Lead Opinion
*761Carrie Gould appeals the superior court's dismissal of her petition for certiorari in which she sought review of a hearing officer's decision upholding the decision of the Housing Authority of the City of Augusta to terminate her Section 8 voucher benefits. We agree with Gould that the hearing officer's decision is subject to review on certiorari because the hearing was quasi-judicial in nature and the hearing officer exercised judicial powers. Thus, we reverse the superior court's dismissal of the petition.
The question of whether the superior court lacked jurisdiction is an issue of law that this court reviews de novo. See Goddard v. City of Albany,
The housing authority then terminated Gould's participation in the Section 8 program for her failure to comply with the housing authority family obligations and submit the required documents. The housing authority informed Gould of her right to contest the decision under the housing authority's administrative plan. See
Gould filed a petition for a writ of certiorari in superior court pursuant to OCGA § 5-4-1 (a) seeking review of the decision to terminate her rental assistance. After the superior court initially *763issued the writ of certiorari, the housing authority moved to dismiss the petition for lack of jurisdiction, arguing that the decision was administrative and not subject to review. Following a hearing, the superior court granted the housing authority's motion to dismiss and vacated the writ of certiorari, finding that it lacked jurisdiction to review the decision. We granted Gould's application for discretionary appeal to consider whether the superior court erred in dismissing her petition for writ of certiorari for lack of jurisdiction.
Under OCGA § 5-4-1 (a), "[t]he writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers," except in certain cases not applicable here. To determine whether a writ of certiorari is the appropriate method of review,
we must decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers, or whether the officer merely exercised administrative or legislative functions. If the officer exercised judicial powers, his or her actions are subject to review on certiorari; if, however, the officer exercised legislative, executive, or ministerial powers, any error cannot be corrected by certiorari. ... The basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. The test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.
Mack II v. City of Atlanta,
The record reflects that the housing authority notified Gould of her right to request an "informal hearing" in accordance with federal *764regulations mandating such notice *112and hearing.
The record demonstrates that Gould had the right to proper notice and a fair hearing, that she was afforded the opportunity to present evidence under judicial forms of procedure, and that the hearing officer made his decision after determining the facts under a preponderance of the evidence standard and applying the appropriate law. Thus the hearing officer's decision was the result of quasi-judicial action. See City of Cumming v. Flowers,
The dissent characterizes our opinion as improperly expanding the role of the judiciary. That is a mischaracterization. The issue before us is narrow: whether Georgia law provides certiorari review in cases like this one.
The dissent finds that the hearing was administrative instead of quasi-judicial primarily for two reasons: because the hearing officer's actions are subject to the authority granted to him by the housing authority and because under certain circumstances the hearing *765officer's decision is not binding on the parties. Neither reason supports the determination that the proceeding was administrative instead of quasi-judicial.
The authority and responsibility vested in the hearing officer under the housing authority's administrative plan required him to determine "whether the action, inaction or decision of the Augusta Housing Authority [was] legal in accordance with HUD regulations and [the] [a]dministrative [p]lan based upon the evidence and testimony provided at the hearing." See
And it is irrelevant that in certain limited circumstances a housing authority can make a "determin[ation] that it is not bound by a hearing decision ...."
Under the administrative plan, the authority may make such a determination of non-bindingness only about hearing decisions that: "concern matters in which the Augusta Housing Authority is not required to provide an opportunity for a hearing; ... conflict with or contradict HUD regulations or requirements; ... conflict with or contradict federal, state, or local laws; or ... exceed the authority of the person conducting the hearing." See also
The dissent questions our failure to address the propriety of certiorari review in situations where the housing authority determines that it is not bound by the hearing officer's decision so that the hearing officer's decision is not final. But "[t]he hypothetical difficulty raised by [the dissent] is not before us, and we may not issue a hypothetical or advisory opinion." Mack v. Ga. Auto Pawn,
The dissent relies on cases in which the decision at issue was only advisory, leaving the ultimate decision to the discretion of a final decision maker. Such is not the case here. In Laskar v. Bd. of Regents of the Univ. System of Ga.,
Similarly, in What It Is, Inc. v. Jackson,
"Because of the substantial differences between the function of the hearing officer[ ] here and the function of the hearing officers in the cases cited by [the dissent] (i.e., Laskar and Jackson, [ ] ), those cases are inapposite." Scott v. Atlanta Independent School System,
In this case, the hearing officer exercised authority under federal law, conducted a hearing in accordance with judicial procedure, and his decision was binding. The hearing officer's decision was thus quasi-judicial.
