SONS OF CONFEDERATE VETERANS v. HENRY COUNTY BOARD OF COMMISSIONERS (Two Cases)

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: October 25, 2022
S22G0039. SONS OF CONFEDERATE VETERANS et al. v.
HENRY COUNTY BOARD OF COMMISSIONERS.
S22G0045. SONS OF CONFEDERATE VETERANS et al. v.
NEWTON COUNTY BOARD OF COMMISSIONERS.
PETERSON, Presiding Justice.
This case is about a highly controversial subject: 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. But nothing about those monuments is at issue in this
appeal.
Instead, this appeal presents only a discrete and important
threshold question: whether the Georgia Constitution requires a
plaintiff to establish some cognizable injury to bring a lawsuit in
Georgia courts, i.e., to have standing to sue, separate and apart from
the statutory authorization to bring suit. This question has broad
implications far beyond the underlying controversy.
After a full review of the relevant history and context, our
answer is this: to invoke a Georgia court’s “judicial power,” a
plaintiff must have a cognizable injury that can be redressed by a
judicial decision. Courts are not vehicles for engaging in merely
academic debates or deciding purely theoretical questions. We “say
what the law is” only as needed to resolve an actual controversy. To
that end, only plaintiffs with a cognizable injury can bring a suit in
Georgia courts. Unlike federal law, however, that injury need not
always be individualized; sometimes it can be a generalized
grievance shared by community members, especially other
residents, taxpayers, voters, or citizens.
The Georgia Constitution might impose a higher requirement
when a plaintiff challenges the constitutionality of a statute; we
have long held that in such cases, the plaintiff must show an actual,
individualized injury. But we need not decide today whether this
additional requirement arises from the Georgia Constitution, such
2
that the General Assembly cannot abrogate it by statute, because
the plaintiffs in this case do not challenge a statute as
unconstitutional.
For the lesser requirement — that the plaintiff has suffered
some kind of injury, albeit one that may be shared by all other
members of the community — Georgia has long recognized that
members of a community, whether as citizens, residents, taxpayers,
or voters, may be injured when their local government fails to follow
the law. Government at all levels has a legal duty to follow the law;
a local government owes that legal duty to its citizens, residents,
taxpayers, or voters (i.e., community stakeholders), and the
violation of that legal duty constitutes an injury that our case law
has recognized as conferring standing to those community
stakeholders, even if the plaintiff suffered no individualized injury.
Applying that framework to this case, T. Davis Humphries, as
a private citizen, has standing to assert a claim for injunctive relief
against her local county government for its planned removal of a
Confederate monument in alleged violation of OCGA § 50-3-1. But
3
the other plaintiffs — the various Sons of Confederate Veterans
entities — have not shown that they are members of the
communities the governments of which they seek to sue, and they
have alleged no other cognizable injury sufficient to establish their
standing. The Court of Appeals was therefore wrong to affirm the
dismissal of Humphries’s complaint for a lack of standing as to her
claim for injunctive relief, but it was right to affirm the dismissal of
the complaints filed by the various Sons of Confederate Veterans
groups. We do not reach the question of whether Humphries has
standing for her claim for damages under OCGA § 50-3-1, because
the cause of action that statute purports to create has not yet arisen;
by the statute’s terms, the cause of action arises only upon the
occurrence of conduct prohibited by the statute, and that conduct
has not yet occurred. Accordingly, we affirm the dismissal of
Humphries’s statutory claim for damages and all claims by the Sons
of Confederate Veterans groups, and reverse the dismissal of
Humphries’s claim for injunctive relief.
1. Background
4
(a) The statute at issue.
OCGA § 50-3-1 (b) makes it unlawful for any agency, including
all state and local government entities,1 or any officer of an agency
(whether elected or appointed), to remove certain historic
monuments, including monuments that honor the military service
of soldiers of the Confederate States of America. See OCGA § 50-3-1
(b) (2). Additionally, “[n]o publicly owned monument erected,
constructed, created, or maintained on the public property of this
[S]tate or its agencies” or “on real property owned by an agency or
the State of Georgia” can be relocated, removed, concealed, obscured,
or altered in any fashion, except for the preservation, protection, and
interpretation of such monuments. Id. § 50-3-1 (b) (3). A person or
entity that damages or removes a monument without replacing it is
liable for treble damages for the cost of repairing or replacing the
1 The statute defines “agency” 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.” OCGA § 50-3-1 (b) (1) (A).
5
monument, attorney’s fees, and even exemplary damages. Id. § 50-
3-1 (b) (4). The statute expressly authorizes suits by private parties
or groups, not only public entities owning a monument:
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. Such action
shall be brought in the superior court of the county in
which the monument was located.
OCGA § 50-3-1 (b) (5).
(b) Procedural history.
As alleged in the relevant complaint, the Henry County Board
of Commissioners in July 2020 voted to remove a Confederate
monument from the courthouse square in McDonough. As a result
of this vote, the Sons of Confederate Veterans, Colonel Charles T.
Zachry Camp #108, and Georgia Division, Sons of Confederate
Veterans, filed suit against the Board seeking injunctive relief and
damages, asserting that the Henry County Board’s vote signaled an
intention to violate OCGA § 50-3-1 (b).
Less than a week later, Humphries filed a similar complaint
6
for damages and injunctive relief against the Newton County Board
of Commissioners, in their official capacity, alleging that the
county’s intention to hold an expedited vote to remove a Confederate
monument from downtown Covington and place it in storage would
violate OCGA § 50-3-1 (b). The next day, the Newton County Board
voted to remove the monument, prompting Sons of Confederate
Veterans, General George “Tig” Anderson Camp #2038, and Georgia
Division, Sons of Confederate Veterans, to file a complaint similar
to Humphries’s. Although each group phrased their allegations a bit
differently from one another, the plaintiffs in Newton County all
generally alleged that the County’s votes directing action to remove
the monuments did or would violate OCGA § 50-3-1 (b) (2) - (4).
Humphries brought her suit as a private citizen of Newton
County. The Sons of Confederate Veterans organizations brought
suit as “organizations of people who honor the memories and
legacies of their forefathers who fought for freedom during the War
Between the States[,]” but they made no other allegations about
their members, including whether those members were citizens or
7
residents of their respective counties. All of the plaintiffs in all three
suits alleged that the unlawful removal of the monument would
cause them injury to their “rights and dignity.” The plaintiffs alleged
that they had standing under OCGA § 50-3-1 (b) (5).
A Newton County trial court consolidated, then dismissed, the
two complaints filed against the Newton County Board of
Commissioners. The Newton County trial court concluded that the
plaintiffs in the Newton County suits lacked standing because they
suffered no damages, as the monument in Covington had not been
removed; that a 2019 amendment to OCGA § 50-3-1 (b) removed a
party’s ability to seek an injunction under the statute;2 and that the
claims were nevertheless barred by sovereign immunity. The trial
court also issued a stay pending appeal, preventing Newton County
from taking any action to remove the monument.
2 Prior to the 2019 amendment, OCGA § 50-3-1 specifically permitted
injunctive relief to prevent prohibited actions to remove publicly owned or
displayed monuments. See OCGA § 50-3-1 (b) (3) (2004). Also, whereas the
current version allows “any person, group, or legal entity” to bring a cause of
action, the pre-2019 version specified that “any 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.”
8
In Henry County, the trial court denied an emergency
temporary restraining order, concluding that the plaintiffs’ claims
for injunctive relief were barred by sovereign immunity. Henry
County then removed the monument, and the Henry County Board
of Commissioners filed a motion to dismiss the complaint against it.
They argued that the plaintiffs lacked standing to seek damages
because they did not allege a concrete or particularized injury, that
sovereign immunity barred a claim for damages, and that the claim
for injunctive relief was moot because the county had already
removed the monument. The trial court agreed with Henry County’s
position on all three grounds and dismissed the complaint.
All of the plaintiffs (collectively, the “Plaintiffs”) appealed to the
Court of Appeals. The Court of Appeals affirmed the dismissal of the
Plaintiffs’ complaints. See Sons of Confederate Veterans v. Newton
County Bd. of Commissioners, 360 Ga. App. 798 (861 SE2d 653)
(2021). Relying principally on federal case law decided under Article
III of the U.S. Constitution, and recent Georgia case law supporting
reliance on such federal precedent, the Court of Appeals held that
9
the plaintiffs lacked standing. The court reasoned that, although
OCGA § 50-3-1 (b) (5) provided a cause of action, the “constitutional
doctrine of standing still requires that a cause of action involve a
concrete and particularized injury.” Id. at 804-805 (2) (emphasis in
original). The Court of Appeals went on to hold that “even when the
legislature identifies and elevates intangible harms, a plaintiff does
not automatically satisfy 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.” Id. at 804 (2) (citing
Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (136 SCt 1540, 194 LE2d
635) (2016)). The Court of Appeals concluded that the plaintiff
organizations alleged commitment to “honor[ing] the memories and
legacies of their forefathers” and assertion that they would “suffer
injury to [their] rights and dignity” were insufficient to establish
standing. Id. at 805 (2). And the court, noting that Humphries “did
not allege any degree of concern with the monuments beyond her
status as a private citizen of Newton County[,]” concluded that her
claim of injury was too “vague” and “abstract,” as well. Id. at 805 (2).
