Fulton County Superior Court ***EFILED***RM Date: 12/30/2016 11:42:35 PM Cathelene Robinson, Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

RIGOBERTO RIVERA HERNANDEZ, JOSAFAT SANTILLAN, ET AL., Plaintiffs, CIVIL ACTION FILE NO: 2016-CV-274418

v.

C. DEAN ALFORD, ET AL. IN THEIR INDIVIDUAL CAPACITIES AS MEMBERS OF THE UNIVERSITY SYSTEM OF GEORGIA'S BOARD OF REGENTS, Defendants.

FINAL ORDER

This matter comes before the Court on Plaintiff's MOTION FOR SUMMARY JUDGMENT and Defendant's MOTION TO DISMISS. The instant case is a mandamus action arising out of the den·ial of in-state tuition to Plaintiffs by the members of the University System of Georgia's Board of Regents. None of the Plaintiffs in this action are United States citizens; rather they are recipients of the Defen-ed Action for Childhood Arrivals ("DACA") program, meaning that they have been granted relief from deportation by the Department of Homeland Security. The Board of Regents has denied these students in-state tuition status on the basis that

they do not meet the "legal presence" requirement specified in Board of Regents Policy 4.3.4. Plaintiffs contend that as DACA recipients they are considered lawfully present in the United States and that by refusing to accept such definition of lawful presence in determining in-state tuition eligibility, the members of the Board of Regents have failed their public duty and are subject to the issuance of a writ of mandamus. The Court conducted a hearing on these dispositive motions on December 1, 2016, and now, having considered the argument of counsel, the record in this case, and the law, the Court finds and concludes as follows: Defendants' Motion to Dismiss Defendants asse1t in their Motion to Dismiss that: 1) Plaintiffs have failed to state a claim upon which reli ef may be granted, and 2) mandamus is not an appropriate remedy in this case. It is well established that: " [A] motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asse1ted in support thereof; and (2) the movant establi shes that the claimant could not possibly introduce evidence within the framework of the complaint suffic ient to warrant a grant of the relief sought.. .. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor." Scouten v. Amerisave Mortgage Corp. , 283 Ga. 72, 73 (2008) ( quoting Anderson v. Flake, 267 Ga. 498 , 501(2) (1997)). See also O.C.G.A. § 9-1 l- 12(b)(6). The purpose of mandamus relief is to compel a government official to act when they have failed to perform a clear legal duty. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 661 (2014). A writ of mandamus can be properly issued only when two conditions have been met: 1) the applicant has a clear legal right

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to the relief requested; and 2) no other adequate legal remedy is available to obta in the relief requested. Defendants argue that P laintiffs' claims impose no clear legal duty on the Regents and that "Plaintiffs have failed to plead a demand on their part to the Regents that the Regents take the action desired by Plaintiffs nor have they pied a refusal on the part of the Regents to take the demanded action." Motion to Dismiss, p. 13. The Court disagrees with this characterization of Plaintiffs' claims. Defendants have a duty to "make such reasonable rules and regulations as are necessary for the perfom1ance of its duties ... " pursuant to O.C.G.A. §20-3-31. As Plaintiffs have pied, the federal government has made clear that DACA recipients are lawfully present in the United States. 1 The Board of Regents has a policy which requires lawful presence in the United States in order to receive in-state tuition status. 2 The Board of Regents refuses to accept the current lawful status that P laintiffs have been granted. Under the facts asserted in Plaintiffs' complaint this constitutes Defendants' fai lure to perform a clear legal duty. Defendants also argue that Plaintiffs' claims seek to improperly "compel a general course of conduct or the performance of continuous duties ... where the court issuing the writ would have to undertake to oversee and control the general course of official conduct of the party to whom the writ is directed." Solomon v. Brown, 218 Ga. 508, 509 (1962). This is another mischaracterization of Plaintiffs' claims. Requiring Defendants to give proper effect to their own in-state tuition policy as it relates to the federally defined legal presence of DACA recipients would not improperly 1 This can be found in the United States Citizensh ip and Immigration Services FAQ on DACA which is contained on the official website of the Department of Homeland Security.

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Regents Policy 4.1.6 uses the term " lawfolly present". Their argument that the use of thi s term predates DACA serves only as an attempt to circumvent the status that Plaintiffs and other si milarly situated students have been granted by the federa l govern ment. At no point was the Policy amended to change the tern1 " lawfu l presence" to "lawful status" (which carries a different lega l meaning), and there is no proper basis for the Regents to ignore the status these students have been granted s imply because they weren't aware in advance of DI-IS ' intention to grant it.

