State Bd. of Educ. v. Drury

• Decision Date: 12 October 1993
• Docket Number: S93A1228 and S93X1230,Nos. S93A1226,S93X1227,s. S93A1226
• Parties: , 87 Ed. Law Rep. 302 STATE BOARD OF EDUCATION et al. v. DRURY et al. DRURY et al. v. STATE BOARD OF EDUCATION et al. STATE BOARD OF EDUCATION et al. v. JONES. JONES v. STATE BOARD OF EDUCATION et al.
• Court: Georgia Supreme Court

Page 290

437 S.E.2d 290

263 Ga. 429, 87 Ed. Law Rep. 302

STATE BOARD OF EDUCATION et al. v. DRURY et al.

DRURY et al. v. STATE BOARD OF EDUCATION et al.

STATE BOARD OF EDUCATION et al. v. JONES.

JONES v. STATE BOARD OF EDUCATION et al.

Nos. S93A1226, S93X1227, S93A1228 and S93X1230.

Supreme Court of Georgia.

Oct. 12, 1993.

Reconsideration Denied Nov. 19, 1993.

Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Kathryn Allen, Sr. Asst. Attys. Gen., Atlanta, for State.

Jonathan A. Zimring, Zimring & Ellin, Atlanta, for Drury and Jones.

CARLEY, Justice.

Acting pursuant to OCGA § 20-2-240(a), appellant-defendant State Board of Education (Board) promulgated rules and regulations whereby the teachers of this state would initially be issued non-renewable three-year teaching certificates and, in order for them to receive renewable teaching certificates, they would be required, during the three-year period, to pass the Teachers' Performance Assessment Instrument (TPAI). In Department of Ed. v. Kitchens, 193 Ga.App. 229, 387 S.E.2d 579 (1989), however, those rules and regulations pursuant to which the Board had implemented the TPAI were held to have been invalidly promulgated. Appellees-plaintiffs are teachers who at one time held the non-renewable teaching certificates, but who were subsequently denied the renewable teaching certificates due to their failure to have passed the TPAI. After Kitchens, all those teachers, including appellees, who had failed to pass the TPAI were deemed to be eligible to return to the teaching profession and their non-renewable teaching certificates were restored to them. Appellees, however, sought additional relief by filing the instant action seeking to recover monetary damages against the Board and the individual Board members. According to the allegations of their complaint, appellees were entitled to recover damages because their federal and state constitutional rights had been violated when they were originally denied renewable teaching certificates based upon their failure to have passed the TPAI.

After discovery, cross-motions for summary judgment as to liability were filed. The trial court granted summary judgment in favor of appellees against the Board, but granted summary judgment in favor of the individual Board members against appellees. In Case Numbers S93A1226 and S93A1228, the Board appeals from the grant of summary judgment in favor of appellees and, in Case Numbers S93X1227 and S93X1230, appellees cross-appeal.

CASE NUMBERS S93A1226 AND S93A1228

1. Under the doctrine of sovereign immunity, the state cannot be sued without its consent. " 'It is an established principle of jurisprudence in all civilized nations that the sovereign can not be sued in its own courts, or in any other, 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.' " Musgrove v. Ga. R. & Banking Co., 204 Ga. 139, 159, 49 S.E.2d 26 (1948). In this state, sovereign immunity has constitutional status and that doctrine "cannot be abrogated ... by this court." Sheley v. Bd. of Public Ed. for the City of Savannah and the County of Chatham, 233 Ga. 487, 488, 212 S.E.2d 627 (1975).

Accordingly, in granting summary judgment in favor of appellees as to the Board's liability for damages, the trial court was necessarily compelled to rely only upon theories of recovery which would not be barred by the doctrine of sovereign immunity. One such theory was that appellees were entitled to recover damages pursuant to the eminent domain provision of our constitution. "[P]rivate property shall not be taken ... for public purposes without just and adequate compensation being first paid." Georgia Const. of 1983, Art. I, Sec. III, Par. I(a). Since the recovery of just and adequate compensation for private property which is taken for public purposes is itself an express constitutional right, sovereign immunity is not a viable bar to an action to enforce that right. See Smith v. Floyd County, 85 Ga. 420, 423(2), 11 S.E. 850 (1890); C.F.I. Constr. Co. v. Bd. of Regents of the Univ. Sys. of Ga., 145 Ga.App. 471, 243 S.E.2d 700 (1978).