10
Based on its conclusion that the plaintiffs lacked standing, the Court
of Appeals declined to address whether sovereign immunity barred
the plaintiffs’ claims. See id. at 806 (3).
We granted the Plaintiffs’ petitions for certiorari to consider
whether the Georgia Constitution requires some cognizable injury
to have standing to sue when OCGA § 50-3-1 does not expressly
require it.
2. The Georgia Constitution vests the judicial power in
Georgia courts; although our history contains little express
interpretation of this constitutional text, over a century of Georgia
precedent delineating the boundaries of our courts’ authority
suggests that courts cannot exercise the “judicial power” to decide a
case in which the plaintiff lacks a cognizable injury.
No one disputes that the General Assembly generally has the
power to change or modify the law to create duties and liabilities
that never existed before. See Fountain v. Suber, 225 Ga. 361, 365
(169 SE2d 162) (1969). And generally, the plain meaning of
statutory text “must be given effect.” Id. (citation and punctuation
omitted). The statute at issue here imposed a new duty on
government agencies, and its plain text provides a cause of action to
11
“any person, group, or legal entity” to enforce that duty. See OCGA
§ 50-3-1 (b) (5). The statute does not itself require a plaintiff to have
suffered any particular injury from the removal of a public
monument. Accordingly, this statute allows the plaintiffs here to sue
unless the Georgia Constitution or federal law provides otherwise.
Federal law does not control standing requirements in state
courts, so we must examine whether the Georgia Constitution
imposes an individualized-injury requirement for a plaintiff to have
standing. If our standing requirements are constitutionally based,
of course, those limitations control even in the face of a contrary
statute; but if those requirements are instead merely derived from
the common law (or decisional law), the General Assembly could
displace them. See Johns v. Suzuki Motor of America, 310 Ga. 159,
164-165 (3) (850 SE2d 59) (2020) (“As long as legislation does not
violate the Constitution, when the Legislature says something
clearly — or even just implies it — statutes trump cases.” (citation
and punctuation omitted)); Georgia Lions Eye Bank, Inc. v. Lavant,
255 Ga. 60, 61-62 (2) (335 SE2d 127) (1985) (the common law “may
12
be changed at the will, or even at the whim, of the legislature, unless
prevented by constitutional limitations” (citation and punctuation
omitted)). Therefore, whether “any person, group, or legal entity”
can pursue a cause of action under OCGA § 50-3-1 (b) (5), or whether
the world of plaintiffs is cabined in some way, depends on whether
our standing requirements arise from the Georgia Constitution, or
from a lesser source.
The Plaintiffs argue that nothing in the Georgia Constitution
requires a showing of an individualized injury and that they have
standing under OCGA § 50-3-1 (b) (5).3 The Henry County Board of
Commissioners argues that standing requires the existence of an
actual, justiciable controversy, which requires a party to have an
3 The Plaintiffs argue that certain statutes recognize that each plaintiff
⸺ a citizen, a corporation, and unincorporated organizations ⸺ has the ability
to bring suits in their own name. See OCGA §§ 9-2-24 (“An action may be
maintained by and in the name of any unincorporated organization or
association.”); 14-3-302 (1) (providing that every corporation has power to “sue,
be sued, complain, and defend in its corporate name”); see also Clark v.
Fitzgerald Water, Light & Bond Comm., 284 Ga. 12, 12 (663 SE2d 237) (2008)
(recognizing three classes of legal entities with power to sue: “(1) natural
persons; (2) an artificial person (a corporation); and (3) such quasi-artificial
persons as the law recognizes as being capable to sue”). Although the Plaintiffs
are correct that they generally have the capacity to sue (and be sued), that
point is not relevant to whether they have standing to sue in this case.
13
individualized injury. The Henry County Board maintains that the
plaintiffs’ alleged injury to their “rights and dignity” is an
insufficient injury to establish an “actual controversy.” The Newton
County Board of Commissioners argues that Georgia’s standing
doctrine has existed independently of federal jurisprudence and has
long required that a plaintiff suffer damage or injury before
resorting to the courts for enforcement of a legal right. To answer
whether our standing requirements are of constitutional dimension
and thus trump the statute, we must review what standing is and
how we have treated it historically.
(a) Standing is necessary to invoke a court’s judicial power,
which at common law required an actual controversy.
Standing is a jurisdictional prerequisite to a plaintiff’s right to
sue. See, e.g., Black Voters Matter Fund Inc. v. Kemp, 313 Ga. 375,
380 (1) (870 SE2d 430) (2022); Ames v. JP Morgan Chase Bank, N.A.,
298 Ga. 732, 740 (3) (d) n.6 (783 SE2d 614) (2016). 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
14
possessed by a branch of state government ⸺ is conferred by our
state constitution. See Thompson v. Talmadge, 201 Ga. 867, 879 (2)
(41 SE2d 883) (1947) (“The departments of the State government
have and can exercise only such power as the people have conferred
upon them by the Constitution.”); Beall v. Beall, 8 Ga. 210, 219
(1850) (“From the Constitution, the legislative department, as well
as every other part of the Government, derives its power[.]”).
Because the Georgia Constitution is the source of the judicial
power of state courts, federal standing requirements do not control
our analysis. Those requirements are grounded in Article III’s
limitation of the federal judicial power to only certain kinds of
“cases” and “controversies.” See U.S. Const. Art. III, Sec. 2, Cl. 1;
Spokeo, Inc., 578 U.S. at 338 (“Standing to sue is a doctrine rooted
in the traditional understanding of a case or controversy.”). From
the “cases” and “controversies” text, the United States Supreme
Court has articulated three standing requirements: (1) an injury in
fact that is “concrete and particularized” (meaning it affects the
plaintiff in “personal and individual way”); (2) a causal connection
15
between the injury and the conduct; and (3) the likelihood that the
injury will be redressed with a favorable decision. See, e.g., Spokeo,
578 U.S. at 338-339; Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-561 (112 SCt 2130, 119 LE2d 351) (1992).
But as a matter of federal law, the “constraints of Article III”
do not apply to state courts. ASARCO Inc. v. Kadish, 490 U.S. 605,
617 (109 SCt 2037, 104 LE2d 696) (1989). The Georgia
Constitution’s Judicial Power Paragraph, Ga. Const. of 1983, Art.
VI, Sec. I, Par. I, does not contain the same “cases” and
“controversies” language found in Article III. See Ga. Const. of 1983,
Art. VI, Sec. I, Par. I. And nothing in the Georgia Constitution
requires that we follow federal law on standing, even though in our
more recent history, this Court has uncritically adopted federal
jurisprudence on the question of standing. See, e.g., Black Voters
Matter Fund, 313 Ga. at 392 (Peterson, J., concurring) (citing cases
from recent decades in which this Court announced new Georgia
16
standing rules by “adopting wholesale” federal precedent).4
Since federal standing doctrine does not control, we must
consider whether the nature of the judicial power that the Georgia
Constitution vests in Georgia courts imposes some standing
requirement. The Georgia Constitution has only one provision
explicitly conferring the state judicial power, and it provides that
“[t]he judicial power of the state shall be vested exclusively in”
certain classes of courts. See Ga. Const. of 1983, Art. VI, Sec. I, Par.
I. The Judicial Power Paragraph has been carried forward without
material change from its initial appearance in the 1798 Constitution
4 Given recent cases from this Court in which we have uncritically
applied federal standing law (including but not limited to cases cited in Black
Voters Matter Fund, 313 Ga. at 392) (Peterson, J., concurring)), it is only fair
to acknowledge that the Court of Appeals was following our lead in relying on
federal precedent in the decision below. This case concerns only whether the
Georgia Constitution requires a particularized injury and does not address our
precedent on other standing issues in which we have relied on federal
jurisprudence (e.g., mootness, redressability, and various federal exceptions to
the ordinary federal rules of standing). We trust that this decision will make
clear that, in the future, Georgia courts should apply principles of federal
standing only to the extent they are (1) following binding precedents of this
Court or (2) considering other federal precedent as persuasive authority only
“to the extent that [those federal] decisions actually were guided by th[e] same
language, history, and context” as that of the relevant state provision. Elliott
v. State, 305 Ga. 179, 188 (II) (C) (824 SE2d 265) (2019).
17
to the current Constitution of 1983. See Ga. Const. of 1798, Art. III,
Sec. I (“The Judicial powers of this State shall be vested in a
Superior Court, and in such Inferior Jurisdictions as the Legislature
shall from time to time ordain and establish.”)5; Ga. Const. of 1861,
Art. IV., Sec. I., Par. I (“The Judicial powers of this State shall be
vested in a Supreme Court for the correction of errors, Superior,
Inferior Ordinary and Justices’ Courts, and in such other courts as
have been or may be established by law.”); Ga. Const. of 1865, Art.
