NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: September 6, 2023
S23A0699. KUHLMAN v. THE STATE.
ELLINGTON, Justice.
After the Georgia Board of Public Safety (“the Board”) denied
Rick Allen Kuhlman’s application for relief from the prohibition on
the possession of firearms by convicted felons in OCGA § 16-11-131,
Kuhlman sued the State of Georgia in the Superior Court of Fulton
County, seeking a declaratory judgment “that he qualifies for relief”
from that prohibition pursuant to subsection (d) of the statute. His
complaint, as amended, also included claims that the statute, as
applied to him, violated his right to bear arms under the Second
Amendment to the United States Constitution and Article I, Section
I, Paragraph VIII of the Georgia Constitution of 1983. The superior
court granted summary judgment to the State on all claims. In its
order, the court ruled that Kuhlman’s statutory claim was barred by
sovereign immunity, that he could not maintain his federal
constitutional claim, and that OCGA § 16-11-131 did not violate the
state constitution. Nevertheless, the superior court went on to rule
in the alternative on the merits of Kuhlman’s statutory claim, but it
failed to reach the merits of his federal constitutional claim. For the
reasons set forth below, we reverse the portion of the superior court’s
judgment that is based on sovereign immunity, we affirm the court’s
alternative ruling on the merits of Kuhlman’s statutory claim, we
vacate the portion of the judgment that relates to Kuhlman’s
constitutional claims, and we remand the case to the superior court
for reconsideration of Kuhlman’s constitutional claims consistent
with this opinion.
1. In 2011, Kuhlman pled guilty in federal court to one count of
health care fraud under 18 USC § 1347. In 2014, he was sentenced
to 30 months in prison followed by three years of extended
supervision that was terminated early in February 2019. In 2021,
Kuhlman applied to the Board for relief pursuant to subsection (d)
of OCGA § 16-11-131. Under that subsection, a person who has been
2
convicted of a “felony pertaining to antitrust violations, unfair trade
practices, or restraint of trade” may apply to the Board for “relief
from the disabilities imposed by this Code section.” OCGA § 16-11-131 (d). 1 See also Ferguson v. Perry, 292 Ga. 666, 673 (2) (c) (740
SE2d 598) (2013) (recognizing that “when a citizen is precluded by
law from possessing firearms as a consequence of his felony
conviction, he suffers a ‘disability imposed by law,’” that “the
Georgia statutes that prohibit convicted felons . . . from possessing
firearms . . . are disabilities imposed by state law,” and that “in
OCGA § 16-11-131 the General Assembly described statutory
prohibitions against possessing firearms in just these terms”). The
1 More fully, the relevant part of OCGA § 16-11-131 (d) provides:
A person who has been convicted under federal or state law of a
felony pertaining to antitrust violations, unfair trade practices, or
restraint of trade shall, upon presenting to the Board of Public
Safety proof, and it being established from said proof, submitted
by the applicant to the satisfaction of the Board of Public Safety
that the circumstances regarding the conviction and the
applicant’s record and reputation are such that the acquisition,
receipt, transfer, shipment, or possession of firearms by the person
would not present a threat to the safety of the citizens of Georgia
and that the granting of the relief sought would not be contrary to
the public interest, be granted relief from the disabilities imposed
by this Code section.
3
Board denied Kuhlman’s application, “determin[ing] that [his]
application for [relief from] [d]isabilities pursuant to OCGA § 16-11-131 does not qualify for the relief sought.”
A week later, Kuhlman filed his action for declaratory relief,
seeking a declaration that his “conviction pertained to antitrust
violations, unfair trade practices, or restraint of trade and therefore
qualifies for relief under OCGA § 16-11-131 (d).” The superior court
denied the State’s motion to dismiss Kuhlman’s complaint, and
Kuhlman amended his complaint to also seek declarations that
“OCGA § 16-11-131 is unconstitutional as applied to him to the
extent it prohibits his possession of firearms,” under both the Second
Amendment to the United States Constitution and Article I, Section
I, Paragraph VIII of the Georgia Constitution of 1983.
