Final 2019 State Bar Legislative Update

Final 2019 Legislative Update

The Legislature has adjourned sine die! The Georgia General Assembly concluded its 40-day legislative session shortly after midnight on Tuesday, April 2. As is typical for the end of the session, Days 39 and 40 were both eventful and demanding. The State Bar had a great year under the Gold Dome, successfully passing two bills this session. Without the help of our lawyer-legislators and our members that volunteered their time to propose these bills, none of this success would have been possible.

Every year, the General Assembly creates law that affects Georgia lawyers and their clients. Below is a non-exhaustive list of legislation we followed that ultimately passed this session.

The FY 2020 Budget

The Legislature passed a $48.7 billion budget, which includes approximately $27.5 billion in state funding and approximately $14.2 billion in federal funds. In addition to a merit-based pay increase for state employees and a $2,775 pay increase for public school teachers, the FY 2020 budget also includes continued funds for grants to civil legal services providers for victims of domestic violence and continued funding of the Georgia Appellate Resource Center. The Legislature additionally approved a new $375,000 appropriation for grants that will go to civil legal services for kinship care families.

Enabling the Georgia Statewide Business Court

After competing House and Senate bills creating the statewide business court made their way through the legislative process this year, the final product passed on Day 40 as HB 239 [ www.legis.ga.gov ] . Rep. Chuck Efstration (R-Dacula) and Sen. Jesse Stone (R-Waynesboro) worked tirelessly to craft the business court legislation and ultimately strike a compromise between the House and Senate positions. Under HB 239 [ www.legis.ga.gov ] , the statewide business court may be located in Atlanta or Macon. A plaintiff can choose to file an action directly with the business court, or the case can be transferred to the business court with the consent of the parties. A party may also petition to transfer the case to the statewide business court, and upon review, the business court judge shall determine whether the case is within the jurisdiction of the court, with a presumption that the action remain in the court of filing.

The filing fee for the court is set at $3,000, which is paid by the party or parties filing the action in the business court or equally allocated between all parties who consent to transfer the case. The court has concurrent jurisdiction and the powers of a court of equity over claims arising under the Uniform Commercial Code, the Georgia Uniform Securities Act and the Georgia Business Corporation Code, among others. Where damages are requested, the amount in controversy must exceed $500,000 or $1 million for claims involving commercial real property. The legislation provides for one judge who shall be appointed by Aug. 1, 2019. The court will begin accepting cases on Aug. 1, 2020.

Exemptions from eFiling Charges and Mandated Electronic Service for Attorneys

In the final hours of the legislative session, the business court legislation, HB 239 [ www.legis.ga.gov ] , became a vehicle for other legislation of interest to the bench and the bar. The final bill “as passed” includes language from SB 38 [ www.legis.ga.gov ] , which provides that eFiling service providers may not charge any filer for a leave of absence or a conflict notice. The attached language also amends O.C.G.A. § 9-11-5 so that attorneys may NOT elect to rescind electronic service of pleadings if the case was initiated electronically. The effect is that civil cases initiated in state or superior court after July 1, 2019, require electronic service of pleadings to and from all represented parties. Attorneys are deemed to have consented to service at the primary email address on record with the electronic filing service provider.

Amendments to the Statute of Frauds

SB 37 [ www.legis.ga.gov ] , sponsored by Sen. William Ligon (R-Brunswick), amends the Statute of Frauds so that any agreement to modify, alter, cancel, revoke or rescind a contract that falls within the Statute of Frauds must be in writing. Under this new provision, however, if the party against whom enforcement of the agreement is sought admits in evidence that the agreement was made, it is enforceable if valid in all other respects. SB 37 [ www.legis.ga.gov ] is in response to a 2018 Court of Appeals of Georgia decision in Crop Production Services, Inc. v. Moye , which found that a mutual oral agreement to rescind a written guarantee is not subject to the Statute of Frauds.

