Stern v. Board of Regents
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Jodi Stern, e t al. v. Board of Regen ts, University S ystem of M aryland, et a l. No. 85, September Term, 2003 Headnote: The defense o f sovereig n immun ity is, generally, applicab le to contract actions involving the S tate u nless it is e xpre ssly w aive d by th e Ge nera l Ass emb ly. The sue or be sued language in Md. Code (1978, 2001 Repl. Vol.), § 12-104 (b)(3) of the Education Article doe s not gene rally waive sov ereign imm unity in all contract actions involving the Board of Regents; an appropriation of funds to pay an adv erse judgm ent is required and no such appropriation, or ability to lev y a tax to satisfy an adverse judgment, was present here. Md. Code (1984, 19 99 Rep l. Vol.), § 12-2 01 (a) of th e State Go vernmen t Article limits the waiver of governmental immunity to those contracts that are written and execu ted, i.e., signed, by an official acting within his or her scope of auth ority. Here, no signed written contract existed between the parties. Fina lly, the defense of sovereign immunity is not necessarily waived for declaratory or injunctive relief in all contract ac tions. Whe re there is no c laim seeking to enjoin future enforcement of laws on the basis that the laws are unconstitutional or otherwise improper, or attempting to restrain the enforcement of regulations alleged to be in violation of state or federal statutes or constitutions, sovereign immunity may remain, in appropriate circumstances, a bar to such claims against the State. Circuit Co urt for Anne A rundel Co unty Case #C-2003-86236 AA IN THE COURT OF APPEALS OF MARYLAND No. 85 September Term, 2003 Jodi Ste rn, et al. v. Board of Regents, University System of Marylan d, et al. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Dissenting opinion by Wilner, J., which Bell, C.J. joins Filed: April 12, 2004 This case arises out of a mid-year tuition increase authorized by the Board of Regents of the U nive rsity S ystem of Maryland. On January 23, 2003, the Board of Regents, responding to the Leg islature s mid- fiscal year bud get cuts, auth orized its constituent institutions to increase th eir respective tuition for th e 2003 Spring semester by up to five percent. Of the eleven institutions authorized to raise tuition, nine chose to do so.1 Appellants, representativ e students w ho were enrolled at the nine institution s electing to raise tuition for the Spring 2003 semester, filed suit in the Circuit Court for Baltimore City against the Board of R egents, Chancellor W illiam E. Kirwan and David Ramsey, President of the University of Maryland, Baltimore, appellees, challenging the Board s authority to impose the mid-year tuition increase.2 Appellan ts alleged three counts in the ir February 14 , 2003 com plaint, includin g breach 1 Md. C ode (197 8, 2001 R epl. Vol.), § 1 2-101 (b)(4 ) of the Ed ucation A rticle enumerates the eleven public highe r education institutions under the jurisdiction o f the Board of Regents, including: (i) University of Maryland, Baltimore; (ii) U nive rsity o f Marylan d Ba ltimo re County; (iii) University of Maryland, College Park; (iv) University of Maryland Eastern Shore; (v) University of Maryland University College; (vi) B owie Sta te Unive rsity; (vii) Coppin State College; (viii) Fros tburg Sta te Unive rsity; (ix) S alisb ury U nive rsity; (x) Towson University; and (xi) Un iversity of Baltim ore. The University of Maryland University College and Coppin State College are the two institutions that did not raise tuition, mid-year, for the Spring 2003 semester. Students from the other nin e institutions are involved in this lawsuit. 2 Herein after w e shall re fer to ap pellees c ollective ly as the B oard. of contract, equitable estoppel and violation of the Consumer Protection Act for deceptive trade practices. Along with their complaint, appellants included a Motion for a Temporary Restraining Order and Preliminary Injunction re questing tha t the Circuit C ourt enjoin collection of the tuition in crease. Ap pellants then moved to certify their suit as a class action. The Circuit Court, on March 4 , 2003, denied appe llants motion for a preliminary injunction and scheduled a hearing on the merits. On March 19, 2003, the parties filed a stipulation that the ruling on the motion to certify the suit as a class action would be stayed until the Circuit Court s ruling on the merits of the preliminary injunction. The parties also stipulated that appellants could conduct discovery and offer evidence as if the class had been certified. On April 15, 2003, the Circuit Court heard arguments on the cross-motions for summary judgment and ruled that sovereign immunity barred appellants contract claims and that appellants failed to establish the existence of a written contract in respect to tuition signed by an authorized employee or official of the University. In granting the Board s motion for summary judgment, the Circuit Court stated: Even if this Court were to find that a contract existed between the [appellants] and the [Board], such a contract would clearly have to be an implied contract. The Court [of Special Appeals] in Mass T ransit Administration versus Granite Construction Company [57 Md. App. 766, 471 A.2d 1121 (1984)] has made it clear that no matter how well founded a claim against the State or its agencies might be, if it s based on an imp lied contract, it s barred by the Doctrine of Sovereign Immunity due to the absence of a written contrac t. [Alte rations a dded.] The Circuit Court additionally found that the other two counts in appellants complaint, the -2- equitable estoppel and Consumer Protection Act (CPA) counts, could not be asserted against a State agen cy. Appellan ts have no t presented th e CPA and equita ble estoppe l issues in this appeal. On the following day, appellants filed a Motion to Alter or Amen d. The Circuit Cou rt held a hearing on this motion on April 22, 2003 and denied the motion; a written opinion was issued on April 23, 2003. In that opinion, the Circuit Court stated: this Court finds as a m atter of law that there is no express contract between [appellants] and any of the [appellees]. Despite [appellants ] contention that various docume nts (including the fees sh eets, registration packets, tuition bills and acceptance of tuition payments) created an express contract between the parties, that does not - - as a m atter of law - - constitute an express co ntract. It is notewo rthy but not disp ositive, that vario us Unive rsity catalogs discla im the existenc e of a con tract. ... The Court believes that is what best describes, legally, the relationship between the parties here, that is, a quasi-contract between the students and their resp ective u niversitie s. . . . Other jurisdictions have held that under quasi-contr act ana lysis, a university may make unilateral changes if such changes are within the reasonab le expectations of reasonable students in light of all of the circumstances and in light of all the materials that establish the framework of the relatio nship. The Circuit Court went on to find that the Board s actions in this case were reasonable and thus denied appellants motion. Appellan ts then filed a n otice of ap peal to the Court of Special Appeals. On December 11, 2003, on our own initiative, this Court granted a writ of certiorari to undertake review of these issues prior to the intermediate appellate court taking action on the case. -3- Stern v. Board o f Regents , 378 M d. 613, 837 A.2d 92 5 (2003). In their brief, appellants present two questions for our review: 1. Did the Unive rsity System of Maryland s mid-year tuition increase breach the contrac ts it had mad e with students regarding the price owed for the Spring 2003 sem ester? 2. If so, do the appellees enjoy sovereign immunity from enforcement of the tuition contract? 3 The Board file d a cross-ap peal challen ging the C ircuit Court s ruling that ap pellants claim for declaratory and injunctive relief was not ba rred by sovereign immu nity. The Board presents thre e questions in its cross-app eal: 1. Did the trial court correctly conclude that there was no express written contract executed by an authoriz ed Univ ersity official and that sovereign immunity barred the students claim for damages? 2. Did the trial court correctly conclude that the students claim for declaratory and injunctive relief was not barred by sovereign immunity and could be base d upon a quasi-co ntract the ory? 3. Did the trial [ court] correctly conclu de that the stu dents were not entitled to any declaratory and injunctive relief under a quasi-contract theory because the Un iversity act ed reas onably in raising tu ition? [Altera tions ad ded.] We answer in the affirmative to appellants second question and hold that the Board has sovereign immunity from suit on the tuition increase. As we hold that the Board has sovereign immunity, we do not directly address the merits of appellants first question. In 3 The questions posed by appellants do not directly address whether they are entitled to refunds. In the suits below, however, they pressed a claim for damages relating to the tuition increases. Additionally, the appellants in their briefs proffer our recent case of Frankel v. Board o f Regents o f the Unive rsity System of Maryland, 361 Md. 298, 761 A.2d 324 (2000), as support for their claims of damages. Frankel was a ref und case . Accord ingly, we will also add ress the ma tter of refun ds in relation to sovereign immunity in the circumstances of this case. -4- reference to the Board s cross-appeal, we hold that the trial court erred in not concluding that, under the circumstances of this ca se, appellants claims for declaratory and injunctive relie f we re ba rred by sov ereig n immun ity. I. Facts During a typical year, the Bo ard sets tuition rates approximately one year in advance. For the academic year in question in the case sub judice, the 2002-2003 school year, the Board provisionally approved tuition rates based upon its budget in August of 2001. These rates were increased slightly in May of 2002 following the General Assembly s enacting of the State Budget and in light of the University s actual budget appropriation. During the Fall 2002 seme ster, appellants re ceived reg istration mater ials advertising courses for the Spring 2003 semester, with pricing, from their respective institutions. Appellan ts relied on these registration materials in their decisions to enroll in classes for the Spring 2003 semester. In November and December of 2002,4 after following the proper registration procedures, appellants received bills from their respective institutions confirming the specific charges due for