T. Davis Humphries v. Newton County Board of Commissioners ( 2021 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
July 22, 2021
In the Court of Appeals of Georgia
A21A0734. SONS OF CONFEDERATE VETERANS et al. v.
NEWTON COUNTY BOARD OF COMMISSIONERS.
A21A0735. HUMPHRIES v. NEWTON COUNTY BOARD OF
COMMISSIONERS.
A21A0988. SONS OF CONFEDERATE VETERANS et al. v.
HENRY COUNTY BOARD OF COMMISSIONERS.
DILLARD, Presiding Judge.
In this consolidated appeal, we are asked to consider questions of standing and
sovereign immunity under OCGA § 50-3-1 in relation to decisions made by the
Newton County Board of Commissioners and the Henry County Board of
Commissioners to remove Confederate monuments located in their respective
jurisdictions. In each case, the trial court determined the appellants lacked standing
and that their claims were barred by sovereign immunity. For the reasons set forth
infra, we affirm the trial courts’ judgments.
1. The Facts
(a) The Newton County Cases: A21A0734, A21A0735. On July 13, 2020,
Tiffany Humphries filed a complaint for damages and injunctive relief against the
Newton County Board of Commissioners,1 alleging that the Board intended to hold
a special meeting to vote on the removal of a Confederate monument located in
Covington, Georgia, in violation of OCGA § 50-3-1. Then, on July 15, 2020, the Sons
of Confederate Veterans, General George “Tig” Anderson Camp #2038, and the
Georgia Division of the Sons of Confederate Veterans filed a complaint for damages
and injunctive relief against the Newton County Board of Commissioners. This
complaint alleged that, on the previous day (July 14, 2020), the Board voted to
remove a Confederate monument from the square in Covington, Georgia, in violation
of OCGA § 50-3-1. In doing so, these plaintiffs asserted that the vote was “notice of
[Newton County’s] intent to violate OCGA § 50-3-1 by removing the Confederate
Monument from its place of honor and prominence in downtown Covington and
placing it in storage.” All of the Newton County plaintiffs sought treble and
1
Humphries originally named other plaintiffs but eventually limited her
complaint to the Board of Commissioners.
2
exemplary damages against the County under OCGA § 50-3-1 (b) (4), as well as
injunctive relief to prevent the removal of the statue.
On July 16, 2020, the trial court consolidated the two cases. The court then
issued its order on September 14, 2020, concluding that the plaintiffs lacked standing
to file suit because they suffered no injury and that, even if they had standing, their
claims were barred by sovereign immunity. Accordingly, the court dismissed the
complaints for damages and injunctive relief. Even so, the parties agreed that the
statue would not be removed during the pendency of this appeal, which was
confirmed by court order.
(b) The Henry County Case: A21A0988. On July 7, 2020, the Sons of
Confederate Veterans, Colonel Charles T. Zachary Camp No. 108, and the Georgia
Division of the Sons of Confederate Veterans filed a complaint for damages and
injunctive relief against the Henry County Board of Commissioners. In doing so,
these plaintiffs alleged that the Board voted to remove a Confederate monument from
the courthouse square in McDonough, Georgia, providing notice of its intent to
violate OCGA § 50-3-1 by moving the monument to storage. As a result, they sought
treble damages, exemplary damages, and injunctive relief.
3
On July 24, 2020, the trial court denied the plaintiffs’ request for an emergency
temporary injunction, concluding that sovereign immunity barred any grant of
injunctive relief. Three days later, the plaintiffs filed an emergency motion for
reconsideration and supersedeas, alleging that the Board intended to remove the
statue at 10:00 p.m. that same evening. They also attached to this motion a lease
agreement between the City of McDonough and Henry County, asserting that, under
this agreement, the courthouse square housing the statue was leased to the City and,
thus, the County lacked authority to come into the square and remove the monument.
