Opinion
A21A0734, A21A0735, A21A0988
06-29-2023
SONS OF CONFEDERATE VETERANS ET AL. v. NEWTON COUNTY BOARD OF COMMISSIONERS. Humphries v. Newton County Board of Commissioners. Sons of Confederate Veterans et al. v. Henry County Board of Commissioners.
Walker L. Chandler, Zebulon, Timothy Kyle King, Jonesboro, for Appellant in A21A0734, A21A0735. Megan Nicole Martin, Cumming, Patrick DeBorde Jaugstetter, McDonough, for Appellee in A21A0734, A21A0735. Timothy Kyle King, Jonesboro, for Appellant in A21A0988. Timothy Joseph Buckley III, Atlanta, Patrick DeBorde Jaugstetter, McDonough, Taylor Wayne Hensel, Atlanta, for Appellee in A21A0988.
Walker L. Chandler, Zebulon, Timothy Kyle King, Jonesboro, for Appellant in A21A0734, A21A0735.
Megan Nicole Martin, Cumming, Patrick DeBorde Jaugstetter, McDonough, for Appellee in A21A0734, A21A0735.
Timothy Kyle King, Jonesboro, for Appellant in A21A0988.
Timothy Joseph Buckley III, Atlanta, Patrick DeBorde Jaugstetter, McDonough, Taylor Wayne Hensel, Atlanta, for Appellee in A21A0988.
Dillard, Presiding Judge. In Sons of Confederate Veterans v. Henry County Board of Commissioners ( Sons of Confederate Veterans II ), the Supreme Court of Georgia affirmed in part and vacated in part this Court's opinion in Sons of Confederate Veterans v. Newton County Board of Commissioners ( Sons of Confederate Veterans I ). Accordingly, we vacate our former opinion and adopt the judgment of the Supreme Court as our own. But because the Supreme Court of Georgia vacated the portion of our opinion pertaining to Tiffany Humphries in Case No. A21A0735 by concluding she has standing to bring an action against the Newton County Board of Commissioners under OCGA § 50-3-1, we must now consider whether her action for injunctive relief is barred by sovereign immunity (an issue which the Supreme Court understandably did not address).
315 Ga. 39, 880 S.E.2d 168 (2022).
360 Ga. App. 798, 861 S.E.2d 653 (2021).
See Sons of Confederate Veterans II , 315 Ga. at 65 n.22 (2) (d) (i), 880 S.E.2d 168 ("The question of whether this claim is barred by sovereign immunity is beyond the scope of our review, and we leave it to the Court of Appeals to decide the question in the first instance."); Sons of Confederate Veterans I , 360 Ga. App. at 806 (3), 861 S.E.2d 653 (declining to address question of whether claims were also barred by sovereign immunity after determining claims were properly dismissed for lack of standing). The Supreme Court did affirm the dismissal of Humphries's claim for damages. Sons of Confederate Veterans II , 315 Ga. at 65-66 (2) (d) (i), 880 S.E.2d 168 ("Because damages are authorized only for conduct prohibited by the statute, and the statute does not prohibit a vote to remove a monument in the future, Humphries cannot seek damages here. Accordingly, the Court of Appeals erred in affirming the dismissal of her claim for injunctive relief but was correct to dismiss her claim for damages, albeit for a different reason.").
The underlying facts have been thoroughly discussed in both of the published opinions in this matter, but what is germane for purposes of this appeal is that Humphries is a resident of Newton County and filed a complaint for damages on July 13, 2020, against that county's board of commissioners. Humphries sought to recover based on the Board's violation of OCGA § 50-3-1 by holding a special meeting to vote on the removal of a Confederate monument located in Covington, Georgia. She sought to recover treble and exemplary damages, and requested injunctive relief to prevent the statute's removal. In September 2020, the trial court concluded that Humphries lacked standing and, alternatively, that even if she had standing, her claims were barred by sovereign immunity. And so now, we return to and address the issue of whether Humphries's claims are barred by sovereign immunity. She asserts they are not, but we disagree.
This Court, of course, reviews a trial court's ruling on a motion to dismiss "based on sovereign immunity de novo because it is a matter of law," but factual findings made by that court are "sustained if there is evidence to support them, and the party seeking the waiver of immunity has the burden of proof." Specifically, suits brought against the State which are barred by sovereign immunity are subject to OCGA § 9-11-12 (b) (1) dismissal for lacking subject-matter jurisdiction; and like the State, counties are also protected by sovereign immunity. Suffice it to say, sovereign immunity is a threshold determination because—like various other rules of jurisdiction and justiciability—it is "concerned with the extent to which a case properly may come before a court at all." Importantly, sovereign immunity may only be waived "by an act of the General Assembly specifically providing for waiver and delineating the extent of that waiver," and implied waivers of sovereign immunity are "not favored."
