Azizi v. Board of Regents of University System

• Decision Date: 24 June 1974
• Docket Number: No. 3,No. 49430,49430,3
• Citation: 132 Ga.App. 384,208 S.E.2d 153
• Parties: Naheed AZIZI v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM of Georgia et al
• Court: Georgia Court of Appeals

Page 153

208 S.E.2d 153

132 Ga.App. 384

Naheed AZIZI v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM of Georgia et al.

No. 49430.

Court of Appeals of Georgia, Division No. 3.

June 24, 1974.

Rehearing Denied July 12, 1974.

White & Jewett, C. Lawrence Jewett, Jr., Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Don A. Langham, Alfred L. Evans, Jr., Asst. Attys. Gen., Atlanta, for appellees.

Syllabus Opinion by the Court

WEBB, Judge.

The essential facts as stated in the order of the trial court are:

'This action was filed on behalf of Naheed Azizi (an immigrant from Kabul, Afghanistan) through her next friend Omar R. Azizi, and by her father Masuda Rahim Azizi, individually. The original complaint alleges that Naheed Azizi was admitted to the Eugene Talmadge Memorial Hospital, operated in conjunction with the Medical College of Georgia, on January 30, 1972, and that she remained there until March 10, 1972, with a diagnosis of acute pneumonia. It was further alleged that during her hospitalization she received an injection in the region of the left sciatic nerve which directly and proximately caused sciatic paralysis and permanently disabled her. Named as defendants were 'The Board of Regents of the University System of Georgia' and 'The Regents of the University of Georgia.' Damages were sought in the amount of $1,000,000 on behalf of Naheed Azizi (i.e. Count 1) and $100,000 for her father for medical expenses and lost services (i.e. Count 2).

'By an amendment adding two additional counts to the complaint plaintiffs assert a theory of recovery based upon the existence of a contract between plaintiffs and defendants for certain medical services and attention, coupled with a breach of warranties implied by the contract (i.e. Count 3), and allege a cause of action against Henry G. Mealing, Jr., M.D., individually. It was alleged that Dr. Mealing could be served by second original at the Department of Medicine, Division of Rheumatology at the Medical College of Georgia, located in Augusta, Richmond County, Georgia. It was alleged that Dr. Mealing had been negligent in the prescription of the injected drug, gentamycin, and further negligent in the supervision of its administration (i.e. Count 4).'

The trial court sustained and granted the motions of defendants to dismiss, and denied plaintiffs' motion to dismiss or strike, holding that since the suit had not been consented to by the state it was barred by the 'sovereign immunity' doctrine insofar as the Board of Regents of the University System of Georgia was concerned, and that the failure of the case as to these 'resident' state department defendants was fatal to the maintenance of the action in Fulton County against Dr. Mealing, a 'nonresident' defendant. Plaintiffs appeal from this order.

1. Plaintiffs urge that this doctrine of sovereign immunity be swept away by judicial decree, and they present a well documented all-out attack on the doctrine. Indeed their able counsel offer in support of their contention a logical pedagogic dissertation against sovereign immunity. And in the words of King Agrippa of old, 'Almost thou persuadest me . . .' That cannot be by judicial order, however, even were we so persuaded.

The doctrine of sovereign immunity is that 'the king could not be sued in his own courts without his consent.' Mathis, The Eleventh Amendment: Adoption and Interpretation, 2 Ga.L.Rev. 207-8. Its existence in the law of England since Edward the First is recognized. See United States v. Lee, 106 U.S. 196, 205, 1 S.Ct. 240, 247, 27 L.Ed. 171, 176; Roberts v. Barwick, 187 Ga. 691, 694, 1 S.E.2d 713; Trice v. Wilson, 113 Ga.App. 715, 722, 149 S.E.2d 530. Rather fully developed in England prior to the American Revolution, it was adopted by the American states along with the remainder of the English law. Georgia adopted the doctrine of sovereign immunity as a part of its inherent law upon adoption of the common law of England by an Act of the General Assembly approved February 25, 1784 (Prince's 1837 Digest, p. 570; Cobb's 1851 Digest, pp. 720-721).

The Constitutions of 1865, 1868, and 1877 ¹ reiterated the adoption of the common law and statutory law inborn from England on attainment of independence. Our present Constitution in Art. XII, Sec. I, Par. III (Ga.Code Ann. § 2-8003), setting forth the order of authority of our laws provides immediately after the Federal and State Constitutions:

'Third in authority.-Third: In subordination to the foregoing: All laws now of force in this State, not inconsistent with this Constitution shall remain of force until the same are modified or repealed by the General Assembly.' (Emphasis supplied.)

