The APPEAL, INC. v. TYRONE OLIVER

• Court: Court of Appeals of Georgia
• Decided: March 12, 2026
• Docket: A25A1689
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., MARKLE and PADGETT, JJ.

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

March 12, 2026

In the Court of Appeals of Georgia A25A1689. THE APPEAL, INC. v. OLIVER et al.

DOYLE, Presiding Judge.

The Appeal, Inc. (“TAI”), a California-based, non-profit news organization,

filed a civil complaint against Tyrone Oliver, Commissioner of the Georgia

Department of Corrections (“DOC”); Shawn Emmons, Warden of the Georgia

Diagnostic and Classification Prison (“GDCP”); and Christopher Carr, Attorney

General of the State of Georgia, (collectively, “the Appellees”). The complaint

alleged that certain portions of the DOC’s lethal injection procedures — specifically,

those portions that restrict full auditory and visual media access to the entire

execution process, including the preparation of the lethal injection itself and the

preparation of the condemned to receive that injection — violate Ga. Const. of 1983, Art. I, Sec. I, Par. V (free speech and press) and Ga. Const. of 1983, Art. I, Sec. I, Par.

XI (public trial). TAI appeals from the trial court’s order granting the Appellees’

motion to dismiss,1 arguing that the trial court erred because (1) the public has a

constitutional right of access to executions in Georgia; and (2) the trial court

misapplied the legal standard for granting a motion to dismiss. Because TAI lacks

standing to pursue these claims, we affirm.

To the extent this appeal presents questions of law, it is subject to de novo

review. See Gonzalez v. Miller, 320 Ga. 170, 170(1) (907 SE2d 859) (2024).

Additionally, “‘a trial court’s ruling on a motion to dismiss for failure to state a claim

for which relief may be granted is reviewed de novo[.]’” Id. While we view as true all

well-pleaded material allegations in the complaint, “we are under no obligation to

adopt a party’s legal conclusions based on these facts.” Auto-Owners Ins. Co. v. Tracy,

344 Ga. App. 53, 54 (806 SE2d 653) (2017) (citation and punctuation omitted).

So viewed, the record reflects that the Appellees perform executions at the

GDCP in a series of connected rooms. The DOC has developed a set of procedures

1 TAI initially filed this appeal in our Supreme Court, which transferred the case to us after it determined that the questions on appeal “require the mere application of well-settled constitutional principles to the facts of [the] case, [and] the appeal fails to invoke [the Supreme] Court’s appellate jurisdiction over constitutional questions.” See The Appeal, Inc., v. Oliver, Case No. S25A0654 (Mar. 31, 2025) (order). 2 (“the Procedures”) governing the performance of executions, which are done by

lethal injection. Under the Procedures, two hours before an execution, a prison official

delivers the lethal injection chemicals to the chemical room, which adjoins the

execution chamber. Designated personnel perform a preliminary evaluation of the

execution equipment and instruments, as well as the telephone circuits and other lines

of communication. The Warden then directs an inspection of the execution chamber

and witness room, which adjoins the execution chamber and is separated by a glass

window through which witnesses can see and hear into the chamber. In the hour

before the execution, a second equipment and communications check is performed,

and other designated staff prepare the lethal injection syringes, test the heart monitor,

and ensure that the straps of the execution gurney are in place and functional.

Under the Procedures, no media witness has access to the preparatory steps

performed during the two hours preceding an execution, but the DOC permits as

many as five media witnesses from designated media outlets to attend the execution

itself. The Associated Press may send one representative, and the Georgia Association

of Broadcasters and Georgia Press Association may each send two representatives.2

A single media monitor is selected from this group who is typically a reporter from the

2 The Procedures do not include TAI as a designated media outlet. 3 county of conviction.

Twenty minutes prior to the execution, the media monitor is granted access to

the witness room to observe the final preparatory steps in the execution chamber,

during which the condemned is brought into the execution chamber and secured to

the gurney. Thereafter, the condemned is connected to a heart monitor and

intravenous lines. At this point, the other media witnesses are allowed into the witness

room. Once the witnesses are in place, a microphone in the execution chamber is

turned on to allow those in the witness room to hear the condemned give a final

statement and the Warden read the execution order. The microphone is then turned

back off.