Gwinnett Cnty. v. Ashby , 354 Ga. App. 863, 864, 842 S.E.2d 70 (2020) ; see Ga. Dep't of Nat'l Res. v.Ctr. for a Sustainable Coast, Inc. , 294 Ga. 593, 596 (2), 755 S.E.2d 184 (2014) ("Turning to the issue of sovereign immunity, our review of this question of law is de novo."); Fulton Cnty. Sch. Dist. v. Jenkins , 347 Ga. App. 448, 449, 820 S.E.2d 75 (2018) ("This Court reviews de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law." (punctuation omitted)); Williams v. Wilcox State Prison , 341 Ga. App. 290, 291, 799 S.E.2d 811 (2017) ("We begin by noting that this Court reviews de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law." (punctuation omitted)), disapproved of on other grounds by Roberts v. Unison Behav. Health , 312 Ga. 438, 863 S.E.2d 99 (2021) ; see also Handberry v. Stuckey Timberland , Inc. , 345 Ga. App. 191, 191, 812 S.E.2d 547 (2018) ("On appeal of a trial court's ruling on a motion to dismiss, our review is de novo.").
Ashby , 354 Ga. App. at 864, 842 S.E.2d 70 ; see Ga. Dep't. of Labor v. RTT Assoc., Inc. , 299 Ga. 78, 81 (1), 786 S.E.2d 840 (2016) ("The burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it."); Bd. of Regents of the Univ. Sys. of Ga. v. Daniels , 264 Ga. 328, 329, 446 S.E.2d 735 (1994) (explaining that the party seeking to benefit from the waiver of sovereign immunity has the burden of proving waiver); Jenkins , 347 Ga. App. at 449, 820 S.E.2d 75 ("The trial court's factual findings will, of course, be sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity." (punctuation omitted)); Williams , 341 Ga. App. at 290, 799 S.E.2d 811 (same).
Ashby , 354 Ga. App. at 864, 842 S.E.2d 70 ; see Conway v. Jones , 353 Ga. App. 110, 111 (1), 836 S.E.2d 538 (2019) ("Any suit against the State barred by sovereign immunity is subject to dismissal [under] OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction." (punctuation omitted)); Bd. of Trustees of Ga. Military College v. O'Donnell , 352 Ga. App. 651, 653-54 (1), 835 S.E.2d 688 (2019) (same); Dep't of Pub. Safety v. Johnson , 343 Ga. App. 22, 23, 806 S.E.2d 195 (2017) (same).
Ashby , 354 Ga. App. at 864, 842 S.E.2d 70 ; see See Gilbert v. Richardson , 264 Ga. 744, 747 (2), 452 S.E.2d 476 (1994) ("Absent any evidence that the legislature intended a different interpretation or to indicate that the electorate did not intend to extend sovereign immunity to counties, we hold the 1991 amendments extension of sovereign immunity to ‘the state and its departments and agencies’ must also apply to counties."); Layer v. Barrow Cty. , 297 Ga. 871, 871 (1), 778 S.E.2d 156 (2015) ("As a general rule, counties enjoy sovereign immunity."); Conway , 353 Ga. App. at 111 (1), 836 S.E.2d 538 (same); see also OCGA § 36-1-4 (providing that "[a] county is not liable to suit for any cause of action unless made so by statute").
McConnell v. Dep't of Lab. , 302 Ga. 18, 18-19, 805 S.E.2d 79 (2017) (punctuation omitted); accord Lathrop v. Deal , 301 Ga. 408, 432 (III) (B), 801 S.E.2d 867 (2017) ; see Ga. Const. art. IX, § 2, ¶ IX ("The General Assembly may waive the immunity of counties, municipalities, and school districts by law."); Ga. Const. art. I, § 2, ¶ IX ("Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The 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.").
Jenkins , 347 Ga. App. at 450, 820 S.E.2d 75 (punctuation omitted); see Currid v. DeKalb State Court Prob. Dep't , 285 Ga. 184, 186, 674 S.E.2d 894 (2009) ("Implied waivers of governmental immunity should not be favored." (punctuation omitted)); City of Atlanta v. Gilmere , 252 Ga. 406, 408, 314 S.E.2d 204 (1984) (same).
Of note, the Supreme Court of Georgia held in Georgia Department of Natural Resources v. Center for a Sustainable Coast, Inc. that "sovereign immunity is a bar to injunctive relief at common law." But in November 2020, effective January 1, 2021, the Georgia Constitution was amended to waive sovereign immunity such that citizens may now seek declaratory relief and—after obtaining a favorable declaratory ruling—then seek injunctive relief to enforce the favorable judgment. Even so, we are required to consider whether OCGA § 50-3-1 waived the county's sovereign immunity such that the trial court improperly dismissed Humphries's suit seeking injunctive relief months before this constitutional amendment became effective. And as our Supreme Court has explained, "[u]nder Georgia law, a waiver of sovereign immunity occurs at the time that the cause of action arises."
294 Ga. 593, 755 S.E.2d 184 (2014).
Id. at 596 (2), 755 S.E.2d 184 ; see Lathrop , 301 Ga. at 425 (III), 801 S.E.2d 867 ("Sovereign immunity extends to suits for injunctive relief[.]").
See State v. SASS Grp., LLC , 315 Ga. 893, 893, 885 S.E.2d 761 (2023) (explaining the history of the 2020 amendment to specifically waive sovereign immunity for declaratory judgments and injunctive relief for those judgments); see also Ga. Const. art. I, § 2, ¶ V (b) (1) (specifically waiving sovereign immunity for declaratory judgments and injunctive relief, effective January 1, 2021).
