Dogwood Square Nursing Center, Inc. v. State Health Planning Agency

336 S.E.2d 841, 176 Ga. App. 579, 1985 Ga. App. LEXIS 2321

• Court: Court of Appeals of Georgia
• Decided: October 28, 1985
• Docket: 70802
• Status: Published

Opinion

Banke, Chief Judge.

Dogwood Square Nursing Center, Inc., applied to the State Health Planning Agency for a certificate of need to construct a nursing home facility in the northern portion of Fulton County. The Planning Agency denied the application, and Dogwood appealed that decision to the State Health Planning Review Board, which reversed the Planning Agency and granted the application. The Planning Agency thereupon appealed to superior court, which reversed the Review Board and reinstated the decision of the Planning Agency denying the certificate of need. We granted Dogwood’s subsequent application to this court for a discretionary appeal.

In its brief and enumeration of errors before this court, Dogwood both attacks the superior court’s decision on its merits and asserts that the statutory provision contained in OCGA § 31-6-44 (i) purporting to authorize the Planning Agency to file an appeal to superior court from a decision of the Review Board constitutes an unconstitutional violation of the separation of powers doctrine. The latter is a threshold issue which must be resolved by the Supreme Court pursuant to its exclusive jurisdiction over cases in which the constitutionality of a law has been drawn into question. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1). The case is accordingly transferred to the Supreme Court.

Case transferred to the Supreme Court.

McMurray, P. J., and Sognier, J., concur. Benham, J., disqualified. Halsey G. Knapp, Jr., amicus curiae.