GEORGIA DIVISON, SONS OF CONFEDERATE VETERANS, INC. v. BRYAN A. DOWNS, IN HIS OFFICAL CAPACITY AS CITY ATTORNEY OF THE CITY OF DECATUR

• Court: Court of Appeals of Georgia
• Decided: February 23, 2024
• Docket: A22A0663
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., WATKINS, J., and SENIOR JUDGE FULLER

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

February 23, 2024

In the Court of Appeals of Georgia A22A0663. GEORGIA DIVISION, SONS OF CONFEDERATE VETERANS v. DOWNS.

DOYLE, Presiding Judge.

The Georgia Division, Sons of Confederate Veterans (“SCV”); The

Confederate Memorial Camp #1432 of the Sons of Confederate Veterans (“Camp

#1432”); Richard Kevin Straut; Thomas M. McConnell; Eric Robert Howell; Joseph

Newton; and Phillip J. Autrey (collectively, “the plaintiffs”) filed suit against Bryan

A. Downs, in his capacity as the City Attorney for the City of Decatur (“the City”),

and the DeKalb County Commissioners (“the County”), individually and in their

official capacities (collectively, “the defendants”), seeking an order setting aside a

June 2020 order removing a Confederate monument from the City’s square. The trial

court dismissed the complaint, and on appeal, this Court affirmed on the ground that the plaintiffs lacked standing,1 relying on this Court’s opinion in Sons of Confederate

Veterans v. Newton County Bd. of Commrs.2 (“Sons of Confederate Veterans I”). The

plaintiffs filed a writ of certiorari, and while the writ was pending, the Supreme Court

issued Sons of Confederate Veterans v. Henry County Bd. of Commrs. (“Sons of

Confederate Veterans II”), which reversed in part Sons of Confederate Veterans I. The

Supreme Court then granted the plaintiffs’ writ of certiorari in this case, vacated this

Court’s judgment affirming the dismissal of the plaintiffs’ claims for lack of standing,

and remanded for consideration of the plaintiffs’ arguments in light of its decision in

Sons of Confederate Veterans II.3 For the reasons that follow, we affirm in part the trial

court’s order dismissing the claims of SCV, Camp #1432, Straut, McConnell, and

Howell; vacate in part the trial court’s order dismissing the claims of plaintiffs

Newton and Autrey; and remand this case for the trial court to consider the threshold

jurisdictional question of whether sovereign immunity bars the remaining plaintiffs’

claims.

1 See Georgia Div., Sons of Confederate Veterans, Inc. v. Downs, 365 Ga. App. 280, 282-283 (878 SE2d 130) (2022) (“Downs I”). 2 360 Ga. App. 798 (861 SE2d 653) (2021). 3 315 Ga. 39 (880 SE2d 168) (2022). 2 As set forth in Downs I, the record shows that

on June 10, 2020, the City sued the County in DeKalb County Superior Court, seeking an order directing the County to remove a Confederate monument (which the City characterized as a public nuisance) from the City square (“the Prior Action”). On June 12, 2020, following an emergency hearing, the trial court granted the motion, ordered the County to relocate the monument to a secure location no later than June 26, 2020, and the County complied with the order. The City moved for judgment on the pleadings, which motion the County did not oppose, and on September 28, 2020, the court entered a final order and judgment, ordering the County to maintain the monument in a secure location and prohibiting its return to the City square at any time. The final order and judgment was not appealed.

On June 17, 2021, approximately nine months after the final judgment in the Prior Action, the plaintiffs sued the City and the County in the instant case, seeking to restore the monument to the City square and set aside the June 12, 2020 order.4

4 (Citation omitted.) Downs I, 365 Ga. App. at 281. 3 The defendants filed answers and motions to dismiss, alleging, among other

arguments, that the plaintiffs’ claims were barred by sovereign immunity5 and that the

plaintiffs lacked standing.

The trial court granted the defendants’ motions to dismiss on the grounds that

the plaintiffs lacked standing to bring this action and that the plaintiffs, who were not

parties to the Prior Action, failed to meet the requirements of setting aside a judgment

under OCGA § 9-11-60. The trial court did not, however, rule on the defendants’

argument that sovereign immunity barred the plaintiffs’ claims.

The plaintiffs appealed, arguing that the trial court erred by ruling that they

lacked standing; by finding that they could not bring an action to set aside the orders

in the Prior Action under the provisions of OCGA § 9-11-60 (a), (b), and (c); by

finding that the trial court in the Prior Action had authority under OCGA § 41-1-2 to

“abate the public nuisance”; and by dismissing their case because the orders in the

Prior Action were void. Relying on Sons of Confederate Veterans I, this Court affirmed

on the ground that the plaintiffs lacked standing.6 While the plaintiffs’ petition for writ

5 The County also raised the defense of official immunity to the Plaintiffs’ claims against them individually. 6 365 Ga. App. 280, 282-283. 4 of certiorari was pending, the Supreme Court of Georgia reversed in part Sons of

Confederate Veterans I, holding that while the private citizen petitioner in that case did

have standing to pursue injunctive relief, the Sons of Confederate Veterans groups

lacked standing.7 The Supreme Court then granted the plaintiffs’ writ of certiorari in

the instant case, vacated this Court’s judgment, and remanded for consideration of

the plaintiffs’ arguments in light of its decision in Sons of Confederate Veterans II.