IV., Sec. I., Par. I (materially same with commas added); Ga. Const.
of 1868, Art. V., Sec. I., Par. I (“The Judicial Powers of this State
shall be vested in a Supreme Court, Superior Courts, Courts of
Ordinary, Justices of the Peace, Commissioned Notaries Public, and
such other Courts as have been or may be established by law.”); Ga.
Const. of 1877, Art. VI, Sec. I., Par. I (“The judicial powers of this
State shall be vested in a Supreme Court, Superior Courts, Courts
5By 1835, with the adoption of several amendments, this section of the
1798 Constitution read: “The judicial powers of this State shall be vested in a
Supreme Court for the Correction of Errors, a Superior, Inferior and Justices’
Courts, and in such other courts as the legislature shall, from time to time,
ordain and establish.” See Ga. L. 1811, p. 23; Ga. L. 1835, p. 49.
18
of Ordinary, Justices of the Peace, commissioned Notaries Public,
and such other courts as have been, or may be, established by law”);
Ga. Const. of 1945, Art. VI., Sec. I., Par. I (materially same except
adding Court of Appeals to list of courts); Ga. Const. of 1976, Art.
VI., Sec. I., Par. I (same as 1945); Ga. Const. of 1983, Art. IV., Sec.
I., Par. I (“The judicial power of the state shall be vested exclusively
in the following classes of courts…”).
The presumption of constitutional continuity directs us to
begin with the past:
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.
Elliott v. State, 305 Ga. 179, 183 (II) (A) (824 SE2d 265) (2019). And
to determine that original public meaning, we consider the “common
and customary usages of the words,” as informed by their context,
19
including the broader legal backdrop — constitutional, statutory,
decisional, and common law — in which the text was adopted. See
id. at 187 (II) (B) (citation and punctuation omitted).
Although our search for meaning of constitutional text always
begins with the text itself, in this case the text itself sheds little light
on what standing limitations might be inherent in the judicial
power. 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).
To understand the meaning of this text, we must consider the
legal background against which the original Judicial Power
Paragraph was adopted in the 1798 Constitution, with the common
law providing the most critical context. See State v. Central of Ga.
R. Co., 109 Ga. 716, 728 (35 SE 37) (1900) (“In construing a
constitution, a safe rule is to give its words such significance as they
have at common law; especially if there is nothing in the instrument
to indicate an intention by its framers that the language in question
should have a different construction.”); see also State v. Chulpayev,
20
296 Ga. 764, 780 (3) (a) (770 SE2d 808) (2015) (“The common law of
England as of May 14, 1776, has long been the backstop law of
Georgia[.]””) (citation omitted). A review of the common law suggests
that plaintiffs seeking to require local governments to follow the law
generally were not required to show an individualized injury.
At common law, courts possessed broad power to adjudicate
suits involving private rights — those belonging to an individual as
an individual. See 3 William Blackstone, Commentaries on the Laws
of England 2 (Robert Bell ed., 1772). Resolving private-rights
disputes has been historically recognized as “the core” of judicial
power. See, e.g., Northern Pipeline Const. Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 70 (102 SCt 2858, 73 LE2d 598) (1982), superseded
on other grounds by statute, as stated in Wellness International
Network, Ltd. v. Sharif, 575 U.S. 665, 670-671 (135 SCt 1932, 191
LE2d 911) (2015); 3 Blackstone 2 (“The more effectually to
accomplish the redress of private injuries, courts of justice are
instituted in every civilized society[.]”); see also Spokeo, 578 U.S. at
344 (Thomas, J., concurring) (“Historically, common-law courts
21
possessed broad power to adjudicate suits involving the alleged
violation of private rights[.]”). And as we see below in Division (2)
(b), a violation of a private right was understood to carry with it
some injury sufficient for standing, even if the amount of injury was
minimal.
When it came to public wrongs — i.e., violations of public rights
and duties that affected the “whole community, considered as a
community,” 3 Blackstone 2 — common law courts also had
authority to adjudicate these public wrongs. Not every person could
bring a case to vindicate those public rights, however. Sir William
Blackstone, who we have long accepted as the leading authority on
the common law,6 described most of these public wrongs as “crimes
and misdemeanors,” and stated that the king, who “is supposed by
the law to be the person injured by every infraction of the public
right belonging to that community,” is the “proper prosecutor” to
vindicate those public wrongs. See 3 Blackstone 2; 4 Blackstone 2.
6See, e.g., Undisclosed LLC v. State, 302 Ga. 418, 425 (3) (a) & n.8 (807
SE2d 393) (2017).
22
But not every public wrong was necessarily a crime or
misdemeanor. Sometimes the sovereign’s subordinate authorities,
essentially what we would now call local governments, violated
public duties. And the common law recognized several “prerogative”
(or extraordinary) writs — e.g., mandamus, injunction, habeas
corpus, prohibition7 — belonging to the king that were “necessary to
control subordinate functionaries and authorities,” Jackson v.
Calhoun, 156 Ga. 756, 759 (120 SE 114) (1923), “through Courts of
Justice,” Moody v. Fleming, 4 Ga. 115, 119 (1848). See also State v.
Stevens, 116 P 605, 607 (Nev. 1911) (noting that prerogative writs
originated from the “authority of the king, delegated to his courts, .
. . to perfect the administration of his justice, and the control of
subordinate functionaries and authorities. By the writ of mandamus
he commanded what ought to be done, and by the writ of prohibition
he forbade what ought not to be done[.]”). As one scholar explained,
The prerogative writs, in their origin and until the middle
7The “writs include, inter alia, certiorari, injunction, habeas corpus,
mandamus, ne exeat, prohibition, and quo warranto.” Morrow v. District of
Columbia, 417 F2d 728, 733 (D.C. Cir. 1969).
23
of the nineteenth century, were used primarily to control
authorities below the level of the central government. . . .
It was, for the most part, the local organs of government
which were reached by the writs, but there were included
as well all bodies — the colleges, for example — deriving
powers from statute, decree, or charter.
Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions,
74 Harv. L. Rev. 1265, 1269-1270 (1961).
The exact requirements for pursuing such writs is unnecessary
to examine here, but several authorities note that “the English
practice was to allow strangers to have standing in the many cases
involving the ancient prerogative writs.” Cass R. Sunstein, What’s
Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III,
91 Mich. L. Rev. 163, 171 (1992); see also Jaffee, 74 Harv. L. Rev. at
1274-1275. It is not clear what these authorities mean by
“strangers,” but in context, they appear to be referring to parties
who did not suffer any unique, individualized harm. See Sunstein,
91 Mich. L. Rev. at 171-172, 177 (“The relevant [early English and
American practices] suggest [that] . . . people have standing if the
law has granted them a right to bring suit. There is no authority to
24
the contrary before the twentieth century[.]”); Jaffee, 74 Harv. L.
Rev. at 1274-1275 (the “so-called ‘strangers’ . . . were technical
strangers to the record but otherwise persons with a special
interest”). And nothing cited in those authorities suggest that any
person not subject to the king’s rule could invoke the king’s power to
control the subordinate functionaries and authorities of the king.
In summary, common law courts had the power (i.e., judicial
power) to adjudicate private rights, to adjudicate public wrongs in
the nature of crimes, and to issue prerogative writs to control the
Crown’s subordinates. As we will explain below, our case law is
generally consistent with that common law: To invoke the state’s
judicial power, there must be some injury, but in most local
government cases involving public rights, such injury need not be
unique to the plaintiff when a member of the relevant community
seeks relief.
(b) Our case law reflecting the historical understanding of a
court’s “judicial power” is another contextual clue to the meaning of
the Judicial Power Paragraph.
Despite the absence of an explicit limitation on judicial power
25
to “cases” and “controversies” in the Georgia Constitution’s Judicial
Power Paragraph, with the common law serving as our backstop, 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.” Thompson, 201 Ga. at 874
(1) (quoting State v. Dews, R. M. Charlton Rep. 397, 400 (Ga. Super.
Ct. 1835)).8
We recognized early in our Court’s history that this power is
limited to deciding genuine “controversies.” See, e.g., Philadelphia
Underwriters v. Folds, 156 Ga. 773, 776 (120 SE 102) (1923); Gas-
Light Co. of Augusta v. West, 78 Ga. 318, 319 (1886); see also Gilbert
v. Thomas, 3 Ga. 575, 579-580 (1847) (“The term ‘judicial powers,’
8This Court was constitutionally authorized in 1835 and then statutorily
created by the General Assembly in 1845, and our first opinions were handed
down in 1846. But those were not the first reported Georgia opinions. Certain
decisions of Georgia’s superior courts from as early as 1805 were collected and
reported over several decades by Thomas U.P. Charlton, Robert M. Charlton,
and George M. Dudley. Until the creation of this Court, there was no appeal
above the superior court.
