2020 Georgia Code
Title 45 - Public Officers and Employees
Chapter 12 - Governor
Article 2 - Powers and Duties Generally
§ 45-12-26. Defense of Action in Which State Has Interest
Unless otherwise specially provided for, the Governor, in his discretion, shall provide for the defense of any action instituted against the state or any action instituted against any person, the result of which is of interest to the state because of any claim inconsistent with the state's sovereignty, jurisdiction, or rights.
(Orig. Code 1863, § 24; Code 1868, § 22; Code 1873, § 22; Code 1882, § 22; Civil Code 1895, § 23; Civil Code 1910, § 23; Code 1933, § 40-209.)
Cross references.- Power of Governor to direct Department of Law to institute and prosecute matters, proceedings, and litigations in name of state, § 45-15-35.
Law reviews.- For note, "Perdue v. Baker: Who Has the Ultimate Power Over Litigation on Behalf of the State of Georgia - The Governor or the Attorney General?," see 21 Ga. St. U.L. Rev. 751 (2005).
JUDICIAL DECISIONS
Action not suit against the state.
- A suit to restrain unconstitutional action threatened by an individual who is a state officer is not a suit against the state. Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299, 72 S. Ct. 321, 96 L. Ed. 335 (1952).
Restrictions placed on courts.
- When the General Assembly authorizes suit to be brought against the state, on certain stipulations, the stipulations are restrictions on the courts and may not be exceeded. Thweatt v. State, 66 Ga. 673 (1881).
Consent of Governor necessary.
- The state, by the Governor, cannot be made a party claimant, without the Governor's consent. Parker v. Hughes, 25 Ga. 374 (1858); Printup v. Cherokee R.R., 45 Ga. 365 (1872).
Governor is neither a proper nor necessary party to an injunction filed against the sheriff when execution was issued by the Governor and levied by the sheriff. A demurrer (now motion to dismiss) filed for the sheriff by the Attorney General in an official capacity is a sufficient representation of the Governor. Mayo v. Renfroe, 66 Ga. 408 (1881); Simpson & Ledbetter v. Mathis, 74 Ga. 115 (1884).
Powers of Governor and Attorney General.
- Construed together, Ga. Const. 1983, Art. V and O.C.G.A. §§ 45-15-3,45-15-6,45-15-35, and45-12-26, do not vest either the Georgia Governor or the Attorney General with exclusive power to control legal proceedings involving the State of Georgia; instead, the Governor and Attorney General have concurrent powers over litigation in which the state is a party. Perdue v. Baker, 277 Ga. 1, 586 S.E.2d 606 (2003).
Cited in Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532, 83 S.E. 135 (1914); Florida State Hosp. for Insane v. Durham Iron Co., 192 Ga. 459, 15 S.E.2d 509 (1941).
OPINIONS OF THE ATTORNEY GENERAL
Reimbursement of litigation expenses.
- The Governor may reimburse the expenses incurred by the State and County Democratic Executive Committee in connection with the defense of a proceeding involving the primary election laws when the court holds that the primary election is an integral part of the electoral process of the state. 1945-47 Op. Att'y Gen. p. 297.
RESEARCH REFERENCES
Am. Jur. 2d.
- 72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 87, 94, 95.
22B Am. Jur. Pleading and Practice Forms, States, Territories, and Dependencies, § 2.
C.J.S.- 81A C.J.S., States, § 255.
