October 16, 2017 – High Court: Georgia Sheriffs Ban on Process Servers Not Illegal

The Georgia Supreme Court has ruled that the state’s 159 sheriffs are within their legal rights to maintain a near-statewide ban on allowing private, certified process servers from working in their counties.

The Georgia Supreme Court on Monday dealt a final blow to an effort by a group representing private process servers to have the state’s sheriffs lift a near-unanimous embargo that has kept them from serving papers in all but two of Georgia’s 159 counties.

The unanimous opinion affirmed a trial judge’s summary judgment ruling against the Georgia Association of Professional Process Servers (GAPPS). The court also held that some of the claims were barred by sovereign immunity and should never have made it as far as they did.

The dispute erupted soon after the General Assembly passed legislation in 2010 creating a system under which sheriffs have the authority to certify process servers and allow them to work. But most of Georgia’s sheriffs made it clear that they had no intention of doing so. The Georgia Sheriffs Association announced on its website: “All sheriffs will exercise their authority under the current law and prohibit all certified process severs from serving process in every county.”

Many Georgia counties have process servers who work under the authority of the superior courts, which keep a list of such servers litigants can use, in addition to sheriffs’ deputies whose duties also include serving process.

But once a certified server who is not on a court list fulfills the required training, bonding and other requirements, he or she must apply to a county sheriff for statewide certification.

Under the law, the sheriff must grant the certification which allows the server to work anywhere in the state. After that, the server can apply to work in any county, “provided that the sheriff of the county for which process is to be served allows such servers to serve process in such county.”

Only two of the state’s 159 sheriffs have allowed the private servers to work in their counties.

In 2013, GAPPS sued the sheriffs of Fulton, Cobb, Gwinnett, DeKalb, Clayton, Forsyth and Paulding counties, asking a Fulton County judge to declare that they and the rest of the state’s sheriffs must allow private servers to operate in their counties or issue a reasoned denial on a case-by-case basis.

The complaint sought mandamus, declaratory judgment and injunctive relief against the sheriffs, who were named in their official capacities.

In 2015 Superior Court Judge Robert McBurney granted summary judgment to the sheriffs, writing that “the plain language of the statute gives sheriffs the discretion to make an initial up/down policy decision as to whether to permit any certified private process servers to serve process in the county.”

Arguing the servers’ appeal earlier this year, Parks, Chesin & Walbert partner Lee Parks told the justices that the sheriffs had engaged in a “conspiracy” and “gross abuse of discretion” to effectively nullify the law.  Writing for the court, Justice Michael Boggs first said that GAPPS’ claims for declaratory and injunctive relief should have been dismissed on sovereign immunity grounds and that McBurney should not have addressed them on the merits.

The mandamus claim was not barred by sovereign immunity, Boggs wrote. Instead, the two-part question for mandamus claim is whether no other remedy is available, and whether the applicant has a “clear legal right” to relief. Even assuming the answer to the first question is yes, Boggs said the trial court was correct in that GAPPS had no clear legal right to relief.  For mandamus to apply, “the law must not only authorize the act to be done, but must require its performance,” Boggs wrote, citing the court’s 2014’s opinion in Bibb County v. Monroe County, 294 Ga. 730.

“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,” the citation continued.

“Moreover,” Boggs wrote, “when the law requires an official to exercise discretion, mandamus will lie to compel that discretion be exercised, but not to dictate the result.” “Here, the association asserts that the sheriffs have a ‘clear legal duty’ to permit the association’s members to serve process once they have met the statewide qualifications,” he said. But a “plain reading of the statute shows that each sheriff is authorized to decide, as a threshold matter, whether to ‘allow certified process servers to serve process in his or her county.’ … As the trial court correctly noted, that is a separate issue from the sheriff’s duty to process applications for certification under [the law].”

Parks said he was “certainly disappointed in the decision given the fact the sheriffs conceded they were intentionally attempting to void the effect of a good law by refusing to certify every single person who took the training and was unquestionably qualified to serve process.”

“The victims here are those who need effective service of process that is timely and cost effective,” Parks said via email. “Private process service is well entrenched and succeeding in many parts of the country. Our state’s sheriffs’ conspiracy to void this law is turf protection at its worst and the loser is the consumer.”  Parks said he was hopeful that the Legislature “will fix this problem next session.”

The sheriffs were represented by a dozen lawyers from county law departments and private firms, but Freeman Mathis & Gary partner Jack Hancock, who represents Clayton County Sheriff Victor Hill, argued the case at the trial and high court level.

“Counsel for each of the sheriffs named as defendants worked very hard for this result,” said Hancock. “We are pleased that the court agreed with our analysis. We felt that if the court followed the plain language of the statute, this was the only result.”