SPANN v. DAVIS ( 2021 )

In the Supreme Court of Georgia
Decided: November 23, 2021
S20G1536. SPANN v. DAVIS et al.
MCMILLIAN, Justice.
Gai Spann filed suit against Rashida Davis and Kyra Dixon,
administrators of the City of Atlanta Municipal Court (“the Clerks”),
alleging that she was wrongfully arrested and detained as a result
of the Clerks’ failure to withdraw a failure-to-appear warrant after
it had been cancelled by the municipal court. The Clerks raised
sovereign immunity and official immunity as defenses in a motion
to dismiss,1 but the trial court instead sua sponte raised and granted
the motion based on quasi-judicial immunity, with no prior notice to
the parties. The Court of Appeals affirmed. See Spann v. Davis, 355
Ga. App. 673, 673-74 (845 SE2d 415) (2020). We granted certiorari
1 The Clerks also asserted that dismissal was warranted because Spann’s
ante litem notice failed to comply with statutory requirements.
in this case and posed the following questions:
1. Did the Court of Appeals err in concluding that the trial
court was correct to rule sua sponte on the issue of quasi-
judicial immunity, even though the defendants did not
raise quasi-judicial immunity in the motion to dismiss or
the answer?
2. Did the Court of Appeals err in affirming the trial
court’s dismissal of the plaintiff’s complaint against the
defendants based on quasi-judicial immunity? See
Withers v. Schroeder, 304 Ga. 394 (819 SE2d 49) (2018);
Hicks v. McGee, 289 Ga. 573 (713 SE2d 841) (2011). See
also Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (113
SCt 2167, 124 LE2d 391) (1993).2
Because we answer the first question in the affirmative, we conclude
that it is not necessary to answer the second question. We therefore
reverse Division 1 of the Court of Appeals’ decision, vacate Division
2, and direct the Court of Appeals to remand the case to the trial
court for further proceedings.
The Court of Appeals summarized the pertinent facts as
follows:
Spann’s complaint alleged that on August 7, 2017, a
City of Atlanta police officer issued Spann a citation
charging her with a traffic offense relating to an
2We are aided in answering these questions by amicus briefs filed by the
Georgia Trial Lawyers Association and the Attorney General of Georgia.
2
automobile accident. Spann was notified to appear in the
municipal court on September 20, 2017. Spann failed to
appear for the court date and thus, a failure-to-appear
(“FTA”) warrant for her arrest was issued on October 24,
2017. The FTA warrant was entered into the Georgia
Crime Information Center (“GCIC”) database on the
following day.
Thereafter, on November 9, 2017, Spann voluntarily
appeared in the municipal court and entered a guilty plea
to the traffic citation. The municipal court ordered Spann
to pay a fine, which was deferred under a pretrial
intervention plan. Spann further alleged that although
the FTA warrant had been cancelled at the direction of
the municipal court judge, the Clerks neglected to
withdraw the FTA warrant from the GCIC system.
On January 26, 2018, Spann was stopped by police
for another traffic violation. During the traffic stop, a
GCIC check revealed that the FTA warrant was still
active. Spann was arrested and detained in jail.
Spann claims that during her unlawful detention,
she experienced humiliation, extreme anxiety[,] and
emotional distress. She was subsequently released after
payment of a cash bond and the fine that previously had
been deferred.
Spann later filed the instant suit, claiming that the
Clerks had breached their ministerial duties to remove,
or to confirm the removal of, the cancelled FTA warrant
from the GCIC system, which led to her false arrest.
Spann’s suit sought the recovery of consequential
damages and attorney fees allegedly incurred as a result
of the Clerks’ negligence.
3
The Clerks filed a motion to dismiss the lawsuit
under OCGA § 9-11-12 (b) (6) on the grounds that Spann’s
complaint was barred by her failure to comply with the
statutory requirements for serving an ante litem notice
and by operation of the doctrines of sovereign and official
immunity. In its ruling, the trial court dismissed the
lawsuit based on its finding that Spann’s claims were
barred by the doctrine of quasi-judicial immunity, rather
than the alternative grounds raised by the Clerks’ motion.
Spann, 355 Ga. App. at 673-74.
The Court of Appeals first concluded that the trial court
properly raised the doctrine of quasi-judicial immunity 3 sua sponte,
explaining that “‘a trial court has the authority to dismiss claims
sua sponte if it can determine from the pleadings that the claims
cannot succeed as a matter of law.’” Spann, 355 Ga. App. at 674 (1)
(quoting Roberts v. DuPont Pine Productions, LLC, 352 Ga. App.
