Schuman v. Ga. Dep't of Human Servs.

354 Ga.App. 509

841 S.E.2d 218

SCHUMAN

v.GEORGIA DEPARTMENT OF HUMAN SERVICES.

A19A1924

Court of Appeals of Georgia.

March 13, 2020

James Wrixam McIlvaine, Brunswick, Appellant.

Christopher Michael Carr, Atlanta, Jennifer Campbell Mock, Shalen S. Nelson, Elizabeth Ann Penland, for Appellee.

McFadden, Chief Judge.

The question in this appeal is whether a person seeking judicial review of an agency decision to include his name in the child abuse registry must serve the commissioner of the agency with his petition for judicial review. We hold that the petitioner need not serve the commissioner with the petition. So we reverse the dismissal of this petition for judicial review.

1. Factual and procedural background .

Patrick Schuman was arrested after he and his fiancee fought in front of their son and her daughter. The Department of Human Services, Division of Children and Family Services notified Schuman that it intended to include his name in the child abuse registry pursuant to OCGA § 49-5-183 (a) (2018). Schuman, who was proceeding pro se, initiated administrative review pursuant to OCGA § 49-5-183 (c) (2018). The administrative law judge affirmed the department's decision to include Schuman's name in the registry. Schuman retained counsel, who first filed a motion for rehearing on his behalf, which the administrative law judge denied, and then filed a petition for judicial review in the superior court.

The Department of Human Services forwarded the administrative hearing record to the superior court and filed a special appearance motion to dismiss. The department then asserted that Schuman did not timely file his petition for judicial review, but now concedes that Schuman filed timely. It also asserted that Schuman failed to serve the Department of Human Services in violation of OCGA § 50-13-19 and failed to serve the Commissioner of Human Services in violation of OCGA § 49-2-15 (2018).

The superior court granted the motion to dismiss without specifying a reason. We granted Schuman's application for a discretionary appeal, and this appeal followed.

2. Service of the Petition for Judicial Review .

Schuman served his petition for judicial review on the special assistant attorneys general who represented the department before the administrative law judge by electronic mail. He also caused the petition and a summons to be served on the Effingham County Department of Family and Children Services. He argues that this was sufficient service on the Department of Human Services and that he was not required to serve the Commissioner of Human Resources. We agree that electronic mail service on the attorneys was sufficient.

(a) Service upon the Department of Human Services .

The statute providing for hearings seeking removal from the child abuse registry, OCGA § 49-5-183, sets out the procedure for appeals from a decision of an administrative law judge to a superior court. It provides that such review shall be in accordance with the Georgia Administrative Procedure Act and that those proceedings are to be substantially those set out in that Act at OCGA § 50-13-19.

Notwithstanding any other provision of law, the decision of the administrative law judge under subsection (e) of this Code section shall constitute the final administrative decision. The alleged child abuser and the division shall have the right of judicial review of such decision in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that the petition for review shall be filed within 30 days after such decision and shall only be filed with and the decision appealed to the superior court of the county where the hearing took place or, if the hearing was conducted by telephone, the Superior Court of Fulton County. The procedures for such appeal shall be substantially the same as those for judicial review of contested cases under Code Section 50-13-19 except that service of a petition for judicial review shall stay the listing of the alleged child abuser's name upon the child abuse registry, and the superior court shall conduct the review and render its decision thereon within 30 days following service of the petition. The review and records thereof shall be closed to the public and not subject to public inspection.

OCGA § 49-5-183 (f) (emphasis added).

The cited section of the Administrative Procedure Act provides, in regard to service, "Copies of the petition shall be served upon the agency and all parties of record." OCGA § 50-13-19 (b).

Construing OCGA § 50-13-19 (b), we have held that service by mail is sufficient. Douglas Asphalt Co. v. Ga. Pub. Svc. Comm. , 263 Ga. App. 711, 712 (1), 589 S.E.2d 292 (2003).

As for whether service on the attorneys who represented the department before the administrative law judge was sufficient, we note that, generally, pleadings subsequent to the entry of an initial pleading are served by serving a party's attorney, unless the court orders otherwise. See OCGA §§ 5-6-32 (a) (concerning service in appeals to superior court); OCGA § 5-6-37 (concerning service of notices of appeal to the appellate courts); OCGA § 9-11-5 (b) ("Whenever under this chapter service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court."); OCGA § 17-1-1 (b) (same in criminal cases).

