Knox v. State of Georgia ( 2023 )

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
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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: May 31, 2023
S23A0167. KNOX et al. v. STATE OF GEORGIA.
ELLINGTON, Justice.
Five University System of Georgia (“USG”) professors 1 filed
suit to block a 2017 statutory amendment that removed public
colleges and other public postsecondary educational institutions
from the statutory definition of “school safety zone.” Before the 2017
amendment, carrying or possessing a weapon on any real property
or in any building owned by or leased to any postsecondary
educational institution was a misdemeanor, and the 2017
amendment decriminalized that conduct. The professors alleged
that, as a result of the 2017 amendment, the Code requires the
1 The plaintiffs below are John Knox, Michael G. Noll, James Porter,
Laurel Robinson, and William B. Whitman. A sixth professor, Aristotelis
Santas, joined as a plaintiff in the professors’ first complaint, but he did not
join in the plaintiffs’ amended complaint.
Board of Regents, the USG, and USG institutions to permit persons
to carry or possess weapons on the campuses of public postsecondary
educational institutions, contrary to longstanding USG policies. The
professors sought a declaration that the statutory amendment is
unconstitutional as applied because it usurps the Board’s
constitutional authority to govern, control, and manage the USG
and its member institutions.
The trial court granted the State of Georgia’s motion to dismiss
the complaint and denied the professors’ request for declaratory
relief, ruling that the trial court lacked jurisdiction on three
alternative grounds, including mootness. Because the complaint
shows that the Board adopted gun-carrying policies consistent with
the 2017 statutory amendment, the question of whether the
amendment usurped the constitutional authority of the Board to
govern, control, and manage the USG and its member institutions
became moot. Consequently, the trial court lacked jurisdiction to
adjudicate the professors’ as-applied challenge, and we affirm the
judgment dismissing the professors’ complaint on that basis alone.
2
Georgia’s constitution provides for judicial review of statutes.
See Ga. Const. of 1983, Art. I, § II, Par. V (a) (Legislative acts in
violation of the constitution “are void, and the judiciary shall so
declare them.”). An action against the State of Georgia in the
superior court for a declaratory judgment is the appropriate
litigation mechanism for such review, and enforcement of
unconstitutional statutes may be enjoined. See Ga. Const. of 1983,
Art. I, § II, Par. V (b)2; OCGA §§ 9-4-2; 9-4-3. A declaratory judgment
may be entered, however, only in the case of an “actual controversy,”
OCGA § 9-4-2 (a), where the plaintiff needs “relief from uncertainty
and insecurity with respect to rights, status, and other legal
relations.” OCGA § 9-4-1. See Gwinnett County v. Blaney, 275 Ga.
696, 703 (1) (572 SE2d 553) (2002).
“[T]he proper scope of declaratory judgment is to adjudge those
2 We note that the professors name the State of Georgia as the only
defendant, and they claim that the State has waived sovereign immunity as to
their constitutional challenge, based on an amendment to the judicial review
paragraph, adding Art. I, § II, Par. V (b), that the people of Georgia ratified in
2020. Because we affirm the trial court’s dismissal on jurisdictional grounds,
we do not reach the parties’ arguments about whether Art. I, § II, Par. V (b)
applies to the professors’ claims. Likewise, we do not reach the issue of
standing.
3
rights among parties upon which their future conduct depends.”
Sexual Offender Registration Review Bd. v. Berzett, 301 Ga. 391, 393
(801 SE2d 821) (2017) (citation and punctuation omitted). There can
be no actual or justiciable controversy if the questions in the case
have become moot. See id. “A petition for declaratory judgment is
moot when the relief, if granted, would have no practical effect on
the underlying controversy.” Id. In particular, a court “has no
province to determine whether or not a statute, in the abstract, is
valid[.]” Fourth St. Baptist Church of Columbus v. Bd. of Registrars,
253 Ga. 368, 369 (1) (320 SE2d 543) (1984). See also Berzett, 301 Ga.
at 396 (“[I]t is a settled principle of Georgia law that the jurisdiction
of the courts is confined to justiciable controversies, and we will not
decide the constitutionality of a law where no justiciable case or
controversy is presented.” (citation and punctuation omitted)).
When a petition for declaratory judgment is moot, the trial court is
required to dismiss the action. See id. at 395-396; see also Baker v.
City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999) (“Where
the party seeking declaratory judgment does not show it is in a
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position of uncertainty as to an alleged right, dismissal of the
declaratory judgment action is proper[.]”).
