307 Ga. 578 FINAL COPY
S19G1007. COBB HOSPITAL, INC. et al. v. DEPARTMENT OF COMMUNITY HEALTH et al.
PER CURIAM.
In Division 2 of its opinion in this case, the Court of Appeals
erred by holding that the constitutional due process claim
enumerated by petitioners Cobb Hospital, Inc. and Kennestone
Hospital, Inc. (collectively, “Wellstar”), was not preserved for
appellate review because it was not ruled on during the
administrative proceeding that led to the filing of this case in the
trial court. See Cobb Hosp. v. Dept. of Community Health, 349 Ga.
App. 452, 465 (825 SE2d 886) (2019). We grant Wellstar’s petition
for a writ of certiorari to address that issue, reverse that division of
the Court of Appeals’s opinion, and remand for that court to
reconsider Wellstar’s constitutional claim.1
1 Our rules contemplate that we may grant a petition for certiorari and
dispose of the case summarily, without full briefing and oral argument. See Supreme Court Rule 50 (2); Scott v. State, 306 Ga. 507, 508 n.1 (832 SE2d 426) 1. This case involves Wellstar’s challenge to the decision by the
Georgia Department of Community Health (“DCH”) to grant Emory
University Hospital Smyrna (“Emory”) a new certificate of need
(“CON”) to renovate a hospital that Emory had recently acquired.
After DCH made an initial decision granting the CON, Wellstar
appealed to the CON Appeal Panel. The panel’s hearing officer
affirmed the decision, ruling that as a matter of law he could not
consider Wellstar’s arguments regarding the validity of Emory’s
existing CON, and that he would not allow Wellstar to present
evidence related to those arguments. Wellstar then appealed the
hearing officer’s decision to the DCH Commissioner, allegedly
arguing among other things that the decision violated Wellstar’s
constitutional right to due process. The Commissioner affirmed the
hearing officer’s decision without ruling on the constitutional claim.
Wellstar then filed a petition for judicial review in the Cobb
(2019). We elect to do so here because the issue we resolve would not benefit from further briefing and argument. We have determined that the other issues Wellstar raises in its petition do not warrant further review, so our grant of certiorari and our remand to the Court of Appeals are limited to the constitutional claim. 2 County Superior Court (“trial court”). In its petition, Wellstar raised
its constitutional claim as its second enumeration of error, arguing
that the hearing officer’s decision violated Wellstar’s right to due
process because the decision prevented Wellstar from presenting
evidence that Emory’s existing CON was invalid. Wellstar claimed
that the administrative decision was thus “made upon unlawful
procedures.” In its order denying Wellstar’s petition, the trial court
ruled that the DCH decision “does not violate constitutional or
statutory provisions . . . [and] was not made upon unlawful
procedures,” and the court “reject[ed] Wellstar’s argument” made in
its second enumeration.
Wellstar then filed an application for discretionary appeal in
the Court of Appeals, which that court granted. In their briefs in the
Court of Appeals, DCH argued that Wellstar did not adequately
raise its constitutional claim during the administrative process and
Emory addressed Wellstar’s due process claim on the merits.
Neither DCH nor Emory argued that the CON Appeal Panel’s
hearing officer or the DCH Commissioner was required to rule on
3 Wellstar’s claim to preserve it for appellate review (nor did DCH or
Emory argue that the trial court failed to rule on the claim).
In Division 2 of its opinion, the Court of Appeals pretermitted
whether Wellstar properly raised its due process claim before the
CON Appeal Panel and held that Wellstar had not preserved the
claim for appellate review because “a review of the decisions by the
panel hearing officer and the DCH commissioner reveals that
neither official ruled on that distinct issue.” Cobb Hosp., 349 Ga.
App. at 465. In support of this holding, the Court of Appeals cited
two cases that both hold that appellate courts may decide a
constitutional claim only if it was ruled on by the trial court. See id.
(citing Singleton v. Dept. of Human Resources, 263 Ga. App. 653, 654
(588 SE2d 757) (2003), and John Hardy Group, Inc. v. Cayo Largo
Hotel Assoc., 286 Ga. App. 588, 589 (649 SE2d 826) (2007)). The
Court of Appeals rejected Wellstar’s several other claims, and it
affirmed the trial court’s judgment. See id. at 456-465.
Wellstar petitioned for a writ of certiorari, arguing among
other things that the Court of Appeals erred in holding that
4 Wellstar’s constitutional claim was not preserved because it was not
ruled on during the administrative proceeding. We agree.