659, 661 (2) (835 SE2d 661) (2019)). Then, turning to the merits, the
3“Judicial immunity shields judicial officers from liability in civil actions
based on acts performed in their judicial capacity that are not undertaken in
the complete absence of all jurisdiction. This broad immunity, normally
applied to judges, also applies to officers appointed by the court if their role is
simply ‘an extension of the court.’” Considine v. Murphy, 297 Ga. 164, 169 (3)
n.4 (773 SE2d 176) (2015) (citations omitted). Where this immunity is extended
to such appointees, we have referred to it as “quasi-judicial immunity.” See
Withers, 304 Ga. at 399 (3).
4
court held that the Clerks were entitled to quasi-judicial immunity,
relying on Withers, in which this Court held that an appellant’s
claims against a court administrator for not reporting the
disposition of a traffic case were barred based on quasi-judicial
immunity. See Spann, 355 Ga. App. at 675 (2). The Court of Appeals
reasoned that the Clerks’ failure to report the cancellation of the
FTA warrant was a judicial, not ministerial, function because an
FTA warrant is issued by a judge. See id. at 676 (2). The court also
relied on language in Withers, in which we explained that the act of
reporting the disposition of a pending matter to an interested
government agency is judicial in nature (even if performed by a clerk
at the direction of a judge rather than by a judge).4 See id. The Court
of Appeals, thus, concluded that the cancellation of an FTA warrant
is an extension of the judicial function that authorizes quasi-judicial
immunity. See id. at 676-77 (2).
4Specifically, in Withers, we broadly stated that “[c]ourts have held that
the act of reporting the disposition of a matter pending before a court to an
interested government agency is a function that is judicial in nature and
inherent to the judicial process.” 304 Ga. at 398-99.
5
1. Spann first asserts that the trial court erred in ruling sua
sponte on the issue of quasi-judicial immunity. We agree.
We start our analysis by setting out some first principles. A
complaint in a civil action generally must contain “a short and plain
statement of the claims showing that the pleader is entitled to
relief,” OCGA § 9-11-8 (a) (2) (A), and claims in the complaint may
be dismissed for failure to state a claim if:
(1) the allegations of the complaint disclose with certainty
that the claimant would not be entitled to relief under any
state of provable facts asserted in support thereof; and (2)
the movant establishes that the claimant could not
possibly introduce evidence within the framework of the
complaint sufficient to warrant a grant of the relief
sought.
Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). See
also OCGA § 9-11-12 (b) (6) (defense of failure to state a claim upon
which relief can be granted may, at the option of the pleader, be
made by motion).
A corollary to these concepts is that, although the complaint
need not anticipate affirmative defenses, if the allegations on the
face of the pleadings support the defense as a matter of law and show
6
that the claimant would not be entitled to relief, the trial court is
authorized to dismiss for failure to state a claim. See Murrey v.
Specialty Underwriters, Inc., 233 Ga. 804, 807-08 (213 SE2d 668)
(1975) (“However, it has been held that some affirmative defenses
may properly be raised by a motion to dismiss if the facts are
admitted or are not controverted or are completely disclosed on the
face of the pleadings and nothing further can be developed by a trial
of the issue.”). See also Speedway Motorsports, Inc. v. Pinnacle Bank,
315 Ga. App. 320, 323 (1) (727 SE2d 151) (2012) (“Consequently, if
the facts alleged in the complaint affirmatively prove a defense, a
court may dismiss the complaint based upon the defense . . . .”).
Although, in the ordinary case, a motion to dismiss for failure
to state a claim is raised by a party with notice and opportunity by
the opposing party to respond, we have recognized that a trial court
has the authority to sua sponte dismiss a claim on grounds not
raised in the motion before it if it can determine from the pleadings
that no claim has been stated as a matter of law. See Love v. Fulton
County Bd. of Tax Assessors, 311 Ga. 682, 690 (2) (859 SE2d 33)
7
(2021). See also Perry Golf Course Development, LLC v. Housing
Authority of the City of Atlanta, 294 Ga. App. 387, 392-93 (6) (670
SE2d 171) (2008) (“But a trial court has the authority to dismiss
claims sua sponte and without a hearing if it can determine from the
pleadings that the claims cannot succeed as a matter of law.”). The
Court of Appeals has extended this concept to sua sponte dismissals
based on affirmative defenses that are asserted in the answer when
the allegations in the complaint support the defenses. 5 See Roberts,
352 Ga. App. at 661 (2) (in considering motion for summary
judgment, trial court had authority to sua sponte dismiss claims
based on affirmative defenses asserted in the answer, but reversing
because the allegations did not support the defenses).
