O.C.G.A. § 9-4-7 (2019)

Annotations

Editor’s notes. Ga. L. 2022, p. 13, § 2/HB 1361, not codified by the General Assembly, provides, in part, that the amendment to subsection (c) shall apply to all proceedings filed on and after the effective date. This Act became effective March 4, 2022.

JUDICIAL DECISIONS There is no requirement that notice of service be filed in the record. Pharris v. Mayor of Jefferson, 226 Ga. 489, 175 S.E.2d 845, 1970 Ga. LEXIS 570 (1970). This section relates only to declaratory judgment proceedings. Daniel v. Federal Nat’l Mtg. Ass’n, 231 Ga. 385, 202 S.E.2d 388, 1973 Ga. LEXIS 715 (1973). O.C.G.A. § 9-4-7 is applicable to declaratory judgment proceedings and not to

appeals to the superior courts. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704, 1981 Ga. LEXIS 888 (1981). Plaintiff’s challenge to the offer of settlement statute’s, O.C.G.A. § 9-11-68 (d), constitutionality arose from plaintiff’s personal injury action and not from a declaratory judgment action; thus, the trial court erred in denying that challenge based on the plaintiff’s failure to serve the

Attorney General with notice. Buchan v. Hobby, 288 Ga. App. 478, 654 S.E.2d 444, 2007 Ga. App. LEXIS 1227 (2007). O.C.G.A. § 9-4-7(c) did not apply to a case because the property owners did not file a declaratory judgment action to have O.C.G.A. § 46-3-204 declared unconstitutional. The declaratory judgments sought by the owners and by the utility in the utility’s counterclaim pertained to whether the utility had an easement on the owners’ land, and § 46-3-204 was raised by the utility as a defense, to which the owners then asserted the unconstitutionality of § 46-3-204 as an argument against that defense. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709, 2011 Ga. LEXIS 507 (2011). Necessary or indispensable party is essential to give court jurisdiction of the cause. For without the inclusion of such party, no decree of declaratory relief can be entered in favor of the complainant. Frost v. Gazaway, 122 Ga. App. 244, 176 S.E.2d 476, 1970 Ga. App. LEXIS 842 (1970). Legal representative of necessary party must be included. - In order to sustain an action for declaratory judgment, the legal representative of a necessary party must be included. Frost v. Gazaway, 122 Ga. App. 244, 176 S.E.2d 476, 1970 Ga. App. LEXIS 842 (1970). Purpose of subsection (b) is to allow municipality to be heard when private parties question the validity of a municipal ordinance, and it does not apply to a situation where the members of the governing body of a municipality are in dispute as to the proper method of passing a valid ordinance under the city charter, and all of the members of the governing body of the municipality are parties. Aliotta v. Gilreath, 226 Ga. 263, 174 S.E.2d 403, 1970 Ga. LEXIS 500 (1970). Purpose of subsection (c) of this section is to give notice to Attorney General of constitutional attack being made on the statute and the opportunity, if the Attorney General desires, to be heard. Pharris v. Mayor of Jefferson, 226 Ga. 489, 175 S.E.2d 845, 1970 Ga. LEXIS 570 (1970); State v. Golia, 235 Ga. 791, 222 S.E.2d 27, 1976 Ga. LEXIS 1447 (1976).

“Statute” construed. - Statute of the state is any law directly passed by the legislature of a state, and any enactment to which a state gives the force of law. Williams v. Kaylor, 218 Ga. 576, 129 S.E.2d 791, 1963 Ga. LEXIS 265 (1963). Word “statute” of necessity includes a provision of the state Constitution. Board of Educ. v. Shirley, 226 Ga. 770, 177 S.E.2d 711, 1970 Ga. LEXIS 679 (1970). Construction with O.C.G.A. § 50-1310(a). - Georgia Court of Appeals disagreed that the “may be determined” language in O.C.G.A. § 50-13-10(a) was evidence that the statute was but one of several methods by which to challenge the validity of an agency rule and that O.C.G.A. § 9-4-7(c), as well as case authority, impliedly contemplated the legitimacy of challenges to agency rules outside the purview of the Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq. Live Oak Consulting, Inc. v. Dep’t of Cmty. Health, 281 Ga. App. 791, 637 S.E.2d 455, 2006 Ga. App. LEXIS 1254 (2006). Subsection (c) of this section does not make the Attorney General party to the proceeding. Pharris v. Mayor of Jefferson, 226 Ga. 489, 175 S.E.2d 845, 1970 Ga. LEXIS 570 (1970); State v. Golia, 235 Ga. 791, 222 S.E.2d 27, 1976 Ga. LEXIS 1447 (1976); Pangle v. Gossett, 261 Ga. 307, 404 S.E.2d 561, 1991 Ga. LEXIS 284 (1991). Subsection (c) of this section does not provide how Attorney General is to be served. Pharris v. Mayor of Jefferson, 226 Ga. 489, 175 S.E.2d 845, 1970 Ga. LEXIS 570 (1970). Provision for service on Attorney General does not amount to consent by state to be sued. Musgrove v. Georgia R.R. & Banking Co., 204 Ga. 139, 49 S.E.2d 26, 1948 Ga. LEXIS 563 (1948). Service on Attorney General is mandatory and jurisdictional when declaratory judgment is sought on constitutionality of statutes. Williams v. Kaylor, 218 Ga. 576, 129 S.E.2d 791, 1963 Ga. LEXIS 265 (1963); Board of Educ. v. Shirley, 226 Ga. 770, 177 S.E.2d 711, 1970 Ga. LEXIS 679 (1970). When service is not made on the Attorney General as required by the declaratory judgments statutes in a case when

