Rebecca Barnes v. Bobby Bearden

                             FOURTH DIVISION
                              DILLARD, P. J.,
                          RICKMAN and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.

                                                                   October 14, 2020

In the Court of Appeals of Georgia
 A20A1041. BARNES et al. v. BEARDEN et al.

      RICKMAN, Judge.

      Rebecca Barnes and the Georgia Association of Educators (“GAE”)1 appeal the

dismissal of their complaint in which they asserted that state and local education

officials illegally deprived public school teachers, such as Barnes, of their vested

tenure rights under Georgia’s Fair Dismissal Act (“FDA”), OCGA § 20-2-940 et seq.,

when their school system was converted into a charter school system and when

Barnes was thereafter terminated. Barnes and the GAE asserted that by depriving

them of these rights, the officials violated the Georgia Constitution’s prohibition of

        The GAE is a non-profit member organization that assists and represents
public school teachers in Georgia.
retroactive laws and laws that impair the obligation of contracts. For the reasons that

follow, we vacate in part, reverse in part, and remand.

      On appeal of the grant of a motion to dismiss, this Court conducts a de novo

review. See Dove v. Ty Cobb Healthcare Systems, 316 Ga. App. 7, 9 (729 SE2d 58)

(2012). “[O]ur role is to determine whether the allegations of the complaint, when

construed in the light most favorable to the plaintiff, and with all doubts resolved in

the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to

relief under any state of provable facts[.]” (Citations and punctuation omitted.) Id.

      Under the FDA, Georgia public education teachers who accept a contract for

four consecutive years acquire certain tenure rights, including a limitation on the

grounds for termination; the right to receive written notice of a local school board’s

intention to demote, dismiss, or non-renew a teacher, together with the reasons

therefor; and the right to a hearing, if requested. See OCGA §§ 20-2-940 (b) &

20-2-942 (b) (2). In the event of an adverse decision, the teacher may appeal to the

State Board of Education. See OCGA § 20-2-940 (f).

      Construed in the light most favorable to Barnes and the GAE, the record shows

that Barnes was a teacher in the Fannin County School System (“FCSS”). At the

beginning of the 2003-2004 school year, Barnes achieved tenure in accordance with

the FDA.

      Several years after Barnes achieved tenure, the General Assembly enacted the

Charter Systems Act, effective July 1, 2007, which amended the Charter Schools Act

of 1998 by establishing charter school systems. See 2007 Ga. L. 185, § 1-16; OCGA

§§ 20-2-2060 & 20-2-2062 through 20-2-2069. Importantly, the Charter Systems Act

provides that, “[e]xcept as provided in this article or in a charter,” charter systems

“shall not be subject to” the provisions of Title 20 — Education — of the Georgia

Code, including the requirements of the FDA. See OCGA § 20-2-2065 (a).

      In October 2014, the Fannin County School Board petitioned the State Board

of Education to convert FCSS into a charter system under the Charter Systems Act.

The Fannin County School Board did not request that any provisions of the FDA be

included in its charter agreement. The State Board approved the Fannin School

Board’s petition, and the parties entered into a charter agreement by which FCSS

would operate as a charter system for five years beginning July 1, 2015.

      Meanwhile, Barnes had continued her employment with FCSS, but at the end

of the 2016-2017 school year, the Fannin County School Board decided not to renew

her contract, and they did so without providing her with FDA tenure rights. For

example, she was not given notice of the reasons for her termination nor given an

opportunity for a hearing to challenge those reasons.

      Barnes and the GAE filed suit against the superintendent of the Fannin County

School District and named members of the Fannin County Board of Education

(collectively, the “Local Appellees”), and the State School Superintendent and named

members of the State Board of Education (collectively, the “State Appellees”), all in

their individual capacities. In two counts, Barnes and the GAE alleged that the

termination policy adopted and implemented by the FCSS in connection with

becoming a charter school system and the subsequent termination of Barnes deprived

Barnes and the members of the GAE of their tenure rights under the FDA in violation

of the Georgia Constitution’s prohibition of retroactive laws and laws that impair the

obligation of contracts. See Ga. Const. of 1983, Art. I, Sec. I, Par. X (hereinafter

“Paragraph X”). Paragraph X provides: “No bill of attainder, ex post facto law,

retroactive law, or laws impairing the obligation of contract or making irrevocable

grant of special privileges or immunities shall be passed.”

