Roberts v. Cuthper

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 19, 2023

S23A0631. ROBERTS v. CUTHPERT

LAGRUA, Justice.

Georgia law permits a person who has been denied a weapons

carry license by a probate judge to “bring an action in mandamus or

other legal proceeding in order to obtain” such a license. 1 The law

further provides that “[i]f such applicant is the prevailing party, he

or she shall be entitled to recover his or her costs in such action,

including reasonable attorney’s fees.” 2 We hold today that the

General Assembly waived sovereign immunity for claims brought

under OCGA § 16-11-129 (j) and that the Separation of Powers

Provision of the Georgia Constitution is not implicated by the

recovery of costs, including reasonable attorney’s fees, against a

probate judge pursuant to OCGA § 16-11-129 (j) because processing

1 OCGA § 16-11-129 (j).
2 Id.

1
a weapons carry license does not involve the exercise of judicial

power. We also conclude that the probate judge in this case waived

the defense of judicial immunity on the costs-and-fees claim asserted

against him in his official capacity. Thus, we affirm in part and

reverse in part the judgment of the superior court.

1. In April 2019, Kevin Gary Roberts applied to Judge Clarence

Cuthpert, Jr., probate judge for Rockdale County, for a weapons

carry license pursuant to OCGA § 16-11-129. Judge Cuthpert denied

Roberts’s application, finding that Roberts’s criminal history

revealed five arrests between 1992 and 2004 for aggravated assault,

affray, obstruction of the judiciary, cruelty to children in the first

degree, simple battery, battery, and family violence battery. Judge

Cuthpert noted that Roberts’s criminal history did not list the

dispositions of Roberts’s arrests for obstruction of the judiciary3 or

simple battery, but the other arrests had dispositions of not

prosecuted, dismissed, or nolle prossed. Judge Cuthpert concluded

3 Judge Cuthpert noted that Roberts’s criminal history did not identify

whether this particular charge was a felony or a misdemeanor.

2
that Roberts “lack[ed] good moral character[4] . . . [d]ue to his

arrest[s] for several violent offenses” and that “the court need[ed]

additional information[, including police reports,] to determine if

this application should be approved.” Judge Cuthpert advised

Roberts that he could file a motion for reconsideration, which

Roberts filed.

At the reconsideration hearing, Roberts did not provide any

police reports relating to his arrests or any information about how

his arrests that were listed without a disposition in his background

check were ultimately resolved. However, Roberts testified at the

hearing that he had never been convicted of a felony or of a

misdemeanor crime of domestic violence. After the hearing, Judge

Cuthpert denied the motion for reconsideration, concluding that,

“[b]ased upon [Roberts’s] history of violent offenses and failure to

4 OCGA § 16-11-129 (d) (4) provides that

the judge of the probate court shall issue such applicant a license .
. . unless facts establishing ineligibility have been reported or
unless the judge determines such applicant has not met all the
qualifications, is not of good moral character, or has failed to
comply with any of the requirements contained in this Code
section.

3
comply with the Court’s instructions to provide the incident reports

and dispositions for [his previous five arrests],” Roberts was “not of

good moral character.”

Soon thereafter, Roberts filed a complaint against Judge

Cuthpert in the Rockdale County Superior Court seeking

mandamus relief against Judge Cuthpert “in his official capacity,”

declaratory judgment against Judge Cuthpert “in both his official

and individual capacities,” and costs and attorney’s fees. In Judge

Cuthpert’s answer, he asserted that the defenses of judicial

immunity and official immunity barred any damages claim against

him in his individual capacity and that sovereign immunity barred

any damages claim against him in his official capacity. While the

suit was pending, Roberts substituted Judge Gary Washington for

Judge Cuthpert in his official capacity,5 but noted that Judge

Cuthpert continued as a defendant in his individual capacity.6

5 We note that the superior court did not enter an order of substitution,

which it was not required to do under OCGA § 9-11-25 (d) (1), but the better
practice would have been to enter one.
6 We note however that claims for declaratory judgment against public

