BLACK VOTERS MATTER FUND, INC. v. KEMP, GOVERNOR (Five Cases) ( 2022 )

In the Supreme Court of Georgia
Decided: March 8, 2022
S21A1261, S21A1262, S21X1326, S22X0007. BLACK VOTERS
MATTER FUND INC. et al. v. KEMP et al.; and vice versa (four
cases).
S21A1263. WILLIE SAUNDERS v. KEMP et al.
ELLINGTON, Justice.
On March 25, 2021, Governor Kemp signed into law Senate Bill
9 (“SB 9”), which created from the former Augusta Judicial Circuit
two new judicial circuits: the Columbia Judicial Circuit, comprised
of Columbia County, and the Augusta Judicial Circuit, comprised of
Burke and Richmond Counties. The judicial circuit split, which was
slated to become effective on July 1, 2021, was briefly stayed by
three lawsuits challenging the constitutionality of SB 9. The
lawsuits were filed in the Superior Court of Richmond County, one
by Columbia County citizen Willie Saunders and two by the
nonprofit, voting advocacy organization, Black Voters Matter Fund,
Inc. (“BVMF”). At the heart of each of these suits is an assertion that
Columbia County officials sought to form their own judicial circuit
as a racially discriminatory reaction to the election of District
Attorney Jared Williams in November 2020. Williams is the first
African American elected as District Attorney for the former
Augusta Judicial Circuit. He continues in that office in the new
Augusta Judicial Circuit.
These appeals and cross-appeals arise from the trial court’s
July 13, 2021 final judgment addressing the merits of the appellants’
challenges to SB 9 in each of the three suits. After an evidentiary
hearing, the trial court rejected the appellants’ challenges to SB 9,
declaring it “valid and enforceable” and allowing the circuit split to
proceed. However, as explained more fully in Division 1 below, we
vacate the trial court’s judgment as to BVMF and remand those
cases to the trial court with instruction that they be dismissed
because BVMF lacks standing to pursue its actions. As to Saunders,
we do not reach the merits of his appeal because, as explained in
Division 2 below, Saunders failed to challenge the trial court’s
2
dispositive ruling dismissing the defendants he sued. Thus, we also
vacate the judgment as to Saunders’s complaint and direct the trial
court to dismiss his action upon remand.
The facts pertinent to the resolution of these appeals are as
follows. On April 28, 2021, Saunders filed a verified complaint
against Governor Kemp and the counties comprising the former
Augusta Judicial Circuit (Burke, Columbia, and Richmond,
collectively, “the Counties”). Saunders asserted a claim for
declaratory relief against Governor Kemp and a claim for injunctive
relief against the Counties.1 On June 14, BVMF filed an unverified
1 In Richmond County Case No. 2021RCCV00277, Saunders averred that
SB 9 was unconstitutional because it violated (1) “Section 2 of the Voting
Rights Act, 52 USC §10301 et seq.; 42 USC §1983, the Due Process Clause of
the United States Constitution and the Due Process Clause of the Georgia
Constitution” (Count 1); (2) “the Separation of Powers Doctrine set forth in the
Georgia Constitution, Article I, Section 2, Paragraph II” (Count 2); (3) “the
provisions of the Due Process Clause of the Georgia Constitution and the
provision of Article II, Section 1, Paragraph III of the Georgia Constitution” by
“nullifying” votes for District Attorney Williams (Count 3); and (4) “the Due
Process Clause of the Georgia Constitution” by denying the voters of the
Augusta Judicial Circuit the opportunity to fill a vacant judicial seat (Count
4). Saunders prayed that the superior court declare SB 9 unconstitutional and
that the Counties be “enjoined and . . . permanently restrained from
distributing funds or taking additional action to create a separate judicial
[c]ircuit for Columbia County, Georgia[,] and . . . a judicial [c]ircuit for Burke
County and Richmond County, and from taking any actions to separate the
3
complaint (“BVMF I”) that was virtually identical to the Saunders
suit and which sought the same relief against the same defendants.2
In BVMF I, BVMF alleged that it is a nonprofit Georgia corporation
that represents the voting interests of African American voters in
the Counties.
BVMF thereafter filed a motion to consolidate BVMF I with
Saunders’s suit. On June 28, BVMF amended its original complaint
in BVMF I, purporting to add the State of Georgia as a defendant.3
BVMF also alleged that it is a “nonprofit organization registered in
the State of Georgia whose purpose and mission is to promote and
protect the voting rights of Black voters in Georgia through grass
roots campaigning, public relations, political endorsements,
Augusta Judicial Circuit.”
2 In Richmond County Superior Court Case No. S2021RCCV00336,
BVMF asserted essentially the same grounds for relief (though framed in three
counts) that Saunders asserted in Case No. 2021RCCV00277. It also sought
the same declaratory and injunctive relief against the same defendants.
3 In its first amended complaint, BVMF also added two additional claims
for relief. It alleged that SB 9 constituted a bill of attainder (Count 5) and that
SB 9 violated Title VI of the Civil Rights Act of 1964 (Count 6). BVMF asked
the superior court to declare SB 9 unconstitutional and to enjoin both Governor
Kemp and the Counties from taking action to effectuate the judicial circuit
split.