1. Plaintiffs argue that the trial court erred by ruling that they lacked standing

to bring this action. In Sons of Confederate Veterans II, the Supreme Court addressed

what it identified as “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

7 See Sons of Confederate Veterans II, 315 Ga. at 63-66 (2) (d) (i), (ii). On remand, this Court issued its second opinion in that case, again affirming the trial court’s dismissal of the individual petitioner’s claim for injunctive relief, this time on the ground that it was barred by sovereign immunity, which was an alternate basis for the trial court’s dismissal. See Sons of Confederate Veterans v. Newton County Bd. of Commrs., 368 Ga. App. 511, 512-517 (890 SE2d 468) (2023) (“Sons of Confederate Veterans III”). 5 statutory authorization to bring suit.”8 The Court answered the question affirmatively,

concluding as follows:

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.9

That “generalized grievance” can occur when a local government fails to follow the

law, as Georgia has long recognized that government at all levels has a legal duty to do

so, and the violation of that duty confers standing to sue upon community

stakeholders, even in the absence of an individualized injury.10 Based on this, the

Supreme Court held that the individual plaintiff, who brought her suit as a private

citizen of the county in which the board of commissioners voted to remove a

8 Sons of Confederate Veterans II, 315 Ga. at 39. 9 Id. 10 Id. at 40. 6 confederate monument, had standing to sue for injunctive relief, even if she suffered

no individualized injury because of the duty owed to her by her local government to

follow the law.11 The Supreme Court also held, however, that the Sons of Confederate

Veterans groups lacked standing because they

did not allege that they [were] citizens, residents, or taxpayers of any county, much less the counties that they sued. They . . . set forth no allegations showing that they [were] community stakeholders, such that the duty created by OCGA § 50-3-1 [was] one that [was] owed to them. Therefore, any violation of OCGA § 50-3-1 [did] not result in a cognizable injury to the Sons of Confederate Veterans groups; and, as a result, they [did] not have independent, direct standing as organizations.12

Applying that framework to the instant case, we look to the seven plaintiffs in

this case to determine the question of standing as to each. In their complaint, plaintiffs

allege as follows:

Plaintiff Sons of the Confederate Veterans is an organization that honors the patriotic military service of those Georgians who fought in the war of 1861-1865 (“the War”). It has numerous local camps of which Plaintiff

11 Id. at 63-65 (2) (d). 12 Id. at 66 (2) (d) (ii). 7 The Confederate Memorial Camp #1432 of the Sons of Confederate Veterans (hereinafter “Camp #1432”) is active in DeKalb County [sic] is a sub-unit highly concerned with the preservation and protection of historical monuments and markers commemorating the histories and the valor of citizens of DeKalb County.

Plaintiffs Richard Kevin Straut, Thomas M. McConnell, Eric Robert Howell, Joseph Newton, Philip J. Autrey, are all members of Camp #1432; Plaintiffs Newton and Autrey are residents of DeKalb County.

Plaintiffs have standing to bring this action pursuant to OCGA § 50-3-1 wherein historical monuments in Georgia are to be protected and may not be moved, destroyed, concealed or otherwise disturbed except as provided in said section.

Plaintiffs also have the right and standing to bring this action under the provisions of OCGA § 9-11-60 . . . (a), (b) and (d).

(a) Sons of Confederate Veterans. SCV did not assert that it was a citizen,

resident, or taxpayer of any county nor did it allege that it was a community

stakeholder. Consequently, in accordance with Sons of Confederate Veterans II, the

organization did not have independent, direct standing.13 Additionally, SCV did not

13 See id. 8 assert that it had associational standing, which “permits an organization that has

suffered no direct injury to sue on behalf of its members when: (a) its members would

otherwise have standing to sue in their own right; (b) the interests it seeks to protect

are germane to the organization’s purpose; and (c) neither the claim asserted nor the

relief requested, requires the participation of individual members in the lawsuit.”14

SCV did not indicate that it included members that would have

citizen/resident/taxpayer status on their own. The assertion that it “operates in

DeKalb County” does not confer upon it community stakeholder status. Accordingly,

SCV does not have standing to sue.

(b) Camp #1432. Camp 1432 did not expressly allege that it has organizational

or associational standing but did allege that two of its members are citizens of DeKalb

County. Pretermitting whether Camp #1432 has associational standing because of

those two resident members, it still has no cognizable injury, which the Supreme

Court has clearly held is required to sue in Sons of Confederate Veterans II. Allegations

that removing the monument violated the plaintiffs’ rights and dignity or that the

14 (Citation and punctuation omitted). Black Voters Matter Fund, Inc. v. Kemp, 313 Ga. 375, 387 (1) (b) (870 SE2d 430) (2022). 9 people have a general right to protect monuments do not set forth cognizable

injuries.15

To the extent [Camp #1432] rel[ies] 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, [Camp #1432] would have standing if, at a minimum, [it] alleged some community stakeholder status that would give them a cognizable injury for their local government’s alleged failure to follow the law.16

It did not. Therefore, Camp #1432, does not have standing to sue.