the spring courses for which appellants had registered. These bills had due dates ranging from Decembe r 17, 2002 until January 31, 20035 and a ma jority 4 At the U niversity of Maryland, Baltimore County, due to printing errors, some bills were mailed on January 3, 2003 and due January 22, 2003, despite being dated on December 17, 2002 with a printed January 6, 2003 due date. 5 If the bill was not paid by the due date, each institution advised its students of the imposition of late fees, loss of university privileges and potential referrals to collection agencies and litigation. -5- of students promptly paid their bills and received $ 0 balance notices prior to the due dates. The State budget crises escalated in the fall of 2002, thus the possibility of budget cu ts for several State agencies was apparent. In October and November of 2002, the presidents of the various University of Maryland S ystem institutions a nd the Bo ard met to discuss the possibility of budg et cuts to the U niversity System an d approa ches on h ow to de al with possible cuts. A mid-year tuition increase, along with expanded hiring freezes, staff furloughs and cancellation of certain operating expenses, were discussed as a method of absorbing the cost of the likely budget cuts. The Board learned of $30 .4 million in immediate budget cuts for fiscal year 2003 on November 20, 2002 . After discu ssing the cu ts with the pr esidents of each univ ersity institution, it was determined not to raise tuition at that time. Approxima tely one month later, on December 23, 2002, the Board learned that another $36.6 million in budget cuts for the fiscal year 2003 was prob able. In reaction to discovering that information, the Board called a special meeting on December 23, 2003 to consider mid-year tuition increases for the Spring semester of 2003. A letter to students was soon prepared to inform the students of the imminent tuition increase. That letter was mailed to the University System institutions on January 8, 20 03 and w as promp tly sent out by each in stitution to each respective stu dent. 6 6 The Board contends that the [t]he need to consult with various people about the text combined with the fa ct that the [U niversity System of Maryland] was officially closed from December 24 through January 2, 20 03, made it impossible to mail the letter before January 8, 2003 (alterations added ). -6- The text of that letter to the students was signed by the Chancellor and the Board of Regents Chairman. It discussed the various methods by which the University System had already attempted to absorb previous budget cuts, including hiring freezes, eliminating positions and reducing operating expenses. Relevant to the case sub judice, the letter also stated that if further budget cuts occurred the University System would f ind it necessa ry to approve mid-year tuition increases for the Spring 2003 semester that would not exceed 5%.7 On January 17, 2 003, Go vernor E hrlich s bud get for fisca l year 2004 w as released to the public and it confirmed the additional $36.6 million budget cut. In response to the official word of the Unive rsity System s loss of budgetary funds, the Board met on January 23, 2003 and authorized tuition increases of up to 5% for the Spring 2003 semester at nine of its institutions.8 The tuition increase recovered approximately $12.9 million of the total $60.7 million budget cuts. Appellan ts challenged the Board s authority for its January 23rd approval of the midyear tuition increase , alleging that it vio lated appella nts express contracts w ith their respective institutions. II. Discussion The primary question in th e case sub judice is whether the Board has sovereign 7 Appellants contend that by the time many of the students received this January 8, 2003 letter, they had already registered for their courses, received a bill, paid it and had $0 account due balances. 8 As previously mentioned, Coppin State College and University of Maryland University College chose not to raise tuition. -7- immunity barring appellants claims that the Board breached a tuition contra ct with appellants. We ultim ately hold that the Board is entitled to sovereign immunity under these circumstances, thus appellants claims are barred. The doctrine of sovereign immunity has long been recognized as applicable in actions against the State of Maryland and its o fficial re presen tatives. Baltimore County, Maryland v. RTKL Associates, Inc., ___ Md. ___, ___ A.2 d ___ (20 04); ARA Health Services, Inc. v. Dep t of Public S afety and Correctional Services, 344 Md. 85, 91, 685 A.2d 4 35, 438 (1996); see also Board of Trustees of Howard Community College v. John K. Ruff. Inc., 278 Md. 580, 584, 366 A.2 d 360, 36 2 (1976). W e have said that sovereig n immun ity is rooted in the common law and is firmly embedded in the law of Maryland. Katz v. Washington Sub. Sanitary Comm n, 284 Md. 503, 507, 397 A.2d 1027, 1030 (1979). The doctrine was [d]erived from the ancient view of the sov ereign as inf allible and its e ffect prec ludes suit against governmental entities absent the State s consent. ARA H ealth, 344 Md. at 91-92, 685 A.2d a t 438 (a lteration added ). See also Dep t of Natural Resources v. Welsh, 308 Md. 54, 58-59, 521 A .2d 313, 315 (198 6). We have emphasized that the dilution of the doctrine of sovereign immunity should not be accomplished by the judiciary, and that any direct or implied diminution of the doctrine falls within the author ity of the G eneral A ssemb ly. ARA Health , 344 Md . at 92, 685 A .2d at 438; see also Welsh, 308 Md. at 59, 521 A.2d at 315. The test that this Court has utilized in assessing whether the doctrine applies in a particular case is (1) whether the entity asserting immunity qualifies for its protection; and, if so, (2) -8- whether the legislature has waived immunity, either directly or by necessary imp lication, in a manner that would render the defense of immunity unavailable. ARA H ealth, 344 Md. at 92, 685 A.2d a t 438. See also R uff, 278 Md. at 586, 366 A.2d at 363. As we ha ve stated , when a governmental a gency or acto r can, and d oes, avail itself of the doctrine of sovereign immunity, no contract or tort suit can be maintained thereafter against it unless the General Assembly has specifically waived the doctrine. The doctrine serves many purposes, including protecting the State from burdensome interference with its governmental functions and [pre serving] its control over State agen cies and funds. Maryland State High way Ad min. v. Kim , 353 Md. 313, 333, 726 A.2d 238, 248 (1999) (quoting Katz, 284 Md. at 507, 397 A.2d at 10 30) (alteration added). E ven wh ere a statute specifically waives the doctrine, a suit may only be maintained where there are funds available for the satisfaction of the judgment or the agency has been given the power for the raising of funds necessary to satisfy recovery against it. University of Maryland v. Maas, 173 Md. 554, 559, 197 A. 123, 126 (1938). In th at regard, w here a statute specifically authorizes suit and a w aiver of immunity, we stated in Ruff, a case involving the Board of Trustees o f How ard Com munity Colle ge, that: We conclude that when the General Assembly expressly authorizes suits to be brou ght against o ne of the S tate s agenc ies, it is the giving of a positive consent and has the effect of waiving sovereign immunity as to that agency within its scope o f duties and obligations. It d oes not ne cessarily follow, however, that a money judgment may therefore b e obtained , even with respect to matters within the scope of th e duties of the agency. . . . [A]n action for a money judgment may not be maintained unless funds had been approp riated fo r that pu rpose o r the age ncy can p rovide funds by taxatio n. -9- Ruff, 278 Md. at 590, 366 A.2d at 366. It is clear that without a specific legislative waiver and appropriation, or taxing pow er, sovereign immunity is ap plicable in respect to the State. There is no doubt, and the parties in this case do not dispute, that the Board is considered to be an arm of the State Government for the purposes of asserting the defense of sovere ign imm unity. See Md. Code (1978, 20 01 Rep l. Vol.), § 12-102 of the Education Article;9 see also Fran kel v. Boar d of Rege nts of the U niversity System of Maryland, 361 Md. 298, 301, 761 A.2d 324, 325 (2000) (recognizing that the University of Maryland, which is a part of the U niversity System of Ma ryland, is an inde pendent u nit of the M aryland State government); Maas, 173 Md. at 557, 197 A . at 124 (recognizing that the University of Maryland was a Sta te actor for the purposes o f sovereign imm unity); University of Maryland v. Murray, 169 Md. 478, 482, 182 A. 590 (1935) (holding that the University of Maryland Law School w as a State ag ency). As the B oard is clearly considered a State actor and may raise the defense of sovereign immunity, the next factor to consider is whether the General 9 Section 12 -102 states, in r elevant par t: § 12-102. Board of Regents G overnment of University; mem bers. (a) Unive rsity as b ody co rporat e and p olitic. (1) There is a body corp orate and politic known as the University System of Maryland. (2) The Un iversity is an instrum entality of the State and a public corporation. (3) The U niversity is an inde pendent u nit of State g overnm ent. (4) The exe rcise by the Un iversity of the po wers con ferred by this subtitle is the performance of an essential public function. (b) Government of University. The government of the University System of Maryland is vested in the Board of Regents of the University System of Marylan d. -10- Assembly has either directly or implicitly waived the Board s immunity in factual circumstances such as in the case sub judice. Appellan ts argue that the Board c annot avail itself of the defen se of sovereign immunity for four reasons. First, appellants contend that this Court s decision on the waiver issue in Frankel, supra, 361 Md. 298, 761 A.2d 324, stands for the proposition that sovereign immunity has been waived in all cases involving tuition disputes. Second, appellants argue that a contract existed between the parties, which fell within the requirements of Md. Code (1984, 1999 Repl. V ol), § 12-201 (a) of the S tate Governme nt Article and its waiver of sovereign immunity in actions involving a written contract executed by a State official acting within his or her authority. Appellants third argum ent is that the B oard cann ot avail itself of the defense of sovereign immunity because that defense does not apply to any request for declaratory or injunctive relief. Finally, appe llants conten d that the Board breached a contract between the parties by unreasonably raising tuition for the Spring 