In this case, taking the allegations in the professors’ amended
complaint as true,3 the complaint shows that there is no actual,
justiciable controversy to authorize declaratory relief. The complaint
alleges the following. The Georgia constitution endows the Board
with plenary authority over the USG and its member institutions. 4
3 See Sons of Confederate Veterans v. Henry County Bd. of Commrs., 315
Ga. 39, 63 (2) (c) (880 SE2d 168) (2022) (“At the motion to dismiss stage, we
accept as true all well-pled material allegations in the complaint.”); Ewing v.
City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007) (“In reviewing the
grant of a motion to dismiss, an appellate court must construe the pleadings in
the light most favorable to the appellant with all doubts resolved in the
appellant’s favor. A motion to dismiss should only be granted if the allegations
of the complaint, construed most favorably to the plaintiff, disclose with
certainty that the plaintiff would not be entitled to relief under any state of
provable facts.” (citation and punctuation omitted)).
4 See Ga. Const. of 1983, Art. VIII, § IV, Par. I (b) (“The government,
control, and management of the University System of Georgia and all of the
institutions in said system shall be vested in the Board of Regents of the
University System of Georgia.”) (amendment ratified in 1943); OCGA §§ 20-3-
21 (establishing how the Board shall be constituted); 20-3-31 (establishing
general powers of the Board); 20-3-51 (“The government, control, and
management of the university system and all of its institutions shall be vested
in the board of regents.”); Bd. of Regents of the Univ. Sys. of Georgia v. Doe, 278
Ga. App. 878, 885 (2) (a) (630 SE2d 85) (2006) (“In managing its member
institutions, the Board’s powers are plenary, untrammeled except by such
restraints of law as are directly expressed, or necessarily implied. Under the
powers granted, it becomes necessary to look for limitations, rather than for
authority to do specific acts. Limited only by their proper discretion and by the
5
To promote its educational mission and to ensure a safe learning,
working, and research environment, the Board has prohibited guns
within the USG since at least as far back as 1810. The Georgia Code
previously mirrored the USG’s no-guns policy, specifically, by
providing in OCGA § 16-11-127.1 that university campuses were
“school safety zones” where carrying or possessing a weapon,
including a firearm, triggered criminal penalties. 5 More recently, the
General Assembly declared “that the regulation of firearms and
other weapons is properly an issue of general, state-wide concern”
and prohibited counties and cities from regulating in any manner
the possession or carrying of firearms. OCGA § 16-11-173 (a), (b) (1)
Constitution and law of this State, they may exercise any power usually
granted to such corporations.” (citation and punctuation omitted)).
5 See Ga. Const. of 1983, Art. I, § I, Par. VIII (“The right of the people to
keep and bear arms shall not be infringed, but the General Assembly shall
have power to prescribe the manner in which arms may be borne.”); Ga. L.
1994, p. 1015, § 4 (adding public or private technical schools, vocational
schools, colleges, universities, and other institutions of postsecondary
education to the definition of “school safety zone,” where, unless otherwise
provided, it was a felony to carry any weapon while within a school safety zone
or at a school building, school function, or school property or on transportation
furnished by the school); see also Ga. L. 2010, p. 963, § 1-4 (reducing the
criminal penalty for weapons carry license holders).
6
(2005).6 In 2014, the General Assembly greatly expanded the areas
where licensed gun owners could take their weapons. 7 The General
Assembly also added state authorities, including any “board,” to
those entities expressly prohibited from regulating the possession or
carrying of firearms or other weapons. 8 At that time, carrying
weapons was still restricted on college campuses under the statutes
regulating “school safety zones.”9
The complaint also shows that, after years of opposition by the
Board and USG institution leaders to proposed “campus carry”
legislation, the General Assembly in 2017 amended the definition of
“school safety zone” to remove the criminal penalties for carrying
weapons on college campuses, with several exceptions. See Ga. L.
6 See Ga. L. 2005, p. 613, § 1.
7 See OCGA § 16-11-127 (c) (2014) (Generally, license holders “shall be
authorized to carry a weapon . . . in every location in this state,” except as
limited by statute or on private property per the property owner’s policy.); Ga.
L. 2014, p. 599, § 1-5.
8 See OCGA § 16-11-173 (b) (1) (2014); Ga. L. 2014, p. 599, § 1-11.
9 See OCGA §§ 16-11-127.1 (a) (3) (B) (2014) (defining property owned or
leased by “[a]ny public or private technical school, vocational school, college,
university, or other institution of postsecondary education” as a school safety
zone); 16-11-127.1 (b) (1) (2014) (making it unlawful to carry weapons in school
safety zones).
7
2017, p. 341, § 1 (HB 280).10 In the absence of the statutory provision
10In pertinent part, OCGA § 16-11-127.1 (c) (2017) as amended provided:
The provisions of this Code section [making it unlawful for
any person to carry or possess any weapon while within a school
safety zone, at a school function, or on a bus or other transportation
furnished by a school] shall not apply to: . . .
