X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

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 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. 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 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 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 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. “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 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 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 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] 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] automatically satisf[y] the injuryinfact 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 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 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. 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.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
April 25, 2024
Dubai

Law firms & in-house legal departments with a presence in the middle east celebrate outstanding achievement within the profession.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More

A large and well-established Tampa company is seeking a contracts administrator to support the company's in-house attorney and manage a wide...


Apply Now ›

We are seeking an attorney to join our commercial finance practice in either our Stamford, Hartford or New Haven offices. Candidates should ...


Apply Now ›

We are seeking an attorney to join our corporate and transactional practice. Candidates should have a minimum of 8 years of general corporat...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›