2003 semester after the students had paid the bill in full and that the Board cannot assert sovereign immunity as a defense. The Board counters by arguing that sovereign immunity is not waived in the case sub judice. They conte nd that sov ereign imm unity is not waived w here, as in this case, there is no expres s written contrac t execu ted, i.e., signed, by a Sta te official actin g within the scope of his or her authority. They add that the burden was on appellants to prove whether such a contract existed and that the trial court correctly found that appellants failed to meet that -11- burden. The Board additionally argues that even if an implied contract existed, such a contract does not defeat the defense of sovere ign immu nity as the Boa rd urges this Court that the facts in the case sub judice are distinguishable from those of Frankel. They additionally contend that sovereign immunity bars declaratory and injunctive relief in contract actions and, in the alternative, that appellants claim was not a proper claim for d ecla rato ry and injunctive relief. Finally, the B oard asserts th at, even if so vereign im munity is waiv ed as to requests for dec laratory an d injun ctive relie f, the Board acted reasonably in raising tuition under the circumstances. For the reasons stated infra, we agree with the Board and hold that sovereign immun ity was not waived under the circumstances in this case and appellants are thus not entitled to any relief. A. The Frankel case As mentioned previously, appellants rely heavily on our recent case of Frankel, supra. Appellan ts claim that the language in Frankel should be applied to the case sub judice, as it waives sovereign immunity in that case for four independent reasons: (1) the general waiver of governmental immunity in contract actions, Md. Code Ann., St. Gov t § 12-201; (2) the right to a refund agai nst th e Sta te by a claimant who pays a grea ter am ount of a fee o r cha rge than is pro perly and legally payable, Md. Code Ann., Tax-Gen. § 13-901(a); (3) the policy passed by the Board entitling a stud ent to a refund upon re-classification from out-ofstate to in-state status, which gives rise to a common law contract action; or (4) the sue and be sued provision in Section 12-104(b)(3) of the Education Article, which waives immunity in actions within the scope of the Board of Rege nts duti es and o bligatio ns, inclu ding tu ition and contrac t matters . -12- We do not agree. In Frankel, we held that a University of Maryland, College Park student was entitled to have a determination of his residency status for tuition purposes based on his domicile and not the policies regarding primary sources of income. In Frankel, the Board of Regents argued that the student s retrospective claims w ere barred by sovereign imm unity. In response to the Boa rd s argu men t, we discusse d sev eral w ays in which s overeign im munity may have been waived in that case. First, we stated: [T]here is no merit in th e suggestio n that Jeremy s claim is barred by governmental immunity. Ev en if the only basis for the claim were the general waiver of gover nmental im munity in contract actio ns set forth in Code (1984, 1999 Repl.Vol.), §§ 12-201 through 12-204 of the State Government Article, Jeremy s claim would not be barred by the one year period of limitations in § 12-202. Jeremy filed this action within a year from the final administrative decision denying his request for in-state status and his claim for a refund. As previously discussed, he did not abandon his claim for a refund. Frankel, 361 Md. at 308, 761 A.2d at 329. Neither in this, nor any other section of Frankel, did we address the merits of the question of whether Md. Code §§ 12-201 through 12-204 of the State Go vernm ent Art icle wa ived the Board s imm unity in tha t case, i.e., we never addressed whether there was a written co ntract execu ted by a State o fficial acting w ithin his or her scope of authority between M r. Frankel and the Board of Regents. The case provides no discussion in that regard. We merely stated tha t § 12-202 s statute of limitations10 would 10 In footnote 1 in RTKL Associates, supra, ___ Md. at ___ n.1, ___ A2d at ___ n.1, we stated: The issue of whether Art. 25A , § 1A(c) a nd its counterpa rts applicable (contin ued...) -13- not defeat the student s claim and we went on to addres s the merits o f three othe r ways in which the Board had, in that case, waive d its imm unity. Frankel, therefore, is not dispositive on this issue. The next alternativ e waiver o f immun ity discussed in Frankel involved a theory that the Tax G eneral Artic le authorized a refund f or tuition ove rcharges. W e stated: There are, moreover, grounds for Jeremy s claim other than §§ 12-201 through 12-204 of the State Government Article. It may be that Code (1988, 1997 Repl.Vo l., 1999 Su pp.), § 13-9 01(a) of th e Tax G eneral Artic le, is applicable when a state college or university charges a student more for tuition than is legally payable. That section broadly authorizes a refund claim against the State by a c laim ant w ho ( 1) er rone ousl y pays to the State a greater amount of . . . fee, [or] charge . . . than is properly and legally payable. Under § 13-1104(a), a claimant h as three years fro m the date of paymen t to file a claim for refund under this article . . . , and Jeremy clearly filed his claim and broug ht this ac tion wi thin that time. Frankel, 361 Md. at 308, 761 A.2d at 329 (emphasis added). The language [i]t may be that Code (1988, 1997 Repl.Vol., 1999 Supp.), § 13-901 (a) of the T ax Gen eral Article, is applicable makes clear that we did not specifically hold that Md. Code (1988, 1997 Repl. Vol., 1999 Supp .), § 13-901 (a) of the Ta x-General Article applied in Frankel. That 10 (...continued) to actions against the State and other political subdivisions of the State are true statutes of limitations or conditions on the right to sue h as not been raised in this case and is n ot relevant to th is case. Tha t issue is before us in another case. We refer to those provisions as statutes of limitations for convenience and be cause th e parties have d one so . We likewise refer in this case to the time period in § 12-202 as a statute of limitations solely for purposes of convenience. -14- language was dicta.11 Next, the Frankel case sets out what is perhaps the crux of its holding its discussion of the Board s specific adopted policy and regulations entitling students to a refund of tuition where a student is reclassified from an out-of-state to in-state status. In that regard, we said: If the statutory refund remedy in §§ 13-901(a)(1) and 13-1104(a) of the Tax General Article is inapplicable to this case, the result would be no different. The Gene ral Assembly delegated to the B oard very broad au thority over tuition and fees (§ 12-10 9(e)(7) of the Educ ation Article), and the Board adopted a Policy and regulations entitling a student to a credit or refund of tuition upon re-classification from ou t-of-state status to in-state status. It has long been settled in M aryland that w hen one p ays to a state government agency or a local governmen t more in taxes, fees, or charges than the government is entitled to, and when the law specifically authorizes a refund, although no particular statutory remedy is provided, a common law contract action . . . is available. Apostol v. A nne Aru ndel Cou nty, 288 Md. 667, 672, 421 A.2d 582, 585 (198 0); See, e.g., White v. Prince George s Co., 282 Md. 641, 653-654 n.7, 387 A.2d 260, 267 n.7 (1978) (where the law provided that the [claimant] was entitled to a refund but did not co ntain a special statutory remedy, . . . an action in assumpsit co uld be ma intained ); Baltimore v. Household Finance Corp., 168 Md. 13, 14, 176 A. 480, 481 (1935) (a law, providing that one who paid more money for taxes or other charges than was properly and legally chargeable was entitled to a refund, changed the common law rule that taxes [or other charges] paid under a mistake of law could not be reco vered, and therefore th e plaintiff co uld bring an action in assumpsit, subject to the statute which provides that suits in assum psit shall be commenced with in three years after the cause of action a ccrued ); Baltimore v. Home Credit Co., 165 M d. 57, 65, 166 A. 604, 607-608 (1933) (same); George s Creek Coal & Iron Co. v. County Com rs of Allegany County , 59 M d. 255, 2 60-26 1 (188 3) (sam e). Frankel, 361 Md. at 308 -09, 761 A.2d at 32 9-30 (emphasis ad ded). 11 The issue in the present case is not what relief is available for a person who has been charged m ore than is legally payable, but whether tuition payment increases are legal in the first instance. -15- The operative f acts in Frankel, which distinguish it from the case sub judice, included a specific authorization by the Leg islature to the Board of R egents, allowing the B oard to set forth a policy to provide a refund to students who received a residen cy reclassification for tuition purposes and the Board of Regents had established a refund policy. We note d in Frankel that by enacting § 12-109 (e)(7) of the Educatio n Article, the G eneral As sembly authorized the presiden ts of the vario us institutions, su bject to the Board of Regents policies, to set tuition and fees. In that case, the President of the University of Maryland, College Park adopted a policy, pursuant to the Board of Regents policy, that provided for the aforementioned refund. In Frankel, we merely held that a common law action to recover a tuition refund for reclassifications of residen cy status existed. O nce the B oard of R egents and President of the University adopted a refund policy in respect to residency reclassifications pursuant to a delegation of authority fro m the Le gislature, it necessarily waived its sovereign immunity in suits to recover under that policy. Our holding on that issue in Frankel relied upon the well-settled law as stated in Apostol v. A nne Aru ndel Cou nty, 288 Md. 667, 672, 421 A.2d 582, 585 (1980), where we stated: It is firmly established in this State that once a taxpayer vo luntarily pays a tax or other governmental charge, under a mistake of law or under what he regards as an illegal imposition, no common law action lies for the recovery of the tax absent a sp ecial statutory provision sa nctioning a refund. This is true even if payment is made under protest. Moreover, in these circumstances, no common law or d eclaratory judg ment action lies to challeng e the validity of a tax so paid. Where there is a special statutory provision sanctioning a refund, although no particular statutory remedy is provided, an action in assump sit is available . However, w here there is statutory authorization for a