2. During an ongoing administrative proceeding, a party
generally must raise its constitutional claims in order to exhaust
administrative remedies and preserve the claims for judicial review,
even though administrative agencies generally have no authority to
rule on those claims. See Ga. Dept. of Human Svcs. v. Addison, 304
Ga. 425, 431-433 (819 SE2d 20) (2018) (“Although an administrative
agency cannot declare laws to be unconstitutional, the agency may
take account of constitutional considerations in deciding whether
and how to enforce challenged statutes and rules and what the
parties’ rights are under them, and if the challenger remains
aggrieved after the agency renders its final decision, judicial review
is then normally available.”). See also State Health Planning Agency
v. Coastal Empire Rehab. Hosp., 261 Ga. 832, 832 & n.1 (412 SE2d
532) (1992); OCGA § 50-13-19 (a); Ga. Comp. R. & Regs. r. 616-1-2-
.22 (3). So long as the party properly raises its constitutional claims
during the administrative process, the claims may later be raised in
5 and reviewed by the trial court. See Coastal Empire Rehab. Hosp.,
261 Ga. at 832; OCGA § 50-13-19 (h). To then preserve constitutional
claims for review by an appellate court, the party must raise the
claims before the trial court and the trial court must distinctly rule
on the claims. See Advanced Disposal Svcs. Middle Ga. v. Deep
South Sanitation, 296 Ga. 103, 108 (765 SE2d 364) (2014); East Ga.
Land and Dev. Co. v. Baker, 286 Ga. 551, 555-556 (690 SE2d 145)
(2010).
In holding that Wellstar’s constitutional claim was not
preserved for appellate review because it was not ruled on during
the administrative proceeding, the Court of Appeals appears to have
confused the requirement that a constitutional claim be raised
during the administrative proceeding to preserve it for review by the
trial court with the separate requirement that the trial court
distinctly rule on the claim to preserve it for review on appeal.
Because administrative agencies generally cannot rule on
6 constitutional claims, the Court of Appeals’s holding was erroneous.2
Accordingly, we grant Wellstar’s petition for a writ of certiorari
with regard to the constitutional claim preservation issue, reverse
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307 Ga. 578 FINAL COPY
S19G1007. COBB HOSPITAL, INC. et al. v. DEPARTMENT OF COMMUNITY HEALTH et al.
PER CURIAM.
In Division 2 of its opinion in this case, the Court of Appeals
erred by holding that the constitutional due process claim
enumerated by petitioners Cobb Hospital, Inc. and Kennestone
Hospital, Inc. (collectively, “Wellstar”), was not preserved for
appellate review because it was not ruled on during the
administrative proceeding that led to the filing of this case in the
trial court. See Cobb Hosp. v. Dept. of Community Health, 349 Ga.
App. 452, 465 (825 SE2d 886) (2019). We grant Wellstar’s petition
for a writ of certiorari to address that issue, reverse that division of
the Court of Appeals’s opinion, and remand for that court to
reconsider Wellstar’s constitutional claim.1
1 Our rules contemplate that we may grant a petition for certiorari and
dispose of the case summarily, without full briefing and oral argument. See Supreme Court Rule 50 (2); Scott v. State, 306 Ga. 507, 508 n.1 (832 SE2d 426) 1. This case involves Wellstar’s challenge to the decision by the
Georgia Department of Community Health (“DCH”) to grant Emory
University Hospital Smyrna (“Emory”) a new certificate of need
(“CON”) to renovate a hospital that Emory had recently acquired.
After DCH made an initial decision granting the CON, Wellstar
appealed to the CON Appeal Panel. The panel’s hearing officer
affirmed the decision, ruling that as a matter of law he could not
consider Wellstar’s arguments regarding the validity of Emory’s
existing CON, and that he would not allow Wellstar to present
evidence related to those arguments. Wellstar then appealed the
hearing officer’s decision to the DCH Commissioner, allegedly
arguing among other things that the decision violated Wellstar’s
constitutional right to due process. The Commissioner affirmed the
hearing officer’s decision without ruling on the constitutional claim.
Wellstar then filed a petition for judicial review in the Cobb
(2019). We elect to do so here because the issue we resolve would not benefit from further briefing and argument. We have determined that the other issues Wellstar raises in its petition do not warrant further review, so our grant of certiorari and our remand to the Court of Appeals are limited to the constitutional claim. 2 County Superior Court (“trial court”). In its petition, Wellstar raised
its constitutional claim as its second enumeration of error, arguing
that the hearing officer’s decision violated Wellstar’s right to due
process because the decision prevented Wellstar from presenting
evidence that Emory’s existing CON was invalid. Wellstar claimed
that the administrative decision was thus “made upon unlawful
procedures.” In its order denying Wellstar’s petition, the trial court
ruled that the DCH decision “does not violate constitutional or
statutory provisions . . . [and] was not made upon unlawful
procedures,” and the court “reject[ed] Wellstar’s argument” made in
its second enumeration.
Wellstar then filed an application for discretionary appeal in
the Court of Appeals, which that court granted. In their briefs in the
Court of Appeals, DCH argued that Wellstar did not adequately
raise its constitutional claim during the administrative process and
Emory addressed Wellstar’s due process claim on the merits.
Neither DCH nor Emory argued that the CON Appeal Panel’s
hearing officer or the DCH Commissioner was required to rule on
3 Wellstar’s claim to preserve it for appellate review (nor did DCH or
Emory argue that the trial court failed to rule on the claim).
