McCafferty v. Medical College of Ga.

Jordan, Chief Justice,

dissenting.

The lawsuit arose from alleged negligence on the part of the Medical College of Georgia in treating a one-day-old premature child. Plaintiffs brought suit against the Hospital, the Board of Regents of the University System of Georgia, and the Regents of the University System of Georgia. The trial court granted the defendants’ motion to dismiss for failure to state a claim, based upon the doctrine of sovereign immunity.

The majority opinion holds that the trial court correctly dismissed the claim against the Medical College of Georgia and the *71Regents of the University System of Georgia, but erred in dismissing the Board of Regents of the University System of Georgia on the ground that the Board is not immune to the suit. In trying to understand the circuitous reasoning of the majority opinion, I am reminded of the nursery rhyme “Here we go round the mulberry bush, the mulberry bush, so early in the morning (new year).” One has only to read the recent opinions of this Court in Busbee v. Ga. Conference, Am. Assn. of Univ. Professors, 235 Ga. 752 (221 SE2d 437) (1975) (Jordan and Hall, dissenting); Azizi v. Bd. of Regents of University System, 233 Ga. 487 (212 SE2d 627) (1975), (Nichols, dissenting), plus the other authorities cited in the well-prepared briefs of the parties and amicus, to recognize the mishmash which we have gotten into regarding the doctrine of sovereign immunity.

How to treat this doctrine and its inequitable problems has plagued this Court for generations. In many opinions of this Court and the Court of Appeals it was pointed out that the doctrine was outmoded and unreasonable. While judicially created, and therefore subject to judicial abrogation, the Courts importuned the General Assembly, as the policy -making body of State government, to take the necessary corrective action.

The General Assembly responded in 1973 by proposing a constitutional amendment which was ratified by the people in 1974. This amendment authorized the General Assembly to create a Court of Claims to dispose of claims against the State and its agencies involving injury (tort) or damage (contract). As to the doctrine of sovereign immunity, the amendment provided that it “is expressly reserved” unless there was a constitutional or statutory waiver. Code Ann. § 2-3401.

It was hoped that this action by the General Assembly and the people settled the matter once and for all.

However, questions concerning the doctrine continued to arise and the matter was once again before this court. In “reassessing the rule of immunity” after the adoption of this amendment, this Court clearly held that the doctrine was now a part of our Constitution, that it could not be abrogated or modified by the Court, and that “solutions to the inequitable problems that it has posed and continues to pose must now be effected by the General Assembly.” Azizi, supra.

This simple and erudite construction of the 1974 amendment was adhered to in Revels v. Tift County, 235 Ga. 333 (219 SE2d 445) (1975) and other cases. It thus appeared that the doctrine was constitutionally alive and vibrant, (subject to the right of the General Assembly to create a Court of Claims to handle claims against the *72state and its agencies), and that it could only be waived by express constitutional or statutory action.

The General Assembly failed to establish such a Court and the question again came back to this Court in Busbee, supra. The Board of Regents and other officials had been sued to enforce its contracts with its teachers. The majority of this Court, taking what former Justice Hall called “a formalistic canter back through the peculiar history of the Board of Regents and embraces what it finds to be talismanic words in the 1785 statute . . .”, held that the Board was subject to suit on the contracts because there had been an express waiver of sovereign immunity by the 1785 statute.

Reacting to the Busbee decision, the General Assembly in 1976 expressly repealed the Act of 1785 relied upon by the Busbee court and made clear its intention that the Board of Regents was clothed with immunity from suit. Ga. L. 1976, p. 452 (Code Ann. § 32-101.1). Nothing in the 1976 Constitution conflicts with this clear expression of legislative intent.

However, the ghost of Banquo will not down. The question arises again, in this case, on a tort action against the Board of Regents. Now the Court reasons that a 1943 amendment to the Constitution gave constitutional status to the powers and duties of the Board, including the right to sue and be sued, that this provision was carried forward in the 1945 and 1976 Constitutions, thus making the 1976 statute dealing with the sovereign immunity of the Board in conflict with the Constitution.

The words authorizing a state agency to “sue and be sued” cannot be construed as a general waiver of sovereign immunity as to the State or any of its Departments. This Court clearly so stated in Tounsel v. State Hwy. Dept. of Ga., 180 Ga. 112 (1) (178 SE 285) (1934). This interpretation is true whether the words are used in a Statute or in the Constitution simply because the use of such words alone does not constitute an “express waiver” of immunity. The Board of Regents of the University of Georgia is a department of the State of Georgia. Code Ann. § 32-101.

In a long line of cases, and as recently as Sikes v. Candler County, 247 Ga. 115 (274 SE2d 464) (1981), this Court has consistently held that “only by the express consent of the State can it be made amenable to suit.” Sikes, at 117. In an opinion of this Court in which the ink is still wet, authored by Justice Gregory, this Court reiterated the fact that the implied waiver rule has never been adopted by this Court, which “has always required an express waiver.” National Dist. Co. v. DOT, 248 Ga. 451, 453 (283 SE2d 470) (1981).

We have not located within the Constitution or Acts of the General Assembly any specific authorization for a breach of contract *73or tort negligence claim to be maintained against the Board of Regents of the University System of Georgia. To the contrary, the 1974 Amendment to our Constitution expressly reserved and preserved the doctrine of sovereign immunity unless expressly waived by the General Assembly. Instead of waiving this immunity the General Assembly in 1976 made clear its intention that the Board of Regents was clothed with immunity from suit.

The reasoning of this Court in Busbee and in the present case makes it clear that a majority of this Court wishes to abolish the doctrine of sovereign immunity as it relates to the Board of Regents as to both contract and tort actions. In my opinion, we have used bad facts in both cases to make bad law.

The people of Georgia are entitled to know whether the doctrine is still viable in Georgia. It either exists or it does not.

We are now holding that sometimes it does, sometimes it does not. Under the majority opinion the doctrine has been eviscerated as to the Board of Regents but is still a viable defense as to other departments of the State. See National Dist. Co. v. DOT, supra. One is now entitled to sue the State provided you are injured by the “right” department. This is an anomalous situation which should not exist.

I am in full agreement that a citizen damaged by the sovereign either in tort or contract should have the right to redress. However, as we clearly stated in Azizi, the people in 1974 took the matter out of the hands of the Court and placed it in the General Assembly. The General Assembly has refused to take the steps necessary to afford injured citizens the right to be made whole. This Court, in Busbee and in this case, is apparently showing its frustration and disappointment over the failure of the General Assembly to act. In so doing we have resorted in both cases to strained reasoning. We are attempting to slay a dragon which is now impervious to the arrows of this Court.

In my opinion the trial court correctly dismissed the petition for failure to state a claim as to any of the defendants.

I am authorized to state that Justice Marshall and Justice Weltner concur in this dissent.