4
 The parties filed cross-motions for summary judgment, and the

superior court granted summary judgment in favor of Roberts on his

mandamus claim, concluding that Roberts “ha[d] a clear legal right

to a weapons carry license,” and ordered Judge Washington to

provide Roberts with a weapons carry license. Judge Washington did

not appeal the superior court’s grant of mandamus relief.7

Subsequently, Roberts filed a motion for costs, including

reasonable attorney’s fees, under OCGA § 16-11-129 (j). In response,

the probate judges argued in part that judicial immunity barred

Roberts’s costs-and-fees claim “against Judge Cuthpert personally”

and that sovereign immunity barred the costs-and-fees claim

officials in their individual capacity generally become moot once that official is
no longer in office. See Georgia Dept. of Human Servs. v. Addison, 304 Ga. 425,
429 (1) n.5 (819 SE2d 20) (2018) (concluding that claims for declaratory
judgment against a public official in his individual capacity became moot once
he was “no longer employed by the State of Georgia” because “he can no longer
give the plaintiffs any of the relief they seek”).
7 Because the mandamus ruling was not appealed to this Court, it has

been conclusively established for purposes of this litigation that Roberts had a
clear legal right to a weapons carry license. So although some of us doubt that
mandamus was properly granted in this case, we do not decide on that
question.

5
“against Judge Washington in his official capacity.” 8 After briefing,

the superior court denied Roberts’s motion for costs, concluding (1)

the General Assembly waived sovereign immunity by enacting

OCGA § 16-11-129 (j); (2) the doctrine of judicial immunity barred

the costs-and-fees claim against the probate judges in their

“individual and official capacity”; and (3) the recovery of costs and

attorney’s fees was unconstitutional under the Separation of Powers

Provision of the Georgia Constitution. See Ga. Const. of 1983, Art. I,

Sec. II, Par. III.

Roberts timely appealed the superior court’s order, but he

appeals only the costs-and-fees claim against the probate judge in

8 We note that while Judge Cuthpert asserted in his answer the defense

of official immunity for the claims asserted against him in his individual
capacity, he did not raise this defense in response to Roberts’s motion for fees.
See Ga. Const., Art. I, Sec. II, Par. IX (d) (providing official immunity for
“officers and employees of the state or its departments and agencies”). See also
Gilbert v. Richardson, 264 Ga. 744, 752-753 (6) (452 SE2d 476) (1994) (holding
that a county official was entitled to official immunity under Article I, Section
II, Paragraph IX (d) of the Georgia Constitution). “The doctrine of official
immunity . . . provides that while a public officer or employee may be
personally liable for his negligent ministerial acts, he may not be held liable
for his discretionary acts unless such acts are willful, wanton, or outside the
scope of his authority.” Id. at 752 (6). But because the only claim remaining
before us is against Judge Washington in his official capacity, we need not
address the applicability of official immunity.

6
his official capacity. Thus, the superior court’s ruling that the

doctrine of judicial immunity barred the costs-and-fees claim

against the probate judge in his individual capacity is not before this

Court, and we address the superior court’s sovereign-immunity

ruling below. 9

2. The General Assembly waived sovereign immunity when it

enacted OCGA § 16-11-129 (j).

“The doctrine of sovereign immunity, as enshrined in our

Constitution, bars suits against the State and its employees in their

official capacities unless a statute or the Constitution itself

specifically waives that immunity.” State v. SASS Group, LLC, 315

Ga. 893, 893 (885 SE2d 761) (2023). Absent a waiver, a probate judge

sued in his official capacity enjoys sovereign immunity because

styling a claim against a county officer in his official capacity is

9 Although the probate judge did not appeal the superior court’s ruling

on sovereign immunity, we nevertheless address it because “the applicability
of sovereign immunity 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).

7
simply a way of pleading a claim against the county itself. Camden

County v. Sweatt, 315 Ga. 498, 502 (2) n.12 (883 SE2d 827) (2023)

(citation and punctuation omitted; emphasis in original). See also

Gilbert v. Richardson, 264 Ga. 744, 746-747 (2) (452 SE2d 476)

(1994) (holding state’s sovereign immunity extends to counties).

Turning to the relevant statute, we have previously explained:

“In OCGA § 16-11-129, the General Assembly set out a streamlined

procedure for processing applications for weapons carry licenses. An

applicant initiates the process by submitting an application under

oath to a probate judge, having his or her photograph and

fingerprints taken, and paying the required fees.” Bell v. Hargrove,

313 Ga. 30, 32-33 (2) (867 SE2d 101) (2021).

After receiving the application, a probate judge must
direct the appropriate law enforcement agency in the
county, to . . . (1) . . . request a fingerprint based criminal
history records check from the Georgia Crime Information
Center and Federal Bureau of Investigation for purposes
of determining the suitability of the applicant and return
an appropriate report to the judge of the probate court; (2)
conduct a background check using the Federal Bureau of
Investigation’s National Instant Criminal Background
Check System and return an appropriate report to the
probate judge; and (3) when a person who is not a United

8
 States citizen applies for a weapons carry license, conduct
a search of the records maintained by United States
Immigration and Customs Enforcement and return an
appropriate report to the probate judge.

