Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A19A0962. KNOX et al. v. DEAL et al.

The underlying appeal in this case involves professors at various public

universities in Georgia who sued Governor Nathan Deal and Attorney General

Christopher Carr in their individual capacities, and their successorsin office, alleging

constitutional violations related to the application and enforcement of H. B. 280, the

so-called “Campus Carry Legislation,” which former Governor Dealsigned into law,

and related legislation at OCGA §§ 16-11-127.1, 16-11-127, and 16-11-173. While

the constitutional issues in this suit are not before us, the professors have appealed

fromthe trial court’s order denying their motion for an injunction and dismissing their

complaint pursuant to OCGA § 9-11-12 (b) (1) based upon sovereign immunity and

lack of standing. 

After their appeal was docketed, the professors filed a “Notice of Substitution

of Party,” averring that because Governor Brian Kemp had succeeded Governor Deal

in office, an automatic substitution had taken place pursuant to OCGA § 9-11-25 (d)

(1). The State filed a response in opposition, and both sides filed supplemental briefs

at the request of the Court.

Upon consideration of the matter, it is clear that our law, by its plain terms,

does not permit automatic substitution in the instant case. OCGA § 9-11-25 (d) (1)

provides that “[w]hen a public officer is a party to an action in his official capacity

and during its pendency . . . ceases to hold office, the action does not abate, and his

successor is automatically substituted as a party.” (Emphasis supplied.) The

professors argue, inter alia, that OCGA § 9-11-25 adopts the corresponding Federal

Rule of Civil Procedure 25 (d), which provides that “[a]n action does not abate when

October 09, 2019
a public officer who is a party in an official capacity . . . ceases to hold office while

the action is pending. The officer’ssuccessor is automatically substituted as a party.”

(Emphasis supplied.) As federal case law makes clear, however, automatic

substitution does not apply to officials sued, as here, in their individual capacities.

See Bethel v. Porterfield, 293 F.Supp.2d 1307, 1318 (III) (A) (S.D. Ga. 2003) (Fed.

R. Civ. P. 25 (d) “does not provide substitution, however, where a defendant is being

sued personally. In such case, the claimsfor individual liability continue unaffected”)

(citation omitted), aff’d without opinion, 116 Fed.Appx. 246 (11thCir. 2004). Accord

Ellison v. Chilton County Bd. of Education, 894 F.Supp. 415, 417, n. 3 (M.D. Ala.

1995).

We thus remand this case to the trial court so that it may conduct a hearing to

determine whether Governor Kemp should be substituted for former Governor Deal,

and to address any potential mootness considerations as to former Governor Deal.

Upon entry of a new order by the trial court, a new notice of appeal may be

filed within 30 days.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.

10/09/2019