Thereafter, the County moved to dismiss the plaintiffs’ complaint for failure
to state a claim upon which relief could be granted. And according to this motion, the
monument was removed by the County on July 28, 2020. Thus, the County asserted
that the request for injunctive relief was moot and further argued that the plaintiffs
lacked standing to seek damages under OCGA § 50-3-1 (b). To that end, the County
asserted that the plaintiffs’ alleged injury was neither concrete nor particularized. The
County also maintained that sovereign immunity barred all of the plaintiffs’ claims.
Finally, the County argued that even if sovereign immunity did not bar the claims and
the plaintiffs had standing, the plaintiffs were still not entitled to damages because
OCGA § 50-3-1 (b) (4) provides that damages cannot be awarded when the removal
4
of a monument was authorized by the public entity that owns the monument. Later,
the County also claimed that, although it owned the property in the courthouse
square, it had no record of owning the actual monument, and because OCGA § 50-3-1
only applied to the removal of “publicly owned monuments,” there was no violation
of the statute by the monument’s removal.
The trial court issued its final order on December 15, 2020. In doing so, the
court concluded the plaintiffs lacked standing to bring their claims because they had
not shown that they “suffered an injury in fact because they have not alleged a
concrete or particularized injury.” Next, the court found that sovereign immunity was
not waived by OCGA § 50-3-1. And finally, the court determined that the claim for
injunctive relief was moot.
(c) Our Jurisdiction. Although no party challenges our jurisdiction to consider
these consolidated appeals, “it is the duty of this Court to inquire into its jurisdiction
in any case in which there may be a doubt about the existence of such jurisdiction.”2
We must consider, then, whether we have jurisdiction to consider these as direct
2
State v. Int’l Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 396
(2) (788 SE2d 455) (2016) (punctuation omitted); accord Sanders v. State, 280 Ga.
780, 781-82 (631 SE2d 344) (2006); Fairclough v. State, 276 Ga. 602, 603 (581 SE2d
3) (2003).
5
appeals or whether applications for discretionary appeal were necessary. And in doing
so, we conclude these cases were properly brought as direct appeals.
Georgia’s appellate courts have consistently refused to require applications in
cases concerning executive determinations and those involving rule-making or other
determinations of a legislative nature.3 And under OCGA § 36-5-22.1 (a) (1) and
OCGA § 36-9-2, county governments have authority and exclusive jurisdiction to
control all county property.4 So, here, the Boards of Commissioners engaged in their
statutorily approved executive function of controlling county property when they
adopted resolutions for the removal of specific Confederate monuments from property
3
Int’l Knights, 299 Ga. at 404-05 (4) (a); accord Carson v. Brown, 348 Ga.
App. 689, 694 (1) (c) (i) (824 SE2d 605) (2019).
4
See OCGA § 36-5-22.1 (a) (1) (“The governing authority of each county has
original and exclusive jurisdiction over the following subject matters . . . [t]he
directing and controlling of all the property of the county, according to law, as the
governing authority deems expedient[.]”); OCGA § 36-9-2 (“The county governing
authority shall have the control of all property belonging to the county and may, by
order entered on its minutes, direct the disposal of any real property which may
lawfully be disposed of and make and execute good and sufficient title thereof on
behalf of the county.”); see also Dickey v. Storey, 262 Ga. 452, 454 (423 SE2d 650)
(1992) (“The law grants to a county commission a broad discretion to exercise control
over public property[.]”).
6
owned by the counties.5 Thus, we have jurisdiction to consider these cases via direct
appeals, and we turn now to the appellants’ respective enumerations of error.
2. Standing.
The appellants all argue that the trial courts erred by dismissing their actions
on the ground that they lacked standing to sue the Counties. We disagree.
In each of these three appeals, the appellants challenge the Boards’ decisions
as violating OCGA § 50-3-1 (b) (3), which provides, in relevant part, as follows:
No publicly owned monument erected, constructed, created, or
maintained on the public property of this state or its agencies,
departments, authorities, or instrumentalities or on real property owned
by an agency or the State of Georgia shall be relocated, removed,
concealed, obscured, or altered in any fashion by any officer or agency;
provided, however, that appropriate measures for the preservation,
protection, and interpretation of such monument or memorial shall not
be prohibited.
