Georgia Court Rules Sheriffs’ Ban On Process Servers Legal
The Supreme Court of Georgia has ruled that the sheriff’s ban on process service is legal under the current court rules in a tough blow to Georgia process servers.
The Georgia Association of Professional Process Servers (GAPPS) filed suit against the sheriffs of multiple counties, looking for intervention from the court to allow them to serve process. Although the rules state process servers can serve in Georgia if the sheriff of a particular county allowed it, not many sheriffs were doing so which was essentially rendering the rule useless.
The Sheriffs argued that the rule gave them the choice and they were simply choosing not to allow private process servers in their counties.
The trial court originally found in favor of the Sheriffs and GAPPS appealed.
Supreme Court Rulings
In the ruling, the Judges cited the specific Georgia rules relevant to the decision in OCGA § 9-11-4.1 sections (a) and (h)(1):
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 Such certification shall be effective for a period of three years or until such approval is withdrawn by a superior court judge upon good cause shown, whichever shall first occur.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 servers again serves process in that county after expiration of the one-year period.
The trial court originally found “the plain language of the statute barred declaratory and injunctive relief”. In the appeal, the Supreme Court ruled the trial court should have dismissed those claims, as the Sheriffs had raised the defense of sovereign immunity.
Sovereign immunity is meant to provide those acting in the capacity of their job for the government immunity from civil or criminal suits. Sheriffs fall under this grouping as they are acting “as an arm of the government”. Declaratory judgment and injunctive relief are barred by sovereign immunity so the Supreme Court vacated that part of the trial courts’ order.
GAPPS had requested mandamus, a writ in which the court commands someone to perform a public or statutory duty, in their appeal in an effort to get the Sheriffs to allow the use of certified process servers. It was this particular request for mandamus that took this appeal from the Court of Appeals to the Supreme Court.
The court found GAPPS didn’t show a clear legal right to mandamus , stating the Sheriffs did indeed have the right to choose and if they chose to not allow private process in their county “the court cannot force them to do so”.
The opinion focused on the inability of the law to force a particular outcome when a law requires an official to make a decision or use discretion. The analogy used in the opinion was that of the Secretary of State needing to decide boundary lines between counties. The line needed to be figured out, but the court couldn’t say where that line should be. It was up to the Secretary of State.
On attorney fees:
Because GAPPS did not “prevail on its claims”, the court ruled the association wasn’t entitled to attorney fees.
The future for Georgia process servers
A lot hinged on this case for Georgia process servers and it’s certainly a blow to have all claims denied. As it stands, certified process servers will continue to only be able to serve in the very few counties where they are currently approved to serve by the Sheriff.