26
embraces all cases, criminal and civil, at common law and in equity,
and the legislature in regulating them, were authorized to make any
arrangement of them not repugnant to the constitution.”). Although
these early cases did not explicitly involve the interpretation of the
Judicial Power Paragraph, they are nevertheless instructive of how
the scope of judicial power was understood when the Judicial Power
Paragraph was carried forward into the 1945, 1976, and 1983
Constitutions. Cf. Elliott, 305 Ga. at 182-187 (II) (A) – (B) (a
constitutional provision that remains materially unchanged is
presumed to carry forward its meaning).
Our recognition that the judicial power is limited to genuine
controversies is a consistent theme in our case law. See Shippen v.
Folsom, 200 Ga. 58, 59 (4) (35 SE2d 915) (1945) (noting that even if
the Declaratory Judgment Act did not expressly limit relief to “cases
of actual controversy,” such a “limitation is generally implied and
observed by the courts both in America and in England” (citation
and punctuation omitted)).
For an actual controversy to exist, a party must have some
27
right at stake that requires adjudication to protect it. See Pilgrim v.
First Nat. Bank of Rome, 235 Ga. 172, 174 (219 SE2d 135) (1975) (“It
may be stated as a general rule . . . that the parties seeking to
maintain the action must have the capacity to sue, and must have a
right which is justiciable and subject to a declaration of rights, and
it must be brought against an adverse party with an antagonistic
interest.” (citation and punctuation omitted)); Braswell v. Equitable
Mortgage Co., 110 Ga. 30, 33 (35 SE 322) (1900) (“As a general rule,
no one can be a party to an action if he has no interest in the cause
of action; and in order for a plaintiff in error to succeed in this court,
he must show, not only error, but injury. This court is not an
expounder of theoretical law, but it administers practical law, and
corrects only such errors as have practically wronged the
complaining party”); Brown v. City of Atlanta, 66 Ga. 71, 76 (1880)
(same);9 see also Southeastern Greyhound Lines v. Georgia Pub.
9 This rule applied in the appellate context as well, requiring dismissal
of appeals where the plaintiff has no injury that can be redressed by the
outcome of a decision. See, e.g., Cooper Motor Lines, Inc. v. B. C. Truck Lines,
Inc., 215 Ga. 195, 195 (2) (109 SE2d 689) (1959) (plaintiff’s contractual rights
28
Serv. Commn., 181 Ga. 75, 78-79 (181 SE 834) (1935) (“To adjudicate
upon and protect the rights and interests of individual citizens, and
to that end to construe and apply the laws, is the peculiar province
of the judicial department. (citation and punctuation omitted)”); Low
v. Towns, 8 Ga. 360, 368 (1850) (the judiciary is the “legitimate and
appropriate” branch to adjudicate the “vested rights of individuals,
when acquired under the Constitution and laws of the land”).
The rule that an actual controversy must exist in order to sue
also appears in our considerable body of precedent holding that
courts lack the power to issue advisory opinions. See, e.g., McDowell
v. Judges Ex Officio, 235 Ga. 364, 365 (219 SE2d 713) (1975) (“Not
even in a declaratory judgment action is the court permitted to
render an advisory opinion.”); Bd. of Commissioners v. Dept. of
Public Health, 229 Ga. 173, 175-176 (2) (190 SE2d 39) (1972) (“In
were “in no way” prejudiced by the judgment and, therefore, the plaintiff had
no right to bring appeal); First Nat. Bank of Rome v. Yancey, 207 Ga. 437, 437
(62 SE2d 179) (1950) (“‘It has, we believe, ever been the law, both in this state
and in other jurisdictions, that a party not aggrieved by the judgment of a trial
court is without legal right to except thereto, since he has of it no just cause of
complaint.” (citations and punctuation omitted)).
29
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,
221 Ga. 408, 410 (1) (144 SE2d 765) (1965) (“This 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 SE 239) (1930)
(“However much this court might be disposed to decide the abstract
question presented, . . . we are without jurisdiction to do so in the
present case.”).10
10 The limitations on the judicial power prevent us from rendering
advisory opinions on Georgia law. In contrast, we do have the power to issue
advisory opinions regarding the Georgia Rules of Professional Conduct (which
govern lawyers) and the Georgia Code of Judicial Conduct (which governs
judges). See In re Judicial Qualifications Commn. Formal Advisory Opinion
No. 239, 300 Ga. 291, 292-297 (1) (794 SE2d 691) (2016); In re UPL Advisory
30
Historically, we recognized that the violation of a private right
was sufficient to invoke the judicial power of state courts. Even if
the plaintiff alleged only that his or her private rights were violated,
the plaintiff had standing to sue, because damages (even if only
nominal ones) flowed from the violation of one’s rights. See Hendrick
v. Cook, 4 Ga. 241, 263-264 (4) (1848) (adopting Justice Story’s
answer to the question of “injury without damage,” in which, after
considering common law cases, he concluded that “[a]ctual
perceptible damage is not indispensable as the foundation of an
action. The law tolerates no further inquiry, than whether there has
been the violation of a right; if so, the party injured is entitled to
maintain his action for nominal damages, in vindication of his right,
if no other damages are fit and proper, to remunerate him”
Opinion 2003-2, 277 Ga. 472, 472-473 (588 SE2d 741) (2003). The difference
arises from the fact that the Georgia Constitution vests in the General
Assembly (with the concurrence of the Governor, or a two-thirds vote to
override a veto) the exclusive power to make law, see Ga. Const. of 1983, Art.
III, Sec. I, Par. I; id. at Sec. V, Par. XIII; but the Constitution vests in us as an
incident of the judicial power the exclusive power to regulate the practice of
law and to promulgate the Code of Judicial Conduct. Accordingly, advisory
opinions interpreting those rules that we have made are a further exercise of
the incidental judicial power, not an arrogation of the legislative power.
31
(emphasis in original)). Thus, what has been deemed essential to
invoking the judicial power of Georgia courts is not the nature or
extent of a plaintiff’s damages, but the violation of a right, as
adjudicating these rights is what holds a defendant accountable. See
Williams v. Harris, 207 Ga. 576, 579 (2) (63 SE2d 386) (1951) (“The
law infers some damage from the invasion of a property right; and if
no evidence is given of any particular amount of loss, it declares the
right by awarding what it terms ‘nominal damages.’” (citations
omitted)); Pavesich v. New England Life Ins. Co., 122 Ga. 190, 201-
202 (50 SE 68) (1905) (A direct invasion of a legal right of the
individual “is a tort, and it is not necessary that special damages
should have accrued from its violation in order to entitle the
aggrieved party to recover.”); Foote & Davies Co. v. Malony, 115 Ga.
985, 988 (42 SE 413) (1902) (“Nominal damages are not given as
compensation for the breach of a contract, but simply in vindication
of the right of a person who brings an action upon a good cause, but
fails to prove that he has sustained any actual damage, and to
prevent his being mulcted in the costs after he has established his
32
cause of action.”); Eiswald v. S. Exp. Co., 60 Ga. 496, 498 (1878) (in
tort actions, a new trial will be granted where nominal damages
were improperly disallowed, because “the mere branding of the
defendant’s act as a wrong may be of future consequence to the
plaintiff in the matter of upholding the right involved”).
This consistent approach to the power of courts serves as
substantial background against which the Judicial Power
Paragraph was readopted into the 1983 Constitution. It also
warrants noting that many of these common-law principles were
eventually codified. See, e.g, OCGA §§ 9-2-3 (“For every right there
shall be a remedy; every court having jurisdiction of the one may, if
necessary, frame the other.”); 44-12-21 (“For every violation of an
express or implied contract and for every injury done by another to
one’s person or property, the law gives a right to recover and a
remedy to enforce it. The right is a chose in action, and the remedy
is an action at law.”).
As discussed in more detail below, our case law on the
violations of public rights by local governments — rights that are
33
shared by the “People in common”11 — is no different. When a local
government owes a legal duty to its citizens, residents, taxpayers, or
voters (i.e., community stakeholders), the violation of that legal duty
constitutes an injury that our case law has recognized as conferring
standing to those community stakeholders, even if the plaintiff at
issue suffered no individualized injury. One such duty is the general
duty to follow the law. But if the plaintiff is not a community
stakeholder, a local government’s duty to follow the law is not owed
to that plaintiff; the plaintiff suffers no cognizable injury as a result
of a violation of that duty; and the uninjured plaintiff cannot bring
suit for that violation.12
(c) Our case law shows that, even for public rights, the
plaintiff must show the violation of a right to have a cognizable
injury to establish standing.
As mentioned above, common law courts had the authority to
adjudicate cases involving public rights. The most notable example
11 Deal v. Coleman, 294 Ga. 170, 178-181 (2) (a) (751 SE2d 337) (2013)
(distinguishing between private and public rights).
12 As we explain in more detail later, see footnote 18, whether a plaintiff
has standing to sue their local government is a separate question from whether
the suit is barred by sovereign immunity.