refund and a special statutory remedy set forth, that remedy is exclusive. These -16- principles have rece ntly been review ed at length in Baltimore County v. Xerox Corp., 286 Md. 220, 406 A.2d 91 7 (1979); White v. Prince George s Co., 282 Md. 641, 650-654, 387 A.2d 260 (1978); and Rapley v. Montgomery County , 261 Md. 98 , 274 A.2d 124 (1971). Furthermore, the rule that no action lies to challenge the validity of a tax paid under a mistake of law, except for any refund s anction spe cifically provided by the Legislature, has been applied co nsistently by this Co urt, regardless of the nature of the legal attack mounted or the type of mistake of law cla imed. [Emp hasis ad ded.] The Board has adopted no policy in reference to refunds caused by general tuition increases; rather it adopted the tuition increase at issue in the case at bar not a refund policy. The empha sized language in the q uote from Apostol clearly illustrates that the common law right to sue for a refund only exists where a refund is authorized, although no statutory proced ure for the rem edy is pro vided. Apostol does not even mention sovereign immunity or how its holding relates to that doctrine. The more logical interpretation of Apostol is that, where the General Assembly authorizes a refund (in Frankel that refund was authorized pursuant to a legislative delegation o f authority), sovereign immunity may be waived and a right to sue the State in an attempt to avail oneself of the refund may exist. The cases do not support extending this holding to waive im munity wh ere no refu nd policy is authorized or exists. In the case sub judice, unlike Frankel, no tuition refund policy exists for mid-semester increases of tuition. Appellants do not fall into a class, such as Frankel s residency reclassification class, subject to a refund policy provided for by a legislative delegation of power to the Board and/or Presidents of the System institutions. As no refund policy was -17- provided for situations like the case sub judice, no waiver of sovereign immunity pursuant to a legislative delegation of authority, such as the ones in Frankel and Apostol, existed. Fina lly, appellants contend that our discussion in Frankel regarding the sue or be sued provision in Md . Code (1978, 2001 Repl. Vol.), § 12-104 (b)(3) of the Education Article (§ 12-104 (b)(3)), indicates that the Board s sovereign immunity has been waived. We stated in Frankel: Apart from the general waiver of governmental immunity for contract actions in §§ 12-201 through 12-204 of the State Government Article, and the law concernin g refund s of overp ayments to go vernmen tal agencie s, the General Assembly has authorized the Board to [s]ue and be sued. . . . Code (1978, 1999 Repl.Vol.), § 12-104(b)(3) of the Education Article. Although a sue and be sued provision ordinarily does not alone constitute a general waiver of [governmental] immunity, it does waive immunity in actions concerning matters within the scope of the governmental agency s duties and obligations. Jackson v. Housing O pportunities Com m n, 289 Md. 118, 124, 422 A.2d 376, 379 (1980), quoting Board o f Trustees of H oward C ommu nity College v. John K. Ruff, Inc., 278 Md. 580, 590, 366 A.2d 360, 366 (19 76), and Katz v. Washington Suburban Sa nitary Comm n, 284 Md. 503, 512, 397 A.2d 1027, 1 033 (1 979). See O & B, Inc. v. Maryland-Nat l Capital Park & Planning Com n, 279 M d. 459, 4 66-46 8, 369 A .2d 553, 557-558 (197 7); Weddle v. School Commissioners, 94 Md. 334, 51 A. 289 (1902). The Bo ard has a duty to prescribe policies and procedures for the University System, and, in order to carry out that power and accomplish the purposes of the Unive rsity, the Board was granted the authority to [e]nter into contracts of any kind. § 12-104(b)(5) and (j) of the Education Article. As earlier mentioned, the Board is expressly granted the authority to set tuition and fees. § 12-109 (e)(7) of the Educatio n Article. A lthough the Board s w aiver of governm ental immu nity for actions f iled in tort may be limited to the extent of any applicable liability insurance, th e waiver o f immun ity for other actions is not so limited. See § 12-104 (b) and (i) of the Educ ation Article. U nder all of the circumstances, the statutory authorization to be sued waives any governmental immunity in declaratory judgment and contract actions to recover tuition overcharges which the Board might otherw ise hav e enjoyed . -18- Frankel, 361 Md. at 309-10, 761 A.2d at 330 (emphasis added). Appellants app ear to interpret § 12 -104 (b)(3) as granting an absolu te waiver o f sovereig n immun ity in actions concerning matters within the scope o f the governme ntal agency s duties and obligations. Id. at 310, 761 A.2d at 330 (internal citation s omitted). T he plain reading of that language in Frankel limited its application in that case to contract actions to recover tuition overch arges, because, as we had noted earlier, there was legislation en abling the B oard to adopt a policy regarding residency reclassifications and an express policy adopted by the Board pursuant to that authority relating to residency reclassifications and refunds of tuition sums in those instances beyond those sums that were legally payable had the residency classifications been initially correct. This statement in Frankel is also restricted by the last element in the Maas and Ruff test of the waiver of sovereign immunity, which was not overrule d by Frankel. As previo usly men tioned, Mass, supra, and later Ruff, supra, set out the elem ents to be considered by a court in addressing the issue of whether sovereign immunity has been waived. The Maas test was succinctly set forth in Ruff, a case where the issue of sovereign immunity was not briefed by the parties, but where this Court stated: Legislative authority for a governmental agency to be sued is not free from restrictions, even though limitations are not expressly made by the Legislature. Such authority does not im pose unq ualified liability eve n as to matters within the scope of th e agency s duties and obligations . This Court has consistently held that suits may not be maintained unless money has been appropriated for the payment of such damages as may be awarded, or the agency itself is authorized to raise money for that purpose. We said in University of Maryland v. Maas, supra, 173 M d. at 558-55 9, 197 A . at 125: -19- The decisions in this state go further than holding that without legislative sanction an arm of the state go vernm ent . . . may not be sued, and are to the effec t that, even tho ugh there is a legislative authorization to sue, such suits may not be maintained unless funds are available or may be m ade availab le by the agency itself for the purpose of paying the claim for dama ges tha t may be e stablish ed by the suit. . . . So it is established that neither in contract nor tort can a suit be maintained against a government agency, first, where specific legislative authority has not been given, second, even though such auth ority is given, if there are no funds available for the satisfaction of the judgment, or no power reposed in the agency for the raising of funds necessary to satisfy a recovery agains t it. See Bolick v. B d. of Educ ation of Charles Co., supra, 256 Md. at 183, 260 A.2d at 32, and Thomas L. Higdon, Inc. v. Board, supra, applying it; Weisner v. Bd. of Education, supra; Williams v. Fitzhugh, supra; Fisher & Corozza Co. v. Mackall, 138 M d. 586, 114 A. 580 (1 921); Weddle v. School Commissioners, supra. It follows, and we so hold, that sovereign imm unity is a valid defense against a suit brought for a money judgment in assump sit under the contract here against the Board unless funds have been appropriated for the payment o f such da mages as may be aw arded, or the Board is author ized to ra ise fun ds for th at purp ose. Ruff, 278 Md. at 590-91, 366 A.2d at 366. The Ruff Court went on to hold that the Board of Trustees of Howard County Community College did not have the power to provide funds by taxation, but remanded the case to hear arguments on whether funds had been appropriated for the purpose of satisfying a monetary judgment arising out of the underlying construction contract in that case. In the case sub judice, appellants also argue that § 12-104 (b)(3), which authorizes the Board of Rege nts to [s]ue and be sued, and the language in Frankel stating that § 12-104 (b)(3) waives any govern mental immun ity in declaratory judgment and contract actions to -20- recover tuition overcharges, waives the Board s sovereign immunity in all contract cases falling within the scope of the Board s duties and obligations. Appellants cite the Education Article of the Maryland Code to assert that the Board of Regents has extensive powers, including the right to [e]xercise all the corporate powers granted Maryland corporations under the Maryland General Corporation Law, pursuant to § 12-104 (b)(1) (alteration added), and the rights to [e]nter into contracts of any kind, pursuant to § 12-104 (b)(5) (alteration added). Appellants cite § 10-208 (5) of the Education Article for the Board of Regents power to set guidelines for tuition and mandatory fees. Appellants argue that these provisions of the Educ ation Article illu strate that mid- year tuition increa ses fall within the scope of the Board s official duties and, because Frankel, 361 Md. at 309-10, 761 A.2d at 330 (internal citations omitted), states that sue and be sued language does waive immunity in actions concerning m atters within the scope of the governmental ag ency s duties and obligations, that the sue and be sued provision of § 12-104 (b)(3) waives the Boa rd s sove reign immun ity. While we agree that § 12-104 (b) is a specific legislative act that discusses the scope of the duties of the Board of Regents, including the setting of tuition, and may satisfy the first prong of the Maas and Ruff test, we nevertheless hold that even if the general sue or be sued language asserted by appella nts w as, by itself , a waive r of s overeign immun ity, which we do not hold, appellants nonetheless did not satisfy their burden under the second prong of the Maas and Ruff test. -21- Appellan ts argue that the General Assembly specifically authorized some suits by enacting § 12-104 (b)(3), with its sue and be sued la nguage. Coupling this legislative consent to sue and be sued with the B oard s auth ority to set tuition an d to enter into contracts, the first prong of the Maas and Ruff test might be satisfied . See Frankel, 361 Md. at 309-10, 7 61 A.2d at 330; see also Jackson v. Housing Opportunities Co mm n of Montgomery County , 289 M d. 118, 124, 422 A.2d 376, 379 (1980) (holding that the first prong of the waiver test was satisfied