Moreover, although this Court appears not to have considered
5 Although one of the defenses that the Roberts court addressed sua
sponte was that the complaint failed to state a claim upon which relief can be
granted, the court did not consider or explain why the authority of a trial court
to sua sponte dismiss for failure to state a claim extends to dismissing claims
based on the asserted affirmative defenses of lack of privity of contract and
failure to include necessary and indispensable parties. See Roberts, 352 Ga.
App. at 662-63 (2). We express doubt about whether a trial court can sua sponte
dismiss on the basis of affirmative defenses other than failure to state a claim,
but do not find it necessary to definitively answer the question today.
8
the issue, the Court of Appeals has squarely held that a “trial court
lacks authority to assert on behalf of a party affirmative defenses
that can be waived.” Focus Healthcare Med. Center v. O’Neal, 253
Ga. App. 298, 299 (1) (a) (558 SE2d 818) (2002). See also YP, LLC v.
Ristich, 341 Ga. App. 381, 382 (801 SE2d 80) (2017) (“Accordingly,
because Ristich did not raise an affirmative defense to jurisdiction,
the trial court lacked authority to assert it on his behalf by sua
sponte dismissing the complaint for lack of personal jurisdiction
under the Long Arm Statute.”); Nacoochee Corp. v. Suwanee
Investment Partners, LLC, 275 Ga. App. 444, 447 (2) (620 SE2d 641)
(2000) (trial court’s consideration of an affirmative defense not
raised by the defendant was error).
Here, the Court of Appeals did not recognize this precedent
when it concluded that the trial court had the authority to sua
sponte raise the immunity defense and dismiss Spann’s claims on
that basis without giving Spann notice and an opportunity to be
heard. See White v. State, 305 Ga. 111, 121 (3) (823 SE2d 794) (2019)
(Court of Appeals is bound by older precedent from that court “until
9
such time as the older law [is] properly overruled by that court or
reversed or overruled by this Court.”). This sua sponte dismissal
based on an affirmative defense that has not been raised is
particularly problematic because, as is generally the case for those
asserting an affirmative defense, a party seeking protection from
suit on the basis of immunity bears the burden of establishing that
he or she is entitled to that protection. See, e.g., Hill v. Jackson, 336
Ga. App. 679, 684 (1) (a) (783 SE2d 719) (2016) (party moving for
summary judgment on basis of qualified immunity bears burden of
proof on the asserted immunity). And the defense of judicial
immunity or quasi-judicial immunity is a fact-specific inquiry that
turns on the nature and function of the actions taken by the party
asserting the defense, rather than that party’s status. See Withers,
304 Ga. at 397-98 (2) (judicial immunity is defined by the nature and
function of the act at issue, not by the person to whom it attaches).
Moreover, limiting the dismissal of a claim to an affirmative defense
that is actually raised and argued by the parties recognizes the
autonomy of the defendant who may choose to take advantage of the
10
defense or forgo asserting it. See Focus Healthcare, 253 Ga. App. at
299 (1) (a).
Because the Clerks did not assert quasi-judicial immunity in
their responsive pleading, such that the allegations of the pleadings
do not reveal on their face that they are entitled to immunity as a
matter of law, and the Clerks did not otherwise move to dismiss on
that basis, the trial court erred in sua sponte dismissing Spann’s
claims, and the Court of Appeals erred in Division 1 of its opinion,
which we reverse.
2. However, that does not end our inquiry because Spann
asserts that the Clerks have waived the defense of quasi-judicial
immunity by failing to raise it in their initial pleading or by motion. 6
OCGA § 9-11-12 (b) provides in relevant part that
[e]very defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or
third-party claim, shall be asserted in the responsive
pleading thereto if one is required, except that the
following defenses may, at the option of the pleader, be
made by motion in writing:
6Because this issue is likely to recur on remand, we address it here. See
Seabolt v. Norris, 298 Ga. 583, 587 (3) n.2 (783 SE2d 913) (2016); Baldwin v.