Bell, 313 Ga. at 33 (2) (citations and punctuation omitted). “Based

on the records check results, the county law enforcement agency

must then report to the probate judge ‘any findings relating to the

applicant which may bear on his or her eligibility for a weapons

carry license.’” Id. at 33 (2) (quoting OCGA § 16-11-129 (d) (4)).

Within “ten days after” receiving the report from the appropriate

law enforcement agency,

the judge of the probate court shall issue such applicant a
license or renewal license to carry any weapon unless
facts establishing ineligibility have been reported or
unless the judge determines such applicant has not met
all the qualifications, is not of good moral character, or
has failed to comply with any of the requirements
contained in this Code section.

OCGA § 16-11-129 (d) (4). The statute further provides:

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

9
 license, or renewal license. When an applicant is
otherwise denied a license, temporary renewal license, or
renewal license and contends that he or she is qualified to
be issued a license, temporary renewal license, or renewal
license, the applicant may bring an action in mandamus
or other legal proceeding in order to obtain such license.
Additionally, the applicant may request a hearing before
the judge of the probate court relative to the applicant’s
fitness to be issued such license. Upon the issuance of a
denial, the judge of the probate court shall inform the
applicant of his or her rights pursuant to this subsection.
If such applicant is the prevailing party, he or she shall
be entitled to recover his or her costs in such action,
including reasonable attorney’s fees.

OCGA § 16-11-129 (j) (emphasis supplied).

The Georgia Constitution provides that “[t]he 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. We have

recognized that while “implied waivers of governmental immunity

should not be favored, . . . this does not mean that the [General

Assembly] must use specific magic words such as ‘sovereign

immunity is hereby waived’ in order to create a specific statutory

10
waiver of sovereign immunity.” City of Union Point v. Greene

County, 303 Ga. 449, 453 (1) (812 SE2d 278) (2018).

Here, OCGA § 16-11-129 (j) expressly authorizes a cause of

action against a public official, i.e., the probate judge, based on the

denial of an application for a weapons carry license. In order for

OCGA § 16-11-129 (j) to have any meaning at all, it can only be

interpreted as creating a waiver of sovereign immunity. See City of

College Park v. Clayton County, 306 Ga. 301, 314 (3) (830 SE2d 179)

(2019) (concluding that a statute which “expressly authorize[d]

claimants to seek relief against a public official . . . amount[ed] to a

specific waiver of sovereign immunity when public officials are sued

in their official capacities”). Thus, OCGA § 16-11-129 (j) is an

implicit waiver of sovereign immunity in the limited circumstances

provided therein, that is, when an “applicant is the prevailing party”

on an official-capacity claim, like here, the applicant “shall be

entitled to recover his or her costs in such action, including

reasonable attorney’s fees.” OCGA § 16-11-129 (j). Accordingly, we

affirm the superior court’s ruling that sovereign immunity is waived

11
for the claims before us.

3. The probate judge waived the defense of judicial immunity

for the costs-and-fees claim asserted against him in his official

capacity.

Roberts contends the superior court erred by concluding that

the doctrine of judicial immunity barred Roberts’s costs-and-fees

claim under OCGA § 16-11-129 (j) against the probate judge in his

official capacity. Without deciding whether judicial immunity is

available as a defense in official-capacity claims, we conclude that

the probate judge waived any defense of judicial immunity for the

costs-and-fees claim asserted against him in his official capacity.

“Absolute judicial immunity has protected judicial actions from

suit since medieval times.” Stanley v. Patterson, 314 Ga. 582, 583 (2)

(878 SE2d 529) (2022) (citing Forrester v. White, 484 U. S. 219, 225

(III) (108 SCt 538, 98 LE2d 555) (1988)).10

10 As we noted in Stanley:

The scope and nature of judicial and quasi-judicial immunity
under Georgia law is a question of state law, not federal law.
Accordingly, United States Supreme Court precedent on this point

12
 Although unfairness and injustice to a litigant may result
on occasion, it is a general principle of the highest
importance to the proper administration of justice that a
judicial officer, in exercising the authority vested in him,
shall be free to act upon his own convictions, without
apprehension of personal consequences to himself.