under the circu mstances of that case a s the Legislature enacted a law allow ing the hou sing autho rity to sue and be su ed ); Katz, supra, 284 Md. at 512-15, 397 A.2 d at 1032-34 (holding that the Washington Suburban Sa nitary District Code s language to sue and be sued, under the circumstances there present, satisfied the first prong of the waive r test); O & B, Inc. v. Maryland-N at l Capital Park & Plan ning Comm n, 279 Md. 459, 466-468, 369 A.2d 553, 557-558 (1977) (limiting the waiver of immunity of a sue and be sued provision to actions as would b e necessary to carry out the agency s purposes ); Ruff, 278 Md. at 590, 366 A.2d at 366 (holding that sue and be sued language may satisfy the first prong of the waiver test, but that even where such language may satisfy the first prong, immunity is waived only where funds have been appropriated for the purpose of satisf ying the judgmen t, or the ability to raise those funds is given by the Legislature); Lohr v. Upper Potom ac River Com m n, 180 Md. 584, 588-89, 26 A.2d 547, 549-50 (1942) (holding that the sue and be sued language was a limited waiver of immunity in that the actions must be necessary to carry out the agency s purpose); Weddle v . The Boa rd of Cou nty -22- School Commissioners of Frederick C ounty, 94 Md. 334, 344, 51 A. 289, 291 (1902) (holding that sue and be sued language waives im munity in resp ect to all matters within the scope o f [the S tate acto r s] dutie s and o bligatio ns, but that immunity cannot be waived where there is no po wer to raise funds to p ay damages) (alteration added ). While the language in Frankel regarding the sue and be sued provision of § 12-104 (b)(3) may, under some circumstances, waive the Board s sovereign immunity for actions within the scope of its authority, thus satisfying the first prong of the Maas and Ruff test, it does not eliminate the need fo r analysis under the second pro ng of that test. In Frankel, we did not formally discuss the second prong of the Maas and Ruff test, as we held that immunity was waived by the Legislature s granting of authority to the Board to create a refund policy and the Board s creation of its own refund policy. The discussion of the sue and be sued provision followed Frankel s discussion of the Board s tuition refund policy for reclassifications of residency for tuition purposes, a policy which we acknowledged under the specific circumstances of that case waived governmental immunity in and of itself. There was thus no need for this C ourt to determine whether funds had been appropriated f or Mr. Frankel s refund, or w hether the B oard wa s authorized to raise funds to pay for the refund beca use o f the existenc e of t he B oard s ow n ref und policy. 12 12 In addition, the parties may have assumed that sufficient funds existed to refund the relatively small sum in that case , i.e., difference between out-of-state and in-state tuition for one student. In either case, it appears that the issue was not raised b y the parties in Frankel. -23- We reiterate that the f actual circum stances in Frankel were very different than those in the case sub judice. In Frankel, if the student s proper classification was as a Maryland residen t, he had overpa id his tuitio n, i.e., paid more than w as legally due, and there was an express statutory source and an express policy requiring a refund. In the case at bar, the issue is whether the new tuition sums are legally payable in the first instance, not whether there has been overpayment based on an improper residency classification. In the case sub judice, there is no refun d policy that cov ers appellan ts situation, therefore in a ttempting to determine the extent to which the holdings in Frankel apply in this case we must also examine and contrast the policy issues present in this case with the policy in Frankel, and even if we presume the policy issues are similar, we m ust investigate whether the Board is able to lev y a tax to raise funds for the repayment of a mid-year tuition increase of the scope here present or whether money has been appropriated and is available for the purpose of claims regarding the cumulative substantial tuition increases. The policy issue in Frankel was a legislatively authorized Board of Regents policy where the appropriation of funds was presumed by the parties and the Court to exist. The policy issue in the cu rrent case is whether the Board can legally impose a tuition increase, and whether the process of registration constitutes an express written contract signed by an authorized person, which might constitute a waiver of immunity, which, in turn, would make the increased tuition not legally payable. The issue is thus different than the issue resolved in Frankel. It is clear that no statutory authority exists to authorize the Board of Regents to levy -24- a tax for the purpose of repaying illegal mid-year tuition increases, so, under the Frankel scenario, even if it were applicable, the determinative issue then would be whether money has been appropriated for the payment of damages arising from claims such as appellants claims in the case sub judice. The Ge neral Asse mbly is cogniz ant of how to specifically authorize th e powe r to raise fund s in satisfaction of the second prong of the Mass and Ruff test, as it has enacted a power to appropriate fu nds for the purpose o f paying judg ments arising from an express legislative waiver of immunity in Md. Code (1984, 1999 R epl. Vol.), § 12-203 o f the State G overnm ent Article. Section 12-203 states that to fund damages arising out of actio ns based on § 12-201 of the State Government Article, discussed infra, the Governor shall inclu de in the bu dget bill mo ney that is adeq uate to satisfy a fin al judgment that . . . is rendered against the State or any of its officers or units. No such language appears in Title 12 of the Education Article and the parties have not directed us to any other such legislative authority applicable in the circumstances of this case. In Maas, after holding that the Un iversity of Maryland was a State entity and that the Laws of 1812 (chapter 159), declaring that the University be able in law to sue and to be sued, might waive the University s sovereign immunity, this Court, nevertheless, held that the suit claims against the University could not proceed. We stated: In the case of Williams v. Fitzhugh, 147 Md. 384, 128 A. 137, suit was brought against the Board of Trustees of the State Normal School by one of the teachers for damages for an alleged breach of contract of employment. The right to maintain this suit was denied on the ground that the Board of Trustees had no means of procuring funds beyond the a mount it rec eives from the state treasury under budget appropriations by the G eneral As sembly for sp ecific -25- uses. To the same effect is the case of Fisher & Carrozza Bros. Co. v. Mackall, 138 Md. 586, 114 A. 580 and Stanley v. Mellor, 168 Md. 465, 178 A. 106. The decisions in this state go fu rther than ho lding that w ithout legislative sanction an arm of the state government, such as the University of Maryland, may not be sued, and are to the effect that, even though there is a legislative authorization to sue, such su its may not be maintained unless funds are available or m ay be made available by the agenc y itself for the purpose of paying the claim for dama ges that ma y be established by the suit. And this is supported by the case of Fisher & Carrozza Bros. Co . v. Macka ll, supra. This court there said, quoting from Weddle v. School Comm issioners, 94 Md. 334, 51 A. 289, an d approv ing this doctrin e as laid down in State v. Rich, supra, that, notwithstanding the statute authorized a suit by or against a board of county school commissioners, the court held that the board was not liable in an action of to rt because it h ad no po wer to rais e money for the purpose of paying damage s. This do ctrine, as app lied to actions in tort, is extended to actions in contract in the case of Williams v. Fitzhugh, supra. So it is established th at neither in contract nor tort can a suit be maintained against a governmental agency, first, where specific legislative authority has no t been g iven, second, eve n though such auth ority is given, if there are no funds av ailable for the satisfaction of the judgment, or no power reposed in the agency for the raising of funds nec essary to satisfy a recovery against it. ... Under the Laws of 1916, chapter 372, the State College o f Agriculture was declared to be capable in law of suing and being sued (section 1), and the University of Maryland, under the Laws of 1812 (chapter 159) was declared to be able in law to sue and to be sued, plead and interplead, answer and be answered, in any Court or Courts, before any judge or judges within the State, and elsewhere, in all manner of suits, pleas, cases and demands of whatever kind, nature or form that may be, and to do all and every other matter and thing hereby contemplated to be done, in as full and effectual a manner as any other perso n or person s, bodies co rporate or p ublic in like cases can or may do. Thus was the University of Maryland by legislative enactments rendered liable to b e sued, b ut even so, this does not fully satisfy the requireme nts of the rule, because it is definitely alleged and clearly shown that the University of Maryland has only such funds as are appropriated for its use by the Leg islature of M aryland, to b e distributed b y another arm of the state governm ent, namely, the Comptroller and Treasurer of the State, for d efinite -26- and limited purposes, nor has the University of Maryland power or authority, in itself, to raise moneys for the payment of damages. Maas, 173 Md. at 558-6 0, 197 A . at 125- 26 (em phasis a dded). See Katz , 284 Md. at 512-15, 397 A.2d at 1032-34 (holding that immunity was only waived due to the statutory provision authorizing the State ag ency to certify a tax rate sufficien t to produce funds to satis fy a judgment rendered against it, where the sue and be sued provision satisfied the first prong of the waive r test); Weddle , 94 Md . at 344, 51 A. at 291 (holding that while sue and be sued language may w aive immunity in respect to all matters within the scope of [the State actor s] duties and obligations, immunity is not waived where there is no power to raise funds to pay damages and statutory language provides that the school fund of the State shall be kept inviolate and appro priated only to the purposes of ed ucation ); see also Kim, supra, 353 Md. at 332-34, 726 A.2d at 248-49. Similarly, in the case sub judice, appellants offer no evidence of whether sufficient, or even any, funds w ere appropriated for the purpose of satisfying adverse