Ga. Ass'n of Prof'l Process Servers v. Jackson

• Decision Date: 16 October 2017
• Docket Number: S17A1079
• Parties: GEORGIA ASSOCIATION OF PROFESSIONAL PROCESS SERVERS et al. v. JACKSON et al., Sheriff.
• Court: Georgia Supreme Court

302 Ga. 309

806 S.E.2d 550

GEORGIA ASSOCIATION OF PROFESSIONAL PROCESS SERVERS et al.

v.JACKSON et al., Sheriff.

S17A1079

Supreme Court of Georgia.

Decided: October 16, 2017

Parks, Chesin & Walbert, Allan L. Parks, Jr., Michael T. Foust, for appellants. Steven E. Rosenberg, Ashley J. Palmer ; Carothers & Mitchell, Richard A. Carothers, Rebecca J. Schmidt ; Deborah L. Dance, Lauren S. Bruce ; O'Quinn & Cronin, Donald A. Cronin, Jr. ; Jarrard & Davis, Kenneth E. Jarrard, Kenneth P. Robin ; Freeman, Mathis & Gary, Jack R. Hancock, A. Ali Sabzevari ; Nikisha L. McDonald, for appellees.

Boggs, Justice.

In this appeal, we consider the application of OCGA § 9–11–4.1, providing for statewide certified process servers. The Georgia Association of Professional Process Servers and several of its members, who are private process servers, (collectively, "the Association") filed this action seeking mandamus, declaratory judgment, and injunctive relief against the sheriffs of Fulton, Cobb, Gwinnett, DeKalb, Clayton, Forsyth, and Paulding Counties (collectively, "the Sheriffs"). In its petition, the Association alleged that the Sheriffs have conspired to thwart the use of certified process servers statewide, and have wrongfully failed to consider members' individual petitions to become certified process servers under OCGA § 9–11–4.1, thus rendering the Code section null and of no effect. The Sheriffs responded that the Code section explicitly gives them the power to make a threshold decision whether to permit certified process servers to serve process in their counties. After discovery, the parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the Sheriffs and denied the Association's motion, finding that under a plain reading of the Code section, the Association was not entitled to any of the relief sought. From this order, the Association appeals.¹

The trial court should not have ruled on the merits of the Association's claims for declaratory and injunctive relief against the Sheriffs in their official capacities, because those claims are barred by sovereign immunity. Accordingly, we vacate that portion of the trial court's order and remand for dismissal. Because the trial court correctly granted summary judgment as to the Association's other claims, we affirm the remainder of the trial court's order.

As the trial court correctly observed, the relevant provisions of OCGA § 9–11–4.1 are found in paragraph (a) and paragraph (h) (1):

(a) Certified process servers. A person at least 18 years of age who files with a sheriff of any county of this state an application stating that the movant complies with this Code section and any procedures and requirements set forth in any rules or regulations promulgated by the Judicial Council of Georgia regarding this Code section shall, absent good cause shown, be certified as a process server. Such certification shall be effective for a period of three years or until such approval is withdrawn by a superior court judge upon good cause shown, whichever shall first occur. Such certified process server shall be entitled to serve in such capacity for any court of the state, anywhere within the state, provided that the sheriff of the county for which process is to be served allows such servers to serve process in such county.

....

(h) Notice to sheriff.

(1) Prior to the first time that a certified process server serves process in any county, he or she shall file with the sheriff of the county a written notice, in such form as shall be prescribed by the Georgia Sheriffs' Association, of his or her intent to serve process in that county. Such notice shall only be accepted by a sheriff who allows certified process servers to serve process in his or her county. Such notice shall be effective for a period of one year; and a new notice shall be filed before the certified process server again serves process in that county after expiration of the one-year period.

