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.
http://www.gaappeals.us/rules
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
1
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
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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
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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
4
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
2
The trial court made no ruling as to the applicability of official immunity to
Local Appellees.
5
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
3
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).
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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)
(2017).
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
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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.
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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.
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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.
10
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
4
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.
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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
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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
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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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