See, e.g. , Donaldson v. Dep't of Transp. , 262 Ga. 49, 53 (3), 414 S.E.2d 638 (1992) ("It is a well settled principle of law that acts of the legislature are ordinarily given prospective effect unless the language of the act imperatively requires retroactive application."); Anthony v. Penn , 212 Ga. 292, 293, 92 S.E.2d 14 (1956) ("Unless a statute, either expressly or by necessary implication, shows that the General Assembly intended that it operate retroactively, it will be given only prospective application.").
Curtis v. Bd. of Regents of Univ. Sys. of Ga. , 262 Ga. 226, 227, 416 S.E.2d 510 (1992).
Here, Humphries argues the plain language of OCGA § 50-3-1 (b) demonstrates that sovereign immunity was waived as to appellees’ alleged violation of that statute because, under OCGA § 50-3-1 (b) (2), "[n]o officer or agency shall remove or conceal from display any [statutorily protected] monument for the purpose of preventing the visible display of the same." Additionally, under OCGA § 50-3-1 (b) (5), "any person, group, or legal entity shall have a right to bring a cause of action for any conduct prohibited by this Code section for damages as permitted by this Code section." That portion of the statute further provides that "[s]uch action shall be brought in the superior court of the county in which the monument was located." These are the statutory provisions she claims amount to a waiver of sovereign immunity.
See OCGA § 50-3-1 (b) (1) (B) (defining "monument" for purposes of this Code section).
Needless to say, when interpreting statutory language, we necessarily begin our analysis with "familiar and binding canons of construction." And in considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant." Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would," and seek to "avoid a construction that makes some language mere surplusage." Simply put, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."
Monumedia II, LLC v. Dep't of Transp. , 343 Ga. App. 49, 51 (1), 806 S.E.2d 215 (2017) (punctuation omitted); accord Holcomb v. Long , 329 Ga. App. 515, 517 (1), 765 S.E.2d 687 (2014) ; In the Interest of L. T. , 325 Ga. App. 590, 591, 754 S.E.2d 380 (2014).
Monumedia II, LLC , 343 Ga. App. at 51-52 (1), 806 S.E.2d 215 (punctuation omitted); accord Deal v. Coleman , 294 Ga. 170, 172 (1) (a), 751 S.E.2d 337 (2013) ; Holcomb , 329 Ga. App. at 517 (1), 765 S.E.2d 687 ; Martinez v. State , 325 Ga. App. 267, 273 (2), 750 S.E.2d 504 (2013).
Holcomb , 329 Ga. App. at 517 (1), 765 S.E.2d 687 ; accord Deal, 294 Ga. at 172 (1) (a), 751 S.E.2d 337 ; see Tibbles v. Teachers Retirement Sys. of Ga. , 297 Ga. 557, 558 (1), 775 S.E.2d 527 (2015) ("A statute draws its meaning, of course, from its text." (punctuation & citation omitted)); Chan v. Ellis , 296 Ga. 838, 839 (1), 770 S.E.2d 851 (2015) (same); State v. Able , 321 Ga. App. 632, 636, 742 S.E.2d 149 (2013) ("A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies) ...."); Singletary v. State , 310 Ga. App. 570, 572, 713 S.E.2d 698 (2011) ("In construing these statutes, we apply the fundamental rules of statutory construction that require us to construe the statutes according to their terms, [and] to give words their plain and ordinary meaning ...." (punctuation omitted)).
Monumedia II, LLC , 343 Ga. App. at 52 (1), 806 S.E.2d 215 ; see Arizona v. Inter Tribal Council of Ariz., Inc. , 570 U.S. 1, 10 (II) (B), 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013) ("Words that can have more than one meaning are given content, however, by their surroundings." (punctuation omitted)); Deal , 294 Ga. at 172 (1) (a), 751 S.E.2d 337 ("[W]e must view the statutory text in the context in which it appears[.]"); see also Tibbles , 297 Ga. at 558 (1), 775 S.E.2d 527 ("The common and customary usages of the words are important, but so is their context." (punctuation & citation omitted)).
Monumedia II, LLC , 343 Ga. App. at 52 (1), 806 S.E.2d 215 (punctuation omitted); accord Deal , 294 Ga. at 172-73 (1) (a), 751 S.E.2d 337 ; Holcomb , 329 Ga. App. at 518 (1), 765 S.E.2d 687.
Monumedia II, LLC , 343 Ga. App. at 52 (1), 806 S.E.2d 215 (punctuation omitted); accord In the Interest of L.T. , 325 Ga. App. at 592, 754 S.E.2d 380 ; Holcomb , 329 Ga. App. at 518 (1), 765 S.E.2d 687.
Monumedia II, LLC , 343 Ga. App. at 52 (1), 806 S.E.2d 215 (punctuation omitted); accord Holcomb , 329 Ga. App. at 518 (1), 765 S.E.2d 687 ; Luangkhot v. State , 292 Ga. 423, 424 (1), 736 S.E.2d 397 (2013), superseded by statute on other grounds as recognized by Estrada-Nava v. State , 332 Ga. App. 133, 771 S.E.2d 28 (2015) ; see Deal , 294 Ga. at 173 (1) (a), 751 S.E.2d 337 ("[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end." (punctuation omitted)).
