
power granted to it
islative
_
States,
v. United
generally Mistretta
Constitution,
U. S.
see
_
714) (1989).
647, 654,
Recognizing that
102 LE2d
SC
society,
complex
cannot find all facts
Assembly,
our
General
policy,
approved
have
numer
we
applications
make all
Assem
authority, provided the General
delegations
ous
Southern
delegatee. See
guidelines
sufficient
for the
bly
provided
has
665)
Melton,
Russell
(1) (65
(1909);
277,
R. Co. v.
281-296
SE
133 Ga.
Scoggins
103) (1960);
Venable,
(5)
137, 143-144
v.
SE2d
216 Ga.
222)
Co.,
(1) (249
(1978);
416,
Finance
242 Ga.
SE2d
Whitfield
(1988); State v.
854)
Harris,
(3) (364
1, 5
Eaves v.
Moore,
SE2d
258 Ga.
(1989).
9) (376
(8,
Some
Ga.
142-143
E.g.,
officers.
delegations to executive
prior cases have involved
these
Scoggins, supra,
This separation-of- officials violates the delegated power executive such alia, constitution, provides, inter powers provision of our same shall at the discharging the duties of one person “no [branch] except as herein of either of the others time exercise the functions We now I, II, Georgia Constitution. provided.” Art. Sec. suffi- conclude, however, thаt, are made with delegations where such power delegated of the official’s exercise guidelines, cient an executive Georgia Constitu- Par. Ill of the 1983 does not violate Art. cases, conclusion, because, the executive in such tion. reach this We legis- of” the “exercising] the functions or commission is not official decision, but lature, purely legislative making in that it is not legislature. administratively pursuant to the direction acting Gen- case, thus whether the controlling In the issue is instant to fol- Assembly guidelines for the Commission eral enacted sufficient delegations found that specifically low. In other cases wе have guide- sufficient such as that here contain of eminent domain Augusta, Housing Auth. Williamson v. E.g., lines. case, directing (4) (199 Moreover, in this 680-681 SE property taking public whether the the Commission to determine Com- interest, Assembly directed the public has property or public use of the mission to consider whether the current interest. in the proposed public property is more use of the cases, prior separation-of-powers in which the General our note that it is unlike several of State, Greer v. E.g., branch. took for itself the of another attempted usurp (1) (212 836) (1975). Here, members have executive branch legislative function. *5 guidelines in sufficient under the standards this case are find the We E.g., prior Moore, State v. in cases of this court. enunciated Ga. at supra, 142-143; Harris, at 5. Eaves v. 258 Ga. authority granted foregoing that the reasons we conclude For the improper delegation legisla- not amount to an does the Commission tive principles. separation-of-powers not violate and does holding argues in erred that the trial court 2. The DOT next that process. agree. procedural We due the Act violates necessity determining widely recognized that Courts have legislative piece property taking private prоperty decision, and that therefore is a opportunity notice or an are not entitled to owners Highway Dept. E.g., 803- State to heard.6 be argue (1) (a) appellee-intervenors The opportunity municipal property involved, that, notice and an is as given. However, no basis we can see constitutional must be be heard for the public property process argument is is due when that more private property is involved. when involved than argument trial court erred to DOT’s that the 3. We next turn process. holding We find that it due that the Act violates substantive process protects property ownеrs from the does not. Substantive due arbitrary capricious See of eminent domain. exercise of (3rd ed.). Here, Domain, 1A, § the trial 4.9 Nichols on Eminent court ruled bitrary Vol. necessarily any Act was ar- that made under the decision guide- capricious, the Act contains insufficient because require taking However, in Divi- of evidence. lines and does not already opinion does decided that the Act sion 1 of this provide quire taking we have although guidelines. Moreover, not re- re- the Act does sufficient may provides evidence, Commission the Act that the applicable agency quire state from the the submission of information (b), may decision, OCGA 50-16-183 that it needs to make its enact “rules and carry may necessary regulations [it] to to enable any department may or duties, out” its “utilize the resources making” determina- ... of its of the state to assist it may investigators appoint hearing it deems tions, proper “as officers and reports or recommenda- receive comment and make (d). pro- Thus, commission,” § find the Act we tions to the 50-16-183 authority adequate a reasoned to reach vides the Commission with request approval it, and we are comes before decision in each that pursuant every taking unwilling made decisiоn to conclude that taking discrepancy deci our statement here that We note that there is no between acting essentially legislative holding was 1 that the Commission and our in Division sion is may nature, but, proper guidelines, administratively. taking with decision administratively accomplished administratively. does not accomplished it is be change fact that nature of the decision. arbitrary capricious. Act Finally,