In order for damages to be recoverable by appellees under an eminent domain theory, however, some element of their "private property" must have been "taken" from them for a public purpose. The "private property" which appellees contend was "taken" from them for a public purpose was their ability to engage in the teaching profession in this state. "Where the [s]tate confers a license to engage in a profession, trade, or occupation, not inherently inimical to the public welfare, such license becomes a valuable right...." (Emphasis supplied.) Leakey v. Ga. Real Estate Comm., 80 Ga.App. 272, 273, 55 S.E.2d 818 (1949). Thus, a license to engage in a profession, once it has been issued, becomes "a property right...." Georgia Real Estate Comm. v. Horne, 141 Ga.App. 226, 231(3), 233 S.E.2d 16 (1977). "Once licenses are issued, ... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees." (Emphasis supplied.) Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

It is undisputed, however, that appellees had been granted only non-renewable teaching certificates and that those certificates were not taken from appellees. Appellees' non-renewable teaching certificates expired after three years and, at that time, they simply could not continue to teach in this state because, having failed to pass the TPAI, they were deemed to be ineligible for renewable teaching certificates. Accordingly, appellees' complaint is not that any teaching certificate was taken from them, but that renewable teaching certificates were denied to them. Compare Bell v. Burson, supra; Georgia Real Estate Comm. v. Horne, supra; Leakey v. Ga. Real Estate Comm., supra. " 'Property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits ... To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than an unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.' [Cit.]" Pace v. Smith, 248 Ga. 728, 732-733(3), 286 S.E.2d 18 (1982). Thus, appellees had no property interest in the unobtained renewable teaching certificates, absent their compliance with the regulatory requirements for securing such certificates. "An individual does not have a constitutional right to practice a ... profession since such a right is subordinate to the state's right to regulate such a profession. [Cits.]" Brown v. State Bd. of Examiners of Psychologists, 190 Ga.App. 311, 312(1), 378 S.E.2d 718 (1989).

Of course, appellees were at all times free to bring suit to remove any regulatory impediment, including the requirement that they pass the TPAI, which they might contend was unlawfully or unconstitutionally preventing them from obtaining a certificate to engage in the teaching profession.

A State cannot exclude a person from the practice of ... any ... occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.

(Emphasis supplied.) Schware v. Bd. of Bar Examiners of New Mexico, 353 U.S. 232, 238-239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). See also State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832, 412 S.E.2d 532 (1992); Baranan v. State Bd. of Nursing Home Admrs., 143 Ga.App. 605(1), 239 S.E.2d 533 (1977).

In the instant case, however, appellees do not seek the removal of any regulatory impediment to their practice of the teaching profession, that regulatory impediment having already been removed by virtue of the holding in Kitchens. Appellees seek monetary damages because an invalid and allegedly unconstitutional regulatory impediment to their practice of the teaching profession did exist at one time. The state has provided a remedy for those, such as appellees, who contend that their rights have been infringed by the rules and regulations of state departments and agencies. "The validity of any rule may be determined in an action for declaratory judgment when it is alleged that the rule or its threatened application interferes with or impairs the legal rights of the petitioner. A declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the regulation in question." OCGA § 50-13-10(a). It is thus clear that the state has prescribed the terms and conditions on which it consents to be sued based upon the alleged invalidity or unconstitutionality of the rules and regulations of its departments and agencies. Pursuant to OCGA § 50-13-10, the state has "consented" to be sued and has waived its sovereign immunity only as to declaratory judgment actions wherein the rules and regulations of its departments and agencies are challenged. See Irvin v. Woodliff, 125 Ga.App. 214, 216(1), 186 S.E.2d 792 (1971). Appellees did not pursue this available remedy. Instead, they waited until after the Board's rules and regulations had already been declared invalid in Kitchens and then brought the instant action seeking damages. The state has not "consented" to be sued for...