Process Serving in Georgia During COVID-19

The following document is an attempt to understand how executive orders and judicial orders are affecting process serving in the State of Georgia. In this document, we attempt to outline:

1. Relevant Judicial and Executive Orders

2. Recommendation to Stop Serving Process (with some exceptions)

3. Who Else Can Provide Guidance on These Issues?

4. Next Steps for GAPPS and our Process Servers?

1. Judicial and Executive Orders

March 14, 2020 - Georgia Supreme Court Chief Justice Melton’s “Order Declaring Statewide Judicial Emergency” (Amended)

“Pursuant to OCGA § 38-3-62, during the period of this Order, the undersigned hereby suspends, tolls, extends, and otherwise grants relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules , regulations, or court orders, whether in civil or criminal cases or administrative matters, including, but not limited to any: (1) statute of limitation; (2) time within which to issue a warrant; (3) time within which to try a case for which a demand for speedy trial has been filed; (4) time within which to hold a commitment hearing; (5) deadline or other schedule regarding the detention of a juvenile; (6) time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury; (7) time within which to file a writ of habeas corpus; (8) time within which discovery or any aspect thereof is to be completed; (9) time within which to serve a party; (10) time within which to appeal or to seek the right to appeal any order, ruling, or other determination; and (11) such other legal proceedings as determined to be necessary by the authorized judicial official” (emphasis added).

“Essential functions are subject to interpretation; however, some matters that fall into the essential function category are: (1) where an immediate liberty or safety concern is present requiring the attention of the court as soon as the court is available; (2) criminal court search warrants, arrest warrants, initial appearances, and bond reviews; (3) domestic abuse temporary protective orders and restraining orders; (4) juvenile court delinquency detention hearings and emergency removal matters; and (5) mental health commitment hearings.”

“This Statewide Judicial Emergency shall terminate on April 13, 2020, at 11:59 p.m., unless otherwise extended.”

March 16, 2020 – United States District Court Northern District of Georgia, Chief United States District Judge, Thomas W. Thrash, Jr. Order – General Order 20-01:

“Significant actions taken to date in response to the threat include the cancellation of essentially all events involving large gatherings of people, the closing of public and private schools, colleges and universities, and the conversion of business and government operations to telework platforms. In recognition of the number of identified and projected cases of COVID-19 in this District, the preventative measures being implemented throughout the District, and the severity of risk posed to the Court, its Bar, and to the public [emphasis added], and given the above public health recommendations from public health authorities, it is hereby ORDERED that, effective Monday, March 16, 2020:

1) No jurors will be summoned for civil or criminal jury trials in any division of the Northern District of Georgia for 30 days from the date of this Order. All jury trials, including any trial specific deadlines, are CONTINUED for 30 days pending further Order of the Court;

2) In-Court appearances for detention hearings, first appearances, and arraignments, for which alternative means are not possible or agreed to by the defendant, will be coordinated with the duty magistrate judge;

3) No grand jurors will be summoned, and all grand jury proceedings in this District are CONTINUED for 30 days pending further Order of the Court;

4) With regard to criminal matters, due to the Court's reduced ability to obtain an adequate numbers of jurors and the effect of the above public health recommendations on the availability of counsel and Court staff to be present in the courtroom, the time period of the continuances implemented by this General Order will be excluded under the Speedy Trial Act, as the Court specifically finds that the ends of justice served by ordering the continuances outweigh the best interests of the public and any defendant's right to a speedy trial, pursuant to 18 U.S.C. § 316l(h)(7)(A);

5) Individual judges presiding over criminal proceedings may take such actions consistent with this Order as may be lawful and appropriate to ensure the fairness of the proceedings and preserve the rights of the parties;

6) Individual judges may continue to hold hearings, conferences, and bench trials in the exercise of their discretion, consistent with this Order;

7) This Order does not affect the Court's consideration of civil or criminal motions that can be resolved without oral argument.

8) For questions about an individual case, the attorney should contact the chambers of the presiding judge.”

March 30, 2020 – United States District Court Northern District of Georgia, Chief United States District Judge, Thomas W. Thrash, Jr. Order – General Order 20-01 Amended:

“The exigent circumstances identified in General Order 20-01 having worsened with many citizens within the Northern District of Georgia now being under state and local government shelter in place instructions; and additional operations of the court needing to change in recognition of these circumstances, and

IT IS THEREFORE ORDERED that General Order 20-01 is amended to extend the specified 30-day time periods contained therein through and including the date of May 15, 2020” (emphasis added).