judgments based on claims or disputes relating to general tuition increases. The only evidence offered by appellants in this regard is a financial statement entitled Balance Sheet dated June 30, 2002. The data shown in that statement does not add ress how the poten tial funds listed are to be appropriated or spent. At oral argument, appellants counsel argued that the cash and cash equivalents listed on the financial statement sa tisfied appe llants burden to show that funds were appropriated for the purpose of paying a judgment in its favor. We disagree. Not only is this financial statement one assessing the assets of the University System -27- as a whole and apparently not just for the institutions imposing the mid-year tuition increase, it is dated prior to the major budgetary cuts made by the Governor, cuts w hich are at the heart of the need to raise tuition mid-year in the first instance. In addition, the emphasized language from the next above excerpt from this Court s Maas decision illustrates that there have long been serious limitations and outside controls placed on the distribution of funds of the University of Maryland. The sue or be sued lang uage of § 12-104 (b )(3) does no t waive so vereign im munity for appellants claims against the Board in the absen ce of proof that the ne cessary appropriations, or authority to tax, exists. Appellants had the burden to establish the requisite appropriations or taxing authority. They failed to meet that bur den. More over, Frankel was a narr owly limit ed ca se involv ing residency r ecla ssifi catio ns w here statu tory authorized refund policies existed. It is limited to its, and similar, contexts. B. § 12-201 As we have held that the Frankel case and § 12-104 (b)(3) of the Educatio n Article do not serve to waive the Board s sovereign immunity, we now address the question of whether Md. Code (1984, 1999 Repl. Vol.), § 12-201 (a) of the State Governm ent Article (§ 12-201(a)) waives immunity in this case. Section 12-201, in its entirety, states: § 12-201. Sovereign immunity defense barred. (a) Except as otherwise expressly provided by a law of the State, the State, its officers, and its units may not raise the defense of sovereign immunity in a con tract actio n, in a co urt of th e State, based on a written contract that an official o r employ ee execute d for the State or 1 of its units while the official or employee w as acting w ithin the scope of the authority of -28- the official or employee. (b) In an action under this subtitle, the State and its offic ers and un its shall have the im munity from liability described under § 5-522(d) of the Courts and Ju dicial Pr oceed ings A rticle. [E mpha sis adde d.] Appellants argument that § 12-201 (a) applies to situations as in the case sub judice fails, as the agreement between the parties here does not fit within the narrow definition of a written contract that an official or employee executed for the State or 1 of its units while the official or employee was acting within the sc ope of the authority of the official or emplo yee. We have long held that courts should not either directly or by necessary implication dilute the doctrine of sovereign immunity by judicial fiat. ARA H ealth, 344 Md. at 92, 685 A.2d at 438; see also Welsh, 308 M d. at 59, 5 21 A.2 d at 315 and cases th erein cited; Dunne v. State, 162 M d. 274, 1 59 A. 7 51, appeal dismissed and cert. denied, 287 U.S. 564, 53 S. Ct. 23, 77 L . Ed. 49 7 (193 2). Appellan ts contend that they have an express written contract, encompassing several written docum ents, w ith the Board and that those documents need not be signed to be executed within the meaning of § 12-201 (a). At oral argument, appellants counsel argued that the bill sent to students after the students had registered constituted the specific writing that had been executed by a State official acting within his or her scope of authority. They also contend that norma l contract prin ciples allow an expres s contract to consist of more than one document and does not even need to be in writing. They add that a contract can be executed without being signed. The Board counters by arguing that the plain language of § 12-201 (a) requires a written contract and an execution of that contract by a person with the -29- proper authority, which is satisfied only with a signature. We agree with the Bo ard s narrow interpretation of § 12-201 (a), as we will construe legislative dilution of governmental immunity narrowly in order to avoid weakening the doctrine of sovereign immunity by judicial fiat. We have long recognized that the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislatu re. Holbrook v. State, 364 Md. 354, 364, 772 A.2d 1240, 1245-46 (2001) (quoting In re Anthony R., 362 Md. 51 , 57, 763 A.2d 13 6, 139 (2000) (internal citation om itted)). As a first step , a court should thoroughly examine the plain language of the statute when attempting to ascertain the Legislature s intentio ns. Holbrook, 364 M d. at 364, 77 2 A.2d a t 1246; In re Anthony R., 362 Md. at 57, 763 A.2d at 13 9. The C ourt, when possible, w ill give effec t to the statute as it is written, where the statutory language in question has an unambiguous plain mean ing. Pak v. Hoang, 378 Md. 315, 323, 835 A.2d 1185, 1189 (2003) (quoting Moore v. Miley, 372 M d. 663, 677 , 814 A.2d 557, 566 (2003) (in ternal citation omitted)). We, howev er, will not ad d or delete words from the statute, Gillespie v. S tate, 370 Md. 219, 222, 804 A.2d 426, 427 (200 2), and w e will look beyond the s tatute s plain lan guage in discerning the legislative intent only where the statutory language is ambiguous. Comptroller of the Treasury v. Clyde s of Chevy Chase, Inc., 377 Md. 471, 483, 833 A.2d 1014, 1021 (20 03). When read in a narrow light, as is the case for interpretations of legislative limitations on sovereign immunity, § 1 2-201 (a) is clear and unamb iguous. It requires that a waiver of -30- sovereign immunity exists only where it is based on a written contract that an official or employee executed for the State (emphasis added). A written contract is defined as one whose terms have been reduced to writing. Black s Law Dictionary 327 (Bryan A. Garner ed., 7th ed., W est 199 9). Black s Law Dictionary goes on to quote from the Restatement (Second) of Contracts § 95 (1981) (citations omitted), stating: Written contracts are also commonly signed, but a written contract may consist of an exchange of correspondence, of a letter written by the promisee and assented to by the promisor without signature, or even of a memorandum or printed document not signed by either par ty. Statutes relating to written contracts are often express ly limited to co ntracts signe d by one o r both parties. Whether such a limitation is to be implied w hen not ex plicit depends on the pur pose and context. [Em phasis a dded.] As indicated above, the term written con tract, by itself, defin es a comp leted agreem ent. As such, it was not necessary for the Legislature to use th e word executed in the statute unless the term was a f urther lim itation o n the w aiver of immu nity. In the context of the statute, had executed not meant signed, it would have been surplusage. Moreover, an executed contract is de fined as a contract that h as been fu lly performed by both parties or as a signed contract. Black s Law Dictionary 321(B ryan A. G arner ed ., 7th ed., West 1999). The term, executed is defined as (Of a document) that has been signed. Id. at 589. Black s Law Dictionary supplemented its definition of executed with the following: [T]he term executed is a slippery word. Its use is to be avoided except when accompanied by explanation. . . . A contract is frequently said to be executed when the document has been signed, or has been signed, sealed, and delivered. Further, by executed contract is frequently meant one that has been fully performed by both p arties. William R. Anso n, Principles of the Law of Contract 26 n. * ( Arthu r L. Co rbin ed ., 3d Am . ed. 191 9). -31- Id. In the case sub judice, the inter pretatio n of § 1 2-201 (a), i.e., a legislative limitation on sovereign immunity, must be viewed within the context of an unfavored limitation on a well-recognized and ancient doctrine with a strong public policy to insulate the State from burdensome interference with its gov ernmenta l functions a nd [prese rve] its contro l over State agencies and funds. Kim, 353 Md. at 333, 726 A.2d at 248 (quoting Katz, 284 Md. at 507, 397 A.2d at 1030). Given that context, and the narrow definitions quoted above, we hold that the waiver language of § 12-201 (a) requires a written contract signed by a person expressly authorized to execute the contract for the University System. Here, appellants a rgue that the students bill constitutes the writing that is dispositive of the Board s assent to a written contract. Even if that document is to be considered to constitute the written c ontract for th e purpose s of § 12-2 01 (a), wh ich we do not hold,13 it was not signed for the purposes of § 12-201 (a). At oral argument, appellants argued that our case of Drury v. Young, 58 Md. 546 (1882), which held that a printed letterhead on a 13 In fact, there are several documents involved in the alleged contract between these two parties. The January 8, 2003 letter informing the students of a possible mid-semester increase in tuition gave notice that the Board intended to exercise its authority to raise tuition, which was enumerated in several institutions course catalogs and web sites, is another writing that contributes to the transaction at issue. In fact, the January 23, 2003 tuition increase and subsequent bill is another writing which is part of the same transaction. In any event, we need not consider the exact legal significance of each documen t or their relationship with each othe r because we h old that § 12-201 (a) requ ires a signature. There is insufficient evidence that the bills in this case were signed for the purposes of § 12-201 (a) by a person expressly authorized by the Board to execute contracts on its behalf. -32- memorandum was sufficient to satisfy the signature requirement of the statute of frauds , is analogous to the Univ ersity System institutions sending appellants their bills printed with the institutions seal. We disagree, because the context of the statute of frauds is sign ificantly different than the contex t of the case at bar. 14 As we have said, we construe limitations on the doctrine of sovereign im munity narrowly. Here, we interp ret § 12-201 (a) to require a signature of a State o fficial with the proper authority because of the statute s executed requireme nt. Letterhead, a school stamp or a school insignia on a document will not suffice to waive the defense of sovereign immunity under § 12-201 (a); a signature of a duly authorized person is required. As the parties here did not have such a signed written contract sufficient to satisfy the requirements of § 12-201 (a), the Board has not waived its sovereign immunity under that statute.15 C. Declaratory and Injunctive Relief Appellan ts contend, and the trial court found, that the Board could not raise sovereign immunity as a defense to appellants claims for prospective declaratory and injunctive relief based on this Court s holdings in Glover v. Glendening, 376 Md. 142, 829 A.2d 532 (2003) 14 We have held that equity can impose a constructive trust, even where there has been no required compliance with the Statute of Frauds. Part performance can be an exception to the Statute of F rauds requ irements. C ertain admissions can take a matter out of the ambit of the Statute of Frauds. Such matters, gen erally, are not app licable in respect to the doctrine of so vere ign immunity. 