State v. Int'l Keystone Knights of the Ku Klux Klan, Inc.
Citation | 788 S.E.2d 455,299 Ga. 392 |
Decision Date | 05 July 2016 |
Docket Number | S16A0367 |
Parties | State of Georgia et al. v. International Keystone Knights of the Ku Klux Klan, Inc. |
Court | Supreme Court of Georgia |
Samuel S. Olens, Attorney General, William Wright Banks, Jr., Senior Assistant Attorney General, Julie Adams Jacobs, Brittany H. Bolton, Assistant Attorneys General, for Appellants.
Alan I. Begner, Cory Goldsmith Begner, Boris Yakovlevich Milter, Eric Coffelt Coffelt, Begner & Begner, P.C., Kathleen M. Burch, for Appellees.
Charles Herman Kuck, amici curiae.
, Justice.
This case presents important questions about the doctrine of sovereign immunity and the constitutional guarantee of the freedom of speech. But before we can resolve those questions, we must consider our jurisdiction of this appeal. The case comes to us as an appeal of right. The appeal is taken, however, from a judgment of a superior court reviewing a decision of a state administrative agency, and under OCGA § 5–6–35 (a) (1)
, there is no appeal of right from such a judgment. An appeal from a judgment of that sort must come instead by way of an application for discretionary review. No application was filed in this case, and that leaves us without jurisdiction. For that reason, the appeal is dismissed.
1. As a part of its efforts to maintain the state highway system,1 the Georgia Department of Transportation administers the Adopt–A–Highway program, which encourages civic-minded Georgians to volunteer to remove litter along state and federal highways throughout Georgia. The Department has promulgated a number of conditions and requirements for those who seek to participate in the program.2 An organization, business, family, or other group can apply to adopt a particular stretch of highway, and if the Department approves an application, it assigns that stretch of highway to the applicant, the applicant commits to remove litter from the roadside from time to time, and the Department erects a sign along the highway to recognize the applicant. In May 2012, the International Keystone Knights of the Ku Klux Klan applied to participate in the program and sought to adopt a one-mile stretch of State Route 515 in Union County. The Department denied their application.
In June 2012, the Commissioner of Transportation3 sent a letter to the International Keystone Knights, identifying two reasons for the denial of their application. First, the stretch of State Route 515 from which the International Keystone Knights proposed to remove litter is a controlled-access highway with a posted speed limit of 65 miles per hour. The Department had determined for safety reasons, the Commissioner explained, that this stretch of highway was not suitable for adoption by any applicant. Second, alluding to the violent and subversive history of the Ku Klux Klan,4 the Commissioner said:
The impact of erecting a sign naming an organization which has a long-rooted history of civil disturbance would cause a significant public concern. Impacts include safety of the traveling public, potential social unrest, driver distraction, or interference with the flow of traffic. These potential impacts are such that were the application granted, the goal of the program, to allow civic-minded organizations to participate in public service for the State of Georgia, would not be met.
Around the same time, the Department suspended the Adopt–A–Highway program, although it has represented that it intends to resume the program at some point.
Three months later, the International Keystone Knights sued the Department in the Superior Court of Fulton County,5 seeking a writ of mandamus, an injunction, and a declaratory judgment, all with the goal of compelling the Department to approve their application. In their complaint, the International Keystone Knights set forth a detailed account of their application and subsequent dealings with various Department personnel, which culminated in the denial of the application. About the first ground for the denial, they alleged that, if the stretch of State Route 515 that they proposed to adopt were unsuitable for safety reasons, they had offered and still were willing to adopt another nearby stretch of the state highway system. As to the second ground, they alleged that the denial of their application on that ground was an abridgement of the freedom of speech as guaranteed by the Georgia Constitution.6 Among other relief, the International Keystone Knights sought an injunction against the Department “denying [their] Adopt–A–Highway permit” and a declaratory judgment that the Department “wrongfully denied [them] an Adopt–A–Highway permit based on the content of [their] speech.”