4. we argument consider the DOT’s that the trial judge denying judge. erred its motion to recuse the DOT contends judge’s concerning Ethiopian in-court comment and Eritrean recusal, judge’s because, comment, warrants the conflict based on the person reasonable might judge personal conclude the has a bias (C) against Conduct, DOT. See Code Judicial Canon 3 (a).7 (1) conclude, however, merely We the comment indicates some irritation with DOT’s dispute, refusal mediate this and does *6 v. type not indicate the recusal. See Birt personal necessitating bias State, 483, (4) (350 State, 241) (1986); Jones v. 256 Ga. 485-486 SE2d (4) (275 268, Judgment part part. in and reversed in All Justices affirmed concur, Smith, J., Hunt, J., except P. and who dissent. Justice, Presiding dissenting. There two equally important provisions are constitutional that mandate affirmance of trial judgment. court’s order first in is found Art. I Sec. Par. of the 1983 Constitution State Georgia; provides: it The legislative in the state shall be vested a Gen- eral which shall consist of a Senate and a House of Representatives.
“This
repeatedly
court has
quoted
held that the
clause of the Consti-
tution
any attempt
powers.
renders void
to delegate legislative
723)
Phillips
City
72,
[Cits.]”
(1953).
in Bennett v.
holding
When
Court
its
reexamined
Baxley,
Phillips,
(1919),
75,
We wish this resulting at time to at rest doubts from that Obviously, territory case. in incorporating additional a fact, character and in municipality was and the prohibited clearly Constitution of legislative exercise powers by Assembly. other than The act therе was, reason, for this this unconstitutional court should have so (Emphasis supplied.) held. (C) (1) (a) provides Canon 3 that (1) Judges disqualify impartiality proceedings should themselves in in which their
might reasonably questioned, including be but to where: not limited instances (a) judge personal party party’s prejudice concerning has or a a bias or a lawyer. Phillips, warning: id. at issued The Court repre- system of our American demonstrated wisdom representa- laws enacted sentative extreme caution and freely enough to demand chosen tives departure any proposed therefrom. examination critical by the individual History tragеdies endured warns us every system. practically other under fact,” it id. at cannot “legislative If in character an act is Phillips, complies with the standards set out it delegated unless only that there are at which states id. Con- repugnant types legislation
two [that are] where, after types being cases the first of such stitution: purpose plainly has set forth legislative enactment limits, provided desig- it then legislation and marked its promul- have administrative should nated officers gate scope legislation, designed rules within the law; second, give leg- fully administer and to that effect provided is attached which islation to which a referendum only having it law after received would become a (Emphases . . . people be affected. favorable vote supplied.) *7 v. recently Phillips, supra,
This in Mitchell Wilker- upon Court relied 432) (1988), son, an when it held that 258 Ga. “attempt the of the rea- recall statute’s transfer selection election impermissible delegation legis- of applicant to an sons to the amounts here, Similarly, issue authority.” the statutes at lative Id. at 609. delegation of impermissible an through OCGA 50-16-180 create Phillips, authority they comport not with the do because of legislation, supra, purpose of the the condemnation standard. The out, exрressly of the com- public property, has not set the limits been marked, desig- have not been mission are nated, officers administrative power limited had their designated and the officers have not scope legislation designed promulgation of the the of rules within the only give the law. The act is administer and effect to fact, delegation of author- it character and is an unconstitutional I, of the State ity I of 1983 Constitution under Art. Sec. the Georgia. of a second constitu-
The statutes under are also unconstitutional the Constitution of provision, tional Art. Par. Ill of the 1983 provides: Georgia, State of which forever legislative, powers shall judicial,
The and executive separate person discharging distinct; remain no the shall at duties of one either of the others the same time exercise the function of
except provided. as herein part strongly provision first worded constitutional de- government sepa- mands that the three branches of “forever remain part person discharg- rate and distinct.” The second from forbids ing exercising the duties of one branch of state while the of branch. functions another provision This Court examined the above McCutcheon v. 144) (1945), 690-91 and it stated: separating legislative, judi- While the line of demarcation powers may