there is an attack made upon the constitutionality of a statute enacted by the General Assembly of the state, the court to which the petition is addressed does not have jurisdiction of the subject matter of the case, the subject matter being whether the statute in question is constitutional. Williams v. Kaylor, 218 Ga. 576, 129 S.E.2d 791, 1963 Ga. LEXIS 265 (1963). Trial court is without jurisdiction to render any judgment except one of dismissal when the Attorney General was not served with a copy of the proceeding seeking a declaratory judgment declaring statutes of the state unconstitutional. Plantation Pipe Line Co. v. City of Bremen, 225 Ga. 607, 170 S.E.2d 398, 1969 Ga. LEXIS 583 (1969). Jurisdiction existed because the Attorney General of Georgia had notice of the property owners’ challenge to the constitutionality of O.C.G.A. § 46-3-204 five months before the trial court ruled, but the Attorney General made no attempt to be heard on the matter or in the case on appeal. Under these circumstances, it could not be said that the owners failed to sufficiently comply with O.C.G.A. § 9-7-4 (c), even assuming that the owners were required to do so. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709, 2011 Ga. LEXIS 507 (2011). If there is no constitutional attack on any statute, notice to Attorney General is not required under this section. Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574, 1980 Ga. App. LEXIS 1698 (1980). When the issue was within the Supreme Court’s inherent power to regulate the practice of law, and did not relate to the constitutionality of a statute, notice to the Attorney General was not required. Eckles v. Atlanta Tech. Group, Inc., 267 Ga. 801, 485 S.E.2d 22. Waiver of sovereign immunity. - In the airport parking company’s action against the city and city officials challenging the city’s threatened use of a city tax ordinance against the company, the trial court did not err by denying the city’s motion to dismiss the company’s declaratory judgment claim against the city and city officials in their individual capacities

because O.C.G.A. § 9-4-7 constituted a waiver of sovereign immunity. City of Hapeville v. Sylvan Airport McF-020 Parking, 359 Ga. App. 448, 858 S.E.2d 538, 2021 Ga. App. LEXIS 216 (2021). Claim barred due to no waiver of sovereign immunity. - State of Georgia did not violate O.C.G.A. §§ 9-4-7 and 151-8 by arresting and incarcerating the plaintiff for contempt after willfully violating a consent order enjoining the unauthorized practice of law because such claims were barred by the Eleventh Amendment in that the state had not waived sovereign immunity. Alyshah v. Georgia, No. 1:06-CV-0928-TWT, 2006 U.S. Dist. LEXIS 66546 (N.D. Ga. Sept. 1, 2006), aff’d, 230 Fed. Appx. 949, 2007 U.S. App. LEXIS 18581 (11th Cir. 2007). Shareholder’s interests adequately protected by existing parties. - In a suit by an assignee of a judgment seeking to set aside a fraudulent transfer by the judgment debtor to a corporation, the joinder of the debtors’ brothers, who claimed an ownership interest in the corporation, was not necessary for a just adjudication of the merits because the brothers’ interests were adequately protected by the other defendants. EMM Credit, LLC v. Remington, 343 Ga. App. 710, 808 S.E.2d 96, 2017 Ga. App. LEXIS 557 (2017). Action on denial of land development permit not barred. - In an action arising from the denial of an application for a land development permit to build town homes, the developer’s claim for declaratory judgment was not barred by sovereign immunity. City of Rincon v. Ernest Communities, LLC, 356 Ga. App. 84, 846 S.E.2d 250, 2020 Ga. App. LEXIS 415 (2020). Appeal by Attorney General. - Whene the Attorney General failed to assert a right to become a party litigant in the case pursuant to this section but rather elected to participate in the litigation only as the attorney on behalf of the revenue commissioner, the Attorney General may appeal only in the name and on behalf of the revenue commissioner and not in the capacity of Attorney General. State v. Golia, 235 Ga. 791, 222 S.E.2d 27, 1976 Ga. LEXIS 1447 (1976).

RESEARCH REFERENCES Am. Jur. 2d. 7 Am. Jur. 2d, Attorney General, §§ 22, 27 et seq. 22A Am. Jur. 2d, Declaratory Judgments, §§ 88 et seq., 90, 203 et seq. C.J.S. 26 C.J.S., Declaratory Judgments, §§ 92 et seq., 143 et seq. U.L.A. Uniform Declaratory Judgments Act (U.L.A.) § 11. ALR. Declaration of rights or declaratory judgments, 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 114 A.L.R. 1361; 142 A.L.R. 8.

Determination of constitutionality of statute or ordinance, or proposed statute or ordinance, as proper subject of judicial decision under declaratory judgment acts, 114 A.L.R. 1361. Interest necessary to maintenance of declaratory determination of validity of statute or ordinance, 174 A.L.R. 549. Extent to which principles of res judicata are applicable to judgments in actions for declaratory relief, 10 A.L.R.2d 782.