April 2, 2020 – Governor Kemp’s Executive Order – 04.02.20.01: Shelter-In-Place

“Ordered: That all residents and visitors of the State of Georgia are required to shelter in place within their homes … taking every possible precaution to limit social interaction to prevent the spread of infection of COVD-19 to themselves or any other person, unless they are:

1. Conducting or participating in Essential Services;

2. Performing Necessary Travel;

3. Are engaged in the performance of, or travel to and from, the performance of Minimum Basic Operations for a business, establishment, corporation, non-profit corporation, or organization not classified as Critical Infrastructure; or

4. Are part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from, their respective employment.

“Ordered: The term "Critical Infrastructure" shall refer to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the U.S. Department of Homeland Security as "essential critical infrastructure workforce," in guidance dated March 19, 2020, and revised on March 28, 2020, and those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance” (emphasis added).

“Ordered: That pursuant to Code Section 38-3-7, any person who violates this Order shall be guilty of a misdemeanor.”

April 3, 2020 – Kemp’s Executive Order 04.03.20.02; and Statewide Shelter-In-Place Handout, with attachment A and attachment B

In this Order, there is an expanded definition of Essential Services as an exception to the order to shelter in place, but no mention of Critical Infrastructure in the Order itself. However, there is also a Statewide Shelter-In-Place Handout from the Governor’s office. This document discusses exceptions to the Basic Rule (Shelter-In-Place):

· Engaging in Essential Services

· Working in Critical Infrastructure (see Attachment A)

· Engaging in Minimum Basic Operations (see Attachment B)

· Performing Necessary Travel

“Ordered: All provisions of the Order shall be effective for a period beginning at 6:00 P.M. on Friday, April 3, 2020, and expiring at 11:59 P.M. on Monday, April 13, 2020.”

Attachment A:

Critical Infrastructure means a businesses, establishments, corporations, non-profit corporations, and organizations as defined by the U.S. Department of Homeland Security as "essential critical infrastructure workforce," in guidance dated March 19, 2020, and revised on March 28, 2020, and those suppliers which provide essential goods and services for the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance (emphasis added).

The Attachment references a document issued by CISA, from the Department of Homeland Security. Under the heading “Other Community or Government-Based Operations and Essential Functions,” it lists, “Workers supporting the operations of the judicial system” (emphasis added).

2. Recommendation to Stop Service Process (with some exceptions)

Initially, one of the first questions we are trying to answer is: Is it at all permissible for us to serve process in the middle of this statewide Executive Order? Or, does it depend on the kind of case we are serving (e.g., TRO/TPO case versus an auto accident)? It appears the latter is the case and we should only be serving those cases that fall within Georgia Supreme Court Chief Justice Melton’s Essential Functions:

Since “essential functions are subject to interpretation,” it would appear that the above list is not meant to be exhaustive.

Regarding the vast majority of our process serving businesses, all of those non-TRO and non-TPO cases, we need to shut it down and stop serving most process until the expiration of Chief Justice Melton’s Order – the end of the Judicial Emergency.[2] Evictions, car accident, debt collection, and every other type of case that does not fall within Melton’s Essential Functions, do not need to be served during this Judicial Emergency.

In addition to this legal interpretation, we can tell you with confidence that judges in the State of Georgia do not want process serving happening during this Judicial Emergency for a multitude of reasons:

1. They don’t want us or our families to get hurt by getting exposed to COVID-19 while serving process. And, they don’t want defendants being unnecessarily exposed to COVID-19 by having process servers coming to their home, apartment, or other residence.

2. The Summonses that we all currently have in our possession (to be served with the Complaint, of course, and potentially additional discovery documents), currently contain misinformation: In the vast majority of our cases, we are giving a defendant a Summons and Complaint, with the Summons telling them, the defendant, that they have 30 days to respond with an answer for face default judgement. Due to the current Judicial Emergency Order, that 30-day response time is no longer applicable – they will have much more time to respond as the Judicial Emergency Order and any extensions of that Order will dictate. This misinformation has the potential to cause unnecessary anxiety for the Defendant, wondering how they are going to find a lawyer or otherwise defend themselves within the next 30 days. This anxiety manifests itself in extra phone calls to the courts and the clerks. When they can’t get someone on the phone, they come into the court, physically, looking for clarification or help. This is exactly the type of behavior and unnecessary physical interaction that the judicial and executive orders are trying to prevent.

3. If the Statute of Limitations has been tolled or suspended due to a Judicial Emergency, then serving process for that case is no longer an “essential service” or part of “critical infrastructure.” Simply put, if it can wait, it is no longer essential or critical.[3]

When interpreting Governor Kemp’s Orders and guidance, it would seem that the answer to whether process servers are exempt from Shelter-in-Place depends on whether we are providing an “essential service” or our work is part of the “critical infrastructure.”