      Barnes and the GAE sought (1) a declaration that Barnes’s termination

retroactively injured her vested rights and impaired her contractual rights in violation

of Paragraph X; (2) a declaration that FCSS’s failure to preserve vested rights of GAE

educators retroactively injured their vested rights and impaired their contractual rights

in violation of Paragraph X; (3) injunctive relief compelling FCSS to reinstate Barnes

with back pay and enjoining FCSS and the State Board of Education from denying

her rights under the FDA in the future; (4) injunctive relief prohibiting FCSS and the

State Board of Education from denying or depriving GAE educators of their FDA

rights in the future; and (5) attorney fees and costs.

      The State Appellees moved to dismiss on several grounds, including sovereign

and official immunity and failure to state a claim under the anti-retroactivity or anti-

impairment-of-contract clauses. With regard to the State Appellees, the trial court

rejected the defense of sovereign immunity; rejected the defense of official immunity

regarding GAE’s claims but barred Barnes’s claims based on that defense2; and held

that Barnes’s and the GAE’s complaint failed to state a claim. The trial court also sua

sponte dismissed the action against the Local Appellees for failure to state a claim.

      Barnes and the GAE appealed the trial court’s decision to this Court. This

Court then transferred the appeal to the Supreme Court of Georgia suggesting that the

appeal implicated that court’s jurisdiction over cases involving constitutional

       The trial court made no ruling as to the applicability of official immunity to
Local Appellees.

questions. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). After concluding that

the trial court did not rule on a constitutional question, the Supreme Court returned

the appeal to this Court.3

      1. Barnes challenges the trial court’s dismissal of her claims against the State

Appellees as being barred by official immunity. We review de novo a trial court’s

dismissal of an action based on official immunity, which is a matter of law. Roberts

v. Mulkey, 343 Ga. App. 685, 687 (1) (808 SE2d 32) (2017).

      In the oral pronouncement of its decision, the trial court stated that Barnes’s

alleged injury was “not a continuing event. Rather, at the time that she was

terminated, the positions of the parties became fixed.” Accordingly, the court

concluded, “her rights and the position of the defendants have all been finalized and

[accrued]. For that reason, she would not be entitled to . . . either declaratory

         In its order returning this appeal to this Court, the Supreme Court noted that
the trial court’s oral pronouncement of its ruling
       shows that it viewed its decision as foreclosing the need for any
      constitutional ruling, and nothing in the summary written order indicates
      otherwise. See Williams v. Williams, 295 Ga. 113, 114 (757 SE2d 859)
      (2014) (noting that, while any discrepancy between an oral
      pronouncement and a subsequent written judgment must be resolved in
      favor of the written judgment, an oral pronouncement may provide
      insight into the meaning of the subsequent written judgment).

judgment or injunctive relief.” Barnes contends that the trial court’s decision is

contrary to the recent decision of Lathrop v. Deal, 301 Ga. 408 (801 SE2d 867)


      In Lathrop, the Supreme Court held that “official immunity generally is no bar

to claims against state officers in their individual capacities for injunctive and

declaratory relief from the enforcement of laws that are alleged to be unconstitutional,

so long as the injunctive and declaratory relief is only prospective in nature.”

Lathrop, 301 Ga. at 434-435 (III) (C). Suits for “monetary damages and other

retrospective relief” are barred. Id. at 444 (III) (C). Thus, the issue presented is

whether Barnes sought prospective relief.

      In the complaint, Barnes sought two forms of relief: (1) a declaration that her

termination “retroactively and injuriously affected [her] vested rights and impaired

[her] contractual rights in violation [of Paragraph X]”; and (2) injunctive relief

“compelling FCSS to reinstate [Barnes] with backpay and enjoining FCSS and the

State Board of Education from denying [her] rights under the [FDA].”

      (a) On appeal, Barnes does not present any argument or citation of authority

to support the first form of relief requested — declaratory relief regarding her alleged

retroactive injury. Accordingly, that argument is deemed abandoned. See Court of

Appeals Rule 25 (c) (2) (“Any enumeration of error that is not supported in the brief

by citation of authority or argument may be deemed abandoned.”); Ironwood Capital

Partners v. Jones, _ Ga. App. _ (3) (844 SE2d 245) (2020).