In Division 2 of its opinion, the Court of Appeals pretermitted
whether Wellstar properly raised its due process claim before the
CON Appeal Panel and held that Wellstar had not preserved the
claim for appellate review because “a review of the decisions by the
panel hearing officer and the DCH commissioner reveals that
neither official ruled on that distinct issue.” Cobb Hosp., 349 Ga.
App. at 465. In support of this holding, the Court of Appeals cited
two cases that both hold that appellate courts may decide a
constitutional claim only if it was ruled on by the trial court. See id.
(citing Singleton v. Dept. of Human Resources, 263 Ga. App. 653, 654
(588 SE2d 757) (2003), and John Hardy Group, Inc. v. Cayo Largo
Hotel Assoc., 286 Ga. App. 588, 589 (649 SE2d 826) (2007)). The
Court of Appeals rejected Wellstar’s several other claims, and it
affirmed the trial court’s judgment. See id. at 456-465.
Wellstar petitioned for a writ of certiorari, arguing among
other things that the Court of Appeals erred in holding that
4 Wellstar’s constitutional claim was not preserved because it was not
ruled on during the administrative proceeding. We agree.
2. During an ongoing administrative proceeding, a party
generally must raise its constitutional claims in order to exhaust
administrative remedies and preserve the claims for judicial review,
even though administrative agencies generally have no authority to
rule on those claims. See Ga. Dept. of Human Svcs. v. Addison, 304
Ga. 425, 431-433 (819 SE2d 20) (2018) (“Although an administrative
agency cannot declare laws to be unconstitutional, the agency may
take account of constitutional considerations in deciding whether
and how to enforce challenged statutes and rules and what the
parties’ rights are under them, and if the challenger remains
aggrieved after the agency renders its final decision, judicial review
is then normally available.”). See also State Health Planning Agency
v. Coastal Empire Rehab. Hosp., 261 Ga. 832, 832 & n.1 (412 SE2d
532) (1992); OCGA § 50-13-19 (a); Ga. Comp. R. & Regs. r. 616-1-2-
.22 (3). So long as the party properly raises its constitutional claims
during the administrative process, the claims may later be raised in
5 and reviewed by the trial court. See Coastal Empire Rehab. Hosp.,
261 Ga. at 832; OCGA § 50-13-19 (h). To then preserve constitutional
claims for review by an appellate court, the party must raise the
claims before the trial court and the trial court must distinctly rule
on the claims. See Advanced Disposal Svcs. Middle Ga. v. Deep
South Sanitation, 296 Ga. 103, 108 (765 SE2d 364) (2014); East Ga.
Land and Dev. Co. v. Baker, 286 Ga. 551, 555-556 (690 SE2d 145)
(2010).
In holding that Wellstar’s constitutional claim was not
preserved for appellate review because it was not ruled on during
the administrative proceeding, the Court of Appeals appears to have
confused the requirement that a constitutional claim be raised
during the administrative proceeding to preserve it for review by the
trial court with the separate requirement that the trial court
distinctly rule on the claim to preserve it for review on appeal.
Because administrative agencies generally cannot rule on
6 constitutional claims, the Court of Appeals’s holding was erroneous.2
Accordingly, we grant Wellstar’s petition for a writ of certiorari
with regard to the constitutional claim preservation issue, reverse
Division 2 of the Court of Appeals’s opinion, and remand the case for
that court to reconsider the constitutional claim, including DCH’s
argument that Wellstar did not properly raise its constitutional
claim during the administrative process. We express no opinion on
that argument or the merits of the claim.
Petition for writ of certiorari granted in part, judgment reversed
in part, and case remanded with direction. All the Justices concur,
except Warren and Bethel, JJ., not participating, and Ellington, J.,
disqualified.
2 Emory argues in its response to Wellstar’s petition for certiorari that
the Court of Appeals’s holding should be characterized as not deciding Wellstar’s constitutional claim because the trial court did not rule on the claim. But that is not what the Court of Appeals held. Moreover, if that were the holding, it would have been wrong, because the trial court distinctly, albeit summarily, rejected Wellstar’s constitutional claim. 7 DECIDED DECEMBER 23, 2019. Certiorari to the Court of Appeals of Georgia — 349 Ga. App. 452. Parker, Hudson, Rainer & Dobbs, Armando L. Basarrate II, David B. Darden, Elizabeth M. Kitchens; Moore, Ingram, Johnson & Steele, Robert D. Ingram, David P. Conley, for appellants. Christopher M. Carr, Attorney General, Isaac Byrd, Deputy Attorney General, Daniel S. Walsh, Senior Assistant Attorney General, Forrest G. Pearce, Assistant Attorney General; Morris, Manning & Martin, Robert C. Threlkeld, Elliott L. Coward; Rachel L. King, Frank Berry, Roxana D. Tatman, for appellees.