In its order granting the State’s motion for summary judgment,
the superior court ruled that “[s]overeign immunity bars
[Kuhlman’s] claim for a declaration as to the nature of his
conviction”; that “[e]ven if not barred by sovereign immunity,
[Kuhlman] is not entitled to a declaration that his conviction
4
qualifies for relief pursuant to OCGA § 16-11-131 (d)”; that
Kuhlman’s “federal claim cannot be maintained because the State of
Georgia is not a person for purposes of 42 USC § 1983”; and that
“OCGA § 16-11-131 does not violate the Georgia Constitution.” This
Court granted Kuhlman’s application for discretionary appeal to
consider whether the superior court erred when it ruled that,
because “[f]ederal constitutional claims, whether in federal or state
courts, are necessarily brought pursuant to 42 USC § 1983” and a
state is not a “person” subject to suit under that statute, Kuhlman
“cannot maintain his federal constitutional claim against the State
of Georgia.”
2. We turn first to Kuhlman’s contention that the superior
court erred by ruling that sovereign immunity barred his statutory
claim. 2 Article I, Section II, Paragraph V (b) (1) of the Georgia
2 Although our order granting Kuhlman’s application for discretionary
appeal identified only one specific claim of error with which we were
“particularly concerned,” we did not direct the parties to file briefs on that issue only and, therefore, “we have not limited the scope of the discretionary review
more narrowly than the enumeration of errors in the application.” Zekser v.
Zekser, 293 Ga. 366, 369 (2) n.13 (744 SE2d 698) (2013) (“When we do limit the
5
Constitution of 1983 waives sovereign immunity for certain actions
seeking declaratory relief for alleged “acts” of state boards (as well
as many other types of governmental entities, officials, and
employees) that are “outside the scope of lawful authority or in
violation of the laws or the Constitution of this state or the
Constitution of the United States.” 3 In this case, Kuhlman claims
scope of review more narrowly, we do so explicitly.”). We first address sovereign
immunity because its applicability “is a threshold determination, and, if it does
apply, a court lacks jurisdiction over the case and, concomitantly, lacks
authority to decide the merits of a claim that is barred.” McConnell v. Dept. of
Labor, 302 Ga. 18, 19 (805 SE2d 79) (2017). See also Polo Golf & Country Club
Homeowners Assn., Inc. v. Cunard, 306 Ga. 788, 790 (1) (a) (833 SE2d 505)
(2019) (“Sovereign immunity . . . must be ruled upon prior to the case moving
forward on the more substantive matters.” (emphasis in original)). Indeed, the
superior court properly addressed sovereign immunity first and then
proceeded to make an alternative ruling on the merits of Kuhlman’s statutory
claim. See Department of Labor v. McConnell, 305 Ga. 812 (828 SE2d 352)
(2019) (affirming the Court of Appeals’ holdings on remand that the trial court
erred in dismissing the case on sovereign immunity grounds but that the trial
court correctly ruled in the alternative that the complaint failed to state a
claim).
3 In full, subparagraph (b) (1) provides:
Sovereign immunity is hereby waived for actions in the superior
court seeking declaratory relief from acts of the state or any
agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer or
employee thereof or any county, consolidated government, or
municipality of this state or officer or employee thereof outside the
scope of lawful authority or in violation of the laws or the
Constitution of this state or the Constitution of the United States.
