Appendix A.6 Declaratory Judgment

Federal:

Georgia: 

O.C.G.A. Sec. 9-4-2 [GCA Sec. 110-1101]

Source:  Davis and Shulman's Georgia Practice and Procedure, 1997 Edition, by Richard C. Ruskell, Chapter 26.

In 1945, the General Assembly created a new action and remedy known as a suit for a declaratory judgment.

A declaratory judgment is one which simply declares the rights of the parties or expresses the opinion of the court on a question of law without ordering anything to be done. It does not seek execution or performance from the defendant or opposing party. The Superior Court has power to determine and settle by declaration any justiciable controversy of a civil nature, where it appears that the ends of justice require that such should be made for the guidance and protection of the petitioner, and the the declaration will relieve petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations.

The legislative intent and purpose of the Declaratory Judgment Act is to settle and relieve against uncertainty and insecurity with respect to rights, status, and other legal relations between the parties. The Act was not intended to execute remedies, grant coercive relief, or apply to every occasion or question arising from any justiciable controversy.

As a result of case law, Calvary &c. Baptist Church v. City of Rome, the Superior Courts were authorized "to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations.

The suit should terminate or settle the controversy.

There cannot be a justiciable controversy in a declaratory judgment proceeding unless there are interested parties asserting adverse claims upon an accrued state of facts. For a controversy to justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of a statute.

Declaratory judgments are not confined to cases where no other relief is available, although such judgments are not to take the place of existing remedies. Although that may seem like a dichotomy, declaratory relief may be invoked where the plaintiff seeks a declaration under circumstances where no coercive decree is possible, or where plaintiff, though in a position to sue for an executory or coercive decree, contents himself with the milder declaration of rights as adequate to his needs.

The requirement of showing that the plaintiff has no adequate remedy at law or in equity was abolished by statutory amendment, providing: "Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies."

The rights, status, and other legal relations which may be subjects of declaratory judgment are legal rights, legal status, or other legal relations. (emphasis added)

"Interested parties" entitled to a declaratory judgment must be parties having a legal, protectable interest.

Parties seeking to maintain the action must have the capacity to sue, and must have a right which is justiciable and subject to a declaration of rights, and it must be brought against an adverse party with an antagonistic interest. Failure to name an adverse party or parties with an antagonistic interest is fatal to justiciability in an action for declaratory relief. A complaint for declaratory relief is fatally defective if it fails to join a necessary party.

The Georgia Declaratory Judgment Act is much broader than many other states, due to the inclusion of subsection (b):

"(b) In addition to the cases specified in subsection (a) the respective superior courts of this state shall have power, upon petition of other appropriate pleadings, to declare rights and other legal relations of any interested party petitioning for the declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such."

The declaration has the force and effect of a final judgment or decree and is reviewable as such. Proceedings for a declaratory judgment are filed and served as other cases in the superior courts and may be tried at any time designated by the court not earlier than twenty days after such service, unless the parties consent in writing to an earlier trial. If there is an issue of fact which requires a submission to a jury, such jury may be drawn, summoned, and sworn either in regular term or specially for the pending case.

No declaration shall prejudice the rights of persons not parties to the proceeding. If a statute of the state, any order or regulation of any administrative body of the state, or any franchise granted by the state is alleged to be unconstitutional, the Attorney General shall be served with a copy of the proceeding and shall be entitled to be heard. (O.C.G.A. Sec. 9-4-7)