cial, and executive sometimes difficult to es- tablish, this reason each of the three co-ordinate government frequently province branches of the invades the very others, it is nevertheless essential foundation system government of our tution be that the mandate the consti- strictly enforced. regard prohibition, With to the half second constitutional opined Attorney Op. Atty. General in 1988 Gen. No. 88-11: parameters principle “separa of this constitutional powers” by Georgia
tion of have been well defined case law. example, Georgia Supreme For Court has held that Assembly gov members of the General could not sit on the erning body Congress Authority of the World Center because authority performed corporation awas ex al., ecutive function. Greer et al. Ga. 667 et v. State (1975). Georgia Supreme case, another Court held that members the General could not sit Properties members the State Commission because agency commission was an within executive branch government. Murphy Georgia, state et al. State (1975). Postsecondary 681 tional Since the State Voca Board Education likewise an within the executive government, branch of statе As member sembly precluded performing from functions of a member Postsecondary institution of Education. State Board of Vocational *8 holdings clearly supra, Murphy, supra, Greer, The and proposition stand for the that a member of the General As- sembly discharge cannot or the duties exercise the functions govern- of an within the executive branch of state ment. separation powers mandatory
Likewise, doctrine of the clear may prohibits converse; a member of the executive branch legislative branch. the functions exercise powers granted of the commis- and duties members The branch) (all legislative powers are members executive sion duty approve acquisition power “the include: property public and the of eminent do- condemnation authority 50-16-182, § final to de- main[,]” and the OCGA public property by acquisition of the condem- “the termine whether necessary, interest^]” § reasonable, OCGA nation is (b). specifically “[b]oth the In- found that The trial court 50-16-183 agree ap- Commission’s decision to the DOT that the tervenors and prove public property legisla- disapprove is a or the condemnation (Trial 10), majority determination^]” order at and the tive Court acknowledges lеgislative opinion the decisions are decisions. 3.) impermissible opinion delegation (Majority is fn. This at Any attempt by the members the executive under our constitution. branch branch government to exercise the function of the offense. is unconstitutional and a criminal assembly up- general strengthened its intention to forever provisions § it OCGA 16-10-9 the constitutional when enacted hold which pertinent part: states, in
(a) shall for: It be unlawful (3) employees of the executive branch Officers or government employment accept or hold officeor
state govern- judicial in the or branches of the state ment. (b) person knowingly A pensation money or receives com- who disburses is
or of this Code section violation guilty aof misdemeanor. of the executive branch
The members of commission are officers government appointed mem- of hold office as of state who have been State Commission on the Condemnation bers officers (a) (b). Property. § to be & These officersare Public OCGA 50-16-181 expenses compensated “traveling incurred actual for their and other performance commission members.” of their official duties as (e). obvious; the function OCGA 50-16-183 The conflict is duly upon passed of laws exеcutive branch the enforcement Assembly. governmental separation of these functions upon. It is the rests the bedrock that our democratic heart system checks and balances. our
709 in greater The conflict this case is far than other conflicts that by Mary Galer, have seen this Court. When Ms. been Jane tenured professor College, associate and librarian at Columbus was elected to represent in Representatives, the 97th District House Court, relying separation powers provision, on the this held that position Ms. her College8 Galer could hold either at Columbus or Assembly, serve in the General but mаy “she not hold them at the Regents, Galer v. Board same time.” decision, The rationale for at id. was as follows: “democracy doctrine is means which under- [T]his preserve people takes the liberties of the from excessive authority.” concentrations of Common sense suggests [Cit.] this applied through doctrine as is an [OCGA § 16-10-9] attempt by the General prevent the obvious conflicts of interest inherent an situations where individ- concurrently ual serves in two of the gov- branches of state ernment. recently
More the inherent evil of allowing persons discharge government duties of one branch of exercising while thе functions of Mitcham, another was in Fowler v. discussed 515) (1982) as follows: 16-10-9], This is analogous to effect of [OCGA separation-of-powers provision which enforces the of our State Constitution as to state offices. Galer v. Board See Regents, [supra]. permitted capaci- If to serve in their dual (legislative) (executive), ties as aldermen policemen appellants only salaries, vote could not to set their own but they participated also enforce in en- ordinances had acting.