Sovereign immunity is further waived so that a court awarding
6
that the Board’s “act” of denying his application for relief under
OCGA § 16-11-131 (d) was “in violation of” the following: the laws of
this State – OCGA § 16-11-131 (d); the Constitution of this State –
Article I, Section I, Paragraph VIII; and the Constitution of the
United States – the Second Amendment. The first of these claims
seeks a declaration that the Board’s decision that Kuhlman failed to
qualify for relief was contrary to the law, specifically that his felony
conviction pertained to “antitrust violations, unfair trade practices,
or restraint of trade” and consequently qualifies for relief under
OCGA § 16-11-131 (d).4 For this reason, Kuhlman’s statutory claim
declaratory relief pursuant to this Paragraph may, only after
awarding declaratory relief, enjoin such acts to enforce its
judgment. Such waiver of sovereign immunity under this
Paragraph shall apply to past, current, and prospective acts which
occur on or after January 1, 2021.
Ga. Const. of 1983, Art. I, Sec. II, Par. V (b) (1). Subparagraph V (b) (2) of
Article I, Section II specifies that actions covered by this subparagraph and
based on acts of the State, state boards, or several other types of state entities, officers, or employees “shall be brought exclusively against the state and in the
name of the State of Georgia.”
4 We recognize that such a declaration, standing alone, would not entitle
Kuhlman to relief under the statute. The Board still would have to be satisfied
from proof submitted by Kuhlman that under the circumstances, his
“acquisition, receipt, transfer, shipment, or possession of firearms . . . would
not present a threat to the safety of the citizens of Georgia and that the
granting of the relief sought would not be contrary to the public interest.”
7
is a claim that the Board’s act of denying his application was “in
violation of the laws . . . of this state,” and that claim therefore comes
within the constitutional waiver of sovereign immunity in Article I,
Section II, Paragraph V (b) (1).5 Accordingly, the portion of the
superior court’s judgment based on sovereign immunity must be
reversed.
3. Having made the necessary threshold determination that
sovereign immunity does not bar Kuhlman’s statutory claim, we
OCGA § 16-11-131 (d). But if Kuhlman’s first request for declaratory relief
were granted, it would show that he has satisfied one of the criteria for
obtaining relief from the Board under the operative statutory provision.
5 No party disputes, and we agree, that the federal and state
constitutional violations Kuhlman alleges come within this constitutional
waiver of sovereign immunity. As the superior court recognized in that regard,
“the above waiver of immunity applies to [Kuhlman’s] request for declarations
that OCGA § 16-11-131 is unconstitutional under both the United States and
Georgia Constitutions.” And because Kuhlman’s statutory claim also comes
within the constitutional waiver of sovereign immunity, we need not decide in
this case whether, or the extent to which, sovereign immunity is waived under
Article I, Section II, Paragraph V (b) (1) of the Georgia Constitution when an
action includes some claims that meet the conditions set out in that
subparagraph and others that do not. Cf. State v. SASS Group, LLC, 315 Ga.
893, 904 (II) (d) (885 SE2d 761) (2023) (holding that “if a lawsuit is filed against the State pursuant to Paragraph V and that suit includes an independent
claim against another party not specified in that paragraph’s waiver provision,
then the entire lawsuit must be dismissed”).
8
next consider the superior court’s ruling on the merits of that claim.6
In the absence of any Georgia case law construing OCGA § 16-11-131 (d), the superior court looked to federal case law interpreting a
broader exclusion from the federal statutory law that prohibits
felons from possessing firearms. Kuhlman argues only that his
conviction for health care fraud meets the test used in federal case
law for determining whether a crime comes within the federal
exclusion.
When interpreting a Georgia statute, federal court decisions
construing a federal statute or rule have persuasive value only to
the extent that the language and context of the Georgia statute at
issue are materially similar to the federal statute or rule. See
6 The superior court properly made an alternative ruling on the merits
of Kuhlman’s statutory claim before addressing his constitutional claims, and
we similarly reach the statutory issue before the constitutional claims. See
Cottrell v. Smith, 299 Ga. 517, 520 (I) (A) (788 SE2d 772) (2016) (stating that
“a trial court should first resolve other questions regarding a statute before
addressing an issue of constitutionality,” and adding that “it is well-settled
that this Court will not decide a constitutional question if the decision in the
appeal can be made upon other grounds”). See also State v. Randall, 315 Ga.