(20) (A) Any weapons carry license holder when
he or she is in any building or on real property owned
by or leased to any public technical school, vocational
school, college, or university, or other public
institution of postsecondary education; provided,
however, that such exception shall:
(i) Not apply to buildings or property
used for athletic sporting events or
student housing, including, but not
limited to, fraternity and sorority houses;
(ii) Not apply to any preschool or
childcare space located within such
buildings or real property;
(iii) Not apply to any room or space
being used for classes related to a college
and career academy or other specialized
school as provided for under Code Section
20-4-37;
(iv) Not apply to any room or space
being used for classes in which high school
students are enrolled through a dual
enrollment program, including, but not
limited to, classes related to the “Move on
When Ready Act” as provided for under
Code Section 20-2-161.3;
(v) Not apply to faculty, staff, or
administrative offices or rooms where
disciplinary proceedings are conducted;
(vi) Only apply to the carrying of
handguns which a licensee is licensed to
carry pursuant to subsection (e) of Code
8
Section 16-11-126 and pursuant to Code
Section 16-11-129; and
(vii) Only apply to the carrying of
handguns which are concealed.
(B) Any weapons carry license holder who
carries a handgun in a manner or in a building,
property, room, or space in violation of this paragraph
shall be guilty of a misdemeanor; provided, however,
that for a conviction of a first offense, such weapons
carry license holder shall be punished by a fine of
$25.00 and not be sentenced to serve any term of
confinement.
(C) As used in this paragraph, the term:
(i) “Concealed” means carried in
such a fashion that does not actively solicit
the attention of others and is not
prominently, openly, and intentionally
displayed except for purposes of defense of
self or others. Such term shall include, but
not be limited to, carrying on one’s person
while such handgun is substantially, but
not necessarily completely, covered by an
article of clothing which is worn by such
person, carrying within a bag of a
nondescript nature which is being carried
about by such person, or carrying in any
other fashion as to not be clearly
discernible by the passive observation of
others.
(ii) “Preschool or childcare space”
means any room or continuous collection
of rooms or any enclosed outdoor facilities
which are separated from other spaces by
an electronic mechanism or human-
staffed point of controlled access and
designated for the provision of preschool
or childcare services, including, but not
limited to, preschool or childcare services
licensed or regulated under Article 1 of
9
that criminalized carrying guns on university and college campuses,
as it existed prior to the 2017 amendment (HB 280), OCGA §§ 16-
11-127, 16-11-127.1, and 16-11-173 operate together to require that
guns be allowed on USG campuses in ways that the professors allege
are contrary to “the Board of Regents’ and University System
institutions’ own duly adopted policies reflecting their independent
judgment.” After the governor approved HB 280, the Board’s
chancellor provided guidance to USG institutions to “implement the
law as written” and called for each institution to “review its campus
conduct and weapons policies to ensure that they comply with these
changes to the law.” The Board of Regents then amended its Policy
Manual and adopted a weapons policy, applicable to all USG
institutions, that largely mirrored the 2017 statutory amendments,
including the definitions of “weapon” and “concealed” and the
authority of weapons carry license holders to carry handguns on
USG campuses, subject to the same exceptions set out in the 2017
Chapter 1A of Title 20.
See also Ga. L. 2022, p. 74, §§ 6; 7 (replacing “license holder” with “lawful
weapons carrier” in OCGA §§ 16-11-127 (c) and 16-11-127.1).
10
amendment to OCGA § 16-11-127.1. In the complaint, the professors
articulated in detail reasons they believe that the revised policy
regarding the carrying of weapons on USG campuses, following the
2017 statutory amendments, greatly increases the risk of injury and
death to themselves, their students, and other persons on USG
campuses, and significantly impairs their ability to fulfill their role
in the educational mission of the USG.
The crux of the professors’ constitutional challenge to the 2017
amendment is that, in adopting the amendment, the General
Assembly, to the detriment of the USG’s educational mission,
“usurp[ed] the Board of Regents’ constitutionally conferred,
exclusive authority over the government, control, and management”
of the USG, specifically, the Board’s “authority to regulate, in its
independent judgment, guns on college campuses.” The professors
alleged that they are injured by what they deem a “separation-of-
powers violation.” 11 They argue that the trial court erred to the
See Ga. Const. of 1983, Art. I, Sec. II, Par. III (“The legislative, judicial,
11
and executive powers shall remain separate and distinct[.]”).