Administration of the lethal injection chemicals then begins. From the chemical

room, which is hidden from the media witnesses, a series of saline and phenobarbital

injections is transmitted into the body of the condemned through tubes that pass

through the wall between the chemical room and execution chamber. If the

condemned still exhibits signs of life after the initial dose of phenobarbital is

administered, the Warden will order the administration of additional phenobarbital.

When the condemned no longer exhibits signs of life, the Warden and two physicians

enter the execution chamber to confirm the death of the condemned. After the death

4 of the condemned is confirmed, the microphone in the execution chamber is turned

back on to allow those in the witness room to hear the Warden announce the fact of

the condemned’s death. A curtain is then drawn over the window between the

execution room and witness room, and the witnesses are escorted out of the prison.

TAI reports on executions in Georgia and, in so doing, relies on the accounts

of the media witnesses who attend these executions. In March 2024, TAI sued the

Appellees, claiming that the Procedures’ limitations on media witnesses violates the

Georgia Constitution’s free speech and public trial provisions.3 See Ga. Const. of

1983, Art. I, Sec. I, Pars. V, XI. According to TAI, these provisions require that the

designated media witnesses have complete “visual or auditory access to the

preparatory steps for executions.” This would include granting the designated media

witnesses full visual and auditory access to the chemical room for the two hours

preceding an execution. This would also include allowing all the media witnesses (not

just the media monitor) to enter the witness room and observe the final preparatory

steps before the execution.4 TAI also challenges the Procedures to the extent that they

3 TAI initially asserted that the Procedures also violate the First Amendment of the Constitution of the United States, but it amended its complaint to withdraw this assertion after the Appellees removed the action to federal court. 4 TAI claims that because the media monitor is “often inexperienced,” he or she may not be able to provide “complete and accurate” reporting of these steps. 5 do not require the microphone in the execution chamber to remain on for the entirety

of the execution.

In March 2024, TAI also filed an emergency motion for an interlocutory

injunction and temporary restraining order to prevent an execution from taking place

subject to the Procedures’ current restrictions on media witnesses. The Appellees

responded to the emergency motion, arguing, among other things, that TAI lacked

standing to pursue its constitutional challenges to the Procedures. After a hearing, the

trial court denied TAI’s request for an interlocutory injunction and temporary

restraining order but ruled that TAI had standing to pursue its challenges to the

Procedures.

Thereafter, the Appellees moved to dismiss TAI’s complaint for failure to state

a claim for which relief could be granted, arguing that the allegations in TAI’s

complaint could not establish that the free speech and public trial provisions of the

Georgia Constitution provide the media with a right of access to the entirety of the

execution process. After a hearing, the trial court granted the Appellees’ motion to

dismiss, noting that as to TAI’s free speech claim, “Georgia courts have not ...

recognized a constitutional right of access to execution proceedings[.]” As to TAI’s

public trial claim, the trial court reasoned that because an execution is not part of a

6 trial, TAI’s complaint also failed to state a claim for relief under the public trial

provision of the Georgia Constitution. This appeal followed.

TAI contends that it has standing to pursue its constitutional challenges to the

Procedures because (1) they violate TAI’s private rights to receive information, to

speak and publish freely, and to access government proceedings; (2) they violate

TAI’s public right to access executions; and (3) TAI has organizational standing. We

disagree.

Under the Judicial Power Paragraph of the Georgia Constitution, see Ga. Const. of 1983, Art. VI, Sec. I, Par. I, Georgia courts have the power to resolve only genuine controversies. For a genuine controversy to exist, and thereby invoke the State’s judicial power, a plaintiff must have standing to sue. This is a jurisdictional requirement, mandating that a plaintiff show that he has a legal right at stake that requires adjudication to protect it. As the party seeking to invoke the jurisdiction of a Georgia court, the plaintiff has the burden of establishing standing. A plaintiff must assert the violation of his own rights and cannot merely vindicate the rights of another. Standing must be established as to each claim of relief sought.

Republican Nat’l Comm. v. Eternal Vigilance Action, Inc., 321 Ga. 771, 775(2) (917 SE2d

125) (2025) (citations and punctuation omitted; emphasis in original).

