Challenges to a Statute’s Constitutionality in Georgia Criminal Cases Require Service on the Attorney General

Case: TRAMMELL v. State, No. S26A1334
Court: Supreme Court of Georgia
Decided: November 3, 2026
Opinion: Justice Ellington; all Justices concurred.

1. Introduction

Although this appeal arose from a Second Amendment challenge to Georgia’s prohibition on firearm possession by convicted felons, the Supreme Court of Georgia decided a threshold procedural question instead. It held that OCGA § 9-4-7(c) requires service on the Attorney General when a defendant challenges a statute’s constitutionality in a criminal prosecution. Without that service, the trial court lacks subject-matter jurisdiction to decide the constitutional claim.

William Trammell, Jr., argued that OCGA § 16-11-131(b) unconstitutionally disarmed him permanently because his prior felony convictions were, in his characterization, nonviolent. The trial court rejected that argument on its merits. The Supreme Court, however, concluded that the trial court could not reach those merits because Trammell had not served the Attorney General with a copy of the proceeding.

The decision’s principal contribution is therefore jurisdictional, not substantive: the Attorney General service requirement, expanded by the legislature in 2022, applies to constitutional challenges brought within criminal cases, including challenges directed only at a statute’s application to a particular defendant.

2. Background and Procedural History

A Floyd County jury convicted Trammell of possessing less than one ounce of marijuana and possessing a firearm as a convicted felon. His firearm conviction rested on three prior felony convictions: second-degree criminal damage to property, theft by taking, and fleeing and attempting to elude.

Trammell received a twelve-month prison sentence for the marijuana offense and a ten-year sentence for the firearm offense, consisting of four years in prison followed by probation. The other charges did not produce convictions: the trial court directed an acquittal on theft by receiving stolen property, and the jury acquitted him of possession of marijuana with intent to distribute and possession of a firearm during the commission of a felony.

Before trial, Trammell filed a general demurrer challenging the firearm-possession count. He maintained that the statute violated the Second Amendment as applied to him because it imposed a permanent prohibition without distinguishing violent from nonviolent felons. After briefing and a hearing, the trial court denied the demurrer.

The trial court later reconsidered the constitutional issue in connection with Trammell’s motion for new trial and again rejected it. On appeal, Trammell renewed his argument, emphasizing that his predicate convictions were allegedly nonviolent and did not carry life sentences.

The Attorney General, participating as amicus curiae, identified a separate defect: Trammell had never complied with OCGA § 9-4-7(c). The record contained no evidence of service, and Trammell did not dispute the Attorney General’s assertion that service had not occurred.

3. Summary of the Opinion

The Supreme Court unanimously concluded that:

  • OCGA § 9-4-7(c) requires service on the Attorney General before a court rules on a challenge to a statute’s constitutionality.
  • The requirement is not confined to civil declaratory-judgment proceedings; its current language includes constitutional challenges raised within criminal prosecutions.
  • An as-applied constitutional challenge falls within the requirement.
  • Failure to serve the Attorney General deprives the trial court of subject-matter jurisdiction over the constitutional question, and the defect cannot be waived by the parties.
  • The Supreme Court consequently could not decide the constitutional merits on appeal.

The Court vacated the portion of the order denying a new trial that addressed Trammell’s Second Amendment challenge and remanded. Trammell may serve the Attorney General, after which the trial court must provide an opportunity to defend the statute before ruling.

The Court neither upheld nor invalidated the firearm prohibition under the Second Amendment. It also expressly declined to endorse or reject the trial court’s constitutional analysis.

4. Analysis

A. The Statutory Framework and the 2022 Amendment

OCGA § 9-4-7(c) requires service on the Attorney General when specified state enactments or governmental measures are challenged as unconstitutional or otherwise invalid. The Attorney General is entitled to defend the challenged measure and may appear as a party as of right.

Before 2022, the Supreme Court had construed the provision as applying only to declaratory-judgment actions in civil cases. The legislature then amended it to cover a challenge made “in an action for declaratory judgment or as a part of any other action.”

That added language was decisive. The provision’s placement within the declaratory-judgment chapter could no longer support limiting it to that procedural setting. The Court read the amendment as deliberately extending the service requirement beyond its former scope.

