Service Employees Intern. Union v. Perdue

• Decision Date: 27 March 2006
• Docket Number: No. S05A1634.,S05A1634.
• Citation: 280 Ga. 379,628 S.E.2d 589
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION et al. v. PERDUE et al.
• Court: Georgia Supreme Court

280 Ga. 379

628 S.E.2d 589

SERVICE EMPLOYEES INTERNATIONAL UNION et al. v. PERDUE et al.

No. S05A1634.

Supreme Court of Georgia.

March 27, 2006.

Reconsideration Denied April 13, 2006.

John R. Myer, Michael E. Kramer, Atlanta, Carol R. Golubock, Washington, DC, for Service Employees International Union.

Thurbert E. Baker, Atty. Gen., Bryan Keith Webb, Asst. Atty. Gen., Kathleen T. Gosden, Asst. Atty Gen., for appellee.

CARLEY, Justice.

In 1996 and again in 2000, the General Assembly amended OCGA § 45-20-2(15), which defines "unclassified service" as that term relates to the State Merit System. Ga. L. 1996, pp. 684, 687 § 2; Ga. L. 2000, pp. 1377, 1382 § 1. The effect of those amendments was to remove persons hired after July 1, 1996 from that class of employees whose employment is subject to the rules of the merit system, as well to expand the definition of "unclassified service" to include those jobs created after that date and those persons who accepted employment in an unclassified position thereafter. Subsequently, two state employees and their union, Services Employees International Union, (hereinafter referred to collectively as Employees) filed suit in which they challenged the constitutionality of the statutes. They alleged that the amendments to OCGA § 45-20-2(15) violate Art. IV, § III, Par. I(b) of the Ga. Const. of 1983, which provides, in its entirety, that

[t]he [State Personnel B]oard shall provide policy direction for a State Merit System of Personnel Administration and may be vested with such additional powers and duties as provided by law. State personnel shall be selected on the basis of merit as provided by law.

Employees specifically contended that Art. IV, § III, Par. I(b) mandates a state merit system which, as a matter of constitutional law, must include such traditional features as tenure and appeal rights. However, after conducting a hearing, the trial court found that the amendments did not violate the constitutional provision. Employees appeal from that order of the trial court.

Employees place primary emphasis on the principle that, in construing Art. IV. § III, Par. I, this Court must consider the intention of the framers and "`ascertain the prior law, the mischief, and the remedy.'" Clarke v. Johnson, 199 Ga. 163, 166, 33 S.E.2d 425 (1945). However, that is only one of several applicable rules of constitutional construction, all of which must be given full and equal effect. Accordingly, we must presume that acts of the General Assembly are constitutional, and never declare them void "`except in a clear and urgent case....' [Cit.]" Brugman v. State, 255 Ga. 407, 414(5), 339 S.E.2d 244 (1986). "Our duty is to construe and apply the Constitution as it is now written." Buford v. Buford, 231 Ga. 9, 12, 200 S.E.2d 97 (1973), overruled on other grounds, Ledford v. Bowers, 248 Ga. 804, 807(2)(d), 286 S.E.2d 293 (1982). "[T]his Court must honor the plain and unambiguous meaning of a constitutional provision. [Cit.]" Lowry v. McDuffie, 269 Ga. 202, 206(3), 496 S.E.2d 727 (1998). Where a constitutional provision "`is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)' [Cit.]" Hollowell v. Jove, 247 Ga. 678, 681, 279 S.E.2d 430 (1981).

For purposes of applying that principle upon which Employees rely most heavily, the relevant "prior law" for determining the intention of the framers of Art. IV, § III, Par. I is "at will" employment. However, all of the other applicable rules of constitutional construction must be applied to determine whether the "mischief" which that constitutional provision was intended to address was the elimination of the spoils system and whether the "remedy" contemplated therein was the creation, as a matter of constitutional law, of a merit system with features such as protection of employees from discharge without cause and a right to appeal adverse employment actions.

Tenure and the right to appeal certainly can constitute features of a merit system. However, the language of Art. IV, § III, Par. I does not make any mention of those features. Indeed, that constitutional provision does not, as Employees would seem to contend, create the State Merit System. Instead, as previously noted, it only creates a State Personnel Board, and then provides in subsection (b) that

[B]oard shall provide policy direction for a State Merit System of Personnel Administration and may be vested with such additional powers and duties as provided by law. State personnel shall be selected on the basis of merit as provided by law. (Emphasis supplied.)