15 Nothing in this opinion is to be construed as applying so as to limit the application of Md. Code (1975, 2000 Repl.Vol., 2003 Supp.), Title 21 of the Commercial Law Article, The Maryland Uniform Electronic Transactions Act, in appropriate cases. Apparently, that Act is not implicated in this case. Its application was not argued. -33- and Jackson v. Millstone, 369 Md. 575, 801 A.2d 1034 (200 2). The Board, in its crossappeal from th e trial cou rt s find ing on t his matt er, asserts that appellants construction of those cases attempts to extend the holdings of those cases far beyond their intended scope.16 We agree with the B oard that ex tending the waiver o f sovereig n immun ity to include all declaratory relief, whe re the unlaw ful implem entation of , or failure to im plement, a s tatute or regulation by a State official is not alleged, is not generally appropriate. In Glover, supra, we held, relying on Jackson, supra, as being dis positive as to the sovereign immunity issu e, that the def ense of so vereign im munity is rejected in actions for declaratory or injunctive relief against state actors w here the pla intiff claims th at the state is acting in violat ion of a federa l statue o r regula tion. Glover, 376 Md. at 147-50, 829 A.2d at 535-37. Specifically, in Jackson, we stated: Where a statute or regulation is invalid, sovereign immunity does not preclude a declaratory jud gment ac tion or suit for an injunction against the governmental official who is respon sible for enforcing the statute or regulation. As Judge Delaplaine explained for the Court in Davis v. Sta te, supra, 183 Md. at 38 9, 37 A.2d at 8 83, if a p erso n is d irect ly aff ecte d by a statute, there is no reason why he sho uld not be permitted to obtain a judicial declaration that the statute is unconstitutional. The Court in Davis went on to point out that, in addition, a court of equity has pow er to restrain the enforcement of a void statute or ordinance at the suit of a person in juriously affect ed. Ibid. Specifically with regard to sovereign immunity, the Davis opinion held (183 M d. at 393, 37 A.2d at 8 85): Although a State ma y not be sued without its co nsent, an 16 The Board also challenges whether appellants claims are declaratory or injunctive at all. As we hold that sovereign immunity is not necessarily waived for all claims of declaratory or injunctive relief, including cases such as the one at bar, we need not address this last issue. -34- officer of the State acting un der color of his official au thority may be enjoined from enforcing a State law claimed to be repugnant to the State or Federal Constitution, even though such injunction may cause th e State law to remain in operative until the con stitutiona l questio n is judic ially determ ined. See also, e.g., Police Comm n v. Siegel, 223 Md. 110, 115, 162 A.2d 727, 729, cert. denied, 364 U.S. 909, 81 S.Ct. 273, 5 L.Ed.2d 2 25 (1960 ); Pitts v. State Bd. of Examiners, 222 Md. 224, 226, 160 A.2d 200, 201 (1960); Pressman v. State Tax Commission, 204 Md. 78, 84 , 102 A.2d 821 , 825 (1954), and cases there cited; Baltimore Police v. Cherkes, 140 Md.App. 282, 309-310, 780 A.2d 410, 426 -427 (2001). In addition, § 10-125 of the State Govern ment Ar ticle specifica lly authorizes a declaratory judgment action to challenge the validity of a state administrative regulation, an d the statute in subsectio n (c) expre ssly provides that [t]he unit that adopted the regulation shall be made a party to the proceeding . . . . Even if sov ereign imm unity were otherwise a defense to this type of action (and, as shown by the above-cited cases, it is not a d efense ), § 10-12 5 wou ld cons titute a w aiver of such im munity. Jackson, 369 Md. at 590-91, 801 A.2d at 1043. This language in Glover and Jackson clearly illustrates that our prim ary concern w as to allow p laintiffs acce ss to courts so the y are able to challenge the legality of State laws and regulations, or the alleged unlawful implementation of such law and regu lations by a State official. No language in those opinions suggests that a blanket w aiver of sovereign imm unity should b e found to exist in respect to all declaratory relief sought against the State or a State official, especially where the stated claim is based upon an alleged contract, not an unlawful statute or an alleged illegal implementation of a State law or regulation. In the case sub judice, appellants do not claim that a statute is unlawful, nor do they claim that a State official is unlawfully applying a statute. They seek relief based solely upon an alleged tuition contract with the Board. As the cases of Glover and Jackson do not stand for the propo sition that sove reign imm unity is -35- waived for all declaratory or injunctive relief sough t, and the stated claim here does not challenge the legality of a sta tute or an of ficial s implem entation of a statute as in those cases, sovereign immunity is not waived. III. The Me rits While both parties urge the adoption of the holding in Gamble v. University System of New Ham pshire, 147 N.H. 443, 610 A.2d 357 (1992) a case in respect to the merits, because we hold that the Board may avail itself of the defense of sovereign immunity, thus barring appellants claims, we need not reach the merits of appellants first question presented relating to whether the Board breached a contract with appellants for the Spring 2003 semester s tuition. IV. Conclusion We hold that the B oard may avail itself o f the defe nse of sov ereign imm unity in the case sub judice. Md. Code (1978, 2001 Repl. Vol.), § 12-104 (b)(3) of the Education Article, which authorizes the Board of Regents to [s]ue and be sued, does not waive sovereign immunity where the Legislature did not authorize a method of appropriating the funds for an adverse judgm ent. W e additio nally hold , and the trial court correctly found, that pursuant to Md. C ode (198 4, 1999 R epl. Vol.), § 1 2-201 (a) o f the State Government Article, the Board did not waive sovereign immunity because the contrac t was not sig ned by a duly authorized person. Finally, we revers e the trial court s finding tha t sovereign immunity is waived for all actions in which d eclaratory and/o r injunctive re lief is sough t. To hold -36- otherwise would improperly extend the Glover and Jackson cases. Accordingly, we af firm the order of the Circuit C ourt in part an d reverse in part. JUDGMENT OF TH E CIRCU IT COURT FOR BALTIMORE CITY AFFIRMED IN PART AND REVERSED IN PART. COSTS TO BE PAID BY APPELLA NTS. -37- In the Circu it Court for B altimore C ity Case No. 24-C-03-000986 IN THE COURT OF APPEALS OF MARYLAND No. 85 September Term, 2003 ______________________________________ JODI STERN, ET AL. v. BOA RD O F RE GEN TS, UNIV ERS ITY S YST EM O F MA RYL AND , ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Dissen ting Op inion b y Wilner, J ., which Bell, C.J., joins ______________________________________ Filed: April 12, 2004 With respec t, I dissen t. I understand full well the financial dilemma that faced the Board o f Regen ts when it was informed of the impending $36 million budget reduction on December 23, 2002. By the time the Board of Regents and the nine colleges opted to resolve that dilemma by increasing tuition for the spring semester, however, the University, through its colleges, had entered into clear written contracts with the students setting forth the fees that were to be charged for the spring semester, and the University, in my view, is not permitted to deal with its financial problem by breaching those contracts.1 The core complaint of the students which to me, has merit is that, (1) through a combination of related documents, written contracts were entered into with the students, (2) the contracts were within the scope of Maryland Code, § 12-201 of the State Government Article, (3) the University ha s breached those con tracts by raising the prices called for in the contracts, and (4) the University is precluded by §12-201 from raising the defense of sovereign immunity to the students claims for breach of contract. The University is not 1 It is not for this Court, or any court, to second-guess the Executive decisions made by the Board of Regents as to how best to meet the financial crisis it faced. It should be noted, howev er, that the pros pect of sign ificant reduc tions in the U niversity s budg et was known to the Bo ard a s early as O ctob er, 20 02. T he U nive rsity concedes in its brief that [t]he likelihood o f budget c uts to the University System of Maryland ( USM ) was discussed at meetings of the US M presid ents and B oard of R egents in October and early Novemb er, 2002 and that [v]arious cost containment actions, such as an expanded hiring freeze, staff fu rlough s, lay-offs , tuition increases, and deferral or cancellation of various operating expenses, were mentioned during these discussions. (Emphasis added). If the Board had even tentatively in mind exercising the authority reserved in its various catalogs to raise tuition fo r the spring se mester, it cou ld have aler ted the stude nts to that pos sibility long before January 8, 2003, and, if necessary, put a warning to that effect on the registration statements and bills. That would have avoided entirely any legitimate claim of breach of contract, as the stude nts would have registered for the sprin g semeste r with that pro spect in mind. permitted to breach its contracts, and it remains liable for having done so.2 The real issue is whether the U niversity, through its colleges, entered into express written contracts with the students , executed b y an official or e mployee of the Unive rsity acting w ithin the scope o f the pe rson s a uthority. I b elieve th at it did. A written contract can arise from several writings; it does not need to be on one piece of paper that all parties sign. As we held in Rocks v. Brosius, 241 Md. 612, 637, 217 A.2d 531, 545 (1966 ): A contract need not be evidence d by a single ins trument. Where several instrumen ts are made a part of a sin gle transaction they will all be read and construed together as evidencing the intention of the parties in regard to the single transaction. This is true even though the instruments were executed at different times and do not in terms refer to each other. Thus, if A, in wr iting, advertises its willingness to sell widge ts for $10/w idget, and B, in response, offe rs in writing to purchase 100 wid gets at that price , and A res ponds, in writing, that B s order for 100 widgets has been received and accepted, the parties have a written, enforceable, executory contract. A is required to deliver the widgets at the accepted price, and B is obligated to pay the $1,000. That is simple Hornbook contract law and is essentially what occ urred here , although it w as a service, ra ther than a p roduct, that w as offered and accepted at a set price. 