Mireles v. Waco, 502 U.S. 9, 10 (112 SCt 286, 116 LE2d 9) (1991)

(citation and punctuation omitted). But the defense of judicial

immunity is an affirmative defense that can be waived. See Spann

v. Davis, 312 Ga. 843, 846-848 (1) (866 SE2d 371) (2021). While the

defense of judicial immunity need not necessarily be asserted in a

responsive pleading or motion, the defense is waived if it is not

raised any time before judgment. See id. at 851 (2) (citation and

punctuation omitted). And trial courts lack the authority to sua

sponte dismiss claims based on a waivable affirmative defense that

has not been raised. See id. at 847 (1) (A sua sponte dismissal “based

on an affirmative defense that has not been raised is particularly

is persuasive only, not binding. But we view that precedent as
quite persuasive, given its thorough assessment of the common-
law basis of federal judicial immunity that also formed the basis
for Georgia’s judicial immunity doctrine.
Id., 314 Ga. at 584 (2) n.3.

13
problematic because . . . a party seeking protection from suit on the

basis of immunity bears the burden of establishing that he or she is

entitled to that protection.”).

Here, as shown in Division 1, the record establishes that the

probate judge asserted the defense of judicial immunity only for the

individual-capacity claims and did not assert the defense of judicial

immunity for the costs-and-fees claim asserted against him in his

official capacity at any time prior to the superior court’s denial of

Roberts’s motion for costs. Thus, the probate judge waived whatever

defense of judicial immunity might have been available for the costs-

and-fees claim asserted against him in his official capacity. 11 See

11 Because we conclude that the probate judge waived the defense of

judicial immunity for the costs-and-fees claim asserted against him in his
official capacity, we do not address whether the defense of judicial immunity is
available when a judge is sued in his or her official capacity, as opposed to his
or her individual capacity. See Kimberly Regenesis, LLC v. Lee County, 64 F4th
1253, 1259 (11th Cir. 2023) (“The [United States] Supreme Court has made
clear, for example, that an official in a [individual]-capacity action may be able
to assert personal immunity defenses (like quasi-judicial immunity) but that
these defenses are unavailable in a suit against a municipality.” (citation and
punctuation omitted)). See also Lathrop v. Deal, 301 Ga. 408, 425 (III) (801
SE2d 867) (2017) (“[A] suit against a state officer in his official capacity
amounts to a suit against the State itself, and the doctrine of sovereign
immunity bars suits against the State to which the State has not consented.”
(citation omitted)).

14
Spann, 312 Ga. at 851 (2). Accordingly, the superior court erred in

sua sponte ruling that the defense of judicial immunity barred

Roberts’s costs-and-fees claim against the probate judge in his

official capacity, and this ruling by the superior court is reversed.

See id. at 846-848 (1) (concluding the trial court erred in ruling sua

sponte on the issue of quasi-judicial immunity).

4. The recovery of costs, including reasonable attorney’s fees,

against a probate judge under OCGA § 16-11-129 (j) does not violate

the Separation of Powers Provision of the Georgia Constitution.

Roberts also contends the superior court erred by concluding

that the Separation of Powers Provision barred Roberts’s recovery

of costs, including reasonable attorney’s fees, under OCGA § 16-11-

129 (j). In declaring the costs-and-fees provision of OCGA § 16-11-

129 (j) unconstitutional, the superior court concluded that the

legislative branch infringed on judicial independence by enacting a

statute which causes judges to be financially liable for exercising

their judicial power when denying an application for a weapons

carry license. However, as explained below, we conclude that

15
probate judges do not exercise judicial power when they grant or

deny an application for a weapons carry license under OCGA § 16-

11-129, and therefore, the Separation of Powers Provision is not

implicated by the recovery of costs, including reasonable attorney’s

fees, under OCGA § 16-11-129 (j).

(a) Separation-of-Powers Principles

The Georgia Constitution provides that “[t]he legislative,

judicial, and executive powers shall forever remain separate and

distinct; and no person discharging the duties of one shall at the

same time exercise the functions of either of the others except as

herein provided.” Ga. Const. of 1983, Art. I, Sec. II, Par. III. See also

Caldwell v. Bateman, 252 Ga. 144, 148 (5) (312 SE2d 320) (1984)

(“The plain words of the Constitution prohibit a person from

simultaneously discharging the duties and functions of more than

one branch.”). Every Georgia Constitution has provided for

separated powers, and the current Separation of Powers Provision

has remained unchanged since 1877. See Black Voters Matter Fund,

Inc. v. Kemp, 313 Ga. 375, 397 (2) n.27 (870 SE2d 430) (2022)