Vineyard, 275 Ga. 134, 135 (2) (562 SE2d 174) (2002).
11
(1) Lack of jurisdiction over the subject matter;
(2) Lack of jurisdiction over the person;
(3) Improper venue;
(4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be
granted;
(7) Failure to join a party under Code Section 9-11-
19.
A motion making any of these defenses shall be made
before or at the time of pleading if a further pleading is
permitted. No defense or objection is waived by being
joined with one or more other defenses or objections in a
responsive pleading or motion.
See also OCGA § 9-11-8 (b) (“A party shall state in short and plain
terms his defenses to each claim asserted and shall admit or deny
the averments upon which the adverse party relies.”); OCGA § 9-11-
8 (c) (“In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award,
discharge in bankruptcy, duress, estoppel, failure of consideration,
fraud, illegality, injury by fellow servant, laches, license, payment,
release, res judicata, statute of frauds, statute of limitations, and
12
waiver.”).7
Of its seven enumerated defenses, OCGA § 9-11-12 (h) (1)
specifies that four – lack of jurisdiction over the person, improper
venue, insufficiency of process, and insufficiency of service of process
– may be waived under three circumstances: (1) if omitted from a
responsive pleading as originally filed, 8 (2) if not asserted in a
motion filed at or before the time of pleading, or (3) if omitted from
a motion in the circumstances as described in OCGA § 9-11-12 (g).
As to whether such defenses are waived, subsection (g) provides that
“[i]f a party makes a motion under this Code section but omits
therefrom any defense or objection then available to him which this
7 Unlike OCGA § 9-11-8 (c), the Federal Rules of Civil Procedure include
a catch-all introductory provision that covers all possible affirmative defenses.
See Fed. R. Civ. P. 8 (c) (1) (“In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense, including: . . . .”).
8 The qualifier that these defenses may be waived if omitted from a
responsive pleading “as originally filed” is significant because generally “[a]
party may amend his pleading as a matter of course and without leave of court
at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). See also
Harvey v. Merchan, 311 Ga. 811, 818-19 (2) (b) (i) (860 SE2d 561) (2021) (where
no pretrial order had been entered, plaintiff was free to amend her pleadings
to give notice of intention to rely on foreign law); Camp v. Coweta County, 280
Ga. 199, 203 (3) (625 SE2d 759) (2006) (“[T]he general rule, applicable to civil
actions in the absence of specific statutory authority, is that amendments are
generally allowed prior to the entry of a pretrial order.”).
13
Code section permits to be raised by motion, he shall not thereafter
make a motion based on the defense or objection so omitted,” except
for a motion on the grounds stated in OCGA § 9-11-12 (h) (2).
Subsection (h) (2) in turn permits the defense of failure to state a
claim upon which relief can be granted, the defense of failure to join
an indispensable party, and an objection of failure to state a legal
defense to a claim to be made in any pleading permitted or ordered
under OCGA § 9-11-7 (a) or by motion for judgment on the pleadings,
or at the trial on the merits.
Here, the Clerks did not assert the defense of quasi-judicial
immunity in their responsive pleading or by motion. Although
OCGA §§ 9-11-8 and 9-11-12 generally require defenses to be
asserted in a responsive pleading, quasi-judicial immunity is not one
of those defenses enumerated in OCGA § 9-11-12 (h) (1) as being
waived if not included in a responsive pleading as originally filed.
See Turner v. Ga. River Network, 297 Ga. 306, 308 (773 SE2d 706)
(2015) (one of our “longstanding tenets of statutory construction [is]
‘expressio unius est exclusio alterius (expression of one thing implies
14
exclusion of another)’” (citation omitted)). See also Gerschick &
Assoc., P.C. v. Pounds, 266 Ga. App. 852, 855 (1) (a) (598 SE2d 522)
(2004) (“OCGA § 9-11-8 (c) does not imply, however, that an
affirmative defense can be raised only by answer or it is forever
waived.”). Moreover, quasi-judicial immunity is not among the seven
defenses “which this Code section permits to be raised by motion,”
rather than in a responsive pleading, OCGA § 9-11-12 (g); therefore,
the Clerks’ failure to include quasi-judicial immunity in their motion
does not amount to a waiver of that defense.