2 Although the contracts may have been with the individual colleges, I shall, for convenience, regard them as being with the University an d treat the U niversity in all respe cts as the con tract ing p arty. -2- I start with the fact that, after satisfying admission requirem ents, the plaintiffs were duly and formally admitted as students of the University and thus became eligible to register for courses offered by the University. The catalogs published by the University described the available co urses with s ufficient de finiteness that both the University an d the studen ts knew what w as being o ffered. Th e catalogs also informed the students of the tuition and other fees that would be charged. Those charges, the University conced es in its brief, were set by the Board of Regents. The catalogs constituted, in a con tract sense, an invitation to the students to bid. By formally registering for offered courses, in light of the quoted tuition and fees pertaining to such reg istration, the stud ents did, indeed, bid. When their registrations were accepted by the University, in writing and on its officia l form, and bills were se nt, in writing and on the University s official form, showing the courses for which the students had registered and the amounts due by reason of that registration, written contracts arose. At that point, the students had a con tractual right to attend those courses and, if completed succ essf ully, to be given credit for them toward a degree. At that point, subject to its own policies regardin g withdrawals, which formed part of the contract, the University had a contractual right to payment. A perfected and enforceable contract was then in place. Brushing all this fundamental contract law aside, the Cou rt denies relief essentially on four grounds: (1) the University reserved the right in its catalogs to change the quoted tuition and fees; (2) the contracts were implied, rather than express, ones and implie d -3- contracts are not within the ambit of § 12-201; (3) the contracts were not executed by an official or employee of the University, and (4) there are no funds to pay any refunds to the studen ts. Non e of tho se grou nds, in m y view, h as any m erit. It is true that, in its various catalogs, the University indicated that quoted tuition and fees were subject to change, although none of the catalogs suggested that changes could be made after registration was com plete and b ills had been sent and paid. At oral argument, the University noted that there was no time limit on when changes could be made and suggested that tuition could be increased even after the semester had started, and possibly after it ended. Under the University s theory, the University could raise tuition for the spring semester retro activ ely, at the end of May, and presumably deny the students course credit if the increased amount was not paid. I doubt that the Court, upon clear reflection, would approve of that, yet it follows inexorably from the C ourt s position that there is no enforcea ble contract. 3 I would hold that the ability to increase tuition or fees ended when registration for the spring semester courses occurred and a bill for that semester was sent. That is when the contract was formed; that is when the ability to change its terms ended. The Court do es not exp lain, and I am at a loss to un derstand, w hy the contrac ts are 3 Indeed, the Court s approach would allow even more egregious breaches. Suppose, instead of raising tuition after registration ha d been co mpleted, the Board o f Regen ts decided to deal with the financial crisis by shutting down Bowie State University or one of the Law Schools for the spring semester, but yet retain the tuition paid by the students for that semester. Would th e Court ho ld that the students could not recover their tuition because of the University s sovereign immunity that there was n o enforceable con tract? If not, how would the Court distinguish that circumstance from the one now before us? -4- implied, rather than express ones. In County Comm rs of Caroline County v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 94, 747 A.2d 600, 606 (2000), we adopted the definition of express contract found in Black s Law Dictionary 323 (6 th ed. 1990): an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally or in writing. We accepted as well the statement from Klebe v. United States, 263 U.S. 188, 192, 44 S. Ct. 58, 59, 68 L. Ed. 244, 247 (1 923) that [a] contract imp lied in fact is one inferred from th e circumstances or acts of the parties; but an express contract speaks for itself and leaves no place for implications. Under those definitions, I would hold the contracts he re to be express ones. N o term is missing or left to implication; no agreement is left to implication. Through the acceptance of the registrations and the sen ding of the bills, the Univ ersity has expre ssly committed itself to accept the students into the courses for which they registered at the prices stated on the bills. Nothing is left to extrinsic p roof. The docume nts themselves, on their face, evidence the contracts and contain all of the necessary terms. If the University were to sue a student for non-paym ent of the fees, all it would have to produce to establish an express contract would be the re gistration form a nd the b ill, and po ssibly the c atalog. The Court holds that the con tracts were not signed by anyone, and, for that reason, do not fall within the ambit of § 12-201. T he statute do es not requ ire an actual s ignature by anyone, but only that the contract be executed for the State by an authorized official or -5- employee. In Porter v. General Boiler Casing Co., 284 Md. 402, 410, 396 A.2d 1090, 1095 (1979), we held, explicitly, that a signature is not required in order to b ring a contra ct into existence, nor is a signature always necessary to the execution of a written contract. The purpose of a signatu re is to demonstrate mutuality or assent which could as well be shown by the conduct of the parti es. (Em phasis a dded). Q uoting 1 A. C orbin, Contrac ts §31 at 114 (1963), we added that, at common law, the making of a valid contract did not require a writing at all, and ev en if there is a writing, there need be no signatures unless the parties have made them necessary at the time they expressed their assent and as a condition modifying that assent. Porter, supra, at 410-11, 396 A.2d at 1095. I recognize that the waiver of the State s sovereign immunity in breach of contract actions was a somew hat limited one, in that the Legislature attached a number of conditions to it, and that the Court should not extend that waiver beyond what was expressed by the Legislature. It is clear from the legislative history of §12-201, however, that the waiver was intended to be remedial in nature (see Baltimore County v. RTKL Associates, , A.2d Md. (S.T. 2003, No. 77, Op. filed April 9 , 200 4)) to correct what the L egislature regarded as the injustice of allowing the State and its agencies, with impunity, to breach solemn contracts tha t they had ma de so the re needs to be some balance in interpretation. If the Legislature intended to restrict the waiver to contracts personally signed by someone in author ity, it would have sa id so, bu t it did no t say so. The Univers ity has never even suggested, much less argued , that any of the d ocumen ts that, to me, fo rm the con tract, were -6- not prepared and issued by officials or employees who were authorized to do so, and, in the absence of any evidence to that end, we may presum e that they were so prepared and issued, especially as they are all on University forms, many containing the Unive rsity or college sea l. Fina lly, as to the sov ereign imm unity issue, the U niversity ackno wledges , as it must, that the Legislature has authorized it to be sued, not that such express authorization is any longer necessary with respect to contracts falling within the ambit of §12-201. Section 12203 of the State Govern ment Ar ticle requires the Governor to place sufficient funds in the State budget to discharge the University s obligation. All of the necessary pieces, even under a University of Maryland v. Maas analysis, are thus in place. The Court brief ly acknowledges the existence of §12-203, but takes no account of it, noting only that no such provision appears in the Education Article of the Code. So what? No other statute is nece ssary.4 I would reverse the judgment of the Circuit Court and remand for further proceedings to form ulate a ju dgme nt that w ould ho nor and enforc e the co ntracts w ith the stu dents. Chief Ju dge Bell a uthorizes m e to state that he joins in this disse nt. 4 It is important to note that, when the complaint was filed, the predominant remedy sought was injunctive relief to preclude the Un iversity fro m cha rging th e extra f ees. Had that relief been granted, as it should have been, prior to the students being forced to pay the extra tuition, no monetary judgment, or, at worst, a limited one, would have been necessary and the issue of a vaila ble a ppro priations to p ay any judgment would probably not have arisen. In any event, as to those students who have since paid the ex tra tuition, § 12-203 requires the Governor to include in the budge t bill money that is a dequate to satisfy final judgm ents. See Maryland Constitution , Art. III, §52(4 ) and (12). E ven if that is done in succeeding years, as necessarily it must at this point, there will be funds available to discharge any judgments. -7- -8-
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