This court is without authority to override the Constitution. The doctrine of sovereign immunity has continued in force in this state since 1784, and it has not been modified by statute except in certain qualified instances not relevant here. Any change in this common law doctrine must be by legislative and not by judicial action. See, e.g., Crowder v. Department of State Parks, 228 Ga. 436, 439, 185 S.E.2d 908, cert. denied, 406 U.S. 914, 92 S.Ct. 1768, 32 L.Ed.2d 113; Roberts v. Barwick, supra; Trice v. Wilson, supra.

True it is that many states have by legislative act provided for claims courts to handle claims against the states, and both the Supreme Court and this court have suggested that such a procedure might be appropriate. See Roberts v. Barwick, supra; Crowder v. Department of State Parks, supra; Trice v. Wilson, supra. But the writer sits today not as a member of the General Assembly. Pertinent indeed is a proposed amendment to the Constitution, Resolution No. 68, passed by the General Assembly in 1973 when the writer was a member of the Senate, by which, if approved by the electorate in November, 1974, the General Assembly would be 'authorized to create and establish a State Court of Claims with jurisdiction to try and dispose of cases involving claims for injury or damage, except the taking of private property for public purposes, against the State of Georgia, its agencies or political subdivisions, as the General Assembly may provide by law.' (Ga.L.1973, p. 1489). It is interesting to note that there was no dissenting vote in the Senate. (Senate Journal 1973, p. 1867).

Even that proposed amendment to the Constitution provides: 'Nothing contained herein shall constitute a waiver of the immunity of the State from suit, but such sovereign immunity is expressly reserved except to the extent of any waiver of immunity provided in this Constitution and such waiver or qualification of immunity as is now or may hereafter be provided by act of the General Assembly.'

Until and unless approved by the voters, and implemented by legislative act, however, it is not a modification of the doctrine of sovereign immunity.

2. Equally true, this court is without authority to override the decisions of the Supreme Court of Georgia. There are no less than ten unanimous decisions of the Supreme Court holding that a suit cannot be maintained against the state without its consent. Southern Mining Co. v. Lowe, 105 Ga. 352, 31 S.E. 191; Western Union Telegraph Co. v. Western & A.R. Co., 142 Ga. 532, 83 S.E. 135; Roberts v. Barwick, 187 Ga. 691, 1 S.E.2d 713; Barwick v. Roberts, 192 Ga. 783, 16 S.E.2d 867; Florida State Hospital for the Insane v. Durham Iron Co., 194 Ga. 350, 21 S.E.2d 216; Eibel v. Forrester, 194 Ga. 439, 22 S.E.2d 96; Peters v. Boggs, 217 Ga. 471, 123 S.E.2d 258; Cardin v. Riegel Textile Corp., 219 Ga. 695, 135 S.E.2d 284; Maddox v. Coogler, 224 Ga. 806, 165 S.E.2d 158; and James v. State, 225 Ga. 809, 171 S.E.2d 533.

3. There is no merit in appellants' contention that the doctrine of sovereign immunity violates the 'due process' and 'equal protection' clauses of the Federal and State Constitutions. See Crowder v. Department of State Parks, supra, and Palmer v. Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108. In the Crowder case, Mr. Justice Grice (now Chief Justice) speaking for the majority, said: 'It does not, we unhesitatingly hold, violate either the State or Federal Constitution.' In the Palmer case, involving a property damage claim against the State of Ohio, the court said, (p. 34, 39 S.Ct. p. 16):

'The right of individuals to sue a state, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the state. (cits. omitted). Whether Ohio gave the required consent . . . is a question of local state law, as to which the decision of the state Supreme Court is controlling with this court, no federal right being involved.'

4. Appellants contend that the Board of Regents is a public corporation capable of suing and being sued, contending that the Regents and Board of Regents are two separate entities, neither of which is a state agency to which the sovereign immunity doctrine is applicable.

By Act in 1935 the General Assembly defined the status of the Regents of the University of Georgia and the members of the Board of Regents as follows: 'That the corporation created under section 45 of the Act approved August 25, 1931, as embodied in title 32, section 32-101, of the Code of Georgia of 1933, and known as 'Regents of the University System of Georgia,' is hereby declared to be a governmental agency of the State of Georgia, and all property held by said corporation under said Act of August 25, 1931, as embodied in title 32 of the Code of Georgia of 1933 is hereby declared to be the property of the State of Georgia, and subject to all the limitations and restrictions imposed upon other property of the State of Georgia by the Constitution and laws of this State. The...