Dekalb Cnty. Sch. Dist. v. Ga. State Bd. of Educ.

• Decision Date: 11 December 2013
• Docket Number: No. S13Q0981.,S13Q0981.
• Citation: 751 S.E.2d 827,294 Ga. 349
• Parties: DeKALB COUNTY SCHOOL DISTRICT et al. v. GEORGIA STATE BOARD OF EDUCATION et al.
• Court: Georgia Supreme Court

294 Ga. 349

751 S.E.2d 827

DeKALB COUNTY SCHOOL DISTRICT et al.

v.GEORGIA STATE BOARD OF EDUCATION et al.

No. S13Q0981.

Supreme Court of Georgia.

Nov. 25, 2013.

Reconsideration Denied Dec. 11, 2013.

Marquetta J. Bryan, Thomas Alan Cox, Michael James Walker, Carlock, Copeland & Stair, LLP, Atlanta, for appellants.

Jennifer Colangelo, Asst. Atty. Gen., Stefan Ernst Ritter, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., Atlanta, for appellees.

Phillip L. Hartley, Harben, Hartley & Hawkins, LLP, Gainesville, amicus curiae.

PER CURIAM.

The United States District Court for the Northern District of Georgia has certified questions to this Court about the constitutionality of OCGA § 20–2–73, which provides in certain circumstances for the suspension and removal of members of local boards of education.¹ Georgia law does not require that local school systems be accredited, but it permits school systems to seek accreditation from certain private accrediting agencies, ² and it acknowledges the importance of such accreditation.³ Pursuant to OCGA § 20–2–73, when an accredited school system “is placed on the level of accreditation immediately preceding loss of accreditation for school board governance related reasons,” the State Board of Education (the “State Board”) must consider whether to recommend that the Governor “suspend all eligible members of the local board of education with pay,” and if the State Board so recommends, the Governor may suspend those members with pay and appoint temporary replacements to the local board. ⁴OCGA § 20–2–73(a) (1). A suspended member may petition the Governor for reinstatement, but if a suspended member does not do so within 60 days of suspension, the suspended member is permanently removed from office, and the temporary replacement serves out the term of the suspended member. OCGA § 20–2–73(b). If a suspended member does petition for reinstatement,

the Governor or his or her designated agent shall conduct a hearing for the purpose of receiving evidence relative to whether the local board of education member's continued service on the local board of education is more likely than not to improve the ability of the local school system or school to retain ... its accreditation.... If it is determined that it is more likely than not that the local board of education member's continued service on the local board of education improves the ability of the local school system or school to retain ... its accreditation, the member shall be immediately reinstated; otherwise, the member shall be permanently removed, and the temporary replacement member shall become a permanent member and serve out the remainder of the term of the removed member or until the next general election which is at least six months after the member was permanently removed, whichever is sooner.

OCGA § 20–2–73(c). The statute provides that any hearing on a petition for reinstatement is to be conducted pursuant to the Georgia Administrative Procedure Act, OCGA § 50–13–1 et seq., and it provides as well for judicial review of a decision to permanently remove a member. Id.

From the record in this case, it appears that the DeKalb County School District (the “DeKalb School District”) was accredited by the Southern Association of Colleges and Schools (“SACS”), a private accrediting agency recognized by Georgia law. In December 2012, SACS placed the DeKalb School District on “accredited probation” for reasons related to the governance of the DeKalb County Board of Education (the “DeKalb Board”),⁵ which left the DeKalb School District only one step away from a loss of its accreditation. Pursuant to OCGA § 20–2–73, the State Board then convened proceedings to determine whether to recommend that the Governor suspend the six members of the DeKalb Board who were serving at the time SACS put the DeKalb School District on accredited probation.⁶ The State Board held hearings on January 17, 2013 and February 21, 2013, at which members of the DeKalb Board appeared with counsel, and the State Board heard evidence, including the testimony of several members. At the conclusion of the hearings, the State Board voted unanimously to recommend that the Governor suspend the six members of the DeKalb Board. On February 25, 2013, the Governor suspended these members, and he later appointed six temporary replacements, all of whom were recommended to the Governor by a nominating committee.