“Standing focuses on the party seeking relief and not on the issues the party

wishes to have adjudicated, and it is the person wishing to invoke a court’s jurisdiction

7 who must have standing.” Atl. Specialty Ins. Co. v. Lewis, 341 Ga. App. 838, 845(1)(c)

(802 SE2d 844) (2017) (punctuation omitted). “Finally, ‘when the plaintiff is not

himself the object of the government action or inaction he challenges, standing is not

precluded, but it is ordinarily substantially more difficult to establish.’” Ctr. for a

Sustainable Coast, Inc. v. Turner, 324 Ga. App. 762, 765 (751 SE2d 555) (2013) (citing

Summers v. Earth Island Inst., 555 US 488, 493-94(II) (2009) (punctuation omitted)).

1. Although TAI argues in its supplemental briefing that it is asserting its own

private rights in challenging the Procedures, our review of the complaint demonstrates

that TAI’s only claim under the free speech provision of the Georgia Constitution is

that the current incarnation of the Procedures allegedly violates the rights of the media

witnesses “to see and hear the entire execution process.” In its complaint, TAI never

alleges that the Procedures violate its own legal rights specifically. See Wasserman v.

Franklin County, 320 Ga. 624, 644(II)(A)(2) (911 SE2d 583) (2025) (“[A] plaintiff

must assert her own legal rights to have a Georgia court resolve a dispute about the

relative rights of the parties to an action, and we have consistently rejected plaintiffs’

attempts to have our courts adjudicate the rights of (and much less bind) parties not

before the court.”).

TAI’s complaint alleges that by preventing the media witnesses from seeing and

8 hearing the entire execution, the Procedures prevent TAI from “accurately knowing

and understanding what occurs during a State execution” and from having “accurate

and complete information about executions[.]” While this may be a collateral

consequence of the Procedures’ limitations on the media witnesses’ access to

executions, “a plaintiff cannot establish standing by asserting merely factual harm or

damage.” Id. at 629(II)(A). TAI’s desire to have other members of the media enjoy

unrestricted access to the entirety of the execution process, so that these entities can

then supply observations and information based on this access for TAI’s later

downstream use, does not constitute a separately alleged injury to TAI’s own legal

rights.

In this connection, TAI’s reliance on WXIA-TV v. State of Ga., 303 Ga. 428

(811 SE2d 378) (2018) is misplaced. In WXIA-TV, the Supreme Court of Georgia held

that certain news organizations had standing to challenge the constitutionality of gag

orders applicable to third parties. See id. at 432-33(2). Significantly, in reaching this

holding, the Court surveyed federal decisions holding that “a news organization may

have standing to challenge a restraint upon the speech of another when that restraint

impairs its own ability to effectively engage in news gathering.” Id. at 432(2)

(emphasis added). Here, by contrast, the Procedures at issue are not a prior restraint

9 on the speech of the media witnesses; they merely limit the observations of these

witnesses during executions, after which the witnesses are free to say anything they

wish about the process. Thus, WXIA-TV is inapposite.

Similarly, TAI argues that the Procedures’ media-access restrictions directly

impair its right to freely speak, write, and publish its sentiments about executions in

Georgia, citing Ga. Const. Art. I, Sec. I, Par. V (“No law shall be passed to curtail or

restrain the freedom of speech or of the press.”). But this argument is conclusory and

belied by TAI’s own allegations, which critique the execution process in Georgia with

painstaking thoroughness and specificity. In any event, the Procedures’ restrictions

on what the media witnesses are allowed to observe during an execution do not

prevent TAI (or anyone else, for that matter) from freely expressing and publishing

their views on what occurs during an execution, including those aspects not observed

by media witnesses.

TAI also argues that the Procedures violate its constitutional right to access

executions. This argument fails. As noted above, TAI’s complaint does not allege that

TAI itself has the right to physically attend executions in Georgia. Nor does TAI cite

any authority for the proposition that it has such a right. Accordingly, TAI has not

demonstrated standing to challenge the Procedures on the basis of their alleged

10 violations of TAI’s private legal rights.

2. TAI also contends that it has standing to challenge the Procedures based on

its assertion of the public’s constitutional right to access executions. This contention

fails. We first note that the plain text of both the free speech and public trial provisions

of the Georgia Constitution refer only to the private rights of individuals. See Ga.