Here, Humphries maintains the above-quoted portions of OCGA § 50-3-1 waive the county's sovereign immunity from injunctive relief sought in actions brought under this Code section because any such suit must be filed in superior court, and superior courts (unlike state courts) are authorized to grant injunctive relief. But the plain language of the statute does not waive sovereign immunity for injunctive relief. Indeed, nowhere do the words enjoin, injunction, or injunctive appear within the statute—in fact, in 2019, the General Assembly removed language explicitly permitting such relief. And that is the proverbial nail in the interpretive coffin.
See Ga. Dep't of Nat. Res. , 294 Ga. at 603 (2), 755 S.E.2d 184 ("The plain language of [the statute] does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown.").
See Ga. Laws 2019, Act 57, § 1, amending former OCGA § 50-3-1 (2019) (removing "injunctive relief" from the remedies an aggrieved party may seek).
Again, implied waivers of sovereign immunity are generally (and rightly) disfavored, and the rules of statutory interpretation demand that we attach considerable significance to the General Assembly's removal of language permitting injunctive relief under OCGA § 50-3-1prior to the filing of Humphries's action. It strains credulity, then, to claim this statute encompasses an implied waiver of sovereign immunity for injunctive relief when the General Assembly deliberately removed language explicitly permitting injunctive relief under that statute —a fact our Supreme Court has at least implicitly acknowledged. Indeed, this legislative choice can only be understood as eliminating any suggested waiver of sovereign immunity for injunctive relief, and that choice must be honored by the judicial branch.
See Dep't of Transp. v. Mixon , 312 Ga. 548, 550-51 (2) (a), 864 S.E.2d 67 (2021) ("Implied waivers of sovereign immunity are generally disfavored."); City of Atlanta v. Gilmere , 252 Ga. 406, 408, 314 S.E.2d 204 (1984) ("Implied waivers of governmental immunity should not be favored.").
See Jones v. Peach Trader Inc. , 302 Ga. 504, 515 (III), 807 S.E.2d 840 (2017) ("Our rules of statutory interpretation demand that we attach significance to [the General Assembly's removal of language.]"); Humthlett v. Reeves , 211 Ga. 210, 219 (2), 85 S.E.2d 25 (1954) ("A legislative body should always be presumed to mean something by the passage of an act." (punctuation omitted)).
See Ga. Mental Health Inst. v. Brady , 263 Ga. 591, 593 (2) (a), 436 S.E.2d 219 (1993) ("It would be unreasonable to conclude that the General Assembly, as part of those comprehensive and exhaustive reforms, did not intend for the appeal rights of applicants for commitment [to mental health institutes] to be governed by those comprehensive provisions but by the general appeal statutes, especially considering that for so long before 1969 the General Assembly had specified that applicants had the right to appeal."); see also Scott v. State , 295 Ga. 39, 41 (2), 757 S.E.2d 106 (2014) ; Holland v. Caviness , 292 Ga. 332, 335, 737 S.E.2d 669 (2013).
See Sons of Confederate Veterans II , 315 Ga. at 42 (1) (b) n.2, 880 S.E.2d 168 ("Prior to the 2019 amendment, OCGA § 50-3-1 specifically permitted injunctive relief to prevent prohibited actions to remove publicly owned or displayed monuments. Also, whereas the current version allows ‘any person, group, or legal entity’ to bring a cause of action, the pre-2019 version specified that ‘[a]ny person or entity who suffered injury or damages as a result’ of a violation of the statute could bring an action ‘to seek injunctive relief.’ " (citation omitted)).
See Scott , 295 Ga. at 41 (2), 757 S.E.2d 106 ("In a 2013 amendment to [the statute], the General Assembly deleted ‘knowingly,’ ... throughout subsection (a) .... [S]uch change is consistent with legislative confirmation that proof of a defendant's knowledge of each element of the trafficking statute, including weight of the drug, was required in former versions of the statute, but that the General Assembly no longer intends that it be so." (footnote omitted)); Holland , 292 Ga. at 335, 737 S.E.2d 669 ("Such a legislative choice reveals the intent to eliminate the jury's consideration of a defendant's worldly circumstances in an action proceeding under [the statute], and that choice must be given effect.").
Finally, as our Supreme Court has explained, "sovereign immunity is waived only to the extent of the statute , which extends no further than the remedies specifically authorized by the Act." And here, the statute does not include injunctive relief as a remedy. As a result, we affirm the trial court's dismissal of Humphries's action seeking injunctive relief on the ground that it is barred by sovereign immunity.
City of Union Point v. Greene Cnty. , 303 Ga. 449, 454 (1) (a), 812 S.E.2d 278 (2018), disapproved of on other grounds by City of College Park v. Clayton Cnty. , 306 Ga. 301, 830 S.E.2d 179 (2019).
See Sons of Confederate Veterans II , 315 Ga. at 67 (2) (d) (ii), 880 S.E.2d 168 (noting that the relevant statute permits an award of damages, which includes "treble cost of repair, attorney's fees, and possible exemplary damages").
To the extent Humphries relies on Tittle v. Corso , 256 Ga. App. 859, 569 S.E.2d 873 (2002), and OCGA § 36-33-4 to support her sovereign-immunity argument—notwithstanding that both are cited in the portion of her brief dealing with standing —those sources are inapplicable here. OCGA § 36-33-4 applies to municipal corporations (not counties), and the portion of Tittle that Humphries relies on deals with official immunity as applied to individuals, not sovereign immunity as applied to counties, see Humphries, 256 Ga. App. at 262 (1).