34
mentioned were criminal prosecutions, but the common law also
permitted proceedings to control the actions of the Crown’s
subordinates that harmed the sovereign. These two types of public
rights cases persist in Georgia’s legal system, and both types require
a legal injury. In particular, criminal statutes are designed to
protect person and property, among other things, and the violation
of such statutes harms both the victim and the public at large.
Because the public is harmed, the State, as the sovereign, is the
proper party to prosecute crimes. See Anthony v. Am. Gen. Financial
Servs., 287 Ga. 448, 457 (2) (a) (697 SE2d 166) (2010) (“‘[C]riminal
statutes . . . create rights in favor of the general public, not just
individuals damaged by their violation[,]’” and so criminal victims
cannot maintain a private cause of action unless statutorily
authorized) (quoting Jastram v. Williams, 276 Ga. App. 475, 476
(623 SE2d 686) (2005)); Ambles v. State, 259 Ga. 406, 406-407 (1)
(383 SE2d 555) (1989) (“The [S]tate has both the duty and the right
to protect the security of its citizens by prosecuting crime.” (citing
Georgia Const. of 1983, Art. I, Sec. I, Par. II)). It should go without
35
saying that the State cannot criminally prosecute someone who has
not violated a criminal statute and thereby injured the public.
For non-criminal cases involving a public right, our case law
requires some injury, even if a plaintiff does not assert a
constitutional challenge to a statute.13 For these types of public-
rights disputes, the injury can be a generalized one that affects the
public at large and is not unique to the plaintiff. We acknowledge
that we have often been imprecise in describing the characteristics
of a plaintiff who is injured by the violation of a public right
13 We have long held that Georgia courts may not decide the
constitutionality of statutes absent an individualized injury to the plaintiff.
See, e.g., Plumb v. Christie, 103 Ga. 686, 692 (30 SE 759) (1898); Reid v. Town
of Eatonton, 80 Ga. 755, 757 (6 SE 602) (1888); Taylor v. Flint, 35 Ga. 124, 127
(3) (1866); Scoville v. Calhoun, 76 Ga. 263, 269 (1886). This standing rule has
been applied repeatedly. See, e.g., Mason v. Home Depot U.S.A., Inc., 283 Ga.
271, 273 (1) (658 SE2d 603) (2008); Lambeth v. State, 257 Ga. 15, 16 (354 SE2d
144) (1987); St. John’s Melkite Catholic Church v. Commr. of Rev., 240 Ga. 733,
735 (3) (242 SE2d 108) (1978); Northeast Factor & Discount Co. v. Jackson, 223
Ga. 709, 711 (1) (157 SE2d 731) (1967); South Ga. Natural Gas Co. v. Ga. Pub.
Serv. Commn., 214 Ga. 174, 175 (1) (104 SE2d 97) (1958). This kind of
individualized injury appears similar to the injury-in-fact required federally.
See Black Voters Matter Fund, 313 Ga. at 399-400 (Peterson, J., concurring).
Because the Plaintiffs are not challenging the constitutionality of a statute, it
is not necessary to decide whether this individualized-injury requirement for
constitutional challenges to statutes is of a constitutional dimension. And
nothing in this opinion should be understood to undermine in any way our
longstanding case law articulating this requirement.
36
sufficiently to bring a claim. We have used the terms “citizen,”
“resident,” “taxpayer,” and “voter” — sometimes in isolation,
sometimes together, and sometimes interchangeably — as a basis
for standing. Although our descriptions have differed from case to
case, the underlying principle is that people with a meaningful stake
in their community are injured when their local governments violate
the legal duty to follow the law.
(i) Taxpayer status was the first status to be recognized as
conferring standing to sue local governments for generalized
grievances.
With the backdrop of the prerogative writs used to control local
government action, early in this Court’s history, we entertained the
possibility of intervening in government action where there was
evidence of fraud or corruption, but declined to do so where those
allegations were inadequate. See Wells v. Mayor & Council of
Atlanta, 43 Ga. 67, 78 (1)-(2) (1871) (after concluding that mayor and
council had the authority to enter into the challenged contract,
holding that it was improper for a court to interfere into contract
where “loose charges of fraud and corruption” were “too vague to
37
justify any serious consideration”). Although Wells suggested that
judicial intervention could be proper under different circumstances,
we did not expressly hold so until 1897, when this Court explicitly
held that where a taxpayer alleges that a government officer exceeds
his legal authority and that action harms the general public, the
taxpayer can bring suit against the government, even though no
special injury may accrue to the plaintiff. See Keen v. City of
Waycross, 101 Ga. 588, 592-594 (3) (29 SE 42) (1897); see also Koger
v. Hunter, 102 Ga. 76, 79-80 (29 SE 141) (1897) (trial court erred in
denying taxpayers’ petition to enjoin county commissioners from
misappropriating county funds).
In Keen, this Court recognized the “prevailing rule” that “any
property-holder or municipal taxpayer” had the right ⸺ not
conferred by statute ⸺ to “enjoin municipal corporations and their
officers from transcending their lawful powers or violating their
legal duties in any mode which will injure the taxpayers[.]” See
Keen, 101 Ga. at 592-593 (citation and punctuation omitted). Keen
reasoned that taxpayers of a municipality were in a similar position
38
to and had interests similar in nature to that of private corporation
stakeholders (creditors and stockholders) and, therefore, should
have the same ability (i.e., standing) as private corporation
stakeholders to “attend their own interests,” those being to prevent
through litigation the illegal acts of municipal authorities, which
would otherwise cause loss and expense that taxpayers would
ultimately bear. Id. at 593.
This Court then routinely began applying Keen’s rule to allow
taxpayers to sue both cities and counties for alleged ultra vires
actions, even without necessarily alleging an injury to the taxpayer,
when it was clear that the ultra vires action would create an illegal
debt, cause illegal expenses to be incurred, result in increased taxes,
or misappropriate public funds. See, e.g., Mitchell v. Lasseter, 114
Ga. 275, 281 (40 SE 287) (1901) (“Any taxpayers of the county had a
right to apply to a court of equity to prevent the county
commissioners from making contracts which they had no authority
to make.”); City of Americus v. Perry, 114 Ga. 871, 884-885 (6) (40
SE 1004) (1902) (allowing suit to challenge ultra vires actions,
39
“which, if carried into effect, would either result in a
misappropriation of public funds or entail upon the taxpayers of the
city the expense of litigating with persons who might hold claims
against the city under the invalid ordinances”); Clark v. Cline, 123
Ga. 856, 864 (51 SE 617) (1905) (taxpayers could sue to enjoin county
from making illegal payments to city school system because
taxpayer’s contribution to public fund constituted a “pecuniary
interest” that authorized him prevent “illegal diversion” of public
funds); Fluker v. City of Union Point, 132 Ga. 568, 570 (64 SE 648)
(1909) (noting well-established rule that “taxpayer may enjoin
municipal corporations and their officers from making an
unauthorized appropriation of the corporate funds or an illegal
disposition of the corporate property”); Dancer v. Shingler, 147 Ga.
82, 84 (92 SE 935) (1917) (taxpayers can enjoin county board
members from executing illegal contract that would expend money
of taxpayers or incur indebtedness).
But early on, the plaintiff’s status as a taxpayer was
insufficient to confer standing where the record did not show a
40
potential injury to the public treasury or a tax increase. See Morris
v. City Council of Augusta, 201 Ga. 666, 669-670 (1) (40 SE2d 710)
(1946) (distinguishing many cases where this Court had allowed
taxpayer suits from cases not allowed because they did not show
“that the party suing as a taxpayer was in danger of injury through
loss of public funds or property”); Blanton v. Murray, 116 Ga. 288,
290 (1) (42 SE 211) (1902) (concluding that taxpayers lacked
standing to enjoin public officials from operating dispensary
allegedly in violation of town charter because the record showed that
the dispensary was being operated at no cost to the town and
“without any possibility of the town ever becoming indebted” for its
operation); Mayor & Council of Gainesville v. Simmons, 96 Ga. 477,
480 (3) (23 SE 508) (1895) (as city taxpayers, plaintiffs could not
complain that county’s payments to the city for support and
maintenance of public schools was illegal, because the funds would
benefit, rather than harm, the taxpayers because the funds would
reduce, rather than increase, local taxes).