      (b) As for injunctive relief, Barnes argues that her claims for reinstatement,

back pay, and an injunction prohibiting the defendants from denying her FDA rights

in the future are all prospective in nature. The State Appellees argue that the only

actions that Barnes alleged the State Appellees took were to approve the Fannin

County School System’s charter petition and enter into an agreement with the Fannin

School Board in July 2015; the State Appellees assert that these actions are

“necessarily ‘backward-looking.’”

      In Lathop, the Supreme Court defined retrospective relief as “monetary

damages and other relief for wrongs already done and injuries already sustained” and

prospective relief as “relief from the threat of wrongful acts and injuries yet to

come—especially in the form of injunctions and declaratory judgments.” Lathrop,

301 Ga. at 434 (III) (C). Based on these definitions, it is easy for us to conclude that

Barnes’s claim for injunctive relief barring the State Appellees from further

interference with her FDA rights constitutes prospective relief.

      As for reinstatement, we have found no Georgia law on point regarding

whether reinstatement constitutes prospective injunctive relief. Federal courts,

however, draw the same distinction between prospective and retrospective relief

when addressing the analogous issue of whether claims against state officials are

barred by Eleventh Amendment immunity. See Summit Med. Assocs. v. Pryor, 180

F3d 1326, 1337 (II) (B) (11th Cir. 1999) (“[T]he Eleventh Amendment bars suits

against state officials in federal court seeking retrospective or compensatory relief,

but does not generally prohibit suits seeking only prospective injunctive or

declaratory relief.”). And the 11th Circuit has held that “requests for reinstatement

constitute prospective injunctive relief that . . . are not barred by the Eleventh

Amendment.” Lane v. Central Alabama Community College, 772 F3d 1349, 1351

(11th Cir. 2014). The equitable claim for reinstatement is seen as “purely prospective

injunctive relief that orders the state official to return the former employee to the

state’s payroll.” (Citation and punctuation omitted.) Dotson v. Griesa, 398 F3d 156,

178 (IV) (A) (2d Cir. 2005).

      Accordingly, we conclude that Barnes’s claim for injunctive relief barring the

State Appellees from further interference with her FDA rights and her claim for

reinstatement both seek prospective relief and are not barred by official immunity.

      With regard to back pay, however, we conclude that Barnes’s claim would be

barred. At first blush, a claim for back pay certainly appears to constitute a claim for

“monetary damages and other relief for wrongs already done and injuries already

sustained” as stated in Lathrop. Barnes argues that back pay is “‘an integral part of

the equitable remedy of reinstatement’ that ‘is not comparable to damages in a

common law action.’” quoting Harmon v. May Broadcasting Co., 583 F2d 410, 411

(8th Cir. 1978). But neither Harmon nor other cases cited by Barnes are Eleventh

Amendment cases; they are therefore not analogous to the issue of official immunity.

See Harmon, 583 F.2d at 411 (“An award of back pay under Title VII for

discriminatory employment practices is an integral part of the equitable remedy of

reinstatement and is not comparable to damages in a common-law action for breach

of employment contract.”) And, as Barnes admits, the only Eleventh Amendment case

that she cites holds that a claim for backpay is a claim for a retroactive award barred

by the Eleventh Amendment. See Dwyer v. Regan, 777 F2d 825, 836 (2) (B) (2d Cir.

1985); see also Meiners v. Univ. of Kansas, 359 F3d 1222, 1232 (10th Cir. 2004)

(“[C]laims for back pay, monetary damages, and retrospective declaratory relief are

barred by the Eleventh Amendment.”). We find this reasoning persuasive.

       In sum, we hold that the trial court erred by concluding that Barnes’s request

for reinstatement and a prohibition on further interference with her FDA rights are

barred by official immunity but that the trial court correctly held that Barnes’s request

for backpay is so barred. We therefore reverse in part the trial court’s grant of the

State Appellees’s motion to dismiss Barnes’s claims based on official immunity.4

      2. Barnes and the GAE contend that the trial court erred by dismissing their

claims for failure to state a claim. They argue that the trial court erred by relying on

this Court’s decision in Day v. Floyd County Bd. of Ed., 333 Ga. App. 144 (775 SE2d

622) (2015), to foreclose their constitutional claims. We agree.