5
See Lindsey v. Guhl, 237 Ga. 567 (229 SE2d 354) (1976) (considering a direct
appeal from superior court’s review of decisions made by county board of
commissioners when exercising powers granted to such boards by statute); Jackson
v. Gasses, 230 Ga. 712 (198 SE2d 657) (1973) (considering direct appeal from trial
court’s review of decision by board of commissioners to relocate county jail to
outside of particular city’s limits, in which the current jail was located); see also Int’l
Keystone Knights, 299 Ga. at 400-01 (4) (a) (“[M]any agency determinations
unsurprisingly are quintessentially executive in nature, including, for instance, the
day-to-day management of agency . . . resources[.]”).
7
“Monument” is separately defined in OCGA § 50-3-1 (b) (1) (B) as
a monument, plaque, statue, marker, flag, banner, structure name,
display, or memorial constructed and located with the intent of being
permanently displayed and perpetually maintained that is:
(i) Dedicated to a historical entity or historically significant
military, religious, civil, civil rights, political, social, or cultural events
or series of events; or
(ii) Dedicated to, honors, or recounts the military service of any
past or present military personnel of this state; the United States of
America or the several states thereof; or the Confederate States of
America or the several states thereof.
And “Agency” is defined in OCGA § 50-3-1 (b) (1) (A) as
any state or local government entity, including any department, agency,
bureau, authority, board, educational institution, commission, or
instrumentality or subdivision thereof, and specifically including a local
board of education, the Board of Regents of the University System of
Georgia, and any institution of the University System of Georgia.
The Code section goes on to provide that the removal of a monument without
replacing it subjects the responsible party to treble damages, potential exemplary
8
damages, as well as attorneys fees and court costs.6 Finally, OCGA § 50-3-1 (b) (5)
provides, in relevant part, as follows:
A public entity owning a monument or 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.
In these cases, all of the appellants allege that they have standing under OCGA
50-3-1 (b) (5),7 arguing that—under its broad language—they are “persons” and
“legal entities” who have a “right to bring a cause of action for any conduct
6
See OCGA § 50-3-1 (b) (4) (“Any person or entity that damages, destroys, or
loses a monument or that takes or removes a monument without replacing it shall be
liable for treble the amount of the full cost of repair or replacement of such monument
and may be subject to exemplary damages unless such person or entity was authorized
to take such action by the public entity owning such monument. In addition to treble
the cost of repair or replacement and possible exemplary damages, the person or
entity shall also be liable for the attorney’s fees and court costs expended by the
public entity owner of the monument or person, group, or legal entity in any action
or proceeding required to establish liability and collect amounts owed. Should a
public entity owner of the monument or person, group, or other legal entity prevail
in any action under this Code section, such prevailing party shall timely pay for the
cost of or repair or placement of the monument upon moneys being collected from the
party damaging, destroying, or losing such monument.”).
7
The appellants also assert that they have standing under OCGA § 23-3-2 and
OCGA § 23-4-20. See OCGA § 23-3-2 (“Any person may, in any civil action, claim
equitable relief by appropriate and sufficient pleadings and obtain the equitable relief
proper in the case.”); OCGA § 23-4-20 (“Any person who may not bring an action at
law may complain in equity and every person who is remediless elsewhere may claim
the protection and assistance of equity to enforce any right recognized by the law.”).
9
prohibited” by OCGA § 50-3-1—i.e., that they have a right to bring a cause of action
because the counties have expressed an intent to remove or have already removed
Confederate monuments. But the Counties respond that the appellants lack standing
because their injuries are “purely psychic” and neither concrete nor particularized.
Further, because OCGA § 50-3-1 does not define “damages,” the Counties assert that
“damages” must be understood as defined in OCGA § 51-12-4—i.e., as
“compensation for injury.”8 The trial court agreed with the Counties that the
appellants lacked standing, and so do we.