16
(Peterson, J., concurring). Under our system of government, “[t]he

legislative branch enacts the law, the judiciary interprets those laws

and the executive branch enforces those laws until they are

amended or held to be unconstitutional.” Steiner, 303 Ga. at 904 (V)

(citation and punctuation omitted). “[I]ndeed, there is no liberty, if

the power of judging be not separated from the legislative and

executive powers.” Beall v. Beall, 8 Ga. 210, 229 (26) (1850)

(emphasis omitted). And the Judicial Power Paragraph of the

Georgia Constitution has long vested judicial power in probate

courts. See Ga. Const. of 1983, Art. VI, Sec. I, Par. I (vesting the

judicial power of the state “exclusively” in various “classes of courts,”

including probate courts); Ga. Const. of 1861, Art. IV, Sec. I, Par. I

(vesting the judicial power of the state in various courts, including

probate courts). See also Tucker v. Harris, 13 Ga. 1, 8 (7) (1853) (The

probate courts “are not created by Statute; they are constitutional

Courts.” (emphasis in original)).

Our decisions about whether a challenged law violates the

Separation of Powers Provision by infringing on the judicial power

17
have looked to whether the law burdens the exercise of a judicial

function. See, e.g., Steiner, 303 Ga. at 896-905 (V) (concluding there

was no violation of the Separation of Powers Provision because the

executive branch employee did not perform a judicial function);

Brown v. Scott, 266 Ga. 44, 45-46 (1) (464 SE2d 607) (1995)

(concluding there was a violation of the Separation of Powers

Provision because the executive branch employee performed both

executive and judicial functions); Georgia Dept. of Human Resources

v. Word, 265 Ga. 461, 463 (1) (458 SE2d 110) (1995) (concluding

there was no violation of the Separation of Powers Provision because

there was no “infringe[ment] on any judicial function”); Northside

Manor, Inc. v. Vann, 219 Ga. 298, 300 (133 SE2d 32) (1963)

(concluding there was a violation of the Separation of Powers

Provision because there was an “usurpation of exclusive judicial

functions”).

“The Judicial Power Paragraph does not purport to define what

is meant by the judicial power.” Sons of Confederate Veterans v.

Henry County Board of Commissioners, 315 Ga. 39, 47 (2) (a) (880

18
SE2d 168) (2022). But “resolving private-rights disputes has been

historically recognized as the core of judicial power.” Id. at 47-48 (2)

(a) (citation and punctuation omitted). “The judicial power is that

which declares what law is, and applies it to past transactions and

existing cases; it expounds and judicially administers the law; it

interprets and enforces the law in a case in litigation.” Id. at 50 (2)

(b) (citation and punctuation omitted). Thus, “[in] general, judicial

functions are those involved in resolving disputes between parties

who have invoked the jurisdiction of a court.” Stanley, 314 Ga. at

584 (2) (citation and punctuation omitted). See, e.g., Georgia Dept.

of Human Svcs. v. Steiner, 303 Ga. 890, 905 (V) (815 SE2d 883)

(2018) (concluding in part that an investigator with the executive

branch did not perform a judicial function because “[t]he

investigator [wa]s not charged with hearing argument and

testimony or deciding a dispute between parties”). Additionally,

when performing a “judicial function . . . the [court] interprets,

applies, and enforces existing law as related to subsequent acts of

persons amenable thereto.” Fullwood v. Sivley, 271 Ga. 248, 253

19
(517 SE2d 511) (1999). See also Georgia Motor Trucking Assn. v.

Georgia Dept. of Revenue, 301 Ga. 354, 361 (2) (A) (ii) n.4 (801 SE2d

9) (2017) (“The interpretation of constitutional text is a judicial

function, not a legislative one.”). Although the key to determining

whether an act is a judicial function is whether said act involves

resolving a dispute between parties who have invoked the

jurisdiction of a court, whether said act is “normally” performed by

a judge may also be relevant. Cf. Stanley, 314 Ga. at 585 (2) (“[T]he

lodestar of judicial and quasi-judicial immunity is whether the

actions constitutes a function normally performed by a judge.”

(citation and punctuation omitted)).

Not everything a judge is called upon to do is properly

considered a “judicial function.” See Stanley, 314 Ga. at 584 (2)

“Judicial functions are distinguished from ‘administrative,

legislative, or executive functions that judges may on occasion be

assigned by law to perform.’” Id. (quoting Forrester, 484 U.S. at 227

(III)). Although the judicial power is vested in the probate courts, we

have also long acknowledged that probate judges, in particular, are

20
“not so exclusively judicial officers that certain administrative

duties could not be required of them.” Carroll v. Wright, 131 Ga. 728,

739 (4) (63 SE 260) (1908). See also id. at 739 (4) (noting that probate

judges have the authority to issue marriage licenses but that such

issuance “is not essentially and absolutely a judicial act”).

