Olvera v. University System of Georgia's Board of Regents

In the Supreme Court of Georgia
Decided: February 1, 2016
S15G1130. OLVERA et al. v. UNIVERSITY SYSTEM OF GEORGIA’S
BOARD OF REGENTS et al.
MELTON, Justice.
In this case, a group of college students, including Miguel Angel Martinez
Olvera, who are not United States citizens and who are grant beneficiaries of the
Deferred Action for Childhood Arrivals program (DACA) filed a declaratory
judgment action against the University System of Georgia’s Board of Regents
and its members in their official capacities (collectively, the Board) seeking a
declaration that they are entitled to in-state tuition at schools in the University
System of Georgia. The trial court granted the Board’s motion to dismiss on the
ground that sovereign immunity bars the action, and the Court of Appeals
affirmed the trial court. Olvera v. Univ. Sys. of Georgia’s Bd. of Regents, 331
Ga. App. 392 (771 SE2d 91) (2015). We affirm.
As set forth by the Court of Appeals,
in their declaratory judgment petition, the students alleged that their
status as DACA beneficiaries rendered them lawfully present in the
United States. They further alleged that the Board’s policy manual
required students to provide verification of their lawful presence in
the United States before being classified as in-state students for
tuition purposes. And they alleged that the Board had not defined
“lawful presence” for the purpose of its policy manual. The students
alleged that the Board has “refused to confer in-state tuition benefits
to Georgia college students who have obtained lawful presence in
the United States through DACA.” They sought a declaration that
they “and other similarly situated DACA approved students who
would otherwise qualify for in-state tuition benefits are entitled to
those benefits.”
Arguing that sovereign immunity barred the declaratory
judgment action, the Board moved for the trial court to dismiss it.
The trial court agreed and granted the motion to dismiss, reasoning
among other things that sovereign immunity extends to declaratory
judgment actions and that the provision in the Administrative
Procedures Act authorizing declaratory judgment actions against
state agencies to determine the validity of agency rules . . . did not
waive sovereign immunity in actions concerning “interpretive
rules.”
(Punctuation omitted.) Id. at 392–93. The Court of Appeals agreed with the trial
court.
The sweep of sovereign immunity under the Georgia Constitution is
broad. It provides:
Except as specifically provided in this Paragraph, sovereign
immunity extends to the state and all of its departments and
agencies. The sovereign immunity of the state and its departments
2
and agencies can only be waived by an Act of the General
Assembly which specifically provides that sovereign immunity is
thereby waived and the extent of such waiver.
Ga. Const. Art. I, Sec. II, Par. IX (e). In Georgia Dept. Of Natural Resources v.
Center for a Sustainable Coast, 294 Ga. 593 (755 SE2d 184) (2014), we recently
explained the extensive nature of sovereign immunity.
The plain and unambiguous text of the 1991 constitutional
amendment shows that only the General Assembly has the authority
to waive the State's sovereign immunity. [Gilbert v. Richardson,
264 Ga. 744, 748 (3) (452 SE2d 476) (1994)](subsection (e) of the
amendment “confers upon the legislature the authority to waive
sovereign immunity”); see also Woodard v. Laurens County, 265
Ga. 404 (1) (456 SE2d 581) (1995) (“A waiver of sovereign
immunity is a mere privilege, not a right, and the extension of that
privilege is solely a matter of legislative grace.”).
Sustainable Coast, supra, 294 Ga. at 599 (2).1 It is settled that the Board is an
agency of the State to which sovereign immunity applies.
The Board of Regents is the state agency vested with the
governance, control, and management of the University System of
Georgia. Ga. Const. Art. VIII, Sec. IV, Par. I (b). Therefore, . . . the
board is an agency of the state to which sovereign immunity
applies. Pollard v. Board of Regents [of the University System] of
1
We note that sovereign immunity may also, in certain circumstances, be
waived by our Constitution, itself. For example, the State has no sovereign
immunity that would allow it to take private property without just compensation.