The statutory purpose reinforces this reading: the State must have an opportunity to defend its laws before a court adjudicates a challenge to their validity. Importantly, the requirement applies before the constitutional ruling, not merely when a court ultimately intends to invalidate the statute. The trial court’s decision upholding the statute therefore did not excuse the lack of service.

B. Precedents Cited and Their Significance

Chestnut Ridge, LLC v. Hall County Bd. of Tax Assessors, 323 Ga. 150 (2025)

This was the principal precedent governing the amended statute. It held that the service requirement applies to any action, or part of an action, alleging that a statute is unconstitutional. It also supplied the interpretive approach: changed statutory language ordinarily signals changed meaning, and clear text receives its natural and ordinary meaning in context.

Applying that approach, the Court treated “any other action” as broad enough to encompass a criminal prosecution. Chestnut Ridge, LLC v. Hall County Bd. of Tax Assessors also supported the conclusion that noncompliance prevented both the trial court and the reviewing court from deciding the constitutional question.

Williams v. Kaylor, 218 Ga. 576 (1963)

This decision established that compliance with the Attorney General service provision is “mandatory and goes to the jurisdiction of the court.” Its significance lies in the consequence of noncompliance: the omission is not simply a procedural irregularity that an opposing party must timely assert.

Although the statute’s reach has since expanded, the jurisdictional character of its service requirement remains central. The Court applied that established consequence to a constitutional challenge falling within the amended statute.

Daniel v. Amicalola Elec. Membership Corp., 289 Ga. 437 (2011)

This case served three functions. First, it explained the provision’s purpose: ensuring that the State has an opportunity to defend its laws before they are declared invalid. Second, it illustrated the narrower, pre-2022 construction limiting the provision to civil declaratory-judgment actions.

Third, it supported allowing service before a renewed ruling rather than treating the omission as permanently fatal. In that case, the service problem was raised at a summary-judgment hearing, the Attorney General was served the next day, and the court waited five months before ruling. The relevant lesson is that service and an opportunity to participate must precede adjudication; the opinion does not establish a universal five-month waiting period.

Woodes v. Morris, 247 Ga. 771 (1981), and Daniel v. Fed. Nat. Mtg. Assn., 231 Ga. 385 (1973)

These decisions were cited as additional authority for the former rule confining the notice provision to civil declaratory-judgment actions. They explain the legal background against which the legislature amended the statute.

Their importance here is historical rather than controlling as to the amended language. The Court did not reject their interpretation of the earlier enactment; it recognized that the legislature subsequently broadened the governing text.

State of Ga. v. Federal Def. Program, Inc., 315 Ga. 319 (2022)

This precedent established that lack of subject-matter jurisdiction may be raised at any time. It permitted consideration of the Attorney General’s objection even though the issue had not been raised in the trial court.

Neither Trammell’s failure to address the problem nor the District Attorney’s failure to object could confer jurisdiction. The Attorney General’s appellate participation exposed the defect; it did not retroactively authorize the trial court’s earlier ruling.

Huntington v. Attrill, 146 US 657 (1892)

The Court cited this decision’s description of penal laws as laws imposing punishment for offenses against the State. That description helped connect the statutory definition of a “penal action” to an ordinary criminal prosecution.

Its role was therefore interpretive, not related to firearms: it supported the conclusion that a prosecution enforcing criminal law in pursuit of public justice falls within the statutory category of an action.

Landers v. State, 250 Ga. 501 (1983)

The trial court cited this decision for the proposition that OCGA § 16-11-131(b) had been upheld under Georgia’s Constitution. That explains part of the trial court’s reasoning but does not establish the outcome of Trammell’s federal constitutional claim.

The Supreme Court did not rely on this precedent to resolve the Second Amendment issue. Its jurisdictional disposition left unanswered whether the trial court’s reliance on that state constitutional precedent assisted its federal analysis.

New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 US 1 (2022)

This decision supplied the Second Amendment framework discussed by the trial court. As described in the opinion, that inquiry concerns whether the Amendment’s text covers the conduct and, where appropriate, whether the regulation is consistent with the Nation’s historical tradition of firearm regulation.

The trial court reasoned that felons were presumptively excluded from firearm possession, that Trammell had not overcome that presumption, and that historical analysis was consequently unnecessary. The Supreme Court recounted, but did not approve, that reasoning. The decision therefore establishes no rule about how this precedent applies to nonviolent felons.

C. Why “Any Other Action” Includes Criminal Prosecutions

The Court’s textual analysis rested on two complementary grounds.