Standing is, of course, a jurisdictional issue that must be considered before
reaching the merits of any case,9 and is a “doctrine rooted in the traditional
8
See OCGA § 51-12-4 (“Damages are given as compensation for injury;
generally, such compensation is the measure of damages where an injury is of a
character capable of being estimated in money. If an injury is small or the mitigating
circumstances are strong, nominal damages only are given.”).
9
See New Cingular Wireless PCS, LLC v. Ga. Dep’t of Rev., 303 Ga. 468, 470
(1) (813 SE2d 388) (2018) (explaining that standing must be addressed prior to
considering the merits of a case); Sherman v. City of Atlanta, 293 Ga. 169, 172 (2)
(744 SE2d 689) (2013) (“[S]tanding is in essence the question of whether the litigant
is entitled to have the court decide the merits of the dispute or of particular issues,
and litigants must establish their standing to raise issues before they are entitled to
have a court adjudicate those issues.” (citation & punctuation omitted)); see also
Williams v. DeKalb Cnty., 308 Ga. 265, 271 (3) (840 SE2d 423) (2020) (“[T]he
question of standing is a jurisdictional issue.” (punctuation omitted)).
10
understanding of a case or controversy.”10 And under federal and Georgia law,
standing requires “(1) an injury in fact; (2) a causal connection between the injury and
the causal conduct; and (3) the likelihood that the injury will be redressed with a
favorable decision.”11 An “injury in fact” is one that is both “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical.”12
10
Spokeo, Inc. v. Robins, __ U.S. __, __ (II) (A) (136 SCt 1540, 1547 (II) (A),
194 LE2d 635) (2016); accord Town of Chester, NY v. Laroe Estates, Inc., __ U.S.
__, __ (II) (137 SCt 1645, 1650 (II), 198 LE2d 64) (2020); see Perdue v. Lake, 282
Ga. 348, 348 (1) (647 SE2d 6) (2007) (“As a general rule, standing must be
determined at the time at which the plaintiff’s complaint is filed in order to place an
actual case or controversy within the purview of the court.” (punctuation omitted));
Bowers v. Bd. of Regents of the Univ. Sys. of Ga., 259 Ga. 221, 221-22 (378 SE2d
460) (1989) (Per Curiam) (“The existence of an actual controversy is fundamental to
a decision on the merits by this court.”); U-Haul Co. of Ariz. v. Rutland, 348 Ga. App.
738, 743 (1) (824 SE2d 644) (2019) (“As it relates to standing, we view the
requirement that there be an actual case or controversy at the time the complaint is
filed.”); see also In the Interest of I. B., 219 Ga. App. 268, 269 (464 SE2d 865)
(1995) (physical precedent only) (noting that “[t]hroughout Article VI of the Georgia
Constitution, jurisdictional authority is given over ‘cases’” and “‘[c]ases’ are live
disputes, actual controversies” (footnotes omitted)).
11
Granite State Outdoor Advertising, Inc. v. City of Roswell, 283 Ga. 417, 418
(1) (658 SE2d 587) (2008) (relying upon Bennett v. Spear, 520 U.S. 154, 162 (117
SCt 1154, 137 LE2d 281) (1997)); accord Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (II) (112 SCt 2130, 119 LE2d 351) (1992)); Parker v. Leeuwenburg, 300
Ga. 789, 794 (797 SE2d 908) (2017) (Plurality) (Peterson, J., dissenting).