We recognize that we have broadly stated that an “immunity”
defense can be raised in a motion to dismiss for lack of subject
matter jurisdiction 9 under OCGA § 9-11-12 (b) (1) without specifying
the type of immunity, which could suggest another reason why the
Clerks have not waived the defense of quasi-judicial immunity. 10
9 Subject matter jurisdiction refers to the authority of a court to hear a
specific claim, and when a court “lacks subject matter jurisdiction to decide a
question, it has no power to enter a judgment on the merits.” First Christ
Holiness Church, Inc. v. Owens, 282 Ga. 883, 885 (655 SE2d 605) (2008).
10 See Rivera v. Washington, 298 Ga. 770, 778 (784 SE2d 775) (2016)
(“Moreover, a defendant asserting an immunity defense may move to dismiss
15
However, although we have held that Georgia courts have no subject
matter jurisdiction when sovereign immunity applies, 11 we have
never held that judicial or quasi-judicial immunity raises the issue
of a court’s subject matter jurisdiction. And because a trial court
retains authority over a case whether judicial or quasi-judicial
immunity applies, we take this opportunity to make clear that the
for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1), on
consideration of which, the trial court may hear evidence and make relevant
factual findings to decide the threshold issue.” (citations omitted)).
11 In doing so, we have explained that, because sovereign immunity is
jurisdictional, it requires the plaintiff to prove any waiver thereto and is
properly raised under OCGA § 9-11-12 (b) (1). See Ga. Dept. of Labor v. RTT
Assoc., Inc., 299 Ga. 78, 81 (1) (786 SE2d 840) (2016) (“The burden of
demonstrating a waiver of sovereign immunity rests upon the party asserting
it.” (citations omitted)); Ga. Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671
(1) (570 SE2d 1) (2002) (“Under OCGA § 9-11-12 (b) (1), a defendant can raise
a plea in abatement, which is not an adjudication on the merits, that raises the
issue of the lack of subject matter jurisdiction in the trial court . . . .”), overruled
in part on other grounds, Ga. Dept. of Transp. v. Thompson, 354 Ga. App. 200,
207 (1) n.6 (840 SE2d 679) (2020). In addition, it is well settled that a lack of
subject matter jurisdiction can be raised at any time and cannot be waived. See
Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007) (A “court’s lack
of subject-matter jurisdiction cannot be waived and may be raised at any time
either in the trial court, in a collateral attack on a judgment, or in an appeal.”
(citation and punctuation omitted)); OCGA § 9-11-12 (h) (3) (“Whenever it
appears, by suggestion of the parties or otherwise, that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.”). Cf.
Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 267 (II) (A) (117 SCt 2028, 138
LE2d 438) (1997) (Eleventh Amendment sovereign immunity is not “a
nonwaivable limit on the federal judiciary’s subject-matter jurisdiction.”).
16
assertion of this type of immunity is an affirmative defense and not
an issue that would divest the court of subject matter jurisdiction.
See, e.g., Mordkofsky v. Calabresi, 159 F. App’x. 938, 939 (11th Cir.
2005) (“[J]udicial immunity is an affirmative defense and does not
divest the court of subject matter jurisdiction.”); Caban-Wheeler v.
Elsea, 71 F3d 837, 842 (II) (A) (v) (11th Cir. 1996) (because the
defense of judicial immunity was not raised at any time before or
during trial, the issue was waived). 12
3. In light of our holding in Division 1, we conclude that it is
not necessary to consider whether the Court of Appeals erred in
affirming the trial court’s dismissal on the basis of quasi-judicial
immunity, and indeed no court should decide that issue unless and
until it is properly raised. See Mathenia v. Brumbelow, 308 Ga. 714,
726 (4) (843 SE2d 582) (2020); State v. Hudson, 303 Ga. 348, 350 (2)
(812 SE2d 270) (2018). See also Considine v. Murphy, 297 Ga. 164,
170 (3) (773 SE2d 176) (2015). We therefore vacate Division 2 of the
12 Although not binding on this Court, we conclude that these federal
appellate decisions are well reasoned and persuasive.
17
Court of Appeals’ decision.
Judgment reversed in part and vacated in part and case
remanded with direction. All the Justices concur.
18
MCMILLIAN, Justice, concurring.
I concur fully in the Court’s opinion, including Division 3, in
which the Court concludes that it is unnecessary to answer the
question of whether the Clerks are entitled to quasi-judicial
immunity when that affirmative defense has not been asserted in
the trial court. However, I write separately to explain why I believe
that Withers v. Schroeder, 304 Ga. 394 (819 SE2d 49) (2018), is
distinguishable from the case at hand and to further note my
concerns with some of the reasoning in Withers, which has
apparently led the lower courts astray.
