FOURTH DIVISION

DOYLE, P. J.,

COOMER and MARKLE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 22, 2019

In the Court of Appeals of Georgia

A19A0862. GEORGIACARRY.ORG, INC. et al. v. BORDEAUX

et al.

COOMER, Judge.

GeorgiaCarry.Org, Inc. (“GeorgiaCarry”), William Theodore Moore, III, and

Shane Montgomery appeal the dismissal of their complaint against Thomas C.

Bordeaux, Jr., a Chatham County probate court judge, seeking a writ of mandamus

and declaratory relief regarding the issuance of weapons carry licenses. On appeal,

GeorgiaCarry, Moore, and Montgomery contend that the trial court erred in

dismissing the case by ruling that (1) the claims of Moore and Montgomery were

moot; (2) GeorgiaCarry does not have standing; (3) the claims against Bordeaux in

his official capacity are barred by sovereign immunity; and (4) the claims against
Bordeaux in hisindividual capacity are barred by judicial immunity. Because judicial

immunity does not bar claims for declaratory relief, we reverse.

“We review a trial court’s grant of a motion to dismiss under a de novo

standard. A motion to dismiss may be granted only where a complaint shows with

certainty that the plaintiff would not be entitled to relief under any state of facts that

could be proven in support of his claim.” Viola E. Buford Family Ltd. Partnership v.

Britt, 283 Ga. App. 676, 676 (642 SE2d 383) (2007) (citations and punctuation

omitted).

On April 27, 2018, the appellantsfiled a complaintseeking a writ of mandamus

and declaratory relief against Bordeaux in the Superior Court of Chatham County. In

the complaint, the appellants alleged that the maximum amount of time allowed by

law for processing a weapons carry license application is 35 days; that Bordeaux

routinely does not process weapons carry licenses for GeorgiaCarry’s members and

other residents of Chatham County within 35 days of the filing of the application or

within 10 days of receiving the background report; and that by failing to process

weapons carry licenses within the time allowed by law, Bordeaux is violating OCGA

§ 16-11-129 (d) (4). The appellants further alleged that on October 13, 2017,

Montgomery applied for a weapons carry license with Bordeaux; that on February 2,

2
2018, Moore applied for a weapons carry license with Bordeaux; and that neither

Moore nor Montgomery had been issued weapons carry licenses at the time the

complaint was filed. However, Moore and Montgomery both received their weapons

carry licenses at some point before August 7, 2018. 

Bordeaux filed a motion to dismiss. After a hearing on the motion on August

7, 2018, the trial court dismissed the case. This appeal followed. 

1. The appellants contend that the trial court erred by ruling that the claims of

Moore and Montgomery were moot because they had received their weapons carry

licenses. We find no error.

The trial court found that the appellants’ request for a writ of mandamus was

moot because Moore and Montgomery had received their weapons carry licenses.

However, the trial court did not find that the appellants’ request for a declaratory

judgment was moot. 

Mandamus is an extraordinary remedy to compel a public officer to

perform a required duty when there is no other adequate legal remedy.

. . . In general, mandamus relief is not available to compel officials to

follow a general course of conduct, perform a discretionary act, or undo

a past act. Furthermore, once the public duty has occurred, the prayer

that mandamus be issued compelling a public officer to perform that

public duty is moot. 

3
R.A.F. v. Robinson, 286 Ga. 644, 646 (1) (690 SE2d 372) (2010) (citations and

punctuation omitted).

Although it is not clear fromthe record when Moore and Montgomery received

their weapons carry licenses, the parties do not dispute that Moore and Montgomery

received their weapons carry licenses atsome point before the August 7, 2018 hearing

in this case. Consequently, we agree with the trial court that the appellants’ request

for a writ of mandamus is now moot as it pertains to Moore and Montgomery. See

GeorgiaCarry.Org, Inc. v. James, 298 Ga. 420, 424 (2) (782 SE2d 284) (2016)

(mandamus action moot from the outset as to weapons license holder who received

a new weapons license before the filing of the mandamus action); see also Moore v.

Cranford, 285 Ga. App. 666, 666 (647 SE2d 295) (2007) (mandamus action was

rendered moot because probate court issued firearms license).

The appellants argue that Moore and Montgomery still have an interest in the

process and the timely issuance of weapons carry licenses because a weapons carry

license is only valid for five years, and Moore and Montgomery will have to apply

again. The appellants also invoke “the well-established but narrow exception to

mootness for disputes that are capable of repetition, yet evading review.” Owens v.

Hill, 295 Ga. 302, 305 (1) (758 SE2d 794) (2014) (citation and punctuation omitted).

4
If the trial court had found that the appellants’ claim for declaratory relief was moot,

this argument might be persuasive. See Moore, 285 Ga. App. at 666 (although

mandamus action was moot because firearms license applicant received his firearms

license, superior court found that the “‘issue is one that is capable of repetition and

will evade review’” and did not dismiss claim for declaratory and injunctive relief).

Because the trial court did not find that the appellants’ request for a declaratory

judgment is moot, the dispute will not evade review.

2. The appellants next contend that the trial court erred by finding that

GeorgiaCarry did not have standing. This argument has no merit.