Const. of 1983, Art. I, Sec. I, Par. V (“Every person may speak, write, and publish

sentiments on all subjects[.]”) (emphasis added); Ga. Const. of 1983, Art. I, Sec. I,

Par. XI (“In criminal cases, the defendant shall have a public and speedy trial by an

impartial jury[.]”) (emphasis added). “Private rights [are] those belonging to an

individual as an individual.” Sons of Confederate Veterans v. Henry County Bd. of

Comm’rs, 315 Ga. 39, 47(2)(a) (880 SE2d 168) (2022). “In contrast to private rights,

public rights have been described as those rights that are shared by ‘the whole

community, considered as a community, in its social aggregate capacity.’”

Wasserman, 320 Ga. at 634(II)(A)(1)(a)(ii).

Moreover, the allegations of TAI’s complaint do not establish that the public

at large has a constitutional right of access to executions in Georgia. Nor does TAI cite

any authority in support of this proposition. Indeed, TAI’s briefing concedes that the

public’s access to executions depends on the access of the media witnesses: “When

11 media witnesses are denied access, Plaintiff and other news organizations are unable

to accurately and entirely report on Georgia executions, and the public is, in turn,

stripped of its right to access these critical government proceedings.” TAI’s argument

that it has standing based on the rights of the public is ultimately flawed in the same

way as are its arguments for standing based on its own alleged private rights — TAI

is not asserting its own rights; it is attempting to assert the rights of third-party media

witnesses. “[A] plaintiff may not maintain an action in Georgia courts by asserting

only the rights of a third party[.] Instead, at a minimum, a plaintiff must assert her own

rights to maintain an action in Georgia courts.” Wasserman, 320 Ga. at 649(II)(B)(2).

Accordingly, TAI does not have standing to pursue its constitutional challenges to the

Procedures on this ground.

3. Finally, TAI contends that it has organizational standing to challenge the

constitutionality of the Procedures. We disagree.

“Organizational standing ... permits an organization to sue in its own right if it

meets the same standing test applicable to individuals.” Black Voters Matter Fund, Inc.

v. Kemp, 313 Ga. 375, 381-82(1)(a) (870 SE2d 430) (2022) (overruled on other grounds

by Republican Nat’l Comm., 321 Ga. at 780(2)(b)).

TAI is a California-based nonprofit news organization. It is not included among

12 the designated media outlets that are permitted to send media witnesses to observe

executions in Georgia. The fact that TAI’s mission includes reporting on criminal

justice issues, including executions in Georgia, does not give it direct organizational

standing to challenge the Procedures, as if it were a designated media outlet. See Black

Voters Matter Fund, Inc., 313 Ga. at 382-83(1)(a) (“[T]he fact that BVMF’s corporate

mission includes an interest in advocating for the rights of Georgia voters by engaging

in litigation does not, in and of itself, give it direct standing to challenge SB 9, as if it

were a voter.”)

Moreover, the doctrine of organizational standing does not exempt TAI from

“[t]he requirement that a plaintiff must assert a violation of her rights to maintain an

action in Georgia courts ... [which] is the bedrock requirement for invoking the judicial

power granted by the Georgia Constitution.” Wasserman, 320 Ga. at 640(II)(A)(2).

As with its other assertions regarding standing, TAI’s argument for organizational

standing depends on the flawed premise that it may assert the rights of third-party

media witnesses or third-party media outlets. Accordingly, TAI does not have

standing to challenge the constitutionality of the Procedures on this ground.

Because TAI lacks standing to pursue its constitutional challenges to the

Procedures, we affirm the trial court’s dismissal of TAI’s complaint, albeit for reasons

13 not relied upon by the trial court. See DeKalb County Republican Party, Inc. v.

Raffensperger, 376 Ga. App. 757, 769-70(2)(b)(ii) (921 SE2d 23) (2025) (holding that

the plaintiff lacked standing to petition for a writ of mandamus, and affirming the trial

court’s order dismissing the petition based upon principles not relied upon by the trial

court because “a judgment right for any reason will be affirmed[.]”)

Judgment affirmed. Markle and Padgett, JJ., concur.