On its face, Kemp’s Order would appear to allow for all process serving to continue based on two points:

1) In Kemp’s first Executive Order, “Ordered: The term "Critical Infrastructure" shall refer to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the U.S. Department of Homeland Security as "essential critical infrastructure workforce," in guidance dated March 19, 2020, and revised on March 28, 2020, and those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services.[4]

2) According to the Statewide Shelter in Place Handout, Attachment A, a document created by the Department of Homeland Security, under the heading “Other Community or Government-Based Operations and Essential Functions,” it lists, “Workers supporting the operations of the judicial system” (emphasis added).[5]

However, reading the aforementioned Executive orders and accompanying guidance in the context the current pandemic and Chief Justice Harold Melton’s Judicial Emergency Order, points to the idea that (a) not all legal services are essential right now, and (b) just because you are a worker who is supporting the operations of the judicial system, it may be the case that certain types of workers in the judicial system are not essential right now (e.g., process servers serving non-essential matters).

Many courts in Georgia have stopped given process to the Sheriffs for service, and they have certainly stopped giving process to private process servers.

There is still, however, a complicating factor that needs further guidance: Not all cases we serve in Georgia are controlled by Melton’s order (namely, those cases filed in Federal Court, out of a state that is not Georgia, or out of a foreign territory or country). One could argue that the litigants in those cases may still be in need of timely and effective service of process and therefore such service is essential or critical.

Fortunately, it appears that most Federal jurisdictions have issued their own Emergency Orders, with the United States District Court for the Northern District of Georgia already extending their Order through May 15, 2020.

Regarding those process serving assignments that are filed out of the State of Georgia, our recommendation is to explain that you are only serving “essential” cases and your expectation is that most Jurisdictions are suspending or tolling the Statute of Limitations, and therefore it can and should wait until this current emergency is over. Furthermore, just like a Summons issued out of Georgia court, the Summons you have likely states that the Defendant has 30 days to answer, but this is likely not the case, given that issuing court’s jurisdiction and their Emergency Judicial Order (or equivalent). If you want to be sure, contact the court that issued the legal papers or look it up on that court’s website. Most likely, there is a Judicial Emergency Order in place tolling or suspending the Statute of Limitations. If that is the case, then serving their case right now is not an “essential service” or necessarily part of “critical infrastructure,” and right now, our Governor’s order only exempts us from Shelter-in-Place if it is an essential service or part of critical infrastructure.

Here is a summation of some important questions and answers we’ve encountered thus far:

1. Do judges want process servers out there in the field during this time, especially knowing that some folks reside in nursing homes or crowded apartment complexes where social distancing is impossible? No.

2. Are Statutes of Limitation actually being tolled at all lower courts without express adoption by Georgia’s lower courts? Yes.

3. Should the tolling of SOLs affect whether Process Serving is or should be considered Essential or part of Critical Infrastructure? Yes.

4. Should only a small group of cases still be served (i.e., “essential functions” including the five listed), while the rest be put on hold? Yes.

5. If Process Serving is going to be shut down, what should be the benchmark for knowing when to start back up? Another order from the Georgia Supreme Court or the expiration of the existing order? Or, an order from Kemp’s office? The expiration of the Georgia Supreme Court’s Judicial Emergency Order will mean that the Statute of Limitations are running again and therefore all process serving becomes essential and critical.

3. Who else can provide guidance on these issues?

We would ideally like to get further guidance and clarification from Chief Justice Melton’s Office and/or the Judicial Council of Georgia.

There is an example where legal practitioners have requested additional guidance from the Georgia Supreme Court and obtained clarifying orders. The Georgia Public Defender’s Council issued a plea and Melton responded. Last Friday, after COVID-19 began infecting inmates, most of them trusties, at the Fulton County Jail, Omatayo Alli, executive director of the Georgia Public Defender Council, sent a letter to members of the state’s criminal justice community, including the leaders of the state judicial councils, warning them that requiring public defenders to make personal appearances at jail across the state heightened the risk for the transmission of the virus. As a result, Chief Justice Melton issued seven additional orders offering clarification.[6]

Governor Brian Kemp’s Office? Kemp’s Executive Order 04.03.20.02 goes on to say: “The Governor may continue to issue guidance on the scope of “Essential Services” as needed…without need for further Executive Orders.” Perhaps, there will be additional guidance from Kemp’s office as well.