198, 200 (1) (880 SE2d 134) (2022) (“[I]nquiry into the constitutionality of a
statute generally should not be made by the trial courts if a decision on the
merits can be reached without doing so.” (citation and punctuation omitted)).
9
General Motors, LLC v. Buchanan, 313 Ga. 811, 821 (2) (c) (874 SE2d
52) (2022) (“[W]here the language of a Georgia statute deviates from
the federal rules [of evidence], the persuasive value of the authority
interpreting and applying the federal rules is diminished.”); Stubbs
v. Hall, 308 Ga. 354, 358 (3) (a) (840 SE2d 407) (2020) (“In
construing a Georgia statute that closely tracks federal statutory
law, we may look to federal court decisions and commentary
interpreting the federal statute as persuasive authority.” (citation
and punctuation omitted)); Community & Southern Bank v. Lovell,
302 Ga. 375, 377 (2) n.6 (807 SE2d 444) (2017) (“[A]lthough there
are some differences between the state and federal provisions, those
differences are not material to the question presented here. We may,
therefore, look for guidance in decisions of the federal courts.”). See
also Buckner-Webb v. State, 314 Ga. 823, 834 (878 SE2d 481) (2022)
(Pinson, J., concurring) (“[W]hen we need to figure out the meaning
of Georgia law, decisions of federal courts . . . are helpful ‘only to the
extent that [those] decisions actually were guided by the same
language, history, and context’ of the Georgia law in question. When
10
we rely on such federal decisions without making sure the relevant
text and context match up, we risk giving an ‘interpretation’ of
Georgia law that is arbitrary, wrong, or both.” (quoting Elliott v.
State, 305 Ga. 179, 188 (II) (C) (824 SE2d 265) (2019))).
The federal statute that contains language similar to OCGA §
16-11-131 (d) was part of the Gun Control Act of 1968 and, as
originally enacted, excluded the following from the felonies that
disqualified convicted persons from acquiring or possessing
firearms: “Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business practices as
the Secretary [of the Treasury] may by regulation designate.” Pub.
L. No. 90-618, § 921 (a) (20) (A), 82 Stat. 1213, 1216 (1968). See also
Reyes v. Sessions, 342 FSupp.3d 141, 143 (I) (D.D.C. 2018)
(recounting and explaining the history of that provision).
“Ultimately, the Secretary never designated any ‘similar offenses’ as
excluded, and in 1986 Congress eliminated from the definition the
phrase, ‘as the Secretary may by regulation designate[.]’” Reyes, 342
11
FSupp.3d at 143 (I). Thus, since 1986, the federal statute has
excluded those “Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business practices[.]”
18 USC § 921. Georgia has never enacted the federal “similar
offenses” or “business practices” exclusion. Instead, the General
Assembly in 1983 adopted only part of the language in the federal
statute so as to exclude only those felonies “pertaining to antitrust
violations, unfair trade practices, or restraint of trade,” and did not
add “similar offenses” or other proscribed “business practices.” Ga.
L. 1983, p. 945, § 1.
Very few federal courts have construed the language of the
similar federal statute, and every United States Court of Appeals
that has done so since the 1986 amendment has not considered in
isolation the language shared by the Georgia statute, but has
invariably construed the “similar offenses”/“business practices”
12
exclusion that is absent from the Georgia statute.7 See United States
v. Miller, 678 F3d 649, 651-653 (2) (8th Cir. 2012); United States v.
Coleman, 609 F3d 699, 703-706 (II) (A) (5th Cir. 2010); United States
v. Schultz, 586 F3d 526, 529-530 (II) (A) (1) (7th Cir. 2009); United
States v. Stanko, 491 F3d 408, 413-419 (II) (8th Cir. 2007). See also
Reyes, 342 FSupp.3d at 149-151 (II) (A) (reviewing the analysis in
these federal circuits). Those circuits examine the elements and
sometimes the purpose of the offense at issue to determine whether
it is similar to the enumerated offenses in that it is a commercial
offense that addresses economic harm to competition or consumers.