12
Ctr. for a Sustainable Coast, Inc. v. Turner, 324 Ga. App. 762, 764 (751
SE2d 555) (2013) (punctuation omitted) (quoting Friends of the Earth v. Laidlaw
Environmental Svcs., 528 U.S. 167, 180-81 (II) (A) (120 SCt 693, 145 LE2d 610)
11
The Supreme Court of the United States has explained that, for an injury to be
“particularized,” it “must affect the plaintiff in a personal and individual way.”13 The
injury must also be “concrete,” or put another way, it must “actually exist” and be
“real,” not “abstract.”14 But this does not mean that the injury must be “tangible.”15
And the legislative branch may “elevate to the status of legally cognizable injuries
concrete, de facto injuries that were previously inadequate in law.”16 As a result, the
legislature has the power to “define injuries and articulate chains of causation that
will give rise to a case or controversy where none existed before.”17 But even when
the legislature identifies and elevates intangible harms, “a plaintiff [does not]
(2000)); accord Spokeo, 136 SCt at 1548 (II) (B); Lujan v. Defenders of Wildlife, 504
U.S. at 560 (II); In re Haney, 355 Ga. App. 658, 660 (845 SE2d 380) (2020); see
Women’s Surgical Ctr., LLC v. Berry, 302 Ga. 349, 351 (1) (806 SE2d 606) (2017)
(“[A] party has standing to pursue a declaratory action where the threat of an injury
in fact is ‘actual and imminent, not conjectural or hypothetical.’”); Cheeks v. Miller,
262 Ga. 687, 688 (425 SE2d 278) (1993) (“A controversy is justiciable when it is
definite and concrete, rather than being hypothetical, abstract, academic, or moot.”).
13
Spokeo, 136 SCt at 1548 (II) (B) (1).
14
Id. (punctuation omitted).
15
Id. at 1549 (II) (B) (2).
16
Id. (punctuation omitted) (quoting Lujan, at 578).
17
Id. (punctuation omitted) (quoting Lujan, at 580 (Kennedy, J., concurring in
part and concurring in judgment)).
12
automatically satisf[y] the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that person to sue to vindicate that
right.”18 A “concrete” injury is still necessary even in the context of statutory
violations.19
And here, although OCGA § 50-3-1 (b) (5) broadly provides that “[a] public
entity owning a monument or 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,” the constitutional doctrine of standing still
requires that a cause of action involve a concrete and particularized injury.20 In other
18
Id.
19
Id.; accord Thole v. U.S. Bank N.A., __U.S.__, __ (140 SCt 1615, 1620-21,
207 LE2d 85) (2020); see United States ex rel. v. Mortgage Investors Corp., 987 F3d
1340, 1358 (III) (D) (11th Cir. 2021) (“[L]egislatures cannot simply create an injury
in fact where there is no concrete injury.”); Perry v. CNN, 854 F3d 1336, 1340 (I)
(11th Cir. 2017) (“The Supreme Court emphasized [in Spokeo] that in addition to
being particularized, intangible injuries, including statutory violations, must still be
concrete.”); see also Cordobo v. DIRECTV, LLC, 942 F3d 1259, 1268 (II) (A) (11th
Cir. 2019) (“In brief, Spokeo set forth two rules of law: Congress cannot grant a
plaintiff who has not suffered a concrete injury the right to sue in federal court, but
Congress has a role in identifying and elevating intangible harms to the level of
concrete Article III injuries in fact.” (punctuation omitted)).
20
In contrast with OCGA § 50-3-1 (b) (5), Tennessee’s “Heritage Protection
Act” contains specific injury requirements to confer standing, as follows: “Any entity,
group, or individual who can demonstrate a real interest in a memorial through
13
words, a plaintiff must show that “he has been directly affected apart from his special
interest in the subject at issue.”21
Here, the appellants allege no injuries beyond complaining that the removal
of the Confederate monuments would violate OCGA § 50-3-1. Suffice it to say, it is
not enough for the appellant organizations to tout their dedication to “honor[ing] the
memories and legacies of their forefathers who fought for freedom during the War
Between the States” or assert that they “will suffer injury to [their] rights and dignity”
if the monuments are removed. And as for Humphries, she did not allege any degree
of concern with the monuments beyond her status as a private citizen of Newton
aesthetic, architectural, cultural, economic, environmental, or historic injury, through
petition for declaratory order, or through administrative involvement in either the
waiver or complaint process, has standing . . . .” Tenn. Code Ann. § 4-1-412 (c) (6);
see Sons of Confederate Veterans v. City of Memphis, No.
M2018-01096-COA-R3-CV, 2019 WL 2355332, at *7 (Tenn. Ct. App. June 4, 2019)
(“[Plaintiff] demonstrated a real interest only in the Forrest Statue and only because
[plaintiff] was involved in the waiver process, which is statutorily identified as a
ground for standing.” (punctuation omitted)).