The above
provisions
constitutional
Court’s affirm-
mandate this
ance of the
judgment.
trial court’s order and
оf the execu-
Members
constitutionally
tive branch of state
prohibited
are
from
making
legislative
pub-
final
regarding
decisions
the condemnation of
College,
University System,
“Columbus
a member
is
institution of the
an
Galer,
government.
executive branch of the
. . .”
this
state
Hunt, dissenting. established, legislative power, by delegation of commission sepa- context of a of eminent domain. the function to exercise authority is dispute, proper delegation powers ration bоdy authority dele- only to whom such accomplished when the by guidelines merely that its duties are administra- gated is so bound Thus, case, assuming of suffi- tive, the existence legislative. would be the function of the commission specific guidelines, cient administrative, *10 some of its members were from and the fact that But such consequence. be no here no branch would of executive —(b) in OCGA 50-16-183 guidelines The standard set forth exist. public approval acquisition for grant the commission shall reasonable, necessary and property by where condemnation — restricting realistically its ac- public provides guidelines interest no majоrity premise supports tions. None the cases cited purpose. justifying for guidelines that the are sufficient this Instead the commission as administra- characterization actions of its rule, tive, simply long-settled has reiter- majority abandoned case, opinion delegations the author- ated an earlier right strictly eminent must be construed. ity to exercise the domain Transp. Department As be underestimated. departure
The effect of this cannot pointed intervenors, are out while most citizens accustomed deci- legislators participating might unpopular in what their local interest,” “reasonablе, necessary, sions to what is de- unprecedented it is that an ad hoc commission have alter, stroy, municipal guidance with no what- park and abolish lands soever. reasons, I foregoing respectfully
For the dissent. — Decided December denied December 1990. Reconsideration Matson, General, Bowers, F. Attorney Michael Roland J. Richards, General, Attorneys appel- for Charles M. Senior Assistant lant. Garrett, Remar, M. Graettinger,
Remar & B. Susan Robert Chamberlain, Williams, Hu- Hrdlicka, White, Richard N. & Johnson appellees. bert, Kendric E. for ATLANTA
S90G1000. & OBSTETRICS GYNECOLOGY GROUP
et al. v. al. ABELSON et Justice. Fletcher, Brittany, daughter, genetic After their infant was born with a Syndrome, chromosomal disorder called Down’s Mr. and Mrs. Abel- (hereinafter “plaintiffs”) brought against Tip- son suit Dr. William pins Gynecology Group, associates, and his Atlanta Obstetrics & (hereinafter “defendants”) provided postcon- who Mrs. Abelson with ception obstetrical care and treatment. by plaintiffs, individually representatives
Suit was filed and as daughter, alleging properly infant their counsel Mrs. tany’s that defendants failed to years age
Abelson, who 37was at the time of Brit- concerning pregnancy birth, the risks of her associated with her age concerning increased maternal to inform her failed the availa- bility postconception diagnostic of a test called amniоcentesis.1 De- deny allegations fendants given these and assert that full information was plaintiffs. individually, sought general special damages pain Plaintiffs, expenses delivery; pregnancy suffering; related to: anguish; wages; consortium; mental and emotional lost loss and the necessary rearing, educating “reasonable and costs and otherwise *11 providing Brittany including expenses.” for medical capacity representatives daughter,
In their of their infant plaintiffs sought damages Brittany’s pain suffering; for her lost capacity wages; necessary to earn as well as “reasonable and costs rearing, educаting providing including medi- otherwise for herself expenses.” cal among things, filed, The defendants other a motion to dismiss complaint, scope as well as a motion in limine to limit the of re- damages. Looking Hosp. Graves, coverable Fulton-DeKalb Auth. 653) (1984), guidance, 252 Ga. 441 trial court granted portion the defendants’ motion dismiss as to that complaint by plaintiffs representa- capacity legal filed in their as the Brittany, ground wrongful tives of on the life action is court, however, maintainable under law. The trial denied complaint portion defendants’ motion to dismiss as to that highly ascertaining Amniocentesis is is afflicted said to be whether a fetus reliable Syndrome. with Down’s