See Reyes, 342 FSupp.3d at 148 (II). Under that analysis, it is not
necessary to examine whether the offense at issue “pertain[s] to
antitrust violations, unfair trade practices, or restraint of trade”
separately from whether the offense is a “similar” one that “relat[es]
to the regulation of business practices.” See, e.g., id. at 151 (II) (A)
n.6 (“[A] separate examination of whether [appellant’s] securities
7 One United States Court of Appeals considered the federal statute prior
to the 1986 amendment. See United States v. Meldish, 722 F2d 26, 27-28 (2d
Cir. 1983).
13
offenses are ‘unfair trade practices’ is unnecessary.”). Under Georgia
law, however, not only is such a separate examination of the former
necessary, any consideration of whether the offense at issue is
similar or generally related to regulation of business practices is
simply not relevant at any point in an analysis of the pertinent
exclusion in OCGA § 16-11-131 (d). Yet Kuhlman does not
acknowledge any difference between the federal and state statutes,
nor does he attempt a separate examination of whether the health
care fraud for which he was convicted pertains specifically to
antitrust violations, unfair trade practices, or restraint of trade.
Kuhlman makes no argument that his healthcare fraud
conviction is an offense that pertains to any of these three specific
categories. Instead, he only applies the federal courts’ test for 18
USC § 921, and contends that his crime was a “commercial crime[ ]”
that violated a statute “designed to prevent an adverse economic
effect on competition or consumers.” Reyes, 342 FSupp.3d at 148 (II)
(quoting Coleman, 609 F3d at 708 (II) (B); punctuation omitted). But
as we just explained above, that federal test is directed at
14
determining whether an offense is a “similar offense[ ] relating to
the regulation of business practices,” not whether the offense falls
within one of the three categories specified by our statute. So even
if his conviction met that test, that would not show whether his
conviction falls within one of the three specific categories set out in
our statute. Absent any argument that his conviction falls within
any of those specific categories in the Georgia statute, Kuhlman may
not receive his requested declaratory relief on this claim.
Accordingly, the superior court’s alternative ruling that rejected
Kuhlman’s statutory claim on the merits must be affirmed.
4. Because Kuhlman has not prevailed on his statutory claim,
we must proceed to his constitutional claims. Although the superior
court did rule on the merits of Kuhlman’s state constitutional claim,
the court erred in concluding that it could not reach the merits of
Kuhlman’s federal constitutional claim.
Kuhlman contends that the superior court erred because it
effectively ruled that 42 USC § 1983 preempts all state-law
remedies for violations of the United States Constitution. Indeed,
15
that does appear to be the import of the superior court’s ruling that
“[f]ederal constitutional claims, whether in federal or state courts,
are necessarily brought pursuant to 42 USC § 1983.”
But the State has conceded in its appellate brief, as well as in
oral argument, that Ҥ 1983 does not preclude state causes of action
for violations of federal constitution[al] rights.” (Emphasis omitted.)
And the United States Supreme Court recently reaffirmed that “the
§ 1983 remedy is, in all events, supplementary to any remedy any
State might have.” Health & Hosp. Corp. of Marion County v.
Talevski, 599 U. S. ___, ___ (II) (B) (1) (143 SCt 1444, 1453, 216 LE2d
183) (2023) (citation and punctuation omitted). See also Zinermon v.
Burch, 494 U. S. 113, 124 (110 SCt 975, 108 LE2d 100) (1990)
(explaining that section 1983 provides a remedy for violations of civil
rights where state law is inadequate or not available in practice).
Where a section 1983 claim has not been alleged or is not viable
because the defendant is the State or a State board and therefore
not a “person” against whom a section 1983 claim will lie, a plaintiff
nevertheless is entitled to seek enforcement of his constitutional
16
rights to the extent of an applicable waiver of sovereign immunity if
the State has authorized the remedy sought. See State Bd. of Ed. v.