Is there any guidance or clarity in looking at how other States are handling this crisis? Does it matter what other States are doing with similar orders from their Governor and State Supreme Court? Some States have suspended service of process by private process servers as well as the Sheriff while other States appear to be allowing process servers to still work.

At the end of the day, the Georgia’s judicial system is going to be best served by ensuring that all of its participants are on the same page. Regardless of what any other state does in response to this ongoing emergency, the State of Georgia has an opportunity to assert a clear position so that judges, lawyers, process servers, Sheriff’s, and Georgia’s citizens can best take care of each other, both professionally and in reducing public health concerns.

4. Next Steps for Georgia Process Servers:

We hope this document helps you, our members of GAPPS, to better understand what Judicial Orders and Executive Orders are in effect and how to possibly interpret them. We are attaching the six original documents (the Orders) in their entirety for additional clarification.

We understand that the necessity to essentially shut down your business for an indefinite period of time is daunting. Our hope is that by everyone and all participants in the State of Georgia operating on the same page, no one litigant will be disadvantaged, and no process server will have to worry about losing an attorney/client to another process server who is willing to take on more risks. Our hope is that everyone will be able to pick back up where we left off once the Judicial Emergency is over.

Most of the other threats that have come before us, the kind of disruptions in life that have yielded judicial emergency orders and legislation, have been fairly acute in nature. 9/11 and Hurricane Katrina most quickly come to mind. In each instance, a very bad thing hit us, caused loss of life and devastation of physical property. However, in the days after the waters of New Orleans peaked, and in the days after 9/11, there was an opportunity to spend the immediate future trying to make things better. Yes, there would be consequential damage for days, weeks, months, and even years to come, but the damage was physical, something anyone could see, and we all knew that the agent of harm had come and gone. As such, judicial emergencies were rightfully declared, but they were limited in time because the disaster had happened already and rebuilding the infrastructure would mean the judiciary could get back to work at a certain point.

The day after 9/11, the New York Governor issued an executive order, suspending the Statute of Limitations generally, for thirty days. At the end of the 30 days, he extended the order until 11/8/2001, but only for those who plead that they were directly affected by the disaster. Later, the New York legislature ratified the orders.

However, now, with COVID-19, we face a judicial emergency like nothing we’ve seen the last 100 years.[7] We face a practically invisible organism that causes death, and indiscriminately spreads. We currently have a very diminished ability to get tested for the virus and, as such, have reduced assurance that the asymptomatic person we are interacting with is actually virus-free. And vice versa, a process server may be asymptomatic but actually be carrying the virus. Perhaps we get access to testing for more front-line workers (e.g., doctors, nurses, grocery store clerks, process servers?) but that could be months away.

The bottom line is that unlike 9/11 and unlike Hurricane Katrina, we don’t really know when the end to this disaster will be – the dangers may be actually growing with time.

While none of us would go out there and try to engage in process serving while we knowingly had COVID-19, the fact is, one can be asymptomatic but still carry and transmit the virus to someone we are serving. The same is true for the people with whom process servers are interacting: a defendant’s healthy appearance does not necessarily mean they are free of COVID-19.

At the end of the day, we recognize that Georgia Process servers may be doing something different than process servers in other states, and we recognize that we may feel untold financial hardship as a result of collectively standing down, but we believe it is the right thing to do. Our hope is that the lawyers in the State Bar of Georgia will fully support this unified stance.

Finally, as a word of caution: If judges see that process servers are working on regular, non-essential cases, they have the power to revoke our appointments. Let’s not put them in that position. We all want to work, but the health and safety of Georgia’s citizens, judiciary, lawyers, and process servers is paramount.

[1] March 14, 2020 - Georgia Supreme Court Chief Justice Melton’s “Order Declaring Statewide Judicial Emergency” [2] While the Order currently is set to expire on April 13, 2020 at 11:59 p.m., a large number of lawyers and judges anticipate an extension. [3] A minority percentage of attorneys in Georgia have privately expressed concern over whether Melton’s Order automatically applies to all lower Georgia Courts without express adoption by the lower court, but this argument appears to be meritless based on the sheer majority of attorneys and judges who believe that Melton’s Order absolutely applies to the lower courts of Georgia without need for express adoption. [4] Governor Kemp’s Executive Order – 04.02.20.01: Shelter-In-Place [5] Governor Kemp’s Executive Order 04.03.20.02; and Statewide Shelter-In-Place Handout, with attachment A and attachment B [6] https://www.gasupreme.us/court-information/court_corona_info/ [7] It would be interesting to research further how the Courts dealt with similar issues during and after the 1918 Influenza Pandemic

Process Serving in Georgia During COVID-19

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