41
Keen’s rule recognized that taxpayers, as community
stakeholders, had standing to sue for injuries that affected the
public at large, so long as there was some potential injury to the
public purse. And this rule has been consistently followed for over a
century. See, e.g., Williams v. DeKalb County, 308 Ga. 265, 272 (3)
(b) (ii) (840 SE2d 423) (2020) (noting that, under Georgia law, the
plaintiff’s “status as a taxpayer generally affords him standing to
seek to enjoin the unlawful expenditure of public funds” (emphasis
added)); Lowry v. McDuffie, 269 Ga. 202, 204 (1) (496 SE2d 727)
(1998) (in a suit against the state revenue commissioner and a
county tax commissioner, holding that “a taxpayer has standing to
contest the legality of the expenditure of public funds of a
municipality”); Savage v. City of Atlanta, 242 Ga. 671, 671-672 n.1
(251 SE2d 268) (1978) (concluding that the plaintiff, as a taxpayer
of the City of Atlanta, had standing to seek injunction to prevent the
City’s commissioner of finance from paying out public funds under
the authority of certain ordinances); King v. Herron, 241 Ga. 5, 6 (1)
(243 SE2d 36) (1978) (“[A] citizen or taxpayer of a municipality has
42
standing to question the legality of the expenditure of public funds
of the municipality even if such funds are derived solely from license
fees, fines, or grants from state or federal sources.”); Barge v. Camp,
209 Ga. 38, 43 (1) (70 SE2d 360) (1952) (“This court has many times
held that citizens and taxpayers of both counties and municipalities
have such interest as will authorize them to maintain actions to
enjoin the unlawful disposition of public funds or property.”).
(ii) The plaintiff’s status as a citizen or resident can provide a
cognizable injury sufficient to establish standing.
Around the same time Keen was decided, however, we also
recognized that resident “taxpayers” had standing to sue for
generalized grievances that did not directly implicate tax dollars or
public property, causing a fair amount of confusion in our case law.
In Board of Commissioners of City of Manchester v. Montgomery, 170
Ga. 361 (153 SE 34) (1930), “residents and taxpayers” of a city
brought suit against city commissioners for mandamus to compel
them to perform the duty of selecting a city manager. Id. at 365.
43
While noting mandamus actions required a particularized injury for
enforcement of private rights, we concluded that
where the question is one of public right, and the object of
the mandamus is to procure the enforcement of a public
duty, the relator need not show that he has any legal or
special interest in the result, it being sufficient that he is
interested in having the laws executed, and the duty in
question enforced.
Id. at 366. Although the “residents and taxpayers” did not appear to
suffer any individualized injury as a result of the failure to select a
city manager, this failure violated a duty owed to the public at large,
providing the generalized injury to establish the plaintiffs’ standing.
The principle recognized in Montgomery was soon codified, see
Code of 1933, § 64-104,14 and is now found in OCGA § 9-6-24, which
provides:
14 It is important for modern readers to understand the differences
between current codification practices and the practices employed in our early
codes. Current codification practices are generally limited to incorporating acts
of the General Assembly. See OCGA §§ 1-1-1; 1-1-2; 28-9-5. Early codification
practices were very different. As exemplified by the Act of the General
Assembly providing for what would become the Code of 1863, early codes were
generally designed to, “as near as practicable, embrace in a condensed form,
the Laws of Georgia, whether derived from the Common Law, the Constitution
of the State, the Statutes of the State, the Decisions of the Supreme Court, or
the Statutes of England of force in this State[.]” Ga. L. 1858, p. 95. In practice,
44
Where the question is one of public right and the object is
to procure the enforcement of a public duty, no legal or
special interest need be shown, but it shall be sufficient
that plaintiff is interested in having the laws executed
and the duty in question enforced.
Although Montgomery was a mandamus case, and OCGA § 9-6-24 is
found in a part of the Georgia Code dealing with mandamus, we
have applied this general rule more broadly. See Head v. Browning,
215 Ga. 263, 266-267 (2) (109 SE2d 798) (1959), abrogation in part
on other grounds recognized by SJN Properties, LLC v. Fulton
County Bd. of Assessors, 296 Ga. 793, 799 (2) (b) (ii) n.6 (770 SE2d
832) (2015); see also Moore v. Robinson, 206 Ga. 27, 36-37 (1) (55
SE2d 711) (1949) (applying rule to allow for injunctive relief).
The taxpayer standing rule expressed by Keen appears similar
to Montgomery’s rule now set forth in OCGA § 9-6-24, but it is
this meant that many statutes appeared in those codes that had never been
individually enacted by the General Assembly; instead, they were legal
principles often derived from decisions of this Court. OCGA § 9-6-24 is one of
those; indeed, in the 1933 Code where section 64-104 appears, instead of citing
an act of the General Assembly that enacted the statute, the Code cited only
Montgomery.
45
different.15 Keen’s rule required an injury to the public purse in order
to allow a taxpayer suit to proceed, whereas Montgomery expressed
a relaxed standing requirement to allow citizen/residents suits if the
plaintiff “is interested in having the laws executed, and the duty in
question enforced.” 170 Ga. at 366
Because we have used the term “taxpayer” loosely in many
cases, it has not always been clear what, if any, injury we required
to establish standing. See City of East Point v. Weathers, 218 Ga.
133, 135 (126 SE2d 675) (1962) (noting a line of cases, based on
predecessor to OCGA § 9-6-24, that did not require taxpayer to show
a special injury to sue, and another line of cases requiring some
generalized damage to the taxpayer through creation of illegal debt,
misappropriation of public funds, and the like).16 But Montgomery
15 See, e.g., Williams, 308 Ga. at 272-274 (3) (b) (i) - (ii) (separately
analyzing both taxpayer-injury standing and citizen standing under OCGA §
9-6-24); Gaddy v. Ga. Dept. of Revenue, 301 Ga. 552, 555-560 (1) (802 SE2d
225) (2017) (same).
16 Weathers also noted a third line of cases that required a citizen-
taxpayer to establish a “peculiar and special interest not shared by the general
public” in order to have standing, but the cited cases do not appear to involve
allegations that the government actions were ultra vires and instead involved
claims more akin to public nuisance actions, which do require such a showing
46
was really not a taxpayer case in the sense that Keen was, because
there was no suggestion in Montgomery that merely failing to select
a city manager would cause any harm to the public purse. Because
Montgomery was not about tax dollars (which would be a Keen-type
case), our use of the term “taxpayers” in Montgomery, combined with
our use of the term “residents,” is best understood as capturing the
interest that community stakeholders have in ensuring that their
local governments follow the law and the cognizable injury to the
members of that community when such a government does not.
Following Montgomery — and consistently through the
adoption of the 1983 Constitution — we have cited its rule,
sometimes with hints of applying Keen’s rule, as providing the basis
for standing for a “taxpayer,” even in cases where no tax dollars were
directly implicated. See League of Women Voters v. City of Atlanta,
of a special injury. See Perkins v. Mayor and Council of Madison, 175 Ga. 714,
718-719 (165 SE 811) (1932) (citizen-suit to enjoin city defendants from
removing shrubs, trees, sidewalks, and fountain from city park and otherwise
interfering with use of land by the public as a park); Alexander v. Citizens and
S. Nat. Bank, 212 Ga. 295, 295 (1) (92 SE2d 16) (1962) (citing only Perkins to
conclude that citizen-taxpayer lacked standing to sue to enjoin changing a
structure on city lot).
47
245 Ga. 301, 303-304 (1) (264 SE2d 859) (1980) (“We hold that the
plaintiffs have standing to bring this suit. In this state, it is
established that a citizen and taxpayer of a municipality, without
the necessity of showing any special injury, has standing to sue” to
challenge city council committee appointments as ultra vires actions
by municipal officer); Stephens v. Moran, 221 Ga. 4, 4-5 (1) (142
SE2d 845) (1965) (relying on case law applying predecessor statute
to conclude that “[t]he plaintiff, as a citizen of such state, county and
municipality, is interested in having the laws executed and the duty
in question enforced”) (citing Thomas v. Ragsdale, 188 Ga. 238 (3
SE2d 567) (1939), which cited former code § 64-104 to conclude that
citizen had interest in having laws executed); Head, 215 Ga. at 265-
266 (2) (taxpayers had standing to seek to enjoin State Revenue
Commissioner from issuing liquor license to defendant); Heard v.
Pittard, 210 Ga. 549, 551 (81 SE2d 799) (1954) (“In so far as the
allegations of the petition relate to the Sheriff of the City Court of
Buford and the citizens and taxpayers residing within the
jurisdiction of the City Court of Buford, the allegations are sufficient
48
to bring the petition within the rule stated in Code, § 64-104[.]”);
Colston v. Hutchinson, 208 Ga. 559, 561 (67 SE2d 763) (1951);
Screws v. City of Atlanta, 189 Ga. 839, 842 (1) (8 SE2d 16) (1940)
(citizen-taxpayer of Atlanta had sufficient injury to maintain suit to
compel city to collect for water furnished to a group for commercial
purposes). Because these cases invoked OCGA § 9-6-24 (or its
predecessor), the plaintiff’s status as a member of the community
was dispositive of standing.17
17 Sometimes the violation of a duty is enough to provide standing to
community stakeholders, but certain statutes may require more for standing.
For example, in instances of public nuisances, there is a standing test that has
long been engrained into statute and derives from the common law, requiring
a plaintiff to allege a “special” or “extraordinary” damage not common to the
rest of the public. See OCGA § 41-1-3 (the text, which has not materially
changed since it was codified in 1863, provides that “if a public nuisance in
which the public does not participate causes special damage to an individual,
such special damage shall give a right of action”); see also Coast Line R. Co. v.
