Busbee v. Georgia Conference, Am. Ass'n of University Professors

• Decision Date: 04 December 1975
• Docket Number: No. 30643,30643
• Citation: 221 S.E.2d 437,235 Ga. 752
• Parties: George BUSBEE, Governor, et al. v. GEORGIA CONFERENCE, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, et al.
• Court: Georgia Supreme Court

Page 437

221 S.E.2d 437

235 Ga. 752

George BUSBEE, Governor, et al. v. GEORGIA CONFERENCE, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, et al.

No. 30643.

Supreme Court of Georgia.

Dec. 4, 1975.

Rehearing Denied Dec. 15, 1975.

Arthur K. Bolton, Atty. Gen., Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, for appellants.

Haas, Holland, Levison & Gibert, Richard G. Garrett, Theodore G. Frankel, Atlanta, for appellees.

HILL, Justice.

This is a suit for declaratory judgment instituted by and on behalf of certain faculty members at institutions of the University System of Georgia seeking an adjudication that certain employment contracts entered into by the Board of Regents of the University System of Georgia are valid and binding.

The defendants are George Busbee, Governor, Johnnie L. Caldwell, Comptroller General, Gayden W. Hogan, Director of the The material facts are undisputed and relatively simple. The General Assembly met in regular session beginning in January 1975 and enacted an appropriations Act for the fiscal year commencing July 1, 1975, appropriating almost two billion dollars based upon a revenue estimate of $1,823,000,000, plus unappropriated surplus and federal revenue sharing funds (Ga.L.1975, pp. 1333, 1486).

Fiscal Division of the Department of Administrative Services, and the Board of Regents of the University System of Georgia and its members. The trial court ruled in favor of plaintiffs and the defendants have appealed.

The Georgia Constitution prudently provides that the General Assembly shall not appropriate in any fiscal year more money than it expects to collect in revenue during the fiscal year plus that which it has on hand, unappropriated, at the beginning of the fiscal year. Code Ann. § 2-6202(b).

The appropriations Act for the fiscal year beginning July 1, 1975 (Ga.L.1975, p. 1333), was approved by the Governor and became effective on April 25, 1975 (Ga.L.1975, p. 1486). It appropriated to Regents, ¹ among other purposes, $223 million for personal services (salaries and wages) at its instructional institutions (Ga.L.1975, p. 1449). In addition, that Act appropriated $11,510,000 for salary increases for University System personnel (academic as well as nonacademic) and approximately $44,500,000 for salary increases for certain other state employees, such increases to commence September 1, 1975 (Ga.L.1975, pp. 1481-1483, § 44A).

Upon the Governor's approval of the appropriations Act, the Board of Regents commenced executing contracts with many of its faculty members (academic personnel) increasing their 1975-76 salaries over their 1974-75 salaries by varying amounts.

When it became apparent to the Governor that the $1,823,000,000 revenue estimate for FY 1975-76 was excessive, he announced on June 18 a special session of the General Assembly which met from June 23 to July 3, 1975. The General Assembly amended the FY 1975-76 appropriations Act by reducing it by almost $125 million. Included in this reduction was the $56,000,000 state employee salary increase provision, including the $11,510,000 to fund salary increases for employees of the Board of Regents (Ga.L.1975, Ex.Sess., pp. 1734-1886).

Plaintiffs are faculty members who received increased salary contracts between April 25, 1975, the effective date of the original FY 1975-76 appropriations Act, and July 3, 1975, the effective date of the repeal of those increases. Regents has announced that plaintiffs and other faculty members who recived contracts containing salary increases will not be paid those increases but will be paid their 1974-75 salaries.

Two substantially identical suits filed in Fulton Superior Court as class actions were consolidated. Count one alleges that the Board of Regents has breached plaintiffs' contracts of employment for the 1975-76 academic year. Count two alleges that by passage of the amendment to the appropriations Act the General Assembly has enacted a law which impairs the obligation of plaintiffs' employment contracts. Count three alleges that Regents' failure to honor plaintiffs' contracts violates the equal protection clause of the Constitution of Georgia (Code Ann. § 2-102) in that Regents is honoring contracts of faculty members who are teaching for the first time at a particular institution of the University System.

The trial court overruled the defendants' defense of soverign immunity and granted the plaintiffs' prayers for relief as to all 1. The defendants contend that they have sovereign immunity and thus are not subject to being sued. As will appear below, this question cannot be resolved by considering the defendants jointly; Regents is unique and will be considered first.

three counts. Defendants have enumerated all four rulings as error.