Sovereign Immunity

The Legislature has spent many years debating sovereign immunity legislation after a series of cases from the Supreme Court of Georgia held that sovereign immunity can only be waived by an act of the General Assembly that specifically provides for the waiver and the extent of its application. HB 311 [ www.legis.ga.gov ] is a culmination of input from state and local stakeholders, government entities and practicing attorneys, and provides a solution to the current void in Georgia law that precludes an individual or an entity from challenging a governmental entity in Georgia courts for an alleged violation of the law.

HB 311 [ www.legis.ga.gov ] , sponsored by Rep. Andy Welch (R-McDonough), waives sovereign immunity for claims seeking declaratory or injunctive relief to remedy an injury in fact caused to an aggrieved person by the state, a state governmental entity, or an officer or employee in his or her official capacity in violation of a state statute, the Georgia Constitution or the U.S. Constitution. The bill provides a list of exceptions to the waiver, including claims for monetary relief, attorney’s fees, or expenses of litigation except as provided in O.C.G.A. § 9-15-14.

A separate section of the legislation applies to county, municipal and other governmental entities, and explicitly waives sovereign immunity for a claim seeking injunctive or declaratory relief (1) to challenge a local ordinance, rule or policy under state law, the Georgia Constitution or the U.S. Constitution; (2) to remedy an injury in fact or imminent injury caused by a political subdivision or an officer or employee acting without lawful authority, beyond the scope of official power, or in violation of the Georgia Constitution, the U.S. Constitution, a state statute, a rule or regulation, or a local ordinance of a political subdivision; and (3) to remedy an injury when the injury is related to the award of a proposed agreement with a political subdivision or an officer or employee in his or her official capacity.

Like all other legislation that passed both chambers by the conclusion of the 2019 session, HB 311 [ www.legis.ga.gov ] must be signed by Gov. Kemp within 40 days to become law. Gov. Deal vetoed a 2016 bill that waived sovereign immunity in specific circumstances, stating that the waiver in that bill was too broad.

Real Property and Landlord-Tenant Legislation

HB 346 [ www.legis.ga.gov ] , sponsored by Rep. Sharon Cooper (R-Marietta), strengthens tenant protections so that a tenant can bring a defense of retaliation against a landlord in a dispossessory action where the dispossessory was filed because the tenant gave notice of a repair, complained to a governmental entity about code enforcement or created a tenant organization to discuss the conditions of the property. The legislation also permits a tenant to recover a civil penalty of one month’s rent plus $500, court costs, reasonable attorney’s fees where the landlord’s retaliatory conduct is willful, wanton or malicious, and declaratory relief less any delinquent rents or other sums for which the tenant is liable to the landlord.

HB 288 [ www.legis.ga.gov ] , sponsored by Rep. Alan Powell (R-Hartwell), revises the fees that a clerk of the superior courts can charge for filing real property documents and provides for a flat fee in most instances rather than a fee per page.

HB 492 [ www.legis.ga.gov ] , sponsored by Rep. Bonnie Rich (R-Suwanee), requires an application for a writ of possession to be made within 30 days of issuance unless it’s accompanied by an affidavit showing good cause for the delay in applying for execution of the writ.

Domestic and Child Welfare Legislation

SB 190 [ www.legis.ga.gov ] , sponsored by Sen. John Kennedy (R-Macon), strikes language that requires a complaint for modification of custody to be filed as a separate action in the county of residence of the legal custodian of the child. Under this legislation, a complaint to modify legal or physical custody must be filed in the county where the defendant resides under Article VI, Section II, Paragraph VI of the Georgia Constitution. The change has the effect of allowing a party to bring a counterclaim for modification of legal custody or physical custody in response to a complaint to modify custody. The bill also clarifies that a party cannot file a complaint to change custody in response to a motion for contempt.