(c) Individual plaintiffs. Plaintiffs Newton and Autrey do have standing to sue.

They are residents of DeKalb County, and therefore, like the citizen plaintiff in Sons

of Confederate Veterans, II, are community stakeholders to whom the county owed a

duty to follow the law. However, the remaining individual plaintiffs, Straut,

McConnell, and Howell, are not community stakeholders, and, therefore, lack

standing to sue.

15 315 Ga. at 64 (2) (d). 16 Id. at 64-65 (2) (d). 10 Both standing and immunity are threshold questions.17 We have concluded that

the Sons of Confederate Veterans, Camp #1432, Straut, McConnell, and Howell lack

standing to pursue their claims. “It is therefore unnecessary to engage in the purely

academic exercise of whether [their] claims are barred due to yet another threshold

issue. . . . [O]ne is enough.’”18 At this juncture, therefore, these plaintiffs’ action is

at an end.

2. Next, we turn to sovereign immunity, also a threshold issue.

“Sovereign immunity is immunity ‘from suit,’ involving ‘actions or claims

against the state and its departments, agencies, officers, and employees.’”19 “The

Georgia Constitution provides that the General Assembly may waive the immunity of

17 Perdue v. Barron, 367 Ga. App. 157, 160 (1), n.7 (885 SE2d 210) (2023). 18 Id. See also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (III) (A) (119 SCt 1563, 143 LE2d 760) (1999) (a reviewing court can choose among the threshold grounds for denying audience to a case on the merits). 19 TDGA, LLC v. CBIRA, LLC, 298 Ga. 510, 511 (783 SE2d 107) (2016), citing Ga. Const. Art. I, Sec. II, Par. IX (a). 11 counties, municipalities, and school districts by statute.”20 As the Supreme Court of

Georgia recently reiterated in Bray v. Watkins,21

the applicability of sovereign immunity to claims brought against the State is a jurisdictional issue and therefore, the applicability of sovereign immunity is a threshold determination, and, if it does apply, a court lacks jurisdiction over the case and, concomitantly, lacks authority to decide the merits of a claim that is barred.22

“[S]overeign immunity is a threshold determination because — like various other

rules of jurisdiction and justiciability — it is concerned with the extent to which a case

properly may come before a court at all.”23

In the instant case, plaintiffs sought injunctive relief when they asked that the

court “restore the Obelisk to its former place of honor on the Square of DeKalb

20 Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (“Suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.”). See also Ga. Constitution IX § II Para IX; OCGA § 36-33-1. 21 317 Ga. 703 (895 SE2d 282) (2023). 22 (Citation and punctuation omitted.) Id. at 704, quoting McConnell v. Dept. of Labor, 302 Ga. 18, 18-19 (805 SE2d 79) (2017). 23 (Citations and punctuation omitted). Sons of Confederate Veterans III, 368 Ga. App. at 513. 12 County,” , and defendants claim immunity from suit for injunctive relief. The trial

court did not address the threshold jurisdictional issue of sovereign immunity, and as

a court for the correction of errors, we cannot reach this issue because it was not ruled

on below.24 Further, the trial court was not authorized to address the merits of the

plaintiffs’ remaining claims if those claims are barred by sovereign immunity, nor can

we reach the merits of those claims until the threshold issue of immunity has been

decided.25

In sum, consistent with the Supreme Court decisions in Bray and Sons of

Confederate Veterans II, we affirm the trial court’s dismissal of the claims of the Sons

24 See Bradley v. WestRock CP, LLC, 370 Ga. App. 52, 59 (2) (895 SE2d 318) (2023). Compare Sons of Confederate Veterans III, 368 Ga. App. at 512 (the trial court based its dismissal of the petitioner’s claim for injunctive relief on both sovereign immunity and standing grounds). 25 See Polo Golf & Country Club Homeowners Assn. v. Cunard, 306 Ga. 788, 790 (1) (a) (833 SE2d 505) (2019) (“Sovereign immunity is a threshold determination that must be ruled upon prior to the case moving forward on the more substantive matters.”) (emphasis in original). “[I]n the greatest general sense, the State and its agencies are immune from suit unless the legislature specifically states otherwise.” TDGA, 298 Ga. at 512. Most recently in Sons of Confederate Veterans III, 368 Ga. App. at 513, this Court explained that “sovereign immunity may only be waived by an act of the General Assembly specifically providing for waiver and delineating the extent of that waiver, and implied waivers of sovereign immunity are not favored.” (Citations and punctuation omitted). 13 of Confederate Veterans, Camp #1432, Straut, McConnell, and Howell, on the ground

that they lack standing; vacate that portion of the order dismissing the claims of

Newton and Autrey; and remand the case for the trial court to decide whether the

claims of Newton and Autrey are barred by sovereign immunity.

Judgment affirmed in part, vacated in part, and case remanded. Watkins, J., and

Senior Judge C. Andrew Fuller, concur.