First, OCGA § 9-2-1 supplies definitions applicable within the same title. It defines an “action” as the judicial means of enforcing a right and expressly recognizes both civil and penal actions. A penal action pursues public justice under particular laws. A criminal prosecution is the paradigm proceeding through which the State enforces penal law.

Second, the phrase “any other action” is expansive. The Court used ordinary dictionary definitions to explain that “other” reaches actions outside the expressly identified category, while “any” further broadens that reach. Together, the words prevent limiting the provision to declaratory-judgment litigation.

The fact that Trammell raised his argument through a demurrer did not alter the result. His constitutional objection was part of the criminal action, which is precisely the sort of embedded challenge the amended wording reaches.

D. Why an As-Applied Challenge Triggers Service

Trammell did not seek to invalidate every application of the firearm statute. He argued that applying it to him violated the Second Amendment. Nevertheless, he was alleging that a statute was unconstitutional, bringing his claim within OCGA § 9-4-7(c).

The Court’s reasoning forecloses an exception based solely on the distinction between facial and as-applied challenges. A litigant cannot avoid service merely by seeking individualized constitutional relief rather than wholesale invalidation.

E. The Limited Remedy

The jurisdictional defect concerned adjudication of the constitutional claim. The Court therefore vacated only the relevant portion of the order denying the motion for new trial.

It did not dismiss the indictment, order an acquittal, grant a new trial, or vacate Trammell’s convictions through this disposition. The remand allows proper service and a new constitutional ruling after the Attorney General has an opportunity to participate. Any later adjudication of the Second Amendment issue remains open.

F. Potential Impact

  • Criminal practice: Defendants challenging the constitutionality of a statute must account for Attorney General service even when the challenge appears in a demurrer or another filing within an existing prosecution.
  • Trial-court procedure: Courts should verify compliance before addressing constitutional merits. An otherwise substantial ruling may require vacatur if the jurisdictional prerequisite is missing.
  • Appellate review: The defect remains available even when unraised below. Ordinary waiver principles do not protect a constitutional ruling entered without subject-matter jurisdiction.
  • Institutional participation: The decision secures the Attorney General’s statutory opportunity to defend state legislation. Litigation by the local prosecutor does not dispense with the separate service requirement.
  • Firearm litigation: The decision establishes a procedural prerequisite, not a substantive answer about disarming people convicted of nonviolent felonies.

More broadly, the opinion illustrates how a statutory amendment can overcome a limitation previously associated with a provision’s placement in the code. Its holding is tied to challenges to statutory constitutionality; it should not be read as requiring Attorney General service for every constitutional objection to conduct occurring during a criminal case.

5. Complex Concepts Simplified

Subject-matter jurisdiction
A court’s legal authority to decide a category of dispute. Here, the absence of required service prevented a decision on the constitutional claim, regardless of the parties’ willingness to litigate it.
As-applied challenge
An argument that a law is unconstitutional in a particular person’s circumstances. Trammell challenged the firearm prohibition as applied to his assertedly nonviolent felony history.
Facial challenge
A challenge directed at the validity of the law itself rather than only its application to the challenger. The service requirement cannot be avoided simply by choosing the as-applied form.
General demurrer
A procedural challenge to the legal sufficiency of a criminal charge. Trammell used it to argue that the firearm count could not constitutionally be maintained against him.
Service on the Attorney General
Formal delivery of a copy of the proceeding as the statute requires. Merely litigating the issue with the prosecutor is not a substitute.
Amicus curiae
A nonparty who submits arguments to assist the court. The Attorney General participated in that capacity on appeal and identified the jurisdictional problem.
Vacatur and remand
Setting aside a ruling and returning the matter to the lower court. Here, only the constitutional portion of the new-trial ruling was set aside for further proceedings.

6. Conclusion

TRAMMELL v. State establishes that OCGA § 9-4-7(c)’s Attorney General service requirement extends to statutory constitutional challenges within criminal prosecutions, including as-applied challenges. Compliance is jurisdictional and must precede a ruling on the constitutional question.

The immediate result is a limited vacatur and remand so the Attorney General can be served and afforded an opportunity to defend the statute. The broader lesson is procedural: constitutional merits cannot be decided until the court’s authority to decide them has been secured. Whether Georgia may constitutionally impose the challenged firearm restriction on Trammell remains unresolved.