See, e.g., Thomasville v. Shank, 263 Ga. 624 (1) (437 SE2d 306) (1993).
3
Ga., 260 Ga. 885 (401 SE2d 272) (1991).
Wilson v. Board of Regents of the University System of Georgia, 262 Ga. 413,
414 (3) (419 SE2d 916) (1992). Therefore, absent some exception, the Board is
immune from the declaratory judgment action brought by the students.
The students argue that the Board’s sovereign immunity is waived under
OCGA § 50-13-10 (a) of the Georgia Administrative Procedure Act, which
provides:
The validity of any rule, waiver, or variance may be determined in
an action for declaratory judgment when it is alleged that the rule,
waiver, or variance 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 rule, waiver, or variance in
question.
This contention is misplaced. Even if we assume without deciding that the
Board is subject to the APA,2 the Board did not issue the residency requirements
pursuant to the APA, and, in fact, the Board has never issued any rule pursuant
to the APA. In addition, the Board’s “policy [regarding residency requirements]
2
We have employed this assumption without the necessity for actually
making any such determination in a prior case. See Tompkins v. Board of
Regents of the University System of Georgia, 262 Ga. 208 (417 SE2d 153)
(1992).
4
was merely the agency's interpretation of [an internal manual], not an
independently promulgated agency rule, and did not bring plaintiff within the
scope of OCGA § 50-13-10.” (Citation and punctuation omitted.) Georgia
Oilmen’s Ass’n v. Dept. of Revenue, 261 Ga. App. 393, 400 (582 SE2d 549)
(2003). As such, the residency requirements challenged by the students is
not a “rule” within the purview of § 50-13-10. . . . [The residency
requirements have] never been enacted as a [Board] rule pursuant
to the APA. Therefore, the [residency requirements constitute] an
“interpretive rule” [that falls within an exception to the procedural
requirements of the APA pursuant to OCGA §§ 50-13-3 and 50-13-
4,] not a “rule” [subject to the APA] within the meaning of §
50-13-10.”
Roy E. Davis & Co. v. Dept. of Revenue, 256 Ga. 709, 711 (353 SE2d 195)
(1987). See also, Georgia Oilmen’s Ass’n, supra. Therefore, the students’
contention that their declaratory judgment action is authorized by OCGA §
50-13-10 fails, and the students have pointed to no other source of law
containing an explicit waiver of the Board’s sovereign immunity in this matter.3
Accordingly, the trial court correctly dismissed the students’ declaratory
3
We note that the students’ action regards only the proper interpretation
of terminology in a policy manual, not its very constitutionality.
5
judgment action, as found by the Court of Appeals.4
As we did in Sustainable Coast, supra, we note that
[o]ur decision today does not mean that citizens aggrieved by the
unlawful conduct of public officers are without recourse. It means
only that they must seek relief against such officers in their
individual capacities. In some cases, qualified official immunity
may limit the availability of such relief, but sovereign immunity
generally will pose no bar. See IBM v. Evans, 265 Ga. [215,
220–222 (453 SE2d 706) (1995)] (Benham, P.J., concurring in part
and dissenting in part).
Sustainable Coast, supra, 294 Ga. At 603 (2). At this point in time, however, the
students have not attempted to follow this route.
Judgment affirmed. All the Justices concur.
4
In past cases, where the question of whether this sort of declaratory
judgment action against the State is barred by the doctrine of sovereign
immunity under our current Constitution has actually been raised as an issue, we
have pretermitted the question. See, e.g., Southern LNG, Inc. v. MacGinnitie,
294 Ga. 657, 659 n.5 (755 SE2d 683) (2014) (719 SE2d 473) (2011); Jenkins
v. Walker, 287 Ga. 783 (700 SE2d 362) (2010); Georgia Council of Professional
Archeologists v. Board of Regents, 271 Ga. 757 (523 SE2d 879) (1999). In this
opinion, we squarely address that question and find that declaratory judgment
actions of this type are, in fact, barred by the doctrine of sovereign immunity.
6