O.C.G.A. § 9-10-2 (2019)
Actions against state void absent notice or waiver
Any verdict, decision, judgment, decree, order, ruling, or other judicial action by any court in this state in any matter in which this state or an official of this state in his official capacity is a party defendant, intervenor, respondent, appellee, or plaintiff in fi. fa. shall be void unless it affirmatively appears as a matter of record either: (1) That the Attorney General was given five days’ advance written notice by the adverse party or his attorney of the time set for the particular trial, hearing, or other proceeding as a result of which
the verdict, decision, judgment, decree, order, ruling, or other judicial action was entered; (2) That the Attorney General or an assistant attorney general was present in person at the trial, hearing, or other proceeding; or (3) That the Attorney General or an assistant attorney general has, in writing, waived the notice.
History
Ga. L. 1956, p. 625, § 1; Ga. L. 2007, p. 47, § 9/SB 103.
Annotations
JUDICIAL DECISIONS Constitutionality. - The state notice provision, O.C.G.A. § 9-10-2, is rationally related to several legitimate governmental interests and does not violate due process. Georgia Dep’t of Medical Assistance v. Columbia Convalescent Ctr., 265 Ga. 638, 458 S.E.2d 635, 1995 Ga. LEXIS 505 (1995), cert. denied, 516 U.S. 1046, 116 S. Ct. 706, 133 L. Ed. 2d 662, 1996 U.S. LEXIS 65 (1996). Compliance with this section is an absolute condition precedent before valid judgment may be entered against the state or any of its officials acting in their official capacity. Otherwise, the judgment is void. Hawes v. Bigbie, 120 Ga. App. 294, 170 S.E.2d 302, 1969 Ga. App. LEXIS 746 (1969); Cofer v. Williams, 141 Ga. App. 72, 232 S.E.2d 610, 1977 Ga. App. LEXIS 1769 (1977) (see O.C.G.A. § 9-10-2). Judgment void absent compliance with notice requirements. - Where the record does not show affirmatively that the Attorney General was extended the requisite notice of the proceeding upon which the trial court’s judgment was based, that the Attorney General made an appearance, or that the Attorney General waived notice, the judgment is void. Caldwell v. Atlanta Bd. of Educ., 152 Ga. App. 291, 262 S.E.2d 573, 1979 Ga. App. LEXIS 2901 (1979). A trial court’s order which granted full relief to a company seeking certain e-mail records from the Georgia Department of Agriculture was void; the notice for the case management hearing from which the order emanated, did not satisfy the notice
requirements in O.C.G.A. § 9-10-2(1) for a hearing on the full merits of the case as the notice stated only “small motions” and procedural matters would be considered, and the department was never afforded an opportunity to present its opposition to the request through an O.C.G.A. § 9-1154(c)(1) hearing. Ga. Dep’t of Agric. v. Griffin Indus., 284 Ga. App. 259, 644 S.E.2d 286, 2007 Ga. App. LEXIS 306 (2007). Void and ineffective orders. - Where two orders of the superior court were entered following the filing of the plaintiffs’ petition for judicial review, and in neither instance was there compliance with the notice provisions of O.C.G.A. § 9-10-2, the two orders are void and ineffective to prevent an automatic dismissal. Department of Medical Assistance v. Columbia Convalescent Ctr., Inc., 203 Ga. App. 535, 417 S.E.2d 195, 1992 Ga. App. LEXIS 520 (1992), cert. denied, No. S92C0850, 1992 Ga. LEXIS 669 (Ga. July 16, 1992). “Ministerial act” defined. - A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. Miree v. United States, 490 F. Supp. 768, 1980 U.S. Dist. LEXIS 13210 (N.D. Ga. 1980). “Discretionary act” defined. - A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
Miree v. United States, 490 F. Supp. 768, 1980 U.S. Dist. LEXIS 13210 (N.D. Ga. 1980). Distinction between ministerial and discretionary acts dependent on specific character of act. - In Georgia, the distinction between a ministerial and a discretionary act, and therefore the scope of the immunity granted a public official in any given situation, turns upon the specific character of the act complained of, not the more general nature of the job. A discretionary act is generally characterized as one which is the result of personal discretion or judgment. A ministerial act, on the other hand, requires merely the execution of a specific duty arising from fixed or designated facts. A public official is protected from liability in
the performance of the official’s discretionary duties, whereas ministerial acts are committed at the official’s own risk. Miree v. United States, 490 F. Supp. 768, 1980 U.S. Dist. LEXIS 13210 (N.D. Ga. 1980). Failure to hold hearing. - Although the superior court is not required to conduct a hearing concerning the merits of the Department of Public Safety’s decision to revoke a driver’s license if the parties waive their right to be heard, the superior court cannot avoid the dictates of O.C.G.A. §§ 5-3-29 and 9-10-3 by simply failing to hold a hearing. Bowman v. Parrot, 200 Ga. App. 405, 408 S.E.2d 115, 1991 Ga. App. LEXIS 1009 (1991), cert. denied, No. S91C1383, 1991 Ga. LEXIS 546 (Ga. Sept. 6, 1991).
RESEARCH REFERENCES Am. Jur. 2d. 47 Am. Jur. 2d, Judgments, §§ 722 et seq., 727 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 96 et seq., 101 et seq., 147 et seq.. C.J.S. 49 C.J.S., Judgment, § 22. 82 C.J.S., Statutes, § 380. ALR. Consent to suit against state, 42 A.L.R. 1464; 50 A.L.R. 1408.
Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 65 A.L.R.2d 1278. Forum non conveniens in products liability cases, 76 A.L.R.4th 22. Questions as to Convenience and Justice of Transfer Under Forum Non Conveniens Provision of Judicial Code (28 U.S.C.A. § 1404(a)) - Appellate Patent Cases, 32 A.L.R. Fed. 3d 3.