In its order dated September 4, 2018, the trial court ruled that

“GeorgiaCarry.Org is not an authorized person to seek a writ of mandamus.” The trial

court made no finding as to whether GeorgiaCarry had standing to seek a declaratory

judgment. On appeal, the appellants argue that GeorgiaCarry is seeking a declaratory

judgment, not a writ of mandamus. To the extent our holding in Division 4 reinstates

the declaratory judgment action, the question of GeorgiaCarry’sstanding to bring that

action is not ripe for our determination. The appellants contend that only Moore and

Montgomery are seeking a writ of mandamus in the present case. Consequently, the

5
appellants’ argument, which is based on the trial court’s determination that

GeorgiaCarry is not an authorized person to bring a mandamus action, fails. 

3. The appellants next contend that the trial court erred in finding that

Bordeaux, in his official capacity, has sovereign immunity. We disagree.

The trial court found that the appellants’ request for declaratory judgment

against Bordeaux in his official capacitywould be barred by the doctrine of sovereign

immunity. “Simply put, the constitutional doctrine of sovereign immunity forbids our

courts to entertain a lawsuit against the State without its consent.” Lathrop v. Deal,

301 Ga. 408, 408 (801 SE2d 867) (2017). The Georgia Constitution provides:

Except as specifically provided in this Paragraph, sovereign immunity

extends to the state and all of its departments and agencies. The

sovereign immunity of the state and its departments and agencies can

only be waived by an Act of the General Assembly which specifically

provides that sovereign immunity is thereby waived and the extent of

such waiver.

Ga. Const. Art. I, Sec. II, Par. IX (e). “Sovereign immunity applies to public

employees sued in their official capacities because these are in reality suits against

the state.” Georgia Dept. of Natural Resources v. Center for a Sustainable Coast,

Inc., 294 Ga. 593, 599 n. 4 (755 SE2d 184) (2014) (citation and punctuation omitted).

6
Sovereign immunity extends to suits for declaratory relief. Olvera v. Univ. System of

Ga. Board of Regents, 298 Ga. 425, 428 n.4 (782 SE2d 436) (2016).

The appellants argue thatsovereign immunity has been waived because OCGA

§ 16-11-129 (j) creates a private right of action for an eligible weapons carry license

applicant who does not receive a weapons carry license within the time period

required by law. OCGA § 16-11-129 (j) provides, in relevant part:

When an eligible applicant fails to receive a license, temporary renewal

license, or renewal license within the time period required by this Code

section and the application or request has been properly filed, the

applicant may bring an action in mandamus or other legal proceeding in

order to obtain a license, temporary renewal license, or renewal license.

The appellants also argue that when an official fails or refuses to perform an official

duty requiring no exercise of discretion, any person who sustains personal injury as

a result is entitled to mandamus relief, and that such an action is not barred by

sovereign immunity regardless of whether the State has waived sovereign immunity. 

However, the trial court made no finding about whether the appellants’request

for a writ of mandamus would be barred by sovereign immunity. As previously stated,

the trial court dismissed Moore and Montgomery’s mandamus claims as moot. It

dismissed GeorgiaCarry’s mandamus action because the entity lacked standing to

7
bring that action. The appellants’ arguments on appeal do not addressthe trial court’s

finding that sovereign immunity bars the appellants’ request for declaratory relief.

The trial court did not err in finding that sovereign immunity bars the appellants’

request for declaratory relief against Bordeaux in his official capacity. See Olvera,

298 Ga. at 428 n.4

4. Next, the appellants contend that the trial court erred by finding that

Bordeaux was protected by judicial immunity in his individual capacity. We agree.

“Our courts have consistently held that judges are immune from liability in

civil actions for acts performed in their judicial capacity.” Smith v. Hancock, 150 Ga.

App. 80, 80 (256 SE2d 627) (1979) (citations omitted). “There are two grounds on

which a judge will be denied the absolute protection of judicial immunity: (1)

committing an act that is nonjudicial in nature; or (2) acting in the ‘complete absence

of all jurisdiction.’” Withers v. Schroeder, 304 Ga. 394, 397 (2) (819 SE2d 49) (2018)

(citations omitted). The trial court found that Bordeaux was protected by judicial

immunity because he was acting in his official capacity as part of his official duty of

issuing gun permits. “Although judges are immune from liability in civil actions

seeking damagesfor acts performed in their judicial capacity, thisimmunity does not

bar claims for declaratory or injunctive relief.” Moore, 285 Ga. App. at 666, n. 2

8
(citation omitted). Thus, the trial court erred in finding that the appellants’ claim for

declaratory relief against Bordeaux in his individual capacity is barred by judicial

immunity.

The trial court also found that the appellants’ claims against Bordeaux in his

individual capacity were not proper because Bordeaux issues licenses in a judicial

capacity, not in his individual capacity. Accordingly, the trial court held that there

was no claim against Bordeaux in his individual capacity. However, in Olvera, the

Supreme Court noted that public officers can be sued in their individual capacitiesfor

declaratory relief even though sovereign immunity bars an action for declaratory

relief brought against them in their official capacity. 298 Ga. at 428. “A suit against

a State officer or agent as an individual is not one against the State. Consequently,

where State officers or agents are sued personally, the suit is generally maintainable

. . . for acts done in violation of a statute, or under an unconstitutional statute, or for

acts otherwise unauthorized and illegal.” Florida State Hosp. v. Durham Iron Co.,

194 Ga. 350, 353 (3) (a) (21 SE2d 216) (1942). Here, the appellants alleged in their

complaint that by failing to process weapons carry licenses within the time allowed

by law, Bordeaux is violating OCGA § 16-11-129 (d) (4). Consequently, the trial

9
court erred in holding that there is no claim against Bordeaux in his individual

capacity. 

Judgment reversed. Doyle, P. J., and Markle, J., concur.

10