Seay v. Cleveland: Resolution of the Ministerial Discretionary Dichotomy - Franklin D. Guerrero, Jr.

• Publication year: 2000

Seay v. Cleveland: Resolution of the Ministerial Discretionary Dichotomy

Introduction

In 1992 the Georgia State Legislature passed the Georgia State Tort Claims Act ("GTCA") which waived the state's sovereign immunity.¹ The GTCA defines "state" as the "State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions" but the statute specifically excludes "counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities."² Under the GTCA a discretionary function or duty is specifically defined by statue.³ However, the common law distinction between ministerial and discretionary functions still applies to all entities exempted from the GTCA.⁴

I. Factual Background

In Seay v. Cleveland,⁵ the Georgia Supreme Court addressed the issue of whether a sheriff can raise the defense of sovereign immunity when he is sued in his official capacity because of his deputies' negligent performance of a ministerial duty. On October 1, 1991, Arthur and Annie Cleveland purchased property in Cherokee County at a sheriff's sale. John Seay was the sheriff of Cherokee County, and his deputy, Shelley Laughhunn, administered the sale. After the Clevelands purchased the property, another sheriff's deputy deducted the county's cost of the sale and paid the balance to the attorney for the plaintiff in execution. However, the attorney kept the proceeds from the sale and failed to satisfy the existing superior liens. The Clevelands were required to either pay off the superior mortgage or forfeit the property and all of the money paid for the property. Therefore, the Clevelands brought an action against Sheriff Seay in his official capacity alleging that he failed to disburse the funds from the sale as mandated by statute. The Clevelands also alleged that Sheriff Seay negligently supervised his deputies.⁶

At trial Seay moved for a directed verdict, but the motion was denied.⁷ The trial court granted a directed verdict in favor of the Clevelands holding that Seay could not assert the defense of sovereign immunity because his deputies' acts were ministerial.⁸ The court of appeals affirmed and further held "that an action on a sheriff's bond constitutes an action ex contractu, thus sovereign immunity is waived under OCGA Sec. 50-21-1(a)."⁹

The Georgia Supreme Court granted certiorari and reversed, holding that sovereign immunity barred the Clevelands' claims against Seay and that there was rto evidence that immunity had been waived.¹⁰

II. Legal Background

By an act of the General Assembly, Georgia adopted the common law doctrine of sovereign immunity on February 25, 1784.¹¹ In 1974 the doctrine was given constitutional status, and the state remained absolutely immune until the 1983 amendment to the Georgia State Constitution.¹² A 1991 amendment added official immunity, a doctrine primarily developed through Georgia case law, to the Georgia State Constitution.¹³ Official immunity provides that a public officer or employee may be held personally liable for his negligent performance of a ministerial duty but is immune from liability "for his discretionary acts unless such acts are willful, wanton, or outside the scope of his authority."¹⁴

In the 1980 case Hennessy v. Webb,¹⁵ the Supreme Court of Georgia held that if a public employee of the state is sued in his official capacity, the action is really against the state, and the employee is entitled to the defense of sovereign immunity.¹⁶ The court in Webb also concluded that the doctrine of sovereign immunity applied to counties.¹⁷ In Webb a school principal was sued for injuries sustained by a student when the student tripped over a mat and fell into a door. Plaintiffs alleged the principal was negligent for allowing the rug and mat to be placed in front of the door. The trial court dismissed the action, holding the principal was immune from liability because of governmental immunity.¹⁸ The court of appeals reversed.¹⁹ The Supreme Court of Georgia stated that the board of education could clearly invoke governmental immunity, but the issue was whether "[sovereign] immunity extends to an agent of the board carrying out its duties to provide public education by exercising custody and control over the school premises."²⁰ Plaintiffs argued that the principal could not assert governmental immunity because he was being sued as an individual and not in his official capacity and that the principal's negligent act of placing the rug and mat in front of the door was ministerial and not discretionary.²¹ However, the court noted that defendant was being sued solely because of his position and the duties imposed upon him as the principal of the school.²² Furthermore, plaintiffs alleged that the principal "failed to exercise sound judgment (discretion) in allowing ... a hazardous condition to exist."²³ The court explained that an officer invested with discretion and empowered to exercise his judgment is immune from liability "provided the acts complained of are done within the officer's authority, and without wilfulness, malice, or corruption."²⁴ However, public officials who fail to perform a ministerial duty are not immune from liability.²⁵ '"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.'"²⁶ Because defendant's act was discretionary and not ministerial, the court held defendant was entitled to governmental immunity.²⁷

The doctrine of sovereign immunity was modified in 1983 when the voters approved an amendment to the state constitution waiving the state's sovereign immunity.²⁸ The 1983 amendment waived "the sovereign immunity of the state or any of its departments and agencies' in actions for which liability insurance protection was provided."²⁹ In the 1985 case Toombs County v. O'Neal,³⁰ the Georgia Supreme Court held that the 1983 amendment extended to the counties of the State of Georgia.³¹ In O'Neal plaintiff fell in the lobby of the Toombs County Jail. Plaintiff later brought an action for negligence against Toombs County seeking medical expenses and damages for pain and suffering. Toombs County filed a motion to dismiss on the basis of sovereign immunity.³²

The trial court denied the motion and held that pursuant to the 1983 amendment the county waived its sovereign immunity to the extent of applicable liability insurance.³³ On appeal Toombs County argued the trial court erred by holding that the 1983 amendment extends to the counties of Georgia.³⁴ However, the Supreme Court of Georgia found no indication that the electorate did not intend for the 1983 amendment to extend to counties and therefore held that sovereign immunity under the 1983 amendment extends to the counties of the State of Georgia.³⁵

The immunity enjoyed by public officers and employees was made part of the Georgia State Constitution by the 1991 amendment to the doctrine of sovereign immunity.³⁶ The court in Gilbert v. Richardson³⁷ stated that according to the 1991 amendment, "state officers and employees and those of its departments and agencies are subject to suit only when they negligently perform or fail to perform their 'ministerial functions' or when they act with actual malice or intent to cause injury in the performance of their 'official functions.'"³⁸ The court held that the 1991 amendment also applied to counties.³⁹

In Gilbert plaintiffs brought an action against the Walker County sheriff and deputy sheriff for damages sustained when the deputy's vehicle collided with plaintiffs' automobile. Deputy Sheriff Richardson was responding to an emergency call when she collided with plaintiffs. Plaintiffs alleged that Sheriff Millard was liable because he was responsible for Richardson's acts as her employer. Both Millard and Richardson moved for summary judgment alleging that Millard was immune from suit under the doctrine of sovereign immunity and that Richardson was immune from suit under the doctrine of official immunity because she was performing a discretionary function.⁴⁰ '"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.'"⁴¹ The trial court granted Millard's and Richardson's motion for summary judgment.⁴² The court held that Walker County's participation in Georgia Interlocal Risk Management Agency ("GIRMA") did not waive sovereign immunity and...