Clearly, the selection of state employees based upon merit is "as provided by law," not as set forth in that provision of our Constitution. Thus, Art. IV, § III, Par I creates a State Personnel Board with authority to direct the policy of "a" State Merit System, but it leaves it to the General Assembly to actually create the State Merit System by enactment of laws regarding the selection of state personnel based upon merit.

Since, by its unambiguous terms, Art. IV, § III, Par. I does not purport to create a State Merit System, a denomination of that provision as our constitution's Merit System provision would be entirely misleading. Consistent with the mandate of Art. IV, § III, Par. I(b), the State Merit System is itself a creation of statute. OCGA §§ 45-20-1 et seq. Had the framers intended to create, as matter of constitutional, rather than statutory, law, a State Merit System which included features such as tenure and the right of appeal, they could have so provided. See McCafferty v. Medical College of Ga., 249 Ga. 62, 68, 287 S.E.2d 171 (1982) (constitutional provision granting Board of Regents "the powers and duties as provided by law existing at the time of the adoption of the Constitution of 1945 ..."), overruled on other grounds, Self v. City of Atlanta, 259 Ga. 78, 80(1), 377 S.E.2d 674 (1989). However, they did not do so. Nothing in Art. IV, § III, Par. I(b) can be construed as divesting the General Assembly of the authority to determine what rights and benefits accrue to state employees under the State Merit System. Under that provision, the State Personnel Board has the constitutional authority to provide policy direction to the State Merit System created by the General Assembly, but the General Assembly retains the exclusive power to determine the applicable legal parameters within which the Board exercises its authority over policy. "The State Personnel Board is authorized to adopt, with the approval of the Governor, rules and regulations to effectuate the state merit system." (Emphasis supplied.) Clark v. State Personnel Bd., 252 Ga. 548, 550(3), 314 S.E.2d 658 (1984).

Thus, the "remedy" for the "mischief" of the spoils system is clearly not Art. IV, § III, Par. I. Instead, the "remedy" for that "mischief" is OCGA §§ 45-20-1 et seq., enacted by the General Assembly pursuant to its authority under that constitutional provision to legislate with regard to the selection of state employees based upon merit. "`It is the "spoil[s] system" that Civil Service desires to eradicate....' [Cit.] We believe that the Georgia Merit System Law ([cit.]) was enacted with the same purpose as other civil service legislation in this country...." (Emphasis supplied.) Scott v. Undercofler, 108 Ga.App. 460, 463, 133 S.E.2d 444 (1963).

We have repeatedly held that legislation providing systems for public employment [is] subject to amendment or even repeal. [Cits.] The Merit System Act was never intended as protection of positions. It is instead legislation which provides a system for a more stable government administered by persons who are protected from political whim. It therefore amounts to a system which protects people and not positions. (Emphasis supplied.)

Clark v. State Personnel Bd., supra at 550(2)(b), 314 S.E.2d 658. Accordingly, any protection provided for state employees is exclusively a function of legislation, not the Constitution. In the absence of a constitutional amendment which creates a State Merit System and which sets forth enumerated rights for state employees, the determination of how best to "remedy" the "mischief" of the spoils system is a matter which Art. IV, § III, Par. I leaves entirely for the General Assembly.

Where the natural and reasonable meaning of a constitutional provision is clear and capable of a "natural and reasonable construction" ([cit.]), courts are not authorized either to read into or to read out that which would add to or change its meaning.

Foster v. Brown, 199 Ga. 444, 460, 34 S.E.2d 530 (1945) (On Motion for Rehearing).

In upholding the constitutionality of the 1996 and 2000 statutes, the trial court adhered to the full complement of applicable rules of construction. The contrary construction of Art. IV, § III, Par. I advanced by Employees would require that we read into that provision a completely fictitious limitation on the General Assembly's constitutional power to legislate in matters regarding the State Merit System. Therefore, the judgment of the trial court is affirmed.

Judgment affirmed.

HUNSTEIN, P.J., THOMPSON, and HINES, JJ., concur. SEARS, C.J., BENHAM, J., and Judge LOUISA ABBOT dissent. MELTON, J., not participating.

BENHAM, Justice, dissenting.

A majority of this Court has approved today of legislative action which effectively repeals a constitutional provision without taking the approved course of submitting to the people the question whether they wished to have their constitution changed. Together, the statutory amendments at the heart of this case have the effect of destroying the system of personnel administration which has safeguarded state employees and state government from whim and political influence since 1943 and which has been a matter of constitutional law since 1945. The "spoils system," which the...