I begin by emphasizing that I agree with much of the initial
reasoning employed in Withers as to the scope of judicial and quasi-
judicial immunity, namely: (1) judicial immunity protects judges
from being sued and from being held civilly liable “as a result of
carrying out their judicial duties”; (2) “a judge will be denied the
absolute protection of judicial immunity [when] committing an act
that is nonjudicial in nature; or [] acting in the ‘complete absence of
all jurisdiction’”; and (3) the “determinative issue . . . is whether the
19
core function complained of . . . was nonjudicial.” Withers, 304 Ga.
at 396-97 (2) (citation omitted). “The relevant inquiry is the nature
and function of the act, not the act itself. In other words, we look to
the particular act’s relation to a general function normally
performed by a judge.” Id. at 397-98 (2) (cleaned up).
In Withers, we held that the act of reporting the failure to
appear for a traffic citation was a duty imposed on judges in large
part because at that time OCGA § 17-6-11 (b) provided that “[t]he
court in which the charges are lodged shall immediately forward to
the Department of Driver Services . . . the driver’s license number if
the person fails to appear and answer to the charge against him or
her.” Withers, 304 Ga. at 398 (2). And then we reasoned that,
because the court administrator performed that task on behalf of the
court, the court administrator was protected by quasi-judicial
immunity. See id. at 399 (3). We further noted that this statute was
substantially amended in 2017 such that it “now provides that the
‘clerk of court’ rather than the ‘court’” is responsible for making
reports to DDS. Id. at 398 (2) n.5.
20
Here, there is no similar statute imposing a duty on the court
to report to the Georgia Crime Information Center that the FTA
warrant had been cancelled. Thus, in my view, even if the Clerks
were to assert quasi-judicial immunity on remand, Withers would be
distinguishable and would not control the question. Instead, this
case would appear to be more like Hicks v. McGee, 289 Ga. 573 (713
SE2d 841) (2011).
However, I also take this opportunity to express that I believe
that we went astray in Withers when we looked to the statute as
essentially dispositive to determine the judicial function, instead of
just a factor in the analysis. See id. at 398 (2). Moreover, we then, in
my view, erroneously extended the concept that a statute can define
a judicial function to state broadly that reporting the disposition of
a matter to another government agency is a judicial function
generally (even apparently in the absence of a statute): “[c]ourts
have held that the act of reporting the disposition of a matter
pending before a court to an interested government agency is a
function that is judicial in nature and inherent to the judicial
21
process.” Id. at 398-99 (2) (citing Herring v. Gorbey, 2017 WL
5885668 (C) (3) (E.D. Pa. Nov. 27, 2017) and In re McKenzie, 472 BR
455 (IV) (Bankr. E.D. Tenn. 2012)). We similarly observed that “the
act of preparing a report at the direction of the judge to aid in the
judicial process is a function that is judicial in nature and may be
protected by judicial immunity even if a judicial officer, rather than
a judge, actually prepares the report.” Id. at 399 (2) (citing
Dellenbach v. Letsinger, 889 F2d 755 (II) (B) (1) (b) (7th Cir. 1989),
and Hughes v. Chesser, 731 F2d 1489, 1490 (11th Cir. 1984)).13
However, none of the federal cases cited addressed the issue of
a judicial function versus a clerk’s function. And it does not appear
that in any of those cases was there a statute imposing the reporting
requirement to a government agency on the court. I recognize the
difficulty, though, that lower courts sometimes have in declining to
13 The Court of Appeals relied on this broad language to conclude that
the Clerks functioned as an extension of the court when they reported the
disposition of the traffic case to GCIC, such that Spann’s claims were barred
by the doctrine of quasi-judicial immunity. See Spann, 355 Ga. App. at 676-77
(2).
22
follow language in this Court’s decisions, even when that reasoning
appears erroneous, as well as the incentive to faithfully apply all of
the language in our opinions because of the desire to render correct
rulings and the fear of being reversed otherwise.14 Thus, I write
separately to flag this issue with respect to judicial and quasi-
judicial immunity, which comes up relatively infrequently, and to
urge the Court to reconsider Withers when the opportunity to do so
is properly presented.
I am authorized to state that Justice Peterson and Justice
LaGrua join this concurrence.
14I previously served in the State Court and on the Court of
Appeals.
23