In the absence of an express statutory requirement of personal service, we hold that Schuman properly served the Department of Human Services with his petition for judicial review by serving the attorneys who had represented the department before the administrative law judge. See Douglas Asphalt Co. , supra, at 712 (1), 589 S.E.2d 292. See also Campaign for a Prosperous Ga. v. Ga. Power Co. , 174 Ga. App. 263, 265 (1), 329 S.E.2d 570 (1985) ("The P[ublic] S[ervice] C[ommission] clearly considered service of the petition to have been sufficient to initiate a proceeding for judicial review of its decision because it forwarded the record of the proceeding to the superior court. OCGA § 50-13-19 (e)."). His service of a summons and the petition on the Effingham County Department of Family and Children Services was an unnecessary precaution.

(b) Service upon the Commissioner of Human Services .

The department contends that Schuman was also required to comply with the service requirements of OCGA § 49-2-15. That statute is part of the Article creating the Department of Human Services, but it is in a different Chapter from the one containing the Article that creates and regulates the child abuse registry. See OCGA § 49-5-180 et seq.

OCGA § 49-2-15 requires plaintiffs who have brought an action against the department to serve the Commissioner of Human Services with the action by second original process. And it is true that Schuman did not serve the Commissioner of Human Services with a second original process. But OCGA § 49-2-15 is not applicable to this case.

It is not applicable because it is for cases brought against the department, cases in which the department is a party. Here the department is a judicatory, not a party.

OCGA § 49-2-15 provides:

When any action is brought against the Department of Human Services, the Board of Human Services, the commissioner of human services, or any employee or agent thereof or when any action is brought in which the department could be held responsible for damages awarded in such action, it shall be the duty of the plaintiff to provide for service of notice of the pendency of such action by providing for service of a second original process , issued from the court in which the action is filed, upon the commissioner of human services personally or upon a person designated by the commissioner in writing to serve as agent for the acceptance of such service of process. The service of process in such action shall not be perfected until such second original process has been served as provided in this Code section. The provisions of this Code section shall be cumulative of any other requirements imposed by law for the service of process or notice.

(Emphasis supplied).

OCGA § 49-2-15 imposes a duty upon "the plaintiff." Schuman is not a plaintiff. A plaintiff is "[t]he party who brings a civil suit in a court of law." Black's Law Dictionary (11th ed. 2019). See also Nguyen v. Durham School Svcs ., 358 F.Supp.3d 1056, 1062 (4) (C.D. Cal. 2019) ("[T]he plaintiff is the party who initiates the lawsuit."); In re ASF , 311 Mich. App. 420, 438, 876 N.W.2d 253 (2015) ("The ‘plaintiff’ is the party who commences the action."); Jaster v. Comet II Const., Inc ., 438 S.W.3d 556, 565 (II) (B) (1) (Tex. 2014) (" ‘[T]he plaintiff’ is a party who initiates the action or suit[.]").

The party who brings a petition for judicial review is referred to in the Administrative Procedure Act as the "petitioner." OCGA § 50-13-19 (b). See Black's Law Dictionary (11th ed. 2019), defining "petitioner" as "[a] party who presents a petition to a court or other official body, esp. when seeking relief on appeal."

It is true that the words "petitioner" and "plaintiff" are sometimes used interchangeably. But they are not synonymous. While all plaintiffs are petitioners, not all petitioners are plaintiffs. Defendants, too, can file petitions for judicial review. See, e.g., Dept. of Pub. Safety v. Bell , 215 Ga. App. 301, 302, 450 S.E.2d 320 (1994) (Department of Public Safety argued that the superior "court erred in basing its decision on grounds not urged in defendant's original petition for judicial review [.]") (emphasis added). The statute's use of the word "plaintiff" means something more specific than petitioner. Schuman was a petitioner, but not a plaintiff. OCGA § 50-13-19 (b).

And OCGA § 49-2-15 applies to "action[s] brought against the [d]epartment." Schuman's petition for judicial review is not an "action brought against the [d]epartment." It did not originate in an effort by Schuman to secure an award of damages or any other...