Judgment affirmed.
Mercier and Land, JJ., concur. Dillard, P.J., and Mercier, J., concur dubitante.
Dillard, Presiding Judge, concurring dubitante.
A concurrence dubitante is a concurrence that is given doubtfully. Unlike a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said, a concurrence dubitante is a full concurrence, albeit one with reservations. See Benefield v. Tominich, 308 Ga. App. 605, 611 n.28, 708 S.E.2d 563 (2011) (Blackwell, J., concurring dubitante); Brumbelow v. Mathenia, 358 Ga. App. 404, 404-05, 855 S.E.2d 425 (2021) (Dillard, P. J., concurring dubitante). See generally Jason J. Czarnezki, The Dubitante Opinion, 39 Akron L. Rev. 1 (2006).
Old habits die hard, and so do deeply entrenched notions of justiciability. Shortly after the Supreme Court of the United States articulated and refined the modern Article III standing doctrine in Lujan v. Defenders of Wildlife , this formulation of standing became a core component of my judicial philosophy. Lujan standing is appropriately animated by separation-of-powers concerns and helps ensure the judiciary concerns itself with actual cases and controversies, rather than academic questions, advisory opinions, or purely political disputes. And until recently, this state's constitutional standing doctrine largely mirrored that of Lujan and its progeny. But all of that changed with the Supreme Court of Georgia's opinion in Sons of Confederate Veterans II , and I have serious concerns about the implications of this seminal decision.
504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (Scalia, J.).
See Allen v. Wright , 468 U.S. 737, 752 (II) (A), 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (noting that "the law of Art. III standing is built on a single basic idea—the idea of separation of powers"); accord Raines v. Byrd , 521 U.S. 811, 820 (II), 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).
See Spokeo, Inc. v. Robins , 578 U.S. 330, 337, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (noting that "no principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies," and "standing serves to prevent the judicial process from being used to usurp the powers of the political branches and confines the federal courts to a properly judicial role" (punctuation omitted)); Raines , 521 U.S. at 820 (II), 117 S.Ct. 2312 (noting that "standing is built on a single basic idea—the idea of separation of powers," and that "[i]n light of this overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of this important dispute and ... carefully inquire as to whether ... the[ ] claimed injury is personal, particularized, concrete, and otherwise judicially cognizable" (footnote omitted)).
See Black Voters Matter Fund, Inc. v. Kemp , 313 Ga. 375, 382 (1) (a), 870 S.E.2d 430 (2022) (noting that, in order to establish standing, a party must show "(1) an injury in fact, (2) a causal connection between the injury and the alleged wrong, and (3) the likelihood that the injury will be redressed with a favorable decision," and "an ‘injury in fact’ is one that is both ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical’ " (citations & punctuation omitted)); New Cingular Wireless PCS, LLC v. Dept. of Revenue , 308 Ga. 729, 732, 843 S.E.2d 431 (2020) (same); Granite State Outdoor Advertising, Inc. v. City of Roswell , 283 Ga. 417, 418 (1), 658 S.E.2d 587 (2008) (same); see also Feminist Women's Health Ctr. v. Burgess , 282 Ga. 433, 434 (1), 651 S.E.2d 36 (2007) ("In the absence of our own authority, we frequently have looked to United States Supreme Court precedent concerning Article III standing to resolve issues of standing to bring a claim in Georgia's courts.").
See Sons of Confederate Veterans v. Henry Cnty. Bd. of Commrs. (Sons of Confederate Veterans II ), 315 Ga. 39, 880 S.E.2d 168 (2022).
So, what is standing and why does it matter? Standing is one of several doctrines of justiciability—including ripeness, mootness, and political questions—which are crucial limitations on the judicial power (be it state or federal). As one prominent legal scholar has explained, "justiciability doctrines determine which matters ... courts can hear and decide and which must be dismissed." Importantly, these justiciability doctrines "are closely tied to separation of powers," and they "limit the power of the judiciary ... and define the judicial role ...." And as to standing, it is the "determination of whether a specific person is the proper party to bring a particular matter to a ... court for adjudication." Put another way, the question of standing is "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Importantly, much like the Supreme Court of the United States, the Supreme Court of Georgia has interpreted the Judicial Power Paragraph of the Georgia Constitution to include a standing requirement of litigants. And rightly so.
See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 102 (IV), 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("Standing to sue is part of the common understanding of what it takes to make a justiciable case."); Ellison v. Am. Bd. of Orthopaedic Surgery , 11 F.4th 200, 205 (II) (3d Cir. 2021) (noting that "Courts enforce the case-or-controversy requirement through the several justiciability doctrines," which "include standing, ripeness, mootness, the political-question doctrine, and the prohibition on advisory opinions," and "[s]tanding is perhaps the most important of these doctrines" (punctuation omitted)).
Erwin Chemerinsky, Federal Jurisdiction § 2.1, p. 42 (2nd ed. 1994).
Id. at § 2.1, p. 43; see supra note 4 & accompanying text.
Chemerinsky, supra note 8, at § 2.3.1, p. 53; see also Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine? , 102 Mich. L. Rev. 689, 694 (I) (B) (2004) (noting that "[t]he question of which parties may properly come to court to vindicate these different kinds of legal rights is central to the issue of standing").
Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
See 315 Ga. at 44-45 (2) (9a), 880 S.E.2d 168 (noting that "[s]tanding is a jurisdictional prerequisite to a plaintiff's right to sue," and that "[a] plaintiff with standing is necessary to invoke a court's judicial power to resolve a dispute, and the power of Georgia courts—as with any power possessed by a branch of state government—is conferred by our state Constitution"); Black Voters Matter Fund , 313 Ga. at 380 (1), 870 S.E.2d 430 (same); Ames v. JP Morgan Chase Bank, N.A. , 298 Ga. 732, 740 (3) (d) n.6, 783 S.E.2d 614 (2016) (same).
This brings us to the Supreme Court of Georgia's opinion in Sons of Confederate Veterans II , which vacated in part our decision in Sons of Confederate Veterans I . It is a well-written, thoughtful, and scholarly opinion. That said, I am not so sure our Supreme Court's considerable expansion of this state's standing doctrine is necessarily required by the text, structure, and history of the Georgia Constitution; but I am also not sure that it is wrong.
315 Ga. 39, 880 S.E.2d 168 (2022).
Sons of Confederate Veterans v. Newton Cnty. Board of Commrs. (Sons of Confederate Veterans I ), 360 Ga. App. 798, 861 S.E.2d 653 (2021).
I agree with our Supreme Court that, even though this case is "about a highly controversial subject," the question of "whether local communities must continue displaying (and maintaining at public expense) monuments that celebrate the Confederacy and its long-dead supporters, despite those communities finding such celebration repugnant," is not "at issue in this appeal." Sons of Confederate Veterans II , 315 Ga. at 39, 880 S.E.2d 168. What is at issue is the fundamental nature and scope of standing doctrine under the Georgia Constitution, and how that doctrine will be applied to future cases—regardless of subject matter.
In its opinion, the Supreme Court of Georgia noted the possibility that "[t]he Georgia Constitution might impose a higher requirement when a plaintiff challenges the constitutionality of a statute" because it has "long held that in such cases, the plaintiff must show an actual, individualized injury." Sons of Confederate Veterans II , 315 Ga. at 39, 880 S.E.2d 168. Even so, it declined to address "whether this additional requirement arises from the Georgia Constitution, such that the General Assembly cannot abrogate it by statute, because the plaintiffs in this case do not challenge a statute as unconstitutional." Id. And like our Supreme Court, I see no need to address this issue.
This case is about the fundamental and limited—albeit unquestionably important—nature of the judicial power. As most of us know from our middle-school civics class, the judiciary does not provide advisory opinions and it is not designed to answer overarching policy questions. Indeed, as the Supreme Court of Georgia has rightly recognized, "[c]ourts are not vehicles for engaging in merely academic debates or deciding purely theoretical questions." But I fear we are treading into similar territory with Sons of Confederate Veterans II .
See The Federalist No. 48 (James Madison) (noting that it "is not unfrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere," whereas "the executive power [is] restrained within a narrower compass and ... more simple in its nature," and "the judiciary [is] described by landmarks still less uncertain"); The Federalist No. 81 (Alexander Hamilton) (noting that "the supposed danger of judiciary encroachments ... can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force").
See McDowell v. Judges Ex Officio , 235 Ga. 364, 365, 219 S.E.2d 713 (1975) (noting that "[n]ot even in a declaratory judgment action is the court permitted to render an advisory opinion"); Bd. of Commrs. of Walton Cnty. v. Dept. of Public Health , 229 Ga. 173, 175-76 (2), 190 S.E.2d 39 (1972) (noting that "[i]n raising those questions on appeal, the appellant seeks to secure the opinion of this court on hypothetical and academic legal questions not involved in this case and not shown yet to have arisen but which appellant fears may arise at some future time, and, in raising these questions, appellant seeks merely an advisory opinion of this court to guide appellant in its future course of conduct. This court is not authorized to render such an opinion"); Hinson v. First Nat. Bank in Waycross , 221 Ga. 408, 410 (1), 144 S.E.2d 765 (1965) (noting that "[t]his court has many times held that it will not render advisory opinions or pass upon the constitutionality of a statute unless it deprives a party of substantial rights"); Hand v. Berry , 170 Ga. 743, 746, 154 S.E. 239 (1930) (noting that "[h]owever much this court might be disposed to decide the abstract question presented ... we are without jurisdiction to do so in the present case").
See Kerry v. Din , 576 U.S. 86, 97, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015) (Scalia, J.) (noting that "[t]his Court has consistently recognized that these various distinctions are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress" (punctuation omitted)); Robert H. Bork, The Tempting of America 191 (1990) (noting that "[l]egislative decisions involve a mix of, or a tradeoff between, principle and expediency. The Constitution holds that in decisions left to the democratic process, the tradeoff we are entitled to is the one the legislature provides. Courts have no apparent mandate to impose a different tradeoff merely because they would arrive at a mix that weighed principles more heavily. There is no objectively correct balance between principles and expediency, so it is meaningless to say that legislatures inherently fall short of the right balance"); Walter McElreath, McElreath on the Constitution of Georgia § 1243 (1912) (noting that courts are not charged with "judging of the wisdom, policy or expediency of laws these matters being purely of legislative jurisdiction and cognisance, and not restraining the legislative discretion by construction").