HB 543 [ www.legis.ga.gov ] , sponsored by Rep. Chuck Efstration (R-Dacula), provides for procedures for a court to adjudicate an individual to be an equitable caregiver of a child. An equitable caregiver has standing so a court may establish parental rights and responsibilities as to that individual, including custody or visitation. To establish standing as an equitable caregiver, a court must find by clear and convincing evidence that the individual meets a set of elements demonstrating that he or she has engaged in consistent caretaking of the child.

HB 472 [ www.legis.ga.gov ] , sponsored by Rep. Bert Reeves (R-Marietta), requires the court to consider whether there are reasonable alternatives to the removal and placement of a child in foster care. The bill allows the court to order temporary alternatives to foster care, including an order authorizing the child to be cared for by a relative or fictive kin.

HB 381 [ www.legis.ga.gov ] , sponsored by Rep. Chuck Efstration (R-Dacula), makes minor revisions to the child support guidelines to bring them in line with federal law.

SB 225 [ www.legis.ga.gov ] , sponsored by Rep. Larry Walker (R-Perry), conforms Georgia law with the federal Social Security Act and the Family First Prevention Services Act.

Tort and Insurance Legislation

HB 128 [ www.legis.ga.gov ] , sponsored by Rep. Deborah Silcox (R-Sandy Springs), provides that insurers and medical licensees do not have to notify the Georgia Composite Medical Board of a judgment or an agreement to settle a medical malpractice claim when the settlement or judgment resulted in a low payment under a high/low agreement.

HB 227 [ www.legis.ga.gov ] , sponsored by Rep. Spencer Frye (D-Athens), precludes an insurer from requesting, directly or indirectly, any information the insurer knows or reasonably should know relates to acts of family violence or sexual assault. The bill also precludes the use of such information, however obtained, except for the limited purpose of complying with legal obligations.

SB 29 [ www.legis.ga.gov ] , sponsored by Rep. Harold Jones (D-Augusta), waives sovereign immunity for local government motor vehicle claims against sheriffs. The legislation clarifies and conforms this specific statutory waiver of sovereign immunity in response to the Supreme Court of Georgia’s decision in Davis v. Morrison , 344 Ga. App. 527 (2018), so it is the same as applied to an officer, agent or employee of a local government entity.

Fiduciary Legislation

HB 70 [ www.legis.ga.gov ] , sponsored by Rep. Chuck Efstration (R-Dacula), integrates citations to provisions in Title 29 Chapter 11 in order to provide clarity for attorneys practicing in this area and to prevent litigation based on ambiguities between these chapters. The bill also clarifies the standards establishing who bears the responsibility for paying costs in guardianship and conservatorship proceedings, including medical evaluation and attorney fees.

HB 490 [ www.legis.ga.gov ] , sponsored by Rep. Jason Ridley (R-Chatsworth), permits a financial institution to release up to $15,000 from a deceased depositor’s account for funeral expenses and last expenses of illness if no request for the deceased’s deposits is made by certain family within 45 days of the death of the depositor. The claimant requesting the release of the deceased’s deposits for funeral expenses or last expenses of illness must attest that there is no known will of the deceased and there is no known potential recipient of the deceased’s deposits.

Workers’ Compensation Legislation

SB 135 [ www.legis.ga.gov ] , sponsored by Rep. Larry Walker (R-Perry), amends workers’ compensation administration and benefits and proposes to increase the compensation benefits for total disability and temporary partial disability, among other things.

2019 is the first year of a two-year legislative cycle. As a result, bills that did not pass this year carry over to the 2020 legislative session. Expect to see the debate over bills like the “seatbelt bill” (SB 148 [ www.legis.ga.gov ] and HB 457 [ www.legis.ga.gov ] ) as well as the proposed state takeover of Hartsfield Jackson International Airport to rear up again next year.

We appreciate all of our Bar members who have reached out to us with their comments throughout the session. If you have questions about the legislative session or any of the bills we’ve mentioned, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org [ mailto:christineh@gabar.org ] .