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Official Opinion 95-13

Official Opinion 95-13

March 28, 1995
To: 

Director
Judicial Council of Georgia

Re: 

A person employed in Georgia who has been penalized for being absent from work for the purpose of attending a judicial proceeding in another state under the conditions set forth in O.C.G.A. § 34-1-3 has a civil cause of action against the employer. Official Code of Georgia Annotated § 34-1-3 does not create a separate criminal offense.

You have asked this office for an official opinion on the following questions: (1) Does O.C.G.A. § 34-1-3 apply to Georgia employees who are summoned to jury duty or are otherwise "involved in judicial proceedings" in another state? (2) Does O.C.G.A. § 34-1-3 create a civil cause of action in favor of an employee who has been discharged, disciplined, or otherwise penalized as a result of jury service in another state? and (3) Does O.C.G.A. § 34-1-3, by its language "it shall be unlawful," delineate a separate criminal offense, to be enforced as are other criminal offenses? Based on your letter to me, it is my understanding that your first two questions relate to a resident of another state whose place of employment is in Georgia and who received a jury summons to appear in a court proceeding in that other state.

Official Code of Georgia Annotated § 34-1-3(a) provides that "it shall be unlawful" for an employer to penalize an employee because the employee is absent from work for "the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process which requires" the employee's attendance at the proceeding. An employer who violates O.C.G.A. § 34-1-3(a) shall be liable to the injured employee for actual damages and reasonable attorney's fees. O.C.G.A. § 34-1-3(b). An employer may, however, require an employee to abide by reasonable notification requirements. O.C.G.A. § 34-1-3(c). Finally, the Code Section does not apply to an employee who is charged with a crime. Id.

Based on the above, it is clear that O.C.G.A. § 34-1-3(b) gives an employee a civil cause of action against an employer who has violated O.C.G.A. § 34-1-3(a). In order to answer your first two questions, however, the issue which must be addressed is whether the term "judicial proceeding" in O.C.G.A. § 34-1-3(a) includes judicial proceedings in other states.

While there is no judicial decision which addresses this issue, it is my opinion that the term "judicial proceeding" as used in O.C.G.A. § 34-1-3(a) includes judicial proceedings in other states.

Certainly, one purpose of this law is to aid and protect the integrity of the court system of Georgia. See O.C.G.A. § 15-1-4(a)(4). However, a primary purpose of O.C.G.A. § 34-1-3 appears to be to protect Georgia employees. The legislature chose to place this provision in the portion of the Code relating to labor relations and to give employees a cause of action against employers. In light of this obvious intent, there is no sound reason to construe the term "judicial proceeding" to only mean "judicial proceeding in Georgia" and thereby leave some Georgia employees who are subject to compulsory process unprotected.

In Ewing v. Elliott, 51 Ga. App. 565 (1935), the Georgia Court of Appeals had the opportunity to consider an issue analogous to the one at hand. The defendant in Ewing was a party to litigation in the State of Florida. The defendant, a non-resident, entered the State of Georgia solely for the purpose of attending a deposition as part of the Florida action. While attending the deposition in Georgia, the defendant was served with a copy of the plaintiff's complaint. The Court of Appeals opined that the common-law rule which provides that a non-resident witness "in attendance upon the trial of any case in court is exempt from service . . . while so attending" applied even though the court in question was that of another state. Ewing, 51 Ga. App. at 567-69.

In answer to your last question, O.C.G.A. § 34-1-3 does not by its language "it shall be unlawful" create a separate criminal offense. Nothing in the Code Section sets any criminal penalty for violation of O.C.G.A. § 34-1-3 or provides that such violation constitutes either a misdemeanor or a felony. It should be noted, however, that if the summons or process is issued by a Georgia court a violation of O.C.G.A. § 34-1-3(a) can be punished as contempt of court. O.C.G.A. § 15-1-4(a)(4).

For the reasons stated above, it is my official opinion that the term "judicial proceeding" as used in O.C.G.A. § 34-1-3(a) includes judicial proceedings in other states. Therefore, a person employed in Georgia who has been penalized for being absent from work for the purpose of attending a judicial proceeding in another state in response to a jury summons from a court in that other state has a civil cause of action against the employer provided that the employee has complied with any reasonable notification requirements of the employer. In addition, it is my official opinion that O.C.G.A. § 34-1-3 does not create a separate criminal offense. As discussed above, however, violation of O.C.G.A. § 34-1-3(a) can be grounds for contempt of court.

Prepared by:

THOMAS K. BOND
Assistant Attorney General