*114The superior court erred in dismissing the petition for writ of certiorari.
Judgment reversed.
Barnes, P. J., Miller, P. J., Doyle, and Reese, JJ., concur. Branch, McMillian, Mercier, and Bethel, JJ., dissent.
We note that the use of the term "informal hearing" is not dispositive in determining whether a hearing is administrative or quasi-judicial. See Mack II,
Like the label "informal," the lack of adherence to the strict rules of evidence is not dispositive in determining whether a hearing is administrative or quasi-judicial. See Chamblee Visuals, LLC v. City of Chamblee,
Dissenting Opinion
The majority's opinion in this case improperly expands the role of the judiciary.
Under OCGA § 5-4-1(a), "[t]he writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers," except in certain cases not applicable here. The majority correctly notes that this Court has held that if the hearing officer engaged in a decision-making process which required him to examine evidence and apply legal standards, then he *768made a quasi-judicial decision. See Mack II,
In cases where this Court has previously found hearings to be quasi-judicial, the hearing officer exercised his or her own judgment under the law rather than acting under a mandate from another authority, and the decision of the hearing officer was binding on the parties without exception. See e.g. City of Cumming v. Flowers,
While the majority scoffs at the housing authority's ability under "certain circumstances" to determine that it is not bound by *115a hearing officer's decision as irrelevant,
Moreover, this case is distinguishable from Flowers, Rozier, Crumpler, and Mack II because in each of those cases, the decision of the hearing officer was final and binding on the parties. Because the administrative plan at issue in this case allows for AHA to determine whether it will be bound by the hearing officer's decision, the hearing officer's decision cannot be considered a final judgment.
Thus, the function of the hearing officer in this case more closely resembles the faculty hearing committee in Laskar,
Here, just as in Laskar and What It Is, Inc., the hearing officer was given authority to make findings of fact and issue a decision under the administrative plan. Thus, the fact that the final act in this *770process occurs when AHA is satisfied that hearing officer's decision is binding illustrates the administrative nature of the informal hearing.
[I]t must still be recognized that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of executive or legislative, as distinguished from judicial, powers. ... It is the nature of the final act that determines the nature of the previous inquiry. ... A body does not necessarily exercise judicial powers because it may make an investigation or use discretion in acting in a given case.
Se.Greyhound Lines,
AHA's administrative plan outlines a way for Section 8 participants, whether represented by counsel, advisor or friend, to contest administrative decisions unencumbered by the legal technicalities of judicial procedures. Pursuant to the informal hearing procedures, which closely mirror federal regulations, neither AHA nor the participants are bound by the rules of evidence in presenting information, and the hearing officer is not required to be an officer of the court. See
As the Supreme Court of the United States articulated in Goldberg v. Kelly, "the pre-termination hearing need not take the form of a judicial or quasi-judicial trial ... [T]he statutory 'fair hearing' will provide the recipient with a full administrative review ... [T]he pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits."
I am authorized to state that Judge Branch, Judge McMillian, and Judge Mercier join in this dissent.
The majority claims to be answering only a "narrow" question related to this case. Yet, nothing so limits its holding in this case. Rather, as in all such cases, it is the process and procedures that are judged to be either administrative or quasi-judicial. Thus, every case using the procedure used in this case will now be deemed quasi-judicial and subject to certiorari review in our superior courts.
See Mack II,
In fact, as the majority itself has summarized, the authority may reject the determination when "federal law does not require a hearing in the first place (so the resulting decision is superfluous) or when the hearing officer does not have the authority to act or when the hearing officer's decision violates federal, state, or local law." Far from obscure, this list covers the vast majority of possible defects in such a determination.
Though not applicable to the case before us, AHA also would not be bound by a hearing decision "[c]oncerning a matter for which [it] is not required to provide an opportunity for an informal hearing[.]" See
AHA's administrative plan does not address the procedure to be followed when AHA finds the hearing officer's decision runs afoul of
