Manlove v. Unified Government of Athens-Clarke County

680 S.E.2d 405, 285 Ga. 637, 2009 Fulton County D. Rep. 1997, 2009 Ga. LEXIS 431

• Court: Supreme Court of Georgia
• Decided: June 15, 2009
• Docket: S09A0118
• Status: Published

Opinions

BENHAM, Justice.

Appellants challenge the constitutionality of appellee’s noise ordinance which prohibits sounds that are “plainly audible” from a distance of 300 feet at any time, except that, after 11:00 p.m. on weeknights and after midnight on weekends, the distance is reduced to 100 feet. See Athens-Clarke County Ordinance § 3-5-24 (c) (1), (2). The ordinance also prohibits sounds from inside an apartment, townhome, or other similar dwelling that are plainly audible five feet from the boundaries of the dwelling. Athens-Clarke County Ordinance § 3-5-24 (c) (3). The maximum penalty for violating the ordinance is a $1,000 fine and six months incarceration. Athens-Clarke County Ordinance §§ 3-5-24 (e) and 1-1-5 (a).

Appellants are college students living in the county who allege that the appellee’s noise ordinance causes them to censor the volume of their music. Appellants have never been cited, prosecuted, or fined for violation of the ordinance, although one of the appellants avers that, on an unspecified date, a police officer who was investigating a noise complaint by appellant’s neighbor, told appellant if the police officer returned and heard noise upon return, appellant could receive a citation. Appellants filed an action for declaratory judgment challenging the constitutionality of appellee’s noise ordinance and appellee moved to dismiss. The trial court granted the motion to dismiss, determining that the appellants did not have standing because they failed to show that a particularized message was at stake for application of constitutional analysis and because appellants could not show harm. We affirm.

Pretermitting whether appellants were able to or required to show there was a particularized message warranting constitutional protection, appellants did not have standing because they failed to show any harm or injury resulting from appellee’s noise ordinance. “As a general rule, a litigant has standing to challenge the constitutionality of a law only if the law has an adverse impact on that litigant’s own rights.” Feminist Women’s Health Center v. Burgess, 282 Ga. 433 (651 SE2d 36) (2007). Whether proceeding under federal law or the law of this state, in order to challenge the constitutionality of an ordinance on First Amendment grounds, the party before the court must show an injury in fact. Virginia v. American Booksellers Assn., 484 U. S. 383, 392 (108 SC 636, 98 LE2d 782) (1988) (to challenge the constitutionality of a statute the plaintiff must “establish at an irreducible minimum an injury in fact”); Maverick Media Group v. Hillsborough County, Fla., 528 F3d 817, 822-823 (11th Cir. 2008); Granite State Outdoor Advertising v. City of Roswell, 283 Ga. 417 (1) (658 SE2d 587) (2008). Here, it is undisputed that appellants have never been subject to any fine or penalty as a result of violating appellee’s noise ordinance, nor have they otherwise been harmed for running afoul of appellee’s noise ordinance. Appellants repeatedly assert that they intend to play their music “loudly” in the future; however, even this assertion does not necessarily trigger a violation of the noise ordinance on its face or suggest an imminent threat of prosecution. See Summers v. Earth Island Institute, _ U. S. _ (129 SC 1142, 173 LE2d 1) (2009) (threat of injury in fact for standing purposes must “be actual and imminent, not conjectural or hypothetical”); Elend v. Basham, 471 F3d 1199, 1206-1208 (11th Cir. 2006) (although arrested for protesting in the past, plaintiffs’ assertions that they would engage in protests in the future was insufficient to establish an imminent and concrete threat of injury for standing purposes). A court cannot judge the constitutionality of a law based on speculation and conjecture of such an unspecified future harm as is alleged in the case at bar. Id. Accordingly, the trial court did not err when it dismissed appellants’ action for lack of standing. Granite State Outdoor Advertising, 283 Ga. 417.¹

Judgment affirmed.

All the Justices concur, except Sears, C. J., Hunstein, E J., and Melton, J., who dissent.

1 Because appellants’ lawsuit was properly dismissed, we need not reach the issue of whether the trial court erred when it granted a protective order regarding the deposition of a witness as that issue is moot.