In 2020, the Georgia General Assembly proposed a constitutional amendment that would allow Georgians to more easily challenge the constitutionality of state laws and actions. The amendment, which voters overwhelmingly supported, waived sovereign immunity (otherwise shielding the government from being sued) for lawsuits that seek to have a court declare a law unconstitutional or prevent unlawful conduct by government officials. Previous attempts at waiving sovereign immunity had been vetoed by both Governors Nathan Deal and Brian Kemp, but, as we pointed out in an earlier post, constitutional amendments cannot be vetoed.
In March of this year, two companies filed a lawsuit against the State of Georgia and Gwinnett County District Attorney (DA) Patsy Austin-Gatson, who had been aggressively pursuing stores that sell Delta-8 THC products, considered by the DA to be illegal. The companies, which sell Delta-8, contend that their products are legal and asked the court to intervene and stop the raids and seizures that they contend are unlawful. The legality of Delta-8, a substance derived from hemp which can provide a high arguably similar to marijuana, remains unsettled. However, in April, a Fulton County Superior Court judge issued an order in the companies’ lawsuit ordering the DA to cease any enforcement measures concerning Delta-8 until the allegations raised in the lawsuit could be fully addressed.
The Georgia Attorney General (AG) appealed the ruling to the Georgia Supreme Court, arguing that the two companies had not properly brought the lawsuit pursuant to the new constitutional amendment waiving sovereign immunity and that the lawsuit should consequentially be dismissed. Specifically, the AG argued that the DA herself could not be individually named as a defendant for the waiver to apply and the lawsuit to proceed. The Georgia Supreme Court has decided to hear the appeal and will therefore have an opportunity to provide an interpretation of law and instruction on the new constitutional amendment and sovereign immunity.
Hanging in the balance will be the legality of Delta-8 in Georgia given that the Fulton County Superior Court had temporarily allowed the sale of Delta-8 to continue unimpeded in the state “while this case is pending.” The AG’s Office and the companies that brought the lawsuit will both be submitting briefs to the Georgia Supreme Court later this summer with a decision likely to follow fairly soon after.
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