Sons of Confederate Veterans II , 315 Ga. at 39, 880 S.E.2d 168.
Even so, if the Supreme Court of Georgia is correct that the relevant text, structure, and history of the Georgia Constitution are such that a community stakeholder has constitutional standing to file a lawsuit challenging a governmental decision even when he or she has not suffered an individualized injury, then that is the end of the matter. The only remedy for a deeply flawed but interpretively required standing doctrine is to amend our Constitution, not to pretend it does not exist. But again, I have serious doubts as to whether our Supreme Court is correct that such an interpretation is actually required.
I will start with the relevant constitutional text. Article VI of the Georgia Constitution provides "[t]he judicial power of the state shall be vested exclusively in the following classes of courts: magistrate courts, probate courts, juvenile courts, state courts, superior courts, state-wide business court, Court of Appeals, and Supreme Court ...." And as the Supreme Court of Georgia aptly notes, this text does differ from the language of Article III of the United States Constitution, in that it does not explicitly refer to "cases" and "controversies." But respectfully, this seems to me to be a textual distinction without much of a difference. After all, "cases and controversies" are what courts are designed to handle. This concept is not unique to Georgia; it goes to the very heart of the American judicial power. And to its credit, our Supreme Court makes exactly this point in Sons of Confederate Veterans II :
Ga. Const. art. VI, § 1, ¶ I (1983).
Sons of Confederate Veterans II , 315 Ga. at 45 (2) (a), 880 S.E.2d 168.
See Woolhandler & Nelson, supra note 10, at 694 (I) (B) (noting that "[t]he question of which parties may properly come to court to vindicate these different kinds of legal rights is central to the issue of standing," and that "[i]n trying to address that question, American courts have traditionally drawn partly upon general principles of jurisprudence and partly upon distinctively American ideas about popular sovereignty, limited government, and the separation of powers").
From the earliest days of this Court we have understood the power of courts—the judicial power—to be limited to cases involving actual controversies , which requires a showing of some injury. Our case law has been essentially consistent in reflecting this understanding, all of which informs the meaning of the Judicial Power Paragraph when it was readopted in the 1983 Constitution. Because the Judicial Power Paragraph vests the "judicial power" in state courts, and the nature of judicial power has long been understood as limited to resolving those controversies in which there is a cognizable injury, the requirement that plaintiffs have a cognizable injury in order to invoke the power of the courts is a standing requirement arising from the Georgia Constitution's Judicial Power Paragraph.
Sons of Confederate Veterans II , 315 Ga. at 62 (2) (c) (iii), 880 S.E.2d 168 (emphasis supplied).
On this much, the Supreme Court of Georgia and I are in complete agreement. Our Supreme Court is also right that—in order to invoke a Georgia court's "judicial power"—a plaintiff must "have a cognizable injury that can be redressed by a judicial decision." I also agree courts should only "say what the law is" as is "needed to resolve an actual controversy." But the devil is in the details: What constitutes an injury for purposes of standing under the Georgia Constitution? The Sons of Confederate Veterans II Court answered this question directly, concluding that—under the Georgia Constitution—an injury "need not always be individualized; sometimes it can be a generalized grievance shared by community members, especially other residents, taxpayers, voters, or citizens." And to its credit, the Supreme Court of Georgia marshals a considerable amount of precedent in Sons of Confederate Veterans II to support this proposition. But our Supreme Court's opinion leaves certain important questions unanswered; so—for now—consider me dubitante. Here is my main concern.
Id.
Id. at 39, 880 S.E.2d 168.
Id.
In Sons of Confederate Veterans II , the Supreme Court of Georgia asserts that "[t]he Judicial Power Paragraph has been carried forward without material change from its initial appearance in the 1798 Constitution to the current Constitution of 1983." And while it is certainly true the current version of the Judicial Power Paragraph looks a good bit like the 1798 version of that paragraph, the 1983 version added an important adverb to the text which further defined the nature and scope of the judicial power in this state—" exclusively. " This is unquestionably a material change to the plain (and possibly) original meaning of the Judicial Power Paragraph of the Georgia Constitution, and I think it is difficult to suggest otherwise. What is up for serious debate is the extent of this substantive change to the meaning of that important constitutional paragraph.
Id. at 46 (2) (a), 880 S.E.2d 168.
Let us begin with the ordinary signification of "exclusively." The Oxford English Dictionary—the authoritative source on the meaning of the English language—defines "exclusively" as, inter alia , "[t]o the exclusion of, without the participation of, the persons or things designated ... [s]o as to exclude all except some particular object, subject, etc.; solely." So, what does the insertion of "exclusively" into the text of the Judicial Power Paragraph mean in how we are to understand the nature of the judicial power in Georgia? Simple logic dictates it means at least three things (and possibly more): (1) to the extent the executive or legislative branches of Georgia's government previously exercised any type of judicial power or acted in a way that directly or indirectly diminished the judicial power, they are no longer authorized to do so; (2) the fundamental nature of the judicial power (as exercised by the courts outlined in the Georgia Constitution's Judicial Power Paragraph) has been dramatically strengthened because of this new exclusivity—as that power now resides solely with the state judiciary; and (3) the exclusivity of this judicial power unquestionably has separation-of-powers implications.
Exclusively , The Oxford English Dictionary (online ed. March 2023), available at https://www.oed.com/view/Entry/65834.