Drury, 263 Ga. 429, 433-434 (2), (3) (437 SE2d 290) (1993) (holding
that where a section 1983 claim was neither alleged nor viable,
plaintiffs in that case had no right to bring an action for damages
that the State had not authorized and for which sovereign immunity
had not been waived, and plaintiffs instead were relegated to a
declaratory judgment action as authorized by the Administrative
Procedures Act).
In this case, Kuhlman did not mention section 1983 in his
amended complaint, but he expressly sought a declaratory
judgment. Under a plain reading of that complaint, 8 construed in
Kuhlman’s favor as required, the superior court could not have
reasonably concluded that it was brought under section 1983,
especially given that theory of recovery would not have been viable.
8 The Civil Practice Act provides that, on motion for summary judgment,
although the non-movant “may not rest upon the mere allegations or denials
of his pleading,” OCGA § 9-11-56 (e), the pleadings nevertheless must be
examined, OCGA § 9-11-56 (c), (d).
17
See Lynch v. Waters, 256 Ga. 389, 391 (349 SE2d 456) (1986) (on
motion for summary judgment, both “the evidence and pleadings
will be construed in favor of the non-moving party”). To the contrary,
a theory of recovery based on general state law regarding
declaratory judgment actions can be reasonably and fairly drawn
from Kuhlman’s amended complaint. See City of Rome v. Turk, 235
Ga. 223, 225 (1) (219 SE2d 97) (1975) (“Under the Civil Practice Act
a complaint is to be construed in the light most favorable to plaintiff
and all inferences that can be reasonably drawn are to be construed
in plaintiff’s favor, and in a motion for summary judgment this same
preference is to be given to the party opposing the motion.” (citation
omitted)).
OCGA § 9-4-2 created a cause of action for declaratory relief.
See also OCGA § 9-4-3 (referring to “a cause of action for declaratory
relief”); Lathrop v. State, 301 Ga. 408, 431 (III) (B) (801 SE2d 867)
(2017) (observing that the remedy of an “action for declaratory relief”
was not “recognized in Georgia until the enactment of the
Declaratory Judgment Act[, OCGA § 9-4-1 et seq.,] in 1945”). And in
18
general, declaratory judgment actions that seek review of the
constitutionality of Georgia statutes have been authorized in the
courts of this state, if they are not barred by sovereign immunity or
otherwise unavailable. See Gardei v. Conway, 313 Ga. 132, 138-139
(2) (b) (868 SE2d 775) (2022) (“[A]lthough Georgia does not have a
statutory cause of action like 42 USC § 1983 under which a person
can assert claims under the Georgia Constitution, declaratory
judgment actions for claims asserting the violation of individual
rights are authorized under our State’s Constitution.”); Bd. of
Commrs. of Lowndes County v. Mayor and Council of City of
Valdosta, 309 Ga. 899, 903-904 (2) (b) (848 SE2d 857) (2020)
(collecting cases showing that suits for declaratory and injunctive
relief against state officials in their individual capacities have long
been authorized in Georgia); Women’s Surgical Center, LLC v. Berry,
302 Ga. 349, 350-351 (1) (806 SE2d 606) (2017) (holding that a
declaratory judgment action against state officials was available to
test the validity of an allegedly unconstitutional law because the
plaintiff had standing and was not required to exhaust its
19
administrative remedies). Now that sovereign immunity no longer
bars properly filed suits against the State seeking declaratory relief
for alleged constitutional violations by “the state or any agency,
authority, branch, board, bureau, commission, department, office, or
public corporation of this state or officer or employee thereof,” an
action against the State for such declaratory relief can be an
appropriate method for seeking review of the constitutionality of
Georgia statutes.9 See Knox v. State of Ga., 316 Ga. 426, 427 (888
SE2d 497) (2023) (“An action against the State of Georgia in the
9 Of course, an action for declaratory judgment must meet other