21
Ladies Mem’l Ass’n, Inc. v. City of Pensacola, Fla., No.
3:20CV5681-MCR-EMT, 2020 WL 5237742, at *3 (N.D. Fla. Sept. 2, 2020);
Gardner v. Mutz, 962 F3d 1329, 1342 (III) (B) (2) (11th Cir. 2020) (“[A] mere
‘interest in a problem,’ no matter how longstanding the interest and no matter how
qualified an organization is in evaluating the problem, is not sufficient by itself.
Rather, a party seeking review must allege facts showing that he is himself adversely
affected.” (punctuation omitted) (quoting Sierra Club v. Morton, 405 U.S. 727, 739
(92 SCt 1361, 31 LE2d, 636) (1972))).
14
County. These vague claims of “injury” are, then, far too abstract to confer standing
on the appellants.22 Accordingly, because each of the appellants lacked standing, the
trial court correctly dismissed all of these actions.
22
See Ladies Mem’l. Ass’n., 2020 WL 5237742, at *4 (holding that complaints
about City’s proposed removal of Confederate monument from City square were too
abstract to confer standing); Gardner v. Mutz, 488 F3d 1204, 1209 (II) (M.D. Fla.
2020) (“Plaintiffs’ alleged injury is still too abstract. At bottom, Plaintiffs disagree
with the City’s decision to move the [Confederate] cenotaph from one park to
another. They prefer that the cenotaph remain in Munn Park and are offended at its
relocation. But Plaintiffs have only alleged psychic injuries in the form of their
disappointment that the cenotaph no longer resides in their preferred location.”). Cf.
Hayes v. City of Memphis, No. W2014–01962–COA–R3–CV, 2015 WL 5000729, at
*11-12 (IV) (Tenn. Ct. App. Aug. 21, 2015) (holding that, in challenge to City’s
adoption of resolution to rename three parks named to honor the Confederacy, only
one of three plaintiffs alleged an injury sufficient to confer standing when that
plaintiff’s complaint challenged procedure by which City renamed parks and alleged
that it “assisted in the preservation and maintenance of Forrest Park through the years
by organizing work days and by funding the installation of various markers, statues,
monuments, and educational panels in each of the three historic parks” and “the City
recognized the desirability of having a new name marker installed in Forrest Park
without using taxpayer funds and encouraged [plaintiff’s] efforts to do so,” “[t]he
Director of the City’s Division of Park Services actively participated in the design of
the name marker, approved its location, and even suggested that the name marker be
inscribed to reflect that its installation was the result of a partnership between the
Division of Park Services and [plaintiff],” and thus plaintiff’s special interest in the
name marker gave them a special interest in the name of the park itself sufficient to
confer standing to challenge the renaming of the park).
15
3. Sovereign Immunity.
Because we conclude the trial court properly dismissed these actions on the
basis that the appellants lacked standing, we need not address the question of whether
their claims were also barred by sovereign immunity.23
Judgments affirmed. Mercier and Colvin, JJ., concur.
23
Since these lawsuits were filed, the Georgia Constitution was amended to
waive sovereign immunity so as to permit actions for declaratory and equitable relief.
See Ga. Const. Art. 1, § 2, ¶ V (b) (1) (“Sovereign immunity is hereby waived for
actions in the superior court seeking declaratory relief from acts of the state or any
agency, authority, branch, board, bureau, commission, department, office, or public
corporation of this state or officer or employee thereof or any county, consolidated
government, or municipality of this state or officer or employee thereof outside the
scope of lawful authority or in violation of the laws or the Constitution of this state
or the Constitution of the United States. Sovereign immunity is further waived so that
a court awarding declaratory relief pursuant to this Paragraph may, only after
awarding declaratory relief, enjoin such acts to enforce its judgment. Such waiver of
sovereign immunity under this Paragraph shall apply to past, current, and prospective
acts which occur on or after January 1, 2021.”).
16