(b) Application

Applying these principles here, we conclude that granting or

denying a weapons carry license is not a judicial function. Simply

put, the application for a weapons carry license does not involve the

resolution of a dispute between parties or anything else inherent to

the judicial role. See Stanley, 314 Ga. at 584 (2) (holding that

“judicial functions are those involved in resolving disputes between

parties” (citation and punctuation omitted)).

The fact that the General Assembly has statutorily assigned

the grant or denial of a weapons-carry-license application to a

probate judge does not transform the function into an exercise of

judicial power; the Constitution, not statute, is what determines the

lines between powers. This is also true given that the General

21
Assembly has explicitly assigned nonjudicial functions to probate

judges for well over a century. See OCGA § 15-9-30 (b) (11)

(providing that probate judges “shall . . . [p]erform [both] judicial

and ministerial functions as may be provided by law”); Comer v.

Ross, 100 Ga. 652, 652 (28 SE 387) (1897) (Probate judges are

“charged with the performance of duties judicial, ministerial, and

clerical. Not by his title, but only by his acts, can the exact capacity

in which he appears ever be known upon any special occasion.”).

Nor does the statute’s requirement that the probate judge

determine whether an applicant is of “good moral character” make

the grant or denial of an application for a weapons carry license an

exercise of the judicial power. As noted in Division 2, OCGA § 16-11-

129 (d) (4) requires the probate judge to issue an applicant a

weapons carry license “unless the judge determines such applicant

has not met all the qualifications, is not of good moral character, or

has failed to comply with any of the requirements contained in this

Code section.” The determination of whether an applicant is of “good

moral character” may involve the use of discretion, but the use of

22
discretion does not necessarily render something a judicial function

because non-judges routinely employ the use of discretion as part of

their nonjudicial functions. See, e.g., Pryor Org., Inc. v. Stewart, 274

Ga. 487, 490 (554 SE2d 132) (2001) (upholding the sheriff’s “exercise

of discretion” in revoking the license of a bail bondsman because he

lacked “good moral character”); Duty Free Air & Ship Supply

Co./Franklin Wilson Airport Concession v. City of Atlanta, 282 Ga.

173, 175 (646 SE2d 48) (2007) (concluding that the mayor’s and city

council’s approval of any award resulting from competitive sealed

bidding process for airport duty-free concessions contract was a

discretionary act); Bland Farms, LLC v. Georgia Dept. of

Agriculture, 281 Ga. 192, 192 (637 SE2d 37) (2006) (concluding that

the relevant statute “simply confers on the [Commissioner of

Agriculture] the general discretionary authority to undertake to

protect the Vidalia trademark, and does not impose on him the

express official duty to prohibit the use of other trademarks on

Vidalia onion”).

Further, many professional licensing schemes in Georgia

23
require non-judges to determine whether a person is of good moral

character. See, e.g., Stewart, 274 Ga. at 489 (2) (regulating

professional bondspersons); OCGA § 10-2-41 (regulating certified

public weighers); OCGA § 15-14-29 (regulating court reporters);