      The trial court held that the appellate courts had already resolved that any

vested rights under the FDA that Barnes and other GAE teachers may have acquired

ceased to exist when they entered into contracts with the FCSS after it became a

charter school system:

      Under Georgia law, . . . it is settled that the rights of educators are
      determined by statute and are to be looked at at the time of the entry of
      their employment contracts. In this instance, it is undisputed that the

         The trial court did not dismiss GAE’s claims against the State Appellees
based on official immunity. The State Appellees urge us to affirm the dismissal of
GAE’s claims on this alternative ground even though this alternative ground was not
raised in a cross-appeal. We decline to do so; the issue can be addressed on remand.

      Fannin County Board of Education, in fact, was a charter school system;
      has in fact entered into the Charter School Act and that any individuals
      who would contract with them . . . would be subject to its terms and
      conditions. And the [Charter School] Act makes it clear, as well as the
      appellate authorities, that the rights which might exist under the [FDA]
      cease to exist upon entry into a contract with a charter school system.

In Day, this Court held the same thing with regard to plaintiff Day:

      [A]ny right Day has to continued employment derives from the FDA
      only, and the General Assembly has provided that, absent a provision in
      the charter to the contrary, charter schools and charter systems shall not
      be subject to the FDA. See OCGA § 20-2-2065 (a). Having accepted
      employment with a charter system that was not subject to the FDA, Day
      had no tenure or right to continued employment with that charter
      system; consequently, she was not entitled to any of the procedural
      rights afforded to tenured employees under the FDA prior to the
      nonrenewal of her employment contract.

(Footnotes omitted.) Day, 333 Ga. App. at 148-149 (1). The trial court here did not

specifically mention Day in the oral pronouncement of its decision or in the written

order, but the language in the court’s oral pronouncement shows that it followed the

law stated in Day. Thus, based on the law stated in Day, the trial court held that

Barnes and the members of the GAE were not entitled to any tenure rights under the

FDA. And, as shown above, the trial court stopped there and never reached the

Paragraph X constitutional questions raised by Barnes and the GAE. By failing to

reach the constitutional question, the trial court erred.

      In Day, this Court specifically noted that “[w]hether OCGA § 20-2-2065 (a)

is constitutional was not decided below, and it is not an issue that this Court may

decide.” Id. at 149 n.5. Moreover, Day did not arise under the anti-impairment-of-

contract or anti-retroactivity clauses of the Georgia Constitution. And in general, the

simple fact that the legislature enacted a law — here, the Charter Systems Act — that

provided that the FDA did not apply to charter school systems does not mean that the

legislation complies with Paragraph X. For example, “[e]ven when the General

Assembly clearly provides that a law is to be applied retroactively, our Constitution

forbids statutes that apply retroactively so as to injuriously affect the vested rights of

citizens.” (Citation and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 175 (2)

(751 SE2d 337) (2013); see also Swann v. Bd. of Trustees of Joint Mun. Employees’

Benefit System, 257 Ga. 450, 453 (2) (360 SE2d 395) (1987) (“Where a statute or

ordinance establishes a retirement plan for government employees, and the employee

contributes toward the benefits he is to receive and performs services while the

ordinance or statute is in effect, the ordinance or statute becomes part of the contract

of employment and is a part of the compensation for the services rendered so that an

attempt to amend the statute or ordinance and reduce, or eliminate, the retirement

benefits the employee is to receive violates the impairment clause of the state

constitution.”). Finally, such a constitutional question must first be addressed in the

trial court, not on appeal. See, e.g., DeKalb County v. City of Decatur, 297 Ga. App.

322, 325 (677 SE2d 391) (2009).

      We therefore vacate the trial court’s ruling that Barnes and the GAE failed to

state a claim for a violation of Paragraph X and remand for the trial court to consider

the constitutional question in the first instance.

      Judgment reversed in part, vacated in part, and case remanded. Dillard, P. J.,

and Brown, J., concur.

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