'Shall' and ministerial duties

Discussion in 'GA Laws and Politics' started by kkennett, Jun 25, 2007.

  1. kkennett

    kkennett New Member

    In a decision today in Murphy v. Bajjani http://www.gasupreme.us/pdf/s06g1483.pdf , the GA Sup Ct has delved into issues relevant to the GCO lawsuits against probate judges. From the decision:

    We agree with the
    Court of Appeals that, as a rule of statutory construction, “‘hall’ is generally
    construed as a word of mandatory import.†O’Donnell v. Durham, 275 Ga. 860
    (3) (573 SE2d 23) (2002). However, we disagree that a statutorily-mandated
    action is the equivalent of a ministerial act that deprives the actor of official
    immunity if done negligently.

    Good news/bad news. The Sup Ct seems to be able to read 'shall' as a common man would and reaffirm that precedent. That's good news. However, they go out of their way to provide immunity to school officials by looking at sub-categories of 'ministerial' acts. They rely heavily on Leake I and Leake II to describe a ministerial act for which one might be liable as a public official as:

    A ministerial act is commonly one that is simple, absolute, and
    definite, arising under conditions admitted or proved to exist, and
    requiring merely the execution of a specific duty.

    Thus my fear is that the Sup Ct. will decide that adjudicating one's moral character or navigating the firearms laws is not simple or absolute and thus probate judges are not liable for any costs.

    Admittedly, this post may be of interest to only the really nerdy people. :?
  2. Tinkerhell

    Tinkerhell Active Member



  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

    I think they ruled the decision in question was discretionary, not that it is some degree of ministerial with discretionary attributes. That statute said they "shall" do something but left "how" up to them. That is not a new concept in the law. It does not affect probate judges, as nothing is left up to the discretion of probate judges (with one exception: that they can decide whether to issue licenses to crazy people).

    But the facts - The school (a public school) did not call 911 for more than 40 minutes after the son was found bleeding and unconscious in a hallway after students kicked him in the stomach and stomped on his head (ah, public school), because the administrators did not want the school to be perceived as "dangerous" (ah, public school). They only called 911 after the mother got there and demanded it (ah, public school).
  4. kkennett

    kkennett New Member

    Yes, the facts there disturbed me as well. Let's phrase it another way: if one cannot sue school officials personally for that set of facts, then please describe a set of facts that would qualify. Come short of physical injury or molestation by the teacher, I can't think of any. Maybe that's good, but that's a policy argument. Where is the consequence for the school not doing what the code says to do. Just like being a parent, if there is not potential consequence, what's the point?