GEORGIA ASSOCIATION OF PROFESSIONAL PROCESS SERVERS, et al.
JACKSON, SHERIFF, et al.
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.
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.
trial court correctly observed, the relevant provisions of
OCGA § 9-11-4.1 are found in paragraph (a) and paragraph
(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three years or until such approval is withdrawn by a superior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. 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.Finally, the trial court denied
appellants' request for attorney fees. This appeal
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).
Sheriffs raised the defense of sovereign immunity in their
answers, but not in their joint motion for summary
[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, ___ Ga. ___ (Case
No. S17G1786, 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).
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