Service Employees International Union v. Perdue

628 S.E.2d 589, 280 Ga. 379, 2006 Fulton County D. Rep. 954, 24 I.E.R. Cas. (BNA) 595, 2006 Ga. LEXIS 206
CourtSupreme Court of Georgia
DecidedMarch 27, 2006
DocketS05A1634
StatusPublished
Cited by5 cases

This text of 628 S.E.2d 589 (Service Employees International Union v. Perdue) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Service Employees International Union v. Perdue, 628 S.E.2d 589, 280 Ga. 379, 2006 Fulton County D. Rep. 954, 24 I.E.R. Cas. (BNA) 595, 2006 Ga. LEXIS 206 (Ga. 2006).

Opinions

Carley, Justice.

In 1996 and again in 2000, the General Assembly amended OCGA § 45-20-2 (15), which defines “unclassified service” as that term relates to the State Merit System. Ga. L. 1996, pp. 684, 687, § 2; Ga. L. 2000, pp. 1377,1382, § 1. The effect of those amendments was to remove persons hired after July 1,1996 from that class of employees whose employment is subject to the rules of the merit system, as [380]*380well to expand the definition of “unclassified service” to include those jobs created after that date and those persons who accepted employment in an unclassified position thereafter. Subsequently, two state employees and their union, Services Employees International Union, (hereinafter referred to collectively as Employees) filed suit in which they challenged the constitutionality of the statutes. They alleged that the amendments to OCGA § 45-20-2 (15) violate Art. IV, Sec. Ill, Par. I (b) of the Ga. Const, of 1983, which provides, in its entirety, that

[t]he [State Personnel Bjoard shall provide policy direction for a State Merit System of Personnel Administration and may be vested with such additional powers and duties as provided by law. State personnel shall be selected on the basis of merit as provided by law.

Employees specifically contended that Art. IV, Sec. Ill, Par. I (b) mandates a state merit system which, as a matter of constitutional law, must include such traditional features as tenure and appeal rights. However, after conducting a hearing, the trial court found that the amendments did not violate the constitutional provision. Employees appeal from that order of the trial court.

Employees place primary emphasis on the principle that, in construing Art. IV, Sec. Ill, Par. I, this Court must consider the intention of the framers and “ ‘ascertain the prior law, the mischief, and the remedy.’ ” Clarke v. Johnson, 199 Ga. 163, 166 (33 SE2d 425) (1945). However, that is only one of several applicable rules of constitutional construction, all of which must be given full and equal effect. Accordingly, we must presume that acts of the General Assembly are constitutional, and never declare them void “ ‘except in a clear and urgent case____’ [Cit.]” Brugman v. State, 255 Ga. 407, 414 (5) (339 SE2d 244) (1986). “Our duty is to construe and apply the Constitution as it is now written.” Buford v. Buford, 231 Ga. 9, 12 (200 SE2d 97) (1973), overruled on other grounds, Ledford v. Bowers, 248 Ga. 804, 807 (2) (d) (286 SE2d 293) (1982). “[T]his Court must honor the plain and unambiguous meaning of a constitutional provision. [Cit.]” Lowry v. McDuffie, 269 Ga. 202, 206 (3) (496 SE2d 727) (1998). Where a constitutional provision “ ‘is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)’ [Cit.]” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

For purposes of applying that principle upon which Employees rely most heavily, the relevant “prior law” for determining the intention of the framers of Art. IV, Sec. Ill, Par. I is “at will” employment. [381]*381However, all of the other applicable rules of constitutional construction must be applied to determine whether the “mischief’ which that constitutional provision was intended to address was the elimination of the spoils system and whether the “remedy” contemplated therein was the creation, as a matter of constitutional law, of a merit system with features such as protection of employees from discharge without cause and a right to appeal adverse employment actions.

Tenure and the right to appeal certainly can constitute features of a merit system. However, the language of Art. IV, Sec. Ill, Par. I does not make any mention of those features. Indeed, that constitutional provision does not, as Employees would seem to contend, create the State Merit System. Instead, as previously noted, it only creates a State Personnel Board, and then provides in subsection (b) that that

[B]oard shall provide policy direction for a State Merit System of Personnel Administration and maybe vested with such additional powers and duties as provided by law. State personnel shall be selected on the basis of merit as provided by law. (Emphasis supplied.)

Clearly, the selection of state employees based upon merit is “as provided by law,” not as set forth in that provision of our Constitution. Thus, Art. IV, Sec. Ill, Par. I creates a State Personnel Board with authority to direct the policy of “a” State Merit System, but it leaves it to the General Assembly to actually create the State Merit System by enactment of laws regarding the selection of state personnel based upon merit.

Since, by its unambiguous terms, Art. IV, Sec. III, Par. I does not purport to create a State Merit System, a denomination of that provision as our constitution’s Merit System provision would be entirely misleading. Consistent with the mandate of Art. IV, Sec. Ill, Par. I (b), the State Merit System is itself a creation of statute. OCGA § 45-20-1 et seq. Had the framers intended to create, as matter of constitutional, rather than statutory, law, a State Merit System which included features such as tenure and the right of appeal, they could have so provided. See McCafferty v. Medical College of Ga., 249 Ga. 62, 68 (287 SE2d 171) (1982) (constitutional provision granting Board of Regents “ ‘the powers and duties as provided by law existing at the time of the adoption of the Constitution of 1945...’ ”), overruled on other grounds, Self v. City of Atlanta, 259 Ga. 78, 80 (1) (377 SE2d 674) (1989). However, they did not do so. Nothing in Art. IV, Sec. III, Par. I (b) can be construed as divesting the General Assembly of the authority to determine what rights and benefits accrue to state employees under the State Merit System. Under that provision, the State Personnel Board has the constitutional authority to provide [382]*382policy direction to the State Merit System created by the General Assembly, but the General Assembly retains the exclusive power to determine the applicable legal parameters within which the Board exercises its authority over policy. “The State Personnel Board is authorized to adopt, with the approval of the Governor, rules and regulations to effectuate the state merit system.” (Emphasis supplied.) Clark v. State Personnel Bd., 252 Ga. 548, 550 (3) (314 SE2d 658) (1984).

Thus, the “remedy” for the “mischief’ of the spoils system is clearly not Art. IV, Sec. Ill, Par. I. Instead, the “remedy” for that “mischief’ is OCGA§ 45-20-1 et seq., enacted by the General Assembly pursuant to its authority under that constitutional provision to legislate with regard to the selection of state employees based upon merit. “ Tt is the “spoil [s] system” that Civil Service desires to eradicate. . . .’ [Cit.] We believe that the Georgia Merit System Law ([cit.]) was enacted with the same purpose as other civil service legislation in this country. . . (Emphasis supplied.) Scott v. Undercover,

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Bluebook (online)
628 S.E.2d 589, 280 Ga. 379, 2006 Fulton County D. Rep. 954, 24 I.E.R. Cas. (BNA) 595, 2006 Ga. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/service-employees-international-union-v-perdue-ga-2006.