Cohen, 50 Ga. 451, 461 (1873) (“The decisions of the Courts, both in England
and America, are quite uniform, that in the case of a purely public nuisance,
where no private person receives damage special to himself, the Courts will not
interfere, either to enjoin or abate, at the suit of a private individual.”).
Similarly, to challenge a zoning decision, plaintiffs are required, by statute, to
demonstrate a substantial interest that was in danger of suffering a special
damage not common to all similarly situated property owners. See Stuttering
Foundation, Inc. v. Glynn County, 301 Ga. 492, 494 (2) (a) & n.4 (801 SE2d
793) (2017); Massey v. Butts County, 281 Ga. 244, 245-248 (637 SE2d 385)
(2006).
49
(iii) Following adoption of 1983 Constitution, we continued to
recognize that community stakeholders, even as “voters,” had
standing.
With all of the prior case law regarding citizen-taxpayer
standing as the legal backdrop against which the Judicial Power
Paragraph was readopted as part of the 1983 Constitution, it is no
surprise that we continued to recognize under the current
Constitution that taxpayers and citizens have standing to enforce a
public duty. See, e.g., SJN Properties, 296 Ga. at 799 (2) (b) (ii)
(“SJN, as a citizen and taxpayer of Fulton County, clearly has
standing to seek” mandamus relief against the county related to the
method for treating certain properties as tax exempt); Arneson v.
Bd. of Trustees of Employees’ Retirement System of Ga., 257 Ga. 579,
579-580 (1)-(3) (361 SE2d 805) (1987) (four taxpayers would have
had standing to challenge state entity’s disposition of retirement
benefits if the questioned acts were ultra vires), abrogated on other
grounds recognized by SJN Properties, 296 Ga. at 799 (2) (b) (ii) n.6.
And it is unsurprising that we have extended this logic to
“voters,” because they, like citizens and taxpayers, are community
50
stakeholders. Voters may be injured when elections are not
administered according to the law or when elected officials fail to
follow the voters’ referendum for increased taxes to fund a particular
project, so voters may have standing to vindicate public rights. See,
e.g., Barrow v. Raffensperger, 308 Ga. 660, 667 (2) (b) (842 SE2d 884)
(2020) (plaintiff’s claim that cancellation of election violated the law
was a sufficient injury to a voter, even without an injury that was
“special” to her, for voter to have standing to bring mandamus claim
to compel election); Rothschild v. Columbus Consol. Govt., 285 Ga.
477, 479-480 (678 SE2d 76) (2009) (plaintiffs’ allegations that
defendants failed to perform public duty promised to voters was
sufficient to establish standing); Manning v. Upshaw, 204 Ga. 324,
326 (49 SE2d 874) (1948) (plaintiff, as a “citizen and a voter” of
Alpharetta, may maintain a petition for mandamus to compel the
mayor and city council members to call for an election to elect their
successors).
Although the terms “citizens” and “residents” are perhaps more
precise (or less confusing) in cases involving a public duty, these
51
types of cases reflect that community stakeholders — citizens,
residents, voters, and taxpayers — are injured when their local
governments do not follow the law.18 Where a public duty is at stake,
a plaintiff’s membership in the community provides the necessary
standing to bring a cause of action to ensure a local government
follows the law.19 See Arneson, 257 Ga. at 580 (2) (c) (“Public
responsibility demands public scrutiny.”).
18 Whether a plaintiff has standing to sue and whether sovereign
immunity bars a suit are separate questions. As we have previously
recognized, some of these and similar cases no longer remain good law to the
extent that sovereign immunity bars such suits, but these cases remain good
law to the extent they “simply confirmed a taxpayer’s standing to seek to
enforce a public duty by way of some viable cause of action.” SJN Properties,
296 Ga. at 799 (2) (b) (ii) n.6 (emphasis in original); see also Williams, 308 Ga.
at 273 (3) (b) (ii) n.13; Layer v. Barrow County, 297 Ga. 871, 871 (1) (778 SE2d
156) (2015) (sovereign immunity applies to suits against county officers sued
in their official capacities). We should also note that each of these sovereign
immunity cases were decided before the adoption of the new sovereign-
immunity waiver provision allowing for actions seeking declaratory relief. See
Ga. Const. of 1983, Art. I, Sec. II, Par. V (b).
19 These cases arise in the context of suits against local governments
involving a public duty. Both our reasoning and our holding regarding standing
is limited to suits against local governments. In other words, we merely hold
that a cognizable injury, even a generalized one, is constitutionally required
and that a community stakeholder suffers such an injury when their local
government fails to follow the law. Whether the same principle would hold true
for suits against state government entities raises separation of powers
questions beyond the scope of our decision today, given that the Georgia
Constitution’s Separation of Powers Provision does not apply to local
governments. See Ga. Const. of 1983, Art. V, Sec. II, Par. II (“The Governor
52
To recap from our discussion above, 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
shall take care that the laws are faithfully executed and shall be the
conservator of the peace throughout the state.”); Ward v. City of Cairo, 276 Ga.
391, 392-393 (1) (583 SE2d 821) (2003) (Separation of Powers Clause of Georgia
Constitution does not apply to municipal offices); Building Authority of Fulton
County v. State, 253 Ga. 242, 247 (5) (321 SE2d 97) (1984) (Separation of
Powers Clause applies only to the State, not to cities or counties); Ford v.
Mayor & Council of Brunswick, 134 Ga. 820, 821 (68 SE 733) (1910) (same as
Ward); cf. Sierra v. City of Hallandale Beach, 996 F3d 1110, 1119 (11th Cir.
2021) (Newsom, J., concurring) (citing Lujan to argue that permitting
legislature to allow cause of action that would allow judicial oversight into
executive branch’s constitutional duty to “execute” the laws would violate
separation of powers).
Moreover, because this case is only about suits against local
governments, we decide nothing today about the legislature’s authority to
create an individualized injury-free cause of action against private parties.
53
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. The Plaintiffs do not argue — much less
support such an argument with authority — that standing can be
established in the absence of a cognizable injury. We are aware of no
line of authority supporting the idea that Georgia courts have the
authority to resolve a dispute where no rights are violated or injury
suffered. And indeed, obviating the cognizable-injury requirement
would run afoul of the strict prohibition against issuing advisory
opinions. Deciding questions in which a plaintiff has suffered no
injury and where no rights can be vindicated by a judicial decision
is tantamount to “making law,” rather than interpreting and
applying it to an accrued set of facts. Such actions would encroach
upon the powers reserved for the other co-equal branches of
government.
Because we understand this injury requirement as being of
constitutional dimension, the General Assembly lacks the authority
to set it aside by statute. The General Assembly could, of course,
54
with the ratification by Georgia citizens, amend the constitution to
provide standing where the plaintiff has not been injured at all, even
in a generalized way not unique to the plaintiff. See Elliott, 305 Ga.
at 225 (Boggs, J., concurring) (explaining that, if the General
Assembly and the people are unhappy with the meaning of a
constitutional provision, they are free to amend the constitution).
But no such amendment has been adopted.
With these principles established, we turn to the question of
whether the Plaintiffs have, in this procedural posture, established
such an injury. At the motion to dismiss stage, we accept as true all
well-pled material allegations in the complaint. See Williams, 308
Ga. at 270 (2).
(d) Only Humphries, as a citizen of her local community, has
standing here.
Since they are not challenging the constitutionality of a
statute, the Plaintiffs do not need to have alleged an individualized
injury. Compare Mason, 283 Ga. at 273 (1). But they still need to
have alleged a cognizable injury.
55
The Plaintiffs argue that OCGA § 50-3-1 (b) (5), by itself,
provides them standing to sue because it allows “any person, group,
or legal entity” the right to bring a cause of action. Admittedly, our
case law has sometimes been unclear about whether statutory
language creating a cause of action determines a party’s standing.
See, e.g., RES-GA McDonough, LLC v. Taylor English Duma LLP,
302 Ga. 444, 448 (1) (807 SE2d 381) (2017) (concluding that plaintiff
“had no standing to pursue a fraudulent transfer claim” based on
the statutory language governing the cause of action);
GeorgiaCarry.org, Inc. v. Allen, 299 Ga. 716, 717-720 (791 SE2d 800)
(2016) (using “standing” to describe proper party authorized to bring
cause of action when, after concluding that nonprofit corporation
was not a “person” qualified to bring cause of action that was limited
to natural persons, analyzing whether that corporation nonetheless
had associational standing to pursue a writ on behalf of its
members); Carringer v. Rodgers, 276 Ga. 359, 360, 362-365 (578 SE
2d 841) (2003) (construing statutes to determine that parent of a
decedent child who was murdered by his surviving spouse had
56
“standing” to bring a cause of action for the wrongful death of the
child against the murdering spouse and/or another individual or
entity proximately causing the child’s death). Some cases have
recognized a distinction between the cognizable injury necessary to
invoke the judicial power and the right to bring a cause of action.
See Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga.
295, 298 (1) (149 SE2d 691) (1966) (“Obviously, this count states no
cause of action unless the constitutional attack is sustained, and as
we view the allegations, the plaintiff has no standing to make a
constitutional attack because it alleges no injury to itself from the
application of the statute it seeks to challenge.”); Stillwell v. Topa
Ins. Co., 363 Ga. App. 126, 128-131 (1) (871 SE2d 8) (2022)
(distinguishing clearly between constitutional standing and scope of
a statutory cause of action) (citing cases); Oldham v. Landrum, 363
Ga. App. 284, 292-293 (2) (a) (870 SE2d 82) (2022) (Pinson, J.,
concurring in part and dissenting in part) (making same distinction
and noting that whether a plaintiff is within the class of people that
the statute authorizes to bring a cause of action is sometimes called
57
“statutory standing”).
Although those cases discussing standing in terms of statutory
causes of action may have conflated the idea of cognizable injury
with whether a party is authorized by the relevant statute to bring
a causes of action (or “statutory standing”),20 our above discussion
makes clear that a statute cannot confer standing in the absence of
a cognizable injury.21 OCGA § 50-3-1 (b) (5)’s language allowing “any
person, group, or legal entity” the right to bring a cause of action
does not state whether that “person, group, or legal entity” must
suffer some cognizable injury. Reading the absence of such language
as permitting a plaintiff to bring a cause of action under OCGA § 50-
3-1 (b) (5) without such an injury would create serious questions
about the constitutionality of the statute, so we must read the
20 Those cases do not control and we need not reconsider them because
the constitutional question before us now was not raised in those cases. See
Wolfe v. Bd. of Regents of Univ. Sys. of Ga., 300 Ga. 223, 231 (2) (d) (794 SE2d
85) (2016) (“Questions which merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not to be considered as having been
so decided as to constitute precedents.” (citation and punctuation omitted)).
21 Of course, a statute can create a legal duty, the violation of which can
be a cognizable injury, but the duty must be owed the plaintiff. The creation of
a duty generally does not, alone, create the cognizable injury.
58
statute consistent with the constitutional standing requirements set
out above. See Premier Health Care Invs., LLC v. UHS of Anchor,
L.P., 310 Ga. 32, 48 (849 SE2d 441) (2020) (“Under the canon of
constitutional doubt, if a statute is susceptible of more than one
meaning, one of which is constitutional and the other not, we
interpret the statute as being consistent with the Constitution.”
(citation and punctuation omitted)). That being said, the Plaintiffs
cannot rely solely on the right to bring a cause of action under OCGA
§ 50-3-1 (b) (5) as establishing their cognizable injury.
As for their cognizable injury, the Plaintiffs allege that their
“rights and dignity” will be injured as a result of the monument
removals. The Plaintiffs cite no authority supporting the proposition
that this sort of injury to dignity, without more, is a cognizable
injury. The Plaintiffs do not specify what rights were allegedly
violated. To the extent they rely on OCGA § 50-3-1, that statute
created a public duty on the part of government entities to protect
and preserve public monuments and provided a cause of action for a
violation of that duty. Because that statute creates a public duty,
59
the Plaintiffs would have standing if, at a minimum, they alleged
some community stakeholder status that would give them a
cognizable injury for their local government’s alleged failure to
follow the law. Only Humphries has done so.
(i) Humphries has standing to pursue injunctive relief.
By alleging that she is a citizen of Newton County, Humphries
has alleged a cognizable injury as a result of Newton County’s vote
to move a public monument from display, in violation of OCGA § 50-
3-1. This injury is sufficient to support her claims for injunctive
relief under our public rights cases discussed above.22
But Humphries also asserts a claim for damages. All of the
public-rights cases discussed above, and others of which we are
aware, concerned various forms of equitable relief, not claims for
money damages. It is not clear that the logic of those public rights
cases, which center on protecting the rights of the community rather
than on one specific individual, can be extended to permit one
22The 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.
60
individual to recover damages, but that is not a question we need
definitely resolve today. To decide that question would be to decide
whether the General Assembly has constitutional authority to
permit damages in a statute like OCGA § 50-3-1 to be sought by a
party with only public-rights standing. And as a matter of
constitutional avoidance, we must not address a constitutional
question where it is unnecessary to do so. See Deal, 294 Ga. at 171
n.7 (noting that it is well-settled that this Court will not decide a
constitutional question if the decision in the appeal can be made
upon other grounds). And here it is not necessary.
We need not resolve whether the General Assembly lacked
such constitutional authority, and thus determine the
constitutionality of OCGA § 50-3-1, because the cause of action that
the statute purports to create has not yet arisen under Humphries’s
allegations. The statute prohibits the relocation, removal,
concealment, or alteration of a monument, and makes liable any
conduct that damages, destroys, loses a monument or removes one
without replacement. See OCGA § 50-3-1 (b) (3), (4). By Humphries’s
61
own admission, none of this conduct has occurred — the County has
merely voted to remove a monument, but it has not yet done so.
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.23
(ii) The Sons of Confederate Veterans groups lack standing.
The various Sons of Confederate Veterans groups did not allege
that they are citizens, residents, or taxpayers of any county, much
23 We can easily dispose of the Newton County Board of Commissioners’
argument that allowing any resident, citizen, or taxpayer to sue would allow
every such person and entity to sue and that the multitude of resulting lawsuits
would cause significant harm to the county’s finances. Because the underlying
interest concerns a public right, as opposed to a private one, the outcome of a
suit against a local government under OCGA § 50-3-1 may well bind nonparties
who share that interest. See Lilly v. Heard, 295 Ga. 399, 405 (761 SE2d 46)
(2014) (noting in case brought under voter standing, “although the general rule
is that a judgment binds only the parties to the case, we conclude that this case
falls within the exception to that rule for nonparties who are adequately
represented by a party with the same interest.” (citation and punctuation
omitted)).
62
less the counties that they sued. They have set forth no allegations
showing that they are community stakeholders, such that the duty
created by OCGA § 50-3-1 is one that is owed to them. Therefore,
any violation of OCGA § 50-3-1 does not result in a cognizable injury
to the Sons of Confederate Veterans groups; and, as a result, they
do not have independent, direct standing as organizations. See
Black Voters Matter Fund, 313 Ga. at 382 (1) (a) (“[O]rganizational
standing permits an organization to sue in its own right if it meets
the same standing test applicable to individuals.”).
In addition to not having standing in their own right, the Sons
of Confederate Veterans groups do not have associational standing.
See id. (“Organizational standing, as opposed to associational
standing, does not depend on the standing of an organization’s
members[.]”); see also Sawnee Elec. Membership Corp. v. Ga. Dept.
of Revenue, 279 Ga. 22, 24 (3) (608 SE2d 611) (2005) (“Associational
standing permits an association that has suffered no injury to sue
on behalf of its members when the members would otherwise have
standing to sue in their own right; the interests the association seeks
63
to protect are germane to the association’s purpose; and neither the
claim asserted nor the relief requested requires the participation in
the lawsuit of the individual members.”).24 The Sons of Confederate
Veterans groups did not allege that they had associational standing
or otherwise indicate that they include members that would have
citizen/resident/taxpayer standing on their own.
To the extent the Sons of Confederate Veterans groups argue
that OCGA § 50-3-1’s authorization of damages provides them with
an injury, their view of standing is backwards. The statutory award
of damages (treble cost of repair, attorney’s fees, and possible
exemplary damages) is authorized when there is an injury, but it
does not create the injury itself. An injury arises when the public
duty imposed by the statute is violated. But our case law makes
24 In Aldridge v. Ga. Hosp. & Travel Assn., 251 Ga. 234 (304 SE2d 708)
(1983), we adopted the federal test on associational standing after noting that
there was no Georgia case law on the issue and without examining critically
whether there was good reason to adopt that federal precedent. See id. at 235-
236 (1). Although we have made clear in this opinion that federal standing law
does not control the question of standing under state law, whether
associational standing is independently viable under Georgia law is not an
issue any party has raised. Regardless, the Sons of Confederate Veterans
groups make no claim that the resulting analysis would be different under a
state law conception of associational standing, if such a thing existed.
64
clear that that this public duty is owed to community stakeholders.
A violation of that duty does not injure people to whom the local
government owes no duty.
We reiterate that when a local government owes a legal duty
to community stakeholders, the violation of that legal duty
constitutes an injury that our case law has recognized as conferring
standing to those stakeholders, even if the plaintiff at issue suffered
no individualized injury. Because the Sons of Confederate Veterans
groups have not alleged anything resembling community
stakeholder status and have alleged no other cognizable injury, they
do not have standing, and the Court of Appeals was right to affirm
the dismissal of their complaints.
Judgment affirmed in part and reversed in part. All the
Justices concur, except Ellington and Colvin, JJ., disqualified.
65