OCGA § 40-15-5 (regulating instructors in a motorcycle operator

safety training program). Indeed, OCGA § 16-11-129 appears to be

the only statutory licensing scheme where the determination of

“good moral character” is made solely by a judge. Cf. OCGA § 43-21-

51 (requiring license applicants to present their application “to the

county commissioners or the judge of the probate court of the county

in which [the roadhouse] business is to be operated”). But we are

unaware of any authority supporting the proposition that, because

“good moral character” determinations require the exercise of

discretion, licensing board members, who are part of the executive

branch, are performing a judicial function when making such

determinations. See Ga. Const. of 1983, Art. VI, Sec. I, Par. I (“The

judicial power of the state shall be vested exclusively in the following

classes of courts: magistrate courts, probate courts, juvenile courts,

24
state courts, superior courts, state-wide business court, Court of

Appeals, and Supreme Court.”). 12

Our conclusion that processing applications for weapons carry

licenses is not a judicial function is bolstered by the practice of our

sister states. To this point, Georgia currently appears to be the only

state in which a person must initially apply to a judge for a weapons

carry license.13 And we note as persuasive authority that Delaware’s

12 We note that there are weapons-carry-license schemes in other states

that require an applicant to possess “good moral character,” but non-judges
make the determination of whether the applicant has met this prerequisite.
See, e.g., Cal. Penal Code § 26150 (a) (1) (determination made by local law
enforcement); Me. Rev. Stat. Ann. Tit. 25, § 2003 (1) (determination made by
local law enforcement); Del. Code Ann. 11, § 1441 (a) (determination made by
the county prothonotary). And, as far as we can tell, there is no authority in
these other states supporting the proposition that, because “good moral
character” determinations require the exercise of discretion, these law
enforcement or county official are performing a judicial function when making
such determinations. See, e.g., Scocca v. Smith, 912 F. Supp. 2d 875, 887 (II)
(D) (N.D. Cal. 2012) (concluding that the sheriff was entitled to qualified
immunity on a claim arising from the denial of a weapons carry license).
13 39 states require that an applicant apply for such a license to state or

local law enforcement. See Ala. Code § 13A-11-75 (a) (2); Alaska Stat. Ann. §
18.65.700 (a) (1); Ariz. Rev. Stat. Ann. § 13-3112 (A); Ark. Code Ann. § 5-73-
302 (a); Cal. Penal Code § 26150 (a); Colo. Rev. Stat. Ann. § 18-12-206 (1) (a);
Conn. Gen. Stat. Ann. § 29-28 (a); Haw. Rev. Stat. Ann. § 134-2 (a); Idaho Code
Ann. § 18-3302 (7); 430 Ill. Comp. Stat. Ann. 66 § 10 (a); Ind. Code Ann. § 35-
47-2-3 (a); Iowa Code Ann. § 724.10 (1); Ky. Rev. Stat. Ann. § 237.110 (a); La.
Stat. Ann. § 40:1379.1.1 (A) (1); Me. Rev. Stat. Ann. Tit. 25, § 2002-B; Md. Code
Ann., Pub. Safety § 5-306 (a); Mass. Gen. Laws Ann. ch. 140, § 131 (d); Minn.
Stat. Ann. § 624.714 Subd. 2; Miss. Code. Ann. § 45-9-101 (1) (a); Mont. Code

25
superior courts were once statutorily assigned the duty of processing

weapons-carry-licenses applications and the Supreme Court of

Delaware held that superior courts were not performing a judicial

function when they considered such applications. See Application of

Buresch, 672 A.2d 64, 65 (Del. 1996) (“In considering applications

for permits to carry concealed deadly weapons, the [s]uperior [c]ourt

is engaging in an administrative function delegated by the

Ann. § 45-8-321 (1); Neb. Rev. Stat. Ann. § 69-2430 (1); Nev. Rev. Stat. Ann. §
202.350 (3); N.H. Rev. Stat. Ann. § 159:6 (I) (a); N.J. Stat. Ann. § 2C:58-4 (c);
N.M. Stat. Ann. § 29-19-5 (D); N.Y. Penal Law § 400.00 (4-b); N.C. Gen. Stat.
Ann. § 14-415.11 (b); N.D. Cent. Code Ann. § 62.1-04-03 (1); Ohio Rev. Code
Ann. § 2923.125 (B); Okla. Stat. Ann. Tit. 21, § 1290.3; Or. Rev. Stat. Ann. §
166.291 (1); 18 Pa. Stat. and Cons. Stat. Ann. § 6109 (b); 11 R.I. Gen. Laws
Ann. § 11-47-18 (a); S.C. Code Ann. § 23-31-215 (A); S.D. Codified Laws § 23-
7-7; Tenn. Code Ann. § 39-17-1351 (b); Tex. Gov’t Code Ann. § 411.174 (a); Utah
Code Ann. § 53-5-704 (1) (a); Wash. Rev. Code Ann. § 9.41.070 (1); W. Va. Code
Ann. § 61-7-4 (a) (1). Three states require that an applicant apply to the state
attorney general. See Kan. Stat. Ann. § 75-7c03 (a); Wis. Stat. Ann. § 175.60
(9); Wyo. Stat. Ann. § 6-8-104 (b). Two states require that an applicant apply
to the county clerk. See Mich. Comp. Laws Ann. § 28.425b (1); Va. Code Ann.
§ 18.2-308.04 (D). In Virginia, county clerks may grant permits, but “[o]nly a
circuit court judge may deny issuance of a concealed handgun permit. . .” Va.
Code Ann. § 18.2-308.08 (A). One state requires that an applicant apply to the
county prothonotary (clerk), but the state attorney general appears to have
some discretion regarding temporary licenses to nonresidents. See Del. Code
Ann. 11, § 1441 (a) (1) and (k). One state requires that an applicant apply to
the state department of agriculture and consumer services. See Fla. Stat. Ann.
§ 790.06 (1) (b). Missouri and Vermont do not appear to have laws concerning
weapons carry licenses.

