Hise v. Bordeaux, A22A0103

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtDillard, Presiding Judge.
Citation364 Ga.App. 138,874 S.E.2d 175
Parties HISE v. BORDEAUX.
Docket NumberA22A0103
Decision Date07 June 2022

364 Ga.App. 138
874 S.E.2d 175

HISE
v.
BORDEAUX.

A22A0103

Court of Appeals of Georgia.

June 7, 2022


874 S.E.2d 177

John R. Monroe, for Appellant.

Goodman McGuffey, Charles W. Barrow, Savannah; Jennifer R. Davenport, for Appellee.

Dillard, Presiding Judge.

364 Ga.App. 138

Gregory Hise applied for a Georgia weapons carry license ("GWCL"), under OCGA § 16-11-129, with Thomas C. Bordeaux, Jr., a judge of the Chatham County Probate Court. Bordeaux denied the application, but the superior court granted Hise a writ of mandamus, directing issuance of the GWCL. While Bordeaux appealed, Hise filed an action for damages, alleging that (in denying the license) Bordeaux violated his fundamental right to bear arms under the United States Constitution, as well as the Georgia Constitution, and also violated a prohibition against county officials regulating firearms. Bordeaux filed a motion to dismiss for failure to state a claim, which

364 Ga.App. 139

the superior court granted. Hise now appeals that decision, but for the reasons set forth infra , we affirm.

The record in this matter—which for the most part is undisputed—shows that on May 6, 2019, Hise filed an application for a GWCL with Bordeaux under OCGA § 16-11-129.1

874 S.E.2d 178

Bordeaux issued an order denying Hise's application the same day, citing as grounds for the denial that Hise had been convicted in another state of misdemeanor assault in 1979. In response, Hise filed a mandamus action in the superior court, requesting that Bordeaux be ordered to issue the GWCL. Soon thereafter, Hise moved for summary judgment; and on October 4, 2019, the superior court issued an order granting the motion and directing Bordeaux to issue a GWCL to Hise within ten days. Bordeaux did not immediately comply, which prompted Hise to file a motion for contempt. Bordeaux then moved for reconsideration, and when the superior court denied that motion, he appealed to this Court.2

A few weeks after Bordeaux filed his notice of appeal, on November 26, 2019, Hise filed an action against him, in both his official and individual capacities, seeking monetary damages on the grounds that (in denying the GWCL) Bordeaux violated Hise's fundamental right to bear arms under the Second Amendment of the United States Constitution and Article I, Section I, Paragraph VIII of the Georgia Constitution, and that he also violated the prohibition in OCGA § 16-11-173 against county officials regulating firearms. Bordeaux filed an answer and a motion to dismiss for failure to state a claim, arguing that a denial of a GWCL does not constitute a violation of Hise's fundamental right to bear arms under the United States or Georgia Constitution and, in any event, Hise's claims are barred by the doctrines of sovereign, judicial, and official immunity.

Hise filed a response to Bordeaux's motion, and the trial court scheduled a hearing on the matter. But prior to that hearing, this Court affirmed the trial court's earlier ruling granting Hise's writ of mandamus.3 Consequently, Bordeaux issued the GWCL. As a result,

364 Ga.App. 140

Hise withdrew his contempt motion but maintained his action for damages. One month later, the trial court held the hearing on Bordeaux's motion to dismiss, which it ultimately granted. This appeal follows.

In his sole enumeration of error, Hise contends generally that the trial court erred in granting Bordeaux's motion to dismiss for failure to state a claim. But in his brief, he specifically argues—despite not separately enumerating—that all three claims in his complaint are valid and his action is not barred by any form of immunity. Accordingly, we will address each of his claims separately.

This Court conducts a de novo review of a trial court's ruling on a motion to dismiss.4 In doing so, we are tasked with determining whether the allegations of the complaint—when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor—"disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts."5 But importantly, we need not "adopt a party's legal conclusions based on these facts."6 With these guiding principles in mind, we turn to Hise's specific claims of errors.

874 S.E.2d 179

1. For starters, Hise argues that by refusing to issue the GWCL after the superior court granted his writ of mandamus, Bordeaux—in his individual rather than his official capacity—violated Hise's fundamental right to bear arms under the Second Amendment of the United States Constitution and Article I, Section I, Paragraph VIII of the Georgia Constitution. This contention lacks merit. The Second Amendment of the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." And this amendment guarantees the individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home."7

364 Ga.App. 141

But emphasizing that this right is not absolute, the Supreme Court of the United States held in Heller that

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.8

The Heller Court further noted that this list of "presumptively lawful regulatory measures" is not exhaustive.9

Similarly, the Constitution of the State of Georgia provides that 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."10 And the Supreme Court of Georgia has also "previously interpreted this provision as permitting the State to regulate the right to carry weapons ‘to some extent’ while disallowing a law that ‘under the name of regulation, amounts in effect, to a deprivation of the constitutional right.’ "11

Here, Hise seeks monetary damages based on his claims that Bordeaux violated his fundamental right to bear arms under the United States and Georgia Constitutions by refusing to issue the GWCL after the superior court granted his writ of mandamus.12

364 Ga.App. 142

But both of these claims of alleged constitutional violations are barred by the doctrine of judicial immunity.

As the Supreme Court of Georgia has noted, the Supreme Court of the United States has "long recognized the doctrine of

874 S.E.2d 180

judicial immunity which shields judges from being sued and from being held civilly liable for damages based on federal law as a result of carrying out their judicial duties."13 Georgia law has also "long recognized the doctrine of judicial immunity for state law claims."14 Indeed, the rationale for this doctrine is quite logically that

[i]f judges were personally liable for erroneous [judicial] decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication. Nor are suits against judges the only available means through which litigants can protect themselves from the consequences of judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability.15

Consequently, there are only "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

364 Ga.App. 143

of all jurisdiction.’ "16 And importantly, a judge is not deprived of judicial immunity "simply because [he] has allegedly acted mistakenly, maliciously or corruptly."17

In this matter, Hise contends—without citing any supporting case authority—that his claims are not barred by judicial immunity because Bordeaux was acting in the absence of all jurisdiction and committing a nonjudicial act by ignoring the writ of mandamus. But these contentions are without merit.

First, OCGA § 16-11-129 (a) (1) explicitly provides probate judges (such as Bordeaux) with jurisdiction over the issuance of a GWCL.18 Next, turning to the question of whether Bordeaux committed a nonjudicial act, "a court looks not to functions actually performed by that party, but to the functions that the law entitles the party to perform."19 Indeed, the relevant...

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1 practice notes
  • Aaron v. State, A22A0511
    • United States
    • United States Court of Appeals (Georgia)
    • June 7, 2022
    ...and yielded a scant 14-page, double-spaced transcript "purporting to summarize a six-day trial and sentencing hearing").874 S.E.2d 175 Here, the trial court followed the required process. The court held a hearing and heard testimony from two of the three participants in the discus......
1 cases
  • Aaron v. State, A22A0511
    • United States
    • United States Court of Appeals (Georgia)
    • June 7, 2022
    ...and yielded a scant 14-page, double-spaced transcript "purporting to summarize a six-day trial and sentencing hearing").874 S.E.2d 175 Here, the trial court followed the required process. The court held a hearing and heard testimony from two of the three participants in the discus......

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