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compel any " long series of continuous acts to be performed under varying conditions." Jackson v. Cochran, 134 Ga. 396 (1910). Nor would it improperly "compel the undoing of acts already done or the correction of wrongs already perpetrated. " Hilton Const. Co. Inc., v. Rockdale County Bd. of Ed., 245 Ga. 533, 540 ( 1980). Plaintiffs have not sought to have every denia l of in-state tuition to DACA recipients "undone"; they seek to have Defendants perform their duty by legally applying the policy from this point forward. Defendants also argue that any duty that might be owed is discretionary in nature and therefore Plaintiffs' claims for mandamus relief must fai l. Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 ( 1931). However the Court agrees with Plaintiffs' argument that the Regents' enforcement of what is a clear and unambiguous standard in their own regulations does not involve any discretion. The "lawful presence" standard is one that was adopted by the Board of Regents in their discretion, but the question of whether to honor the legal definition of " lawful presence" as established by the federa l government is not a discretionary matter. Finally, Defendants argue that Plaintiffs have an adequate remedy at law through the appeal process set out in the Regents' Policy Manual, and that Plaintiffs' fai lure to pursue that remedy means mandamus cannot be issued. Voyles v. McKinney, 283 Ga. 169, 170 (2008). The Court will discuss the adequate remedy requirement further in addressing Plaintiffs' Motion for Summary Judgment, but for the purposes of this Motion to Dismiss Defendants have failed to establish that the facts in the complaint disclose with certainty that the appeals process provided for in the Regents' Policy Manual is an "equally convenient, complete, and beneficial" remedy at law. N. Fulton Med. Ctr., Inc. v. Roach, 265 Ga. 125, 127 (1995). Not only is it a matter of the Regents Office of Legal Affairs' discretion whether each appeal is considered at all, but 4

Defendants have not provided any showing that each individual student pursuing such a process would be equally convenient to seeking mandamus relief as they have done here. For the aforementioned reasons, the allegations in Plaintiffs' complaint (which in the context of this Motion to Dismiss must be taken as true) do not disclose with certainty that Plaintiffs are not entitled to relief on their mandamus petition. Therefore Defendants ' Motion to Dismiss is DENIED. Plaintiffs' Motion for Summary Judgment As discussed above, Mandamus is an extraordinary remedy to compel a public officer to perform a required duty when there is no other adequate legal remedy. It is a discretionary remedy that courts may grant only when the petitioner has a clear legal right to the relief sought or the public official has committed a gross abuse of discretion. In general, mandamus relief is not available to compel officials to follow a general course of conduct, perform a discretionary act, or undo a past act.

Schrenko v. DeKalb County School Dist.. 276 Ga. 786, 794(3) (2003)(citations omitted). Plaintiffs argue in their Motion for Summary Judgment that they are entitled to mandamus relief because they meet all of the requirements for in-state tuition as specified in the Regents' Policy Manual and each member of the Board of Regents has a public duty to abide by its Rules and Policies, which necessarily includes its policy that requires students to submit proof of "lawful presence" to be eligible for in-state tuition . Under Georgia law, in order for a party to prevail on summary judgment, "the moving party must demonstrate that there is no genuine issue of material fact and that undisputed facts, viewed in the light most favorable to the nonmoving pa1ty, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491, 491 (1991). The moving party may show there is no genuine issue of material fact by introducing

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"documents, affidavits, depositions and other evidence in the record revealing that there is no evidence suffic ient to create a jury issue on at least one essential element of plaintiff's case." Id. The nonmoving party "cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue." Id.

Plaintiffs Have a Clear Legal Right to Mandamus Relief The first condition that Plaintiffs must satisfy here is a show ing that no genuine issue of material fact exists as to whether they have a "clear legal right to [mandamus] relief'. Bibb Cty. v. Monroe Cty., 294 Ga. 730, 734 (2014). The Court finds that Plaintiffs have made such a showing and Defendants have not pointed to any specific evidence to the contrary. O.C.G.A. §9-6-20 states that "[a]ll official duties should be faithfully performed, and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance." The legislature has provided that " [t]he board of regents shall have power: (I) To make such reasonable rules and regulations as are necessary for the performance of its duties ... " O.C.G.A. §20-3-31. Additionally, there is a specific statutory requirement that [n]oncitizen students shall not be classified as in-state for tuition purposes unless the student is legally in this state and there is evidence to warrant consideration of in-state classification as determined by the board of regents." O.C.G.A. §20-3-66(d), (emphas is added). Under the discretion granted to it, the members of the Board of Regents continue to enact a policy which wan-ants consideration of in-state classification to those who are lawfully present in the United States. To create such a standard and then ignore the federal definition of it, which is the only legally proper definition, is wholly unreasonable. Regents Policy 4.3.4 states that

