CopyCited 4 times | Published | Supreme Court of Georgia | Sep 6, 2023 | 317 Ga. 232
...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....
...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....
...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....
...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
Board denied Kuhlman’s application, “determin[ing] that [his]
application for [relief from] [d]isabilities pursuant to OCGA § 16-11-
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
Saf...
....”
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...
...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
qualifies for relief pursuant to OCGA §
16-11-131 (d)”; that
Kuhlman’s “federal claim cannot be maintained because the State of
4
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...
...Such waiver of sovereign immunity under this
Paragraph shall apply to past, current, and prospective acts which
occur on or after January 1, 2021.
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
is a claim that the Board’s act of denying his application was “in
Ga....
...es, 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.”
OCGA §
16-11-131 (d)....
...tate
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 ext...
...‘interpretation’ of Georgia law that is arbitrary, wrong, or both.”
10
(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 an...
...necessary, any consideration of whether the offense at issue is
similar or generally related to regulation of business practices is
13
simply not relevant at any point in an analysis of the pertinent
exclusion in OCGA §
16-11-131 (d)....
...If the court rejects each of those
claims on their merits, they will be reviewable on appeal.
22
Judgment affirmed in part, reversed in part and vacated in
part, and case remanded with direction. All the Justices concur.
Decided September 6, 2023.
OCGA §
16-11-131; constitutional question....