(Emphasis supplied.) The trial court found that the plain language of the statute barred declaratory and injunctive relief.² The court also found that mandamus is inappropriate because the members of the Association have an alternative course of action: "seeking appointments from the various courts of the State to become permanent process servers as provided in OCGA § 9–11–4 (c) (4)." Alternatively, it held that mandamus is not appropriate because the plain language of the statute gives the Sheriffs the discretion to choose whether to allow certified process servers, and the court cannot force them to do so.³ Finally, the trial court denied appellants' request for attorney fees. This appeal followed.

1. Despite the ruling on the merits in the Sheriffs' favor on the Association's claims for injunctive relief and declaratory judgment, as a threshold matter for our analysis, it is important to note that the Sheriffs have raised the defense of sovereign immunity. To the extent applicable, this defense would preclude the trial court's consideration of the merits of these claims. This Court has repeatedly ruled on the scope of sovereign immunity under the Georgia Constitution, finding that it bars claims for injunctive relief, Georgia Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 596 (2), 755 S.E.2d 184 (2014), and claims for declaratory judgment, Olvera v. Univ. System of Ga. Bd. of Regents, 298 Ga. 425, 427, 782 S.E.2d 436 (2016), even if based upon constitutional claims. Lathrop v. Deal, 301 Ga. 408, 425 (III), 801 S.E.2d 867 (2017).

The Sheriffs raised the defense of sovereign immunity in their answers, but not in their joint motion for summary judgment.⁴ However,

[t]he applicability of sovereign immunity to claims brought against the State is a jurisdictional issue. Indeed, sovereign immunity [–] like various other rules of jurisdiction and justiciability [–] is concerned with the extent to which a case properly may come before a court at all. Therefore, the applicability of sovereign immunity is a threshold determination, and, if it does apply, a court lacks jurisdiction over the case and, concomitantly, lacks authority to decide the merits of a claim that is barred.

(Citation, punctuation, and footnote omitted.) McConnell v. Georgia Dept. of Labor, 302 Ga. 18, 18–19, 805 S.E.2d 79 (2017) (Case No. S16G1786, decided September 13, 2017.) A "court's lack of subject-matter jurisdiction cannot be waived and may be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal. [Cit.]" Abushmais v. Erby, 282 Ga. 619, 622 (3), 652 S.E.2d 549 (2007).

Because the Association's claims for declaratory judgment and injunctive relief are barred by sovereign immunity under Lathrop, Olvera, and Sustainable Coast, supra, the trial court should have dismissed those claims. We therefore vacate that portion of the trial court's order and remand for further proceedings consistent with this opinion.⁵

2. As we have noted before, however, "sovereign immunity is no bar to petitions for writs of mandamus. [Cit.]" Lathrop, supra, 301 Ga. at 434 (III) (C), 801 S.E.2d 867. We therefore consider whether the trial court erred in granting summary judgment on the merits with respect to the Association's mandamus claims.

"Mandamus is a remedy for improper government inaction—the failure of a public official to perform a clear legal duty. The writ of mandamus is properly issued only if (1) no other adequate legal remedy is available to effectuate the relief sought; and (2) the applicant has a clear legal right to such relief." (Citations and punctuation omitted.) Bibb County v. Monroe County, 294 Ga. 730, 734 (2), 755 S.E.2d 760 (2014). Pretermitting the existence of the first requirement, the trial court correctly found that the Association has failed to show a "clear legal right" to mandamus relief. With respect to this second requirement,

[a] clear legal right to the relief sought may be found only where the claimant seeks to compel the performance of a public duty that an official or agency is required by law to perform. [F]or mandamus to issue, the law must not only authorize the act to be done, but must require its performance. Where performance is required by law, a clear legal right to relief will exist either where the official or agency fails entirely to act or where, in taking such required action, the official or agency commits a gross abuse of discretion. The determination of whether official action is required depends on the law governing the subject matter in question. Thus, where the applicable law vests the official or agency with discretion with regard to whether action is required in a particular circumstance, mandamus will not lie, because there is no clear legal right to the performance of such an act.

(Citations and punctuation omitted.) Id. at 735 (2) (b), 755 S.E.2d 760. Moreover, when the law requires an official to exercise discretion, mandamus will lie to compel that discretion be exercised, but...