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"Each University System institution shall verify the lawful presence in the United States of every successfully admitted person applying for resident tuition status ... " Exhibit D to Plaintiffs' Motion for Summary Judgment. As Plaintiffs have noted, the Board of Regents has even recognized the fact that " lawful presence is, of course, a question of federal law." Exhibit 1 to Plaintiffs ' Motion for Summary Judgment. And according to the federal government, "[a]n individual who has received defened action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period defened action is in effect." Exhibit E to Plaintiffs' Motion for Summary Judgment. Neither party disputes that DHS has made this statement, rather Defendants attempt to devalue the statement by arguing that it is merely a website FAQ and not an official policy or regulation. While an official DHS policy on this question would certainly be beneficial given the unique status of DACA recipients, the statements are nonetheless posted to the public on the official website of the Depa1iment of Homeland Security and the Court finds they should therefore be taken as accurate representations of the federa l government's position. Defendants have refused to accept the federally established lawful presence of Plaintiffs and many other similarly situated students- students who are Georgia taxpayers, workers, and graduates of Georgia public high schools pursuing an affordable option for higher education. Such refusal of a faithful perf01mance of their duties is unreasonable and creates a defect of legal justice that has already negatively impacted thousands of Georgia students. There is no genuine issue of material fact as to whether Plaintiffs have a clear legal right to have Defendants compelled to perform their duty on this issue.

Plaintiffs Ha ve No Other Adequate Legal Remedy

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The second prong that must be satisfied for mandamus to be issued is that there mus t be no other adequate legal remedy available to effectuate the relief being sought. Bibb Cty. v. Monroe Cty. at 734. More specifically, " [t]he general rule that mandamus does not lie w here the petitioner has an adequate legal remedy is limited to cases in which the legal remedy is "equally convenient, complete and beneficial." N. Fulton Med. Ctr. , Inc. v. Roach, 265 Ga. 125, 127 (1 995). As mentioned above in the discu ssion of Defendants' Motion to Dismiss, Defendants argue that becau se Plaintiffs failed to pursue appeals of their in-state tuition denial through their institutions, mandamus relief is not available to them. It is undisputed that there is an appeal process set out in Rule 4. 7 .1. The Rule states that Final judgment on all appeals regarding admiss ions (including program admissions), residency, student grades, traffic c itations, and the Guaranteed Tuition Plan rests with the president of the institution at w hich the appeal is heard (BoR Minutes, June 2006). Any University System student aggrieved by a final decision of the president of an institution, other than those stated above, may apply to the Board's Office of Legal Affairs for a review of the decision, in accordance with Policy 8.6 Applications for Discretionary Review; provided, however, that an appli cation may be reviewed if (1) the record suggests that a miscarriage of justice might reasonably occur if the application is not reviewed, or (2) w hether the record suggests that the institutional decision, if not reviewed, might reasonably have detrimental and system-wide significance. Board of Regents' Policy Manual Rule 4. 7 .1. It is also undisputed that Plaintiffs did not apply to have their in-state tuition denia ls reviewed through this process. However this would only bar mandamus relief if the appeal process as set out (or any other adequate legal remedy) was equally convenient, complete, and beneficial. The facts and eviden ce presented show that the appeal process as described in Rule 4 .7 .1 would not provide such adequate alternative relief to Plaintiffs. Based on the language of the rule, a student does not have a direct or automatic right to appeal and have their decision reviewed. If a student wishes to appeal the final in-state tuition

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decision from their institution, they can apply to the Board of Regents' Office of Legal Affairs who will then determine whether the appeal will be considered at all based on whether they find a likely miscarriage of justice or detrimental system-wide effects. This multi-step discretionary appeal process is not equally convenient or complete to the relief Plaintiffs seek here. Defendants have not pointed to any specific evidence giving rise to a triable issue on this question, and the Court finds there to be no genuine issue of material fact as to whether Plaintiffs have an adequate alternative legal remedy. For the aforementioned reasons, Plaintiffs have established that they are entitled to mandamus relief as a matter of law. Plaintiffs ' Motion for Summary Judgment is GRANTED and Defendants are hereby compelled to perform their duty in applying the federal definition of lawful presence as it relates to students who are DACA recipi ents and to grant them in-state tuition status. This is the Court's final order in this matter and the Clerk's Office is directed to mark this case as CLOSED.

SO ORDERED, ADJUDGED AND DECREED THIS 30 th DAY OF DECEMBER, 2016.

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