In the meantime, Dr. Eugene P. Walker—the chair of the DeKalb Board and one of the suspended members—filed a lawsuit in the United States District Court, alleging that OCGA § 20–2–73 violates both the United States Constitution and Georgia Constitution, and seeking declaratory and injunctive relief.⁷ The District Court denied preliminary injunctive relief to Walker, finding that Walker had failed to show a substantial likelihood that he would prevail on his claim that the statute violates the United States Constitution. As to the Georgia Constitution, the District Court certified the questions to this Court, asking whether “ OCGA § 20–2–73, or any portion thereof, violate[s] the Georgia Constitution.” ⁸

In his briefs to this Court, Walker contends that OCGA § 20–2–73 violates the Georgia Constitution in several respects. First, he argues that the General Assembly has no authority under our Constitution to provide by statute for the suspension and removal at law of members of a local board of education, who are constitutional officers. Second, he contends that even if the General Assembly has such authority, OCGA § 20–2–73 unconstitutionally delegates the power to suspend and remove the members of a local board of education to a private accrediting agency. Third, he argues that OCGA § 20–2–73 unconstitutionally vests the power of removal in the Governor, thereby effectively giving the Governor the power to control and manage local school systems, in violation of the separation of powers. Fourth, he asserts that OCGA § 20–2–73 unconstitutionally denies due process to members of a local board of education. We are unpersuaded by these contentions, and we conclude that OCGA § 20–2–73 does not violate the Georgia Constitution. Accordingly, we answer the questions of the District Court in the negative.

1. We begin with the contention that the General Assembly is without the authority under the Georgia Constitution to provide by statute for the removal at law of a member of a local board of education. The Constitution vests “[t]he legislative power of the state” in the General Assembly, Ga. Const. of 1983, Art. III, Sec. I, Par. I, and as we have explained, the lawmaking power of the General Assembly is “plenary.” Bryan v. Ga. Public Service Comm., 238 Ga. 572, 573, 234 S.E.2d 784 (1977). See also Sears v. State of Ga., 232 Ga. 547, 553–554(3), 208 S.E.2d 93 (1974) ( “The inherent powers of our State General Assembly are awesome.... [The General Assembly] is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” (Citation omitted)). For that reason, when this Court is asked to consider the constitutionality of an act of the General Assembly, we must indulge a strong presumptionthat it is a proper exercise of the legislative power, SEIU v. Perdue, 280 Ga. 379, 380, 628 S.E.2d 589 (2006), and this presumption can be overcome only by a showing of a “clear and palpable” conflict with the Constitution. Dev. Auth. of DeKalb County v. State of Ga., 286 Ga. 36, 38(1), 684 S.E.2d 856 (2009). With respect to OCGA § 20–2–73, we conclude that the strong presumption of constitutionality is especially warranted, and it has not been overcome in this case by a showing of a “clear and palpable” conflict with the Constitution.

(a) For several reasons, our recognition of a strong presumption of constitutionality is especially sound in this case. First, it is a fundamental principle of our constitutional tradition that no public officer—whether constitutional or only statutory—is above the law. See United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 27 L.Ed. 171 (1882) (“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.”). See also State ex rel. Low v. Towns, 8 Ga. 360, 368 (1850) (“This is a government of laws and not of men....”); Bonner v. State ex rel. Pitts, 7 Ga. 473, 481 (1849) (“Every officer, from the highest to the lowest, in our government is amenable to the laws of his country.... When the voice of the people speaks in the form of a legislative enactment, all are bound to obey the mandate....”).⁹ But as we have explained, this fundamental principle would be “entirely nugatory and inoperative, if there was no remedy provided to enforce obedience to [the law].” Bonner, 7 Ga. at 483 (emphasis in original). Consequently, the law long has acknowledged that the power to provide the means by which a public officer might be suspended or removed at law from office for a failure to satisfy the qualifications of the office, for malfeasance in office, or for misfeasance in office is a power that necessarily inheres in the legislative power, except to the extent that the Constitution provides otherwise. See Throop, A Treatise on the Law Relating to Public Officers and Sureties in Official Bonds § 345 (1892) (“[T]he power of the legislature [with respect to the removal of public officers] is practically unlimited, except where it is limited by the provisions of the constitution, having express or implied reference to this particular subject.”).¹⁰ See also 67 CJS, Officers § 228 (“The authority to remove a public officer may be incident of the sovereign power, and in the absence of constitutional restraint, the power is implied in all governmental...