26
[Delaware] General Assembly.”). Because granting or denying an

application for a weapons carry license is neither an act that

involves resolving a dispute between parties who have invoked the

jurisdiction of a court nor an act normally performed by a judge, we

conclude that considering such an application is a nonjudicial

function, and we overrule any Court of Appeals cases holding

otherwise.14

Based on the above, granting or denying an application for a

weapons carry license does not involve the type of act normally

performed only by a judge, and we conclude that such a grant or

denial does not involve the exercise of judicial power. See Sons of

Confederate Veterans, 315 Ga. at 47-48 (2) (“resolving private-rights

disputes has been historically recognized as the core of judicial

power”). Here, the superior court found that “plac[ing] a probate

judge in a position to defend [himself] from civil liability every time

[he denies] a weapons permit . . . impedes on a probate judge’s

independence.” This sentiment, of course, is one of the linchpins of

14 See, e.g., Hise v. Bordeaux, 364 Ga. App. 138 (874 SE2d 175) (2022).

27
the doctrine of judicial immunity. See Forrester, 484 U.S. at 226-227

(III) (“If judges were personally liable for erroneous decisions, the

resulting avalanche of suits . . . would provide powerful incentives

for judges to avoid rendering decisions likely to provoke such suits.

The resulting timidity . . . would manifestly detract from

independent and impartial adjudication.”). But this reasoning has

no place in interpreting the Separation of Powers Provision when,

like here, a judge is performing only a nonjudicial function, there

has been no infringement on or usurpation of a judicial function, and

there has been no exercise of judicial power.15 We therefore hold that

the Separation of Powers Provision is not implicated by a statute

imposing liability for wrongly denying an application for a weapons

carry license. 16 See Word, 265 Ga. 461, 463 (1) (concluding there was

15 There may be other ways for the Separations of Powers Provision to be

violated, but the probate judge makes no other argument.
16 We note that while the probate judge argued in his brief that granting

or denying an application for a weapons carry license was a judicial function,
he makes no separation-of-powers argument concerning the assignment of
nonjudicial functions to probate courts. We express no opinion on whether the
Separation of Powers Provision permits the General Assembly to assign
nonjudicial functions to probate courts, much less other classes of courts that
lack the probate courts’ long history of such assignments.

28
no violation of the Separation of Powers Provision because there was

no “infringe[ment] on any judicial function”); Northside Manor, Inc.,

219 Ga. at 300 (concluding there was a violation of the Separation

of Powers Provision because there was an “usurpation of exclusive

judicial functions”).

Accordingly, we reverse the trial court’s ruling that OCGA §

16-11-129 (j) violates the Separation of Powers Provision and

remand this case for a hearing on costs, including reasonable

attorney’s fees, under OCGA 16-11-129 (j). 17

Judgment affirmed in part and reversed in part, and case
remanded with direction. All the Justices concur.

17 We note that because the costs-and-fees claim is asserted against the

probate judge in his official capacity, this claim is against the county. See Layer
v. Barrow County, 297 Ga. 871, 871 (1) (778 SE2d 156) (2015) (“[A] suit against
a county officer in her official capacity is a suit against the county itself.”)

29
 LAGRUA, Justice, concurring.

I write separately to note that OCGA § 16-11-129 has placed

probate judges in a precarious situation because the statute requires

that judges consider applicants’ criminal history reports, but the

judges are powerless to investigate gaps in the information provided

in those reports. See Bell v. Hargrove, 313 Ga. 30, 34 (3) (867 SE2d

101) (2021) (holding that a probate judge lacks discretion to deny an

application for a weapons carry license based solely on a

determination that an applicant’s criminal history report raises a

question about whether the applicant has a disqualifying

conviction). While I know the General Assembly recently

reestablished the Criminal Case Data Exchange Board, see OCGA §

15-5-24.1, in an attempt to address the large number of missing

criminal dispositions, until the State provides complete and

accurate records, I fear probate judges face difficult decisions,

perhaps impossible ones, in the interim.

I am authorized to state that Justice McMillian and Justice

Colvin join in this concurrence.

30