longstanding requirements for such actions. See Sexual Offender Registration
Review Bd. v. Berzett, 301 Ga. 391, 392-393 (801 SE2d 821) (2017) (The
Declaratory Judgment Act gives superior courts the power to declare rights
and other legal relations of any interested party only “in ‘cases of actual
controversy’ under OCGA § 9-4-2 (a) and ‘in any civil case in which it appears
to the court that the ends of justice require that the declaration should be
made.’ OCGA § 9-4-2 (b).” (citation and punctuation omitted)); Fulton County
v. City of Atlanta, 299 Ga. 676, 677 (791 SE2d 821) (2016) (“[T]he Declaratory
Judgment Act, OCGA § 9-4-1 et seq., authorizes declaratory judgments only to
resolve actual and justiciable controversies. See OCGA § 9-4-2 (a), (b).”). See
also Ga. Const. of 1983, Art. I, Sec. II, Para. V (b) (3) (“Unless otherwise
provided herein, this Paragraph shall not affect the power or duty of a court to
dismiss any action or deny relief based on any other appropriate legal or
equitable ground or other limitation on judicial review, including, but not
limited to, administrative exhaustion requirements, ante litem notice
requirements, sanctions for frivolous petitions, standing, statutes of limitation
and repose, and venue. . . .”).
20
superior court for a declaratory judgment is the appropriate
litigation mechanism for . . . review” of the constitutionality of
statutes. (citing Ga. Const. of 1983, Art. I, Sec. II, Par. V (b); OCGA
§§ 9-4-2, 9-4-3)); State v. SASS Group, LLC, 315 Ga. 893, 894 (885
SE2d 761) (2023) (“This new waiver allows citizens to sue the State
. . . for declaratory relief.”). Cf. Lathrop, 301 Ga. at 444 (IV) (holding
that suits against the State for declaratory relief from the
enforcement of allegedly unconstitutional laws are barred unless the
State has consented in the constitution itself or the statutory law).
Consequently, a declaratory judgment action was a proper method
for Kuhlman to seek review of the constitutionality of OCGA § 16-11-131 as applied to him, and the superior court erred when it failed
to construe Kuhlman’s complaint as properly seeking declaratory
relief against the State based on Georgia law rather than on 42 USC
§ 1983. Accordingly, that part of the superior court’s judgment which
rules Kuhlman cannot maintain his federal constitutional claim
must be vacated.
Kuhlman also contends that the superior court erred by ruling
21
that his state constitutional claim fails on the merits under our
decision in Landers v. State, 250 Ga. 501, 503 (3) (299 SE2d 707)
(1983). The holding of Landers squarely forecloses that claim, and
Kuhlman asks us to overrule it. We need not address that argument
at this time. Because the superior court rejected the federal
constitutional claim under its section 1983-based theory, it did not
reach the merits of that federal claim. Now that the superior court
will presumably reach the merits of that claim, it is possible that the
court would decide the claim in Kuhlman’s favor, and if that were
the case, it would avoid the need to reach his state constitutional
claim, and his corresponding argument that Landers should be
overruled. Because we generally do not decide constitutional
questions unnecessarily, see Raffensperger v. Jackson, 316 Ga. 383,
399 (888 SE2d 483) (2023) (“Because we have determined that the
Act is unconstitutional on one of the grounds asserted, we need not
address Plaintiffs’ arguments that the trial court erred in ruling that
the Act does not violate their equal protection rights under the
Georgia Constitution.”), we therefore vacate the superior court’s
22
decision as to the state constitutional claim and leave it to that court
in the first instance to address Kuhlman’s federal and state
constitutional claims on remand. If the court rejects each of those
claims on their merits, they will be reviewable on appeal.
Judgment affirmed in part, reversed in part, and vacated in
part, and case remanded with direction. All the Justices concur.
23