The Department answered the complaint, and it filed a motion to dismiss the lawsuit on several grounds. First, the Department asserted, the doctrine of sovereign immunity barred the claims for declaratory and injunctive relief. Second, the wrong alleged in the complaint, the Department argued, could not properly be remedied by a writ of mandamus, injunction, or declaratory judgment. Third, the International Keystone Knights could have sought judicial review of the denial of their application under the Administrative Procedure Act,7 the Department said, and for that reason, they had an adequate remedy at law that barred the relief that they sought in the lawsuit.
The trial court agreed that a writ of mandamus would be improper, and it dismissed the mandamus claim. The trial court, however, otherwise denied the motion to dismiss. In its order, the trial court concluded that sovereign immunity was no bar to claims for injunctive and declaratory relief concerning “an alleged illegal restriction on ... constitutional speech rights.” The trial court found that an injunction and declaratory judgment would be appropriate remedies for the wrong alleged in the lawsuit. And about the question of an adequate remedy at law, the trial court concluded that the International Keystone Knights could not have obtained judicial review under the Administrative Procedure Act because the denial of the application did not amount to a “contested case,” as that term is used in the Act.8
After some discovery, the Department and the International Keystone Knights filed motions for summary judgment. The Department again asserted in its motion that the claims for injunctive and declaratory relief were barred by the doctrine of sovereign immunity. In addition, the Department urged that its denial of the application in this case did not amount to an unconstitutional abridgement of the freedom of speech.9 The International Keystone Knights, on the other hand, argued in their motion that the denial was an abridgement of the freedom of speech predicated on impermissible viewpoint discrimination.10
Following a hearing, the trial court denied the Department's motion for summary judgment, and it granted in part the International Keystone Knights' motion. In its November 25, 2014 order, the trial court rejected the argument that the doctrine of sovereign immunity barred the claims for injunctive and declaratory relief, reasoning that the doctrine is no bar to claims premised on an alleged constitutional wrong.11 Turning to the merits of the case, the trial court found that the Adopt–A–Highway program does not implicate only government speech,12 and whether the program is a nonpublic forum or not, the trial court found that the evidence shows that the denial of the International Keystone Knights' application amounted to impermissible viewpoint discrimination. In that respect, the trial court explained that their application was “singled-out for scrutiny not given to other applicants to the program.” Accordingly, the trial court concluded that the second ground for the denial was an abridgement of the freedom of speech in violation of the Georgia Constitution.13 The trial court entered a declaratory judgment that “a denial of an application to the [Adopt–A–Highway program] for public concern related to a group's history of civil disturbance represents an unconstitutional infringement on an applicant's right to free speech,” and it enjoined the Department from “denying applications to the [program] for public concern related to a group's history of civil disturbance.”14 Ten days later, the Department filed a notice of appeal.15
2. Although no party to this appeal disputes our jurisdiction, “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.” Sanders v. State , 280 Ga. 780, 782, 631 S.E.2d 344 (2006)
(citation omitted). See also Williford v. Brown , 299 Ga. 15, 15(2), 785 S.E.2d 864 (2016)
; Lay v. State , 289 Ga. 210, 211, 710 S.E.2d 141 (2011). There are two reasons to doubt our jurisdiction in this case. First, there is a question about whether the judgment from which the Department appeals is appealable at all. If it is, there also is a question about the procedure by which an appeal may be taken. We will consider each of these questions in turn.16
3. In its notice of appeal, the Department said that it was appealing from the order denying its motion for summary judgment on the ground of sovereign immunity, and it cited Board of Regents of the Univ. System of Ga. v. Canas , 295 Ga.App. 505, 672 S.E.2d 471 (2009)
, for the proposition that an interlocutory refusal of sovereign immunity is an appealable judgment under the collateral order doctrine. This Court, however, recently overruled Canas , and in doing so, we rejected the idea that a refusal of sovereign immunity is, without more, appealable immediately. See Rivera v. Washington , 298 Ga. 770, 778, 784 S.E.2d 775 (2016)
. A mere denial of summary judgment on the ground of sovereign immunity is interlocutory, and it is appealable only if the trial court issues a certificate of immediate review and the appellant thereafter brings its appeal as provided in OCGA § 5–6–34 (b). See OCGA § 9–11–56 (h) (...
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