11
extent that it dismissed their claim as moot, arguing that, “[a]s a
matter of law, a separation-of-powers violation is not mooted by the
fact that the encroached-upon entity has acquiesced — or even
affirmatively approved of — the encroachment.”
The professors acknowledge the absence of Georgia precedent
for this principle and cite as persuasive authority several United
States Supreme Court cases. But even assuming we found these
federal cases persuasive, they do not lead to a conclusion in this case
that the professors’ claims are not moot. These federal cases share a
common thread that does not run through this case. In those cases,
a legislative act challenged on separation-of-powers or Tenth
Amendment grounds directly caused the harm complained of, such
that some indication of agreement with the legislative act by the
allegedly-encroached-upon entity could not moot a challenge to the
legislation. 12 Here, in contrast, the Board formally took its own
12 See Selia Law LLC v. Consumer Financial Protection Bureau, 140 SCt
2183, 2192, 2196 (207 LE2d 494) (2020) (concluding that the structure of a new
regulatory agency created by Congress violated separation-of-powers
principles by insulating the director from removal by the President; rejecting
12
action to adopt a particular policy, and it is this policy, not any
legislation, that is causing the state of affairs about which the
the argument that a litigant challenging an action by the agency must show
that the act would not have been taken if the director had been subject to
presidential control); Free Enterprise Fund v. Public Co. Accounting Oversight
Bd., 561 U.S. 477, 497-498 (130 SCt 3138, 177 LE2d 706) (2010) (concluding
that Congress’s creation of federal accounting oversight board that was not
subject to presidential control violated separation-of-powers principles,
notwithstanding that the President signed the act creating the board without
expressing any separation-of-powers concerns); New York v. United States, 505
U.S. 144, 177, 180-183 (112 SCt 2408, 120 LE2d 120) (1992) (concluding that
congressional act regarding states’ disposal of radioactive waste violated Tenth
Amendment, notwithstanding that public officials from the state challenging
the law “lent their support to the Act’s enactment”); Metro. Washington
Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252,
264-270, 276-277 & n.13 (111 SCt 2298, 115 LE2d 236 (1991) (concluding that
a congressional act conditioning the transfer of operating control of certain
airports on the creation of an oversight board comprised of members of
Congress violated separation-of-powers principles notwithstanding that the
board was established by the bylaws of airports authority that was created by
legislation enacted by Virginia and the District of Columbia; the challenge to
the oversight board’s veto power was ripe even if that power had not yet been
exercised to challengers’ detriment); see also Natl. Labor Relations Bd. v.
Canning, 573 U.S. 513, 570-572 (134 SCt 2550, 189 LE2d 538) (2014) (Scalia,
J., concurring) (rejecting the Court’s reliance on the Senate’s historical failure
to counter “with sufficient vigor” presidents’ reliance on the Recess
Appointments Clause to fill vacancies that initially occur before, but continue
to exist during, a recess of the Senate; citing precedent that, “[s]ince the
separation of powers exists for the protection of individual liberty, its vitality
does not depend on whether the encroached-upon branch approves the
encroachment” (citations and punctuation omitted)); Glidden Co. v. Zdanok,
370 U.S. 530, 532-533 (82 SCt 1459, 8 LE2d 671) (1962) (plurality opinion)
(considering an argument that litigants were denied the protection guaranteed
by Article III of having judges with tenure and compensation preside over their
cases, notwithstanding that the Chief Justice of the United States, pursuant
to statute, had designated the judges to preside over the cases).
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professors complain.
In determining that this action by the Board moots the
professors’ challenge to the 2017 amendment, we do not concern
ourselves with why the Board took this action. We do not look behind
the exercise of government power to determine the subjective
reasons — legal, political, or otherwise — for a particular action, so
long as the action was within the government actor’s authority.
Indeed, it is difficult to conceive of a significant executive- or
legislative-branch action where the knowledge of the positions of
various other governmental actors will not factor into the decision.
Here, what matters is not why the Board adopted the policy in
question, but merely that it did do so. Granting the only relief the
professors seek — a declaration that the 2017 amendment to OCGA
§ 16-11-127.1 constituted a separation-of-powers violation — would
not eliminate the harm of which the professors complain, because it
would not eliminate the immediate source of that alleged harm —
the weapons policy adopted by the Board. That this sought-after
relief would not redress the professors’ stated grievance means that
14
this case is moot. The trial court thus did not err in dismissing the
professors’ complaint. See Berzett, 301 Ga. at 394-396; Baker, 271
Ga. at 214-215 (1); Fourth St. Baptist Church, 253 Ga. at 369 (1).
Judgment affirmed. All the Justices concur, except Warren,
McMillian, and Pinson, JJ., disqualified.
15