Due to the vigor with which Regents asserts its claim to sovereign immunity, this point will be considered in greater depth than has occurred in recent years, but first some historical considerations are necessary.

In 1784, the General Assembly of Georgia granted 40,000 acres of land for the endowment of a state university. 4 EGL 82, Colleges and Universities § 2. In 1785, the Geneal Assembly created the 'Trustees of the University of Georgia' and declared it to be 'a person in law, capable to plead and be impleaded, defend and be defended, answer and be answered unto.' Ga.L.1785, p. 560, § 3; Cobb's Digest, p. 1084 (1851). See State of Georgia v. Regents, University System, 179 Ga. 210 at 216, 175 S.E. 567 (1934).

The status of the Trustees of the University of Georgia as a 'person in law, able to plead and be impleaded' was continued in the Code of 1863 (§ 1117), and the Codes of 1868 (§ 1198), 1873 (§ 1193), 1882 (§ 1193), 1895 (§ 1272), and 1910 (§ 1364).

Over the years various other schools were created by law as branches of the University of Georgia. See Ga.L.1931, p. 7 at pp. 20-21; see also editorial notes to Code Ann. § 32-103.

In 1931, upon the recommendation of then Governor Richard Russell, the General Assembly reorganized the executive branch of state government, including the state university system. Ga.L.1931, p. 7 at pp. 20-31. By this reorganization Act, the Regents of the University of Georgia succeeded to all the powers and duties of the Board of Trustees of the University of Georgia. Ga.L.1931, p. 7 at pp. 23, 25, 26; Code Ann. §§ 32-112, 32-127, 32- 128. By this same Act, all laws governing the University of Georgia, and its Board of Trustees, were continued in effect. Ga.L.1931, p. 7, at pp. 23, 25, 26; Code Ann. §§ 32-112, 32-114, 32-128.

It therefore follows that upon its creation in 1931, the Regents of the University System of Georgia was a 'person in law, able to plead and be impleaded.' This is the historic language used to authorize a body to sue and be sued, see First District A & M School v. Reynolds, 11 Ga.App. 650, 652, 75 S.E. 1060 (1912), and in fact the captions of several of the codifications cited above use the modern terms 'sue and be sued.' That is to say, upon its creation in 1931, Regents had express statutory authority to sue and be sued; i.e., it had no soverign immunity at that time. Knowles v. Housing Authority of City of Columbus, 212 Ga. 729, 733-734, 95 S.E.2d 659 (1956).

In 1933, our laws were again codified. However, those laws relating to the University of Georgia and its numerous branches were not codified in the Code of 1933; they were simply continued in effect by that Code by its §§ 32-112, 32-114 and 32-128, supra.

Thus in 1933, the words 'person in law, able to plead and be impleaded' dropped from the Code (and thus from ready visibility) but not from our law.

In 1934, in an effort to raise money to construct new buildings, the Regents sought to enter into a contract with an agency of the federal government whereby Regents would issue about three million dollars in bonds to the government, such bonds to constitute a lien upon student and athletic fees and the income from the new buildings to be built with the proceeds of such bonds. The loan agreement provided that Regents would not convey or otherwise alienate, without consent of the trustee, the new buildings or the real estate on which they were to be located so long as the bonds were outstanding. The State of Georgia sued the Regents to enjoin this undertaking, alleging that it violated, among other In 1935 the General Assembly apparently was upset by this borrowing of money because it enacted the following law (Ga.L.1935, p. 171 at p. 172): '. . . '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 members of the Board of Regents of the University System of Georgia, as provided for by said Act, are hereby declared to be public officers of the State of Georgia and subject, in all their actions as such, to all the limitations and restrictions imposed by the Constitution and laws of this State upon other public officers.' At that same session, however, the General Assembly appropriated one million dollars to Regents for new construction. Ga.L.1935, p. 9.

things, the constitutional prohibition upon the state incurring debt. In State of Georgia v. Regents, University System, 179 Ga. 210, 222, 175 S.E. 567 (1934), this court held that Regents was not the state nor an agency of the state, but was a separate corporation; that its debts were [235 Ga. 756] its own and not debts of the state; and that it could enter into the agreement, encumber its property, and issue the bonds.

In Ramsey v. Hamilton, 181 Ga. 365, 182 S.E. 392 (1935), several citizens, taxpayers and public school teachers sued the...