WOMEN'S SURGICAL CENTER, LLC et al.
BERRY et al. BERRY et al.
WOMEN'S SURGICAL CENTER, LLC et al.
MELTON, PRESIDING JUSTICE.
Surgical Center, LLC d/b/a Georgia Advanced Surgery Center
for Women (hereinafter referred to as the "Center")
provides outpatient surgery services in Cartersville,
Georgia. The Center has immediate plans to add a second
operating room to its premises in order to create
opportunities to form contracts with additional surgeons who
could then use the Center in connection with their medical
practices. However, any such change to the Center could only
be legally accomplished if the Center sought and was granted
a certificate of need ("CON") by the Georgia
Department of Community Health (the "Department").
Specifically, pursuant to OCGA § 31-6-40 (a) (7) (C):
On and after July 1, 2008, any new institutional health
service shall be required to obtain a certificate of need
pursuant to this chapter. New institutional health services
include . . . [c]linical health services which are offered in
or through a diagnostic, treatment, or rehabilitation center
which were not offered on a regular basis in or through that
center within the 12 month period prior to the time such
services would be offered, but only if the clinical health
services [involve] . . . [s]urgery in an operating room
environment, including but not limited to ambulatory surgery.
the Center believed that it should not be subject to the CON
requirements, on June 30, 2015, the Center filed an action
for declaratory and injunctive relief against the
Department in an effort to have Georgia's
applicable CON law and the regulations authorizing it
declared unconstitutional. On August 20, 2015, the Department
moved to dismiss the complaint, arguing, among other things,
that the trial court lacked jurisdiction over the case
because the Center failed to exhaust its administrative
remedies before filing its lawsuit. The trial court denied
the motion to dismiss on February 10, 2016. On September 16,
2016 both the Center and the Department filed motions for
summary judgment with regard to the Center's
constitutional claims. In an October 31, 2016 order, the
trial court rejected all of the Center's constitutional
challenges and granted summary judgment to the Department. In
Case No. S17A1317, the Center appeals from this ruling, and
in Case No. S17X1318, the Department appeals from the denial
of its August 2015 motion to dismiss. For the reasons that
follow, we affirm in both cases.
Department argues that the trial court erred in failing to
dismiss the Center's declaratory action because the
Center failed to exhaust its administrative remedies before
filing its declaratory action and did not have standing to
bring such an action at this point. We disagree.
An action for declaratory judgment is available to test the
validity of an alleged unconstitutional law, in order that a
person desiring to practice his vocation may know whether he
may proceed in disregard of the requirements of the law, or
whether he must refuse to [advance his interests that are]
regulated by the law until he can comply with its provisions.
Jenkins v. Manry, 216 Ga. 538, 540-41 (118 S.E.2d
91) (1961). While an entity may not seek a declaratory
judgment where no "actual controversy" exists
between the relevant parties (see OCGA § 9-4-2 (a)), a
party has standing to pursue a declaratory action where the
threat of an injury in fact is "actual and imminent, not
conjectural or hypothetical." Summers v. Earth
Island Inst., 555 U.S. 488, 493 (II) (129 S.Ct. 1142,
173 L.Ed.2d 1) (2009). See also Georgiacarry.Org, Inc. v.
Atlanta Botanical Garden, Inc., 299 Ga. 26 (785 S.E.2d
it is undisputed that the Center's imminent plans to add
a second operating room would be subject to the approval of
the Department under the CON laws. In fact, the Center had
already been denied a CON for this same proposed expansion in
2014. However, even without filing a new
application for a CON, the Center is still currently
"faced with the prospect of either punishment if [it
expands its facilities] without a [CON] or enduring much
expense and effort to obtain the [new CON]." (Citation
and punctuation omitted.) Bruner v. Zawacki, 997
F.Supp.2d 691, 696 (III) (A) (E.D. Ky. 2014). Under such
circumstances, we find that the Center is confronted with an
injury in fact that is "actual and imminent, not
conjectural or hypothetical" (Summers, supra),
such that it has standing to pursue its declaratory action
here. See Bruner, supra.
the Center has standing to pursue, and is in fact pursuing, a
direct facial constitutional challenge to OCGA § 31-6-40
(a) (7) (C) (see Division 2, infra), the Center was not
required to exhaust its administrative remedies before filing
its declaratory action. Unlike in situations where a
constitutional claim is raised in the context of actual
administrative proceedings or where the constitutional
challenge is as applied (see, e.g., Dep't of Pub.
Safety v. Foreman, 130 Ga.App. 71 (202 S.E.2d 196)
(1973)), "[t]here is . . . no exhaustion requirement
when, as in the present case, the [plaintiff] challenges the
constitutionality of [a statute] on its face." King
v. City of Bainbridge, 272 Ga. 427, 428 (2) (531 S.E.2d
trial court did not err in denying the Department's
motion to dismiss.
Center contends that OCGA § 31-6-40 (a) (7) (C) is
unconstitutional on its face because the statute (a) violates
the Anti-Competitive Contracts clause of the Georgia
Constitution (see Ga. Const. of 1983 Art. III, § VI,
Para. V (c) (1)), and (b) violates the due process clauses of
the Georgia and United States Constitutions (see USCS Const.
Amend. 14 and Ga. Const. of 1983 Art. ...