On March 15, 2023, the Georgia Supreme Court issued an opinion holding that a lower court, which had enjoined the Gwinnett County District Attorney from engaging in any enforcement measures concerning the sale of Delta-8, should have instead dismissed the lawsuit. A previous post describes in detail the underlying case that was appealed to the Georgia Supreme Court.
The Supreme Court held that the Constitutional Amendment adopted by Georgia in November 2020 waives sovereign immunity in only limited circumstances that did not apply here and thus precluded the case at issue from proceeding. Sovereign immunity shields government entities and officials from suit, unless a waiver of the immunity applies.
The Court’s opinion explains that the waiver of sovereign immunity prescribed by the Constitutional Amendment requires strict adherence and found that the action brought by plaintiff failed to fall within the limited waiver. Specifically, the plaintiff had sued both the State of Georgia and the District Attorney individually, while the waiver requires that such an action be brought against the State exclusively.
Importantly, however, the Court did not rule on the substantive issue of the lawsuit that had been brought (the legality of Delta-8 in Georgia), as that issue was not before the Court on appeal. Notwithstanding, the order that had been issued by the lower court preventing enforcement measures from being taken against businesses and individuals who sell Delta-8 is now no longer in place given that the Georgia Supreme Court’s opinion mandates that the lawsuit (in its entirety) be dismissed. Consequently, Gwinnett County District Attorney Patsy Austin-Gatson could resume raids against businesses selling Delta-8, as she is no longer enjoined by a court from doing so.
During the pendency of this lawsuit and appeal, the Georgia General Assembly introduced and is actively considering legislation, House Bill 458, that would regulate Delta-8 sales. The bill passed in the state Senate but must also pass in the House by March 29, 2023, the last day of the current legislative session.
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