What then is the net result of this strengthened, exclusive judicial power? I am not entirely sure. What I do know is that I cannot quibble with our Supreme Court's conclusion in Sons of Confederate Veterans II that the Judicial Power Paragraph "does not purport to define what is meant by ‘[t]he judicial power,’ " and "there is no explicit limitation on its scope (unlike its federal counterpart)." But the question remains: Is there something about the fundamental nature of the judicial power that inherently contains such a limitation? I think there just might be for the reasons I have already articulated.
Sons of Confederate Veterans II , 315 Ga. at 47 (2) (a), 880 S.E.2d 168.
See Spokeo , 578 U.S. at 343, 136 S.Ct. 1540 (Thomas, J., concurring) ("The judicial power of common-law courts was historically limited depending on the nature of the plaintiff's suit. Common-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights. Those limitations persist in modern standing doctrine."); see also Woolhandler & Nelson, supra note 10, at 692 ("In favoring a private-injury requirement for private litigation, [early American court] decisions were influenced by American ideas about the proper role of the judiciary, its relationship to the political branches of the state and federal governments, and the legitimate allocations of public and private power."); James Leonard & Joanne C. Brant, The Half-Open Door: Article III, the Injury-in-Fact Rule, and the Framers’ Plan for Federal Courts of Limited Jurisdiction , 54 Rutgers L. Rev. 1, 5-6 (2001) (noting that "[o]ur first impression was that the Framers had at best vague thoughts about the proper reach of federal jurisdiction ... and that the courts and Congress should have latitude in expanding standing to promote the enforcement of federal laws," but that "[t]his permissive view of standing ... does not comport either with the legal environment of the late Eighteenth Century or the structure of the Constitution ," that "[a] review of the historical materials surrounding the adoption of the Constitution such as the records of the 1787 Convention and the ratification debates has convinced us that the Framers most likely viewed the courts as places where individual litigants came to have actual and personal grievances resolved," and that " the injury-in-fact rule is necessary to keep the balance that the Framers intended among the branches of government " (emphasis supplied)); cf. Sons of Confederate Veterans II , 315 Ga. at 49-50, 880 S.E.2d 168 ("Despite the absence of an explicit limitation on judicial power to ‘cases’ and ‘controversies’ in the Georgia Constitution's Judicial Power Paragraph, ... we have long understood the nature of judicial power itself to contain a similar limitation. 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." (punctuation omitted)).
In my view, the narrow standing doctrine pronounced by the Supreme Court of the United States in Lujan and its progeny is far more consistent with the fundamental nature of the judicial power than the far more expansive standing doctrine embraced by our Supreme Court in Sons of Confederate Veterans II , and serves to insulate courts from being unnecessarily transformed into forums for settling hotly contested political disputes that are more appropriately resolved in the legislative or electoral arenas. And in the absence of irrefutable evidence that the pre-1983 caselaw relied upon by the Supreme Court in Sons of Confederate Veterans II is carried over to the 1983 version of the Judicial Power Paragraph (notwithstanding the material change noted above), I would stay the course with Lujan and its progeny. But because I am duty bound to follow our Supreme Court's precedents, I concur dubitante.
Cf. Sons of Confederate Veterans II , 315 Ga. at 47 (2) (a), 880 S.E.2d 168 (noting that because "the meaning of a previous provision that has been readopted in a new constitution is generally the most important legal context for the meaning of that new provision, and because we accord each of those previous provisions their own original public meanings , we generally presume that a constitutional provision retained from a previous constitution without material change has retained the original public meaning that provision had at the time it first entered a Georgia Constitution, absent some indication to the contrary " (emphasis supplied)).
Lujan , 504 U.S. at 560 (II), 112 S.Ct. 2130 (noting that "some of [constitutional standing doctrine's] elements express merely prudential considerations that are part of judicial self-government"); see, e.g. , United States v. Windsor , 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) ; Hollingsworth v. Perry , 570 U.S. 693, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) ; Friends of the Earth, Inc. v. Laidlaw Env't Servs. , 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; see also Allen , 468 U.S. at 751 (II) (A), 104 S.Ct. 3315 (noting that the constitutional standing doctrine has prudential and constitutional components).
See Ga. Const. , art. VI, § VI, ¶ VI (1983) ("The decisions of the Supreme Court [of Georgia] shall bind all other courts as precedents."); Whorton v. State , 321 Ga. App. 335, 339 (1), 741 S.E.2d 653 (2013) (holding that "vertical stare decisis dictates that we faithfully adhere to the precedents established by the Supreme Court of Georgia"); see also Bryan A. Garner et al. , The Law of Judicial Precedent 155 ("When dealing with binding vertical precedent, a court has no room to decide how much weight or value to give each case."); Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis , 93 Va. L. Rev. 1437, 1454 (II) (2007) (noting that "[v]ertical stare decisis refers to the binding effect of precedent on lower courts," and that "[s]erious rule of law costs would follow if lower courts were free to ignore precedent established by a higher court of appeal"); cf. Kay Armstrong Carter, The Selected Writings of Louis E. Armstrong 73 (1983) (noting that "[o]ne of the harsh facts of life is this: You were born to be responsible, to make choices between this and that, and there's no way that you can avoid it, however much you might want to").
I am authorized to state Judge Mercier joins this concurrence.