Goolsby v. Regents of University System of Georgia, 53323

• Decision Date: 15 March 1977
• Docket Number: No. 2,No. 53323,53323,2
• Citation: 141 Ga.App. 605,234 S.E.2d 165
• Parties: T. M. GOOLSBY, Jr. v. REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al
• Court: Georgia Court of Appeals

Page 165

234 S.E.2d 165

141 Ga.App. 605

T. M. GOOLSBY, Jr. v. REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al.

No. 53323.

Court of Appeals of Georgia, Division No. 2.

March 15, 1977.

Ralph W. Walker, II, Haas, Holland, Levison & Gibert, Theodore G. Frankel, Richard G. Garrett, Atlanta, for appellant.

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

SHULMAN, Judge.

The appellant, a professor at the University of Georgia, brought this suit against "Regents of the University System of Georgia," each of the regents individually, and other administrators of the University of Georgia, seeking an order that the defendants promote him and pay him for such promotion from the date he alleged they wrongfully denied him the promotion. In their joint answer, the defendant moved to dismiss, asserting a lack of jurisdiction over the person of defendant "Regents of the University System of Georgia," based on the doctrine of sovereign immunity. They also moved to dismiss the complaint for failure to state a claim for which relief may be granted. Both motions were granted, from which order this appeal is brought. We affirm the granting of the first motion and reverse the second.

1. Prior to the decision in Busbee, Governor v. Georgia Conference, American Association of University Professors, 235 Ga. 752, 221 S.E.2d 437, it was clear that the Board of Regents, as an agency of the state, was immune from suit under the doctrine of sovereign immunity. Azizi v. Board of Regents, 132 Ga.App. 384, 208 S.E.2d 153, writ of cert. dismissed, 233 Ga. 487, 212 S.E.2d 627. In the Busbee case, however, our Supreme Court found a waiver of sovereign immunity as to the Regents in a 1785 Act of the General Assembly, and held the Regents amenable to suit. The instant case was filed October 16, 1975, after the Busbee decision. Subsequently, the General Assembly passed an Act repealing the 1785 Act on which the holding in Busbee was based, and reaffirming the applicability of the doctrine of sovereign immunity to the Board of Regents, Ga.Laws 1976, p. 452 (Code Ann. § 32-101.1). It was on the basis of that statute, effective March 18, 1976, that the trial court granted the motion to dismiss as to the Board of Regents.

The issue presented by appellant's first enumeration of error is whether the reimposition of sovereign immunity of the Board of Regents could oust the court of its jurisdiction over that defendant so as to defeat a pending action. We hold that it could and did.

The Georgia Constitution, 1945, Art. I, Sec. III, Par. II (Code Ann. § 2-302), prohibits the passage of retroactive laws. This constitutional prohibition and the substantially identical provisions of Code Ann. § 102-104 have consistently been construed to forbid the passage of laws which impair vested rights. "The test is whether there was a vested right. If so, no subsequent legislative Act could impair it; but if not, there is no bar to a change or abolition of it at any time before it becomes fixed by a judgment." Spengler v. Employers, etc., Ins. Co., 131 Ga.App. 443, 206 S.E.2d 693.

The question in this case, therefore, is whether appellant had a vested right to sue the Board of Regents by virtue of having had the trial court's jurisdiction attach to that defendant. It is appropriate in that context to examine briefly the nature of sovereign immunity and waivers thereof.

Immunity from suit is a basic attribute of sovereignty. "The sovereignty of the State is supreme, and to maintain that sovereignty the supremacy must also be maintained, and to do that the State must never be subjected to suit without its expressed consent." Roberts v. Barwick, 187 Ga. 691(1), 1 S.E.2d 713. It is clear from Roberts v. Barwick, supra, Crowder v. Dept. of State Parks, 228 Ga. 436, 185 S.E.2d 908, the cases cited in Crowder, and all subsequent cases dealing with sovereign immunity that only by the express consent of the state can it be made amenable to suit. Obviously, then, such consent is a matter of legislative grace, the extension of a privilege to which citizens have no right. This view of waivers of sovereign immunity is supported by rulings from other jurisdictions: ". . . inasmuch as the right to sue is purely statutory, the legislature has the power not only to restrict such right but to withhold it, or withdraw it altogether." Morris v. South Carolina State Highway Dept.,264 S.C. 369, 215 S.E.2d 430. A statutory waiver of sovereign immunity, as a matter of grace could be granted, withdrawn or restricted at the will of the legislature. University of Kentucky v. Guynn, 372 S.W.2d 414. The U. S. Supreme Court has made clear the nature of a waiver of sovereign immunity: "It is an established principle of jurisprudence in all civilized nations that the sovereign can not be sued in its own courts . . . without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it." Beers v. Arkansas, 61 U.S. 527, 20 How. 527, 15 L.Ed. 991.

A close analogy to the present situation can be seen in Fulton Bag & Cotton Mills v. Williams, 212 Ga. 783, 95 S.E.2d 848. There, an income tax exemption for the amount of federal income tax paid was withdrawn by repeal of the statute providing the exemption. The court emphasized that the exemption was a privilege granted by the legislature and held that "A person has no vested right in statutory privileges or exemptions." Fulton Bag & Cotton Mills v. Williams, supra, at 785, 786, 95 S.E.2d at 851. Since the exemption, a statutory privilege, was not a vested right, the court went on to hold that "Until final judgment upon a pending action, the repeal of the statute which gives the right of action, or upon which the suit is predicated, destroys the right of action, and the action itself abates." Id., at 787, 95 S.E.2d at 852.

Because the consent to sue the state in the instant case was, as was the tax exemption in Fulton Bag, a statutory grant of privilege, we hold that it created no vested right and the repeal of it withdrew from the trial court the authority to proceed. This, too, is supported by the decisions of other jurisdictions. In Owens v. State Highway Dept., 165 S.C. 180, 163 S.E. 473, a case in which consent to sue the state was withdrawn after the suit was filed, the Supreme Court of South Carolina held: " 'The consent of a state to be sued, being voluntary, may be withdrawn or modified by the state whenever it sees fit, even though pending suits may be thereby defeated, and upon the repeal of the statute authorizing the suit, the Court in which the suit is pending can proceed no further therein'. . . ." Texas has reached the same conclusion: ". . . 'a state's consent to be sued is not a contract, and it can be repealed or modified at any time at the discretion of the state, even though pending suits are thereby defeated; and when the consent is withdrawn, the jurisdiction of the court in which the case is pending is at an end and the suit falls to the ground'." Producers' & Refiners' Corp. of Texas v. Heath, Tex.Civ.App., 81 S.W.2d 533. See Oliver American Trading Co. v. Government of U. S. of Mexico, 5 F.2d 659 (2d Cir., 1924); Railroad Co. v. Alabama, 101 U.S. 832, 25 L.Ed. 973.

2. Appellant contends that the reimposition of sovereign immunity here denies him due process of law and violates the constitutional proscription against ex post facto laws. As to the latter contention, it is sufficient to point out that "The term ex post facto refers to criminal statutes." Williams v. State, 213 Ga. 221, 98 S.E.2d 373. This is not a case involving a criminal statute.

3. The due process argument is equally unavailing. The U. S. Constitution forbids a state to "deprive any person of life, liberty, or property, without due process of law."...