4
lobbying, and litigation.”
After a June 30 hearing addressing various motions, the trial
court entered orders consolidating the BVMF I and Saunders
actions. Also on June 30, the trial court dismissed Saunders’s claim
for declaratory relief, but not his claims for injunctive relief. And the
trial court extended the temporary restraining order against the
defendants, amending it to include the State of Georgia. On July 8,
BVMF filed a second amended complaint in the consolidated actions.
This complaint was verified. In this complaint, BVMF alleged for the
first time that it “has citizens in Georgia as members, including
members in the Augusta Judicial Circuit.” BVMF, however, did not
identify any of those members or allege that they were eligible
voters. In its response and special appearance, as well as in its
motion to dismiss, the State asserted a number of defenses,
including that BVMF lacked standing to sue and that service of
process on the State was insufficient.
On July 6, BVMF filed a separate verified complaint for
declaratory relief against the State of Georgia only (“BVMF II”). In
5
this complaint, BVMF asserted the same grounds for declaratory
relief that it had asserted in its prior action.4 BVMF did not move to
consolidate its second complaint with the two previously
consolidated actions, nor did the trial court enter such an order. The
court’s final order, however, reflects that its final judgment was
entered in all three actions.
On July 7, upon granting applications for discretionary appeal
brought by Governor Kemp and the State of Georgia from an order
of the trial court granting a temporary restraining order in the
consolidated actions, this Court directed the trial court to hold a
hearing to consider the following:
At the hearing, the trial court shall receive and consider
evidence and argument from the parties pertaining to at
least the following issues:
(1) Whether at least one plaintiff has direct or
associational standing to assert each of the claims;
(2) Whether sovereign immunity, as defined and waived
by current constitutional and statutory provisions, bars
4 In Richmond County Case No. 2021RCCV00381, BVMF asserted six
“theories of relief” supporting its claim for declaratory relief, theories that
mirrored the six counts asserted in Case No. 2021RCCV00336. BVMF also
asked the court to order “that the State of Georgia be temporarily enjoined and
restrained and permanently restrained from taking action to effectuate Senate
Bill Number 9 and create a separate judicial circuit for Columbia County.”
6
some or all of plaintiffs’ claims; and
(3) Whether plaintiffs have sued the proper defendants.
In addition, in ruling upon an interlocutory injunction,
the trial court shall apply the four-part test our case law
articulates:
An interlocutory injunction should not be
granted unless the moving party shows that:
(1) there is a substantial threat that the
moving party will suffer irreparable injury if
the injunction is not granted; (2) the
threatened injury to the moving party
outweighs the threatened harm that the
injunction may do to the party being enjoined;
(3) there is a substantial likelihood that the
moving party will prevail on the merits of her
claims at trial; and (4) granting the
interlocutory injunction will not disserve the
public interest.
City of Waycross v. Pierce Cty. Bd. of Comm’rs, 300 Ga.
109, 111 (1) (793 SE2d 389) (2016) (quoting Bishop v.
Patton, 288 Ga. 600, 604- 605 (3) (a) (706 SE2d 634)
(2011)).
On July 12, 2021, the trial court conducted an evidentiary
hearing addressing the merits of the claims asserted in the
consolidated actions (Saunders and BVMF I) and in BVMF II, which
had been filed just six days before the hearing. The trial court did
not follow all of this Court’s instructions; instead, it announced at
the outset of the hearing that it intended to address first “whether
7
Senate Bill 9 is void or valid.”5 After receiving documentary evidence
and witness testimony on that issue, the trial court summarily
rejected arguments pertaining to whether BVMF or Saunders had
satisfied their burden of establishing standing to sue and whether
the named defendants were proper parties.6 Instead, without
explaining its reasoning, the trial court held that the State was the
only proper defendant in the cases, that BVMF and Saunders had
standing to sue, and that BVMF had perfected service of process on
the State of Georgia. 7 At the end of the hearing, the trial court orally
5 At the beginning of the hearing, the State asserted that BVMF’s second
suit against the State, BVMF II, violated the “prior pending action doctrine,”
which prohibits the simultaneous prosecution of two actions by the same
plaintiff against the same party. See OCGA § 9-2-5. The court rejected this
argument, stating: “I’m not going to grant it. . . . I understand some of the
technicalities that are going on in this case but [the Supreme Court wants this
case] resolved.”
6 For example, when counsel for the State attempted to argue that the
evidence adduced at the hearing showed that BVMF lacked members, the trial
court told counsel: “I’ve already ruled that they’ve got standing[,] so don’t go
there.” Similarly, the court rebuffed counsel’s efforts to argue that BVMF failed
to perfect service on the State, stating: “I said I was going forward on the case,”
but then abruptly held: “I find [that service] was proper.”
7 In its responsive pleadings and motions to dismiss in the consolidated
actions, as well as in its statements to the court during the evidentiary hearing,
the State asserted several defenses, including: (1) BVMF lacked standing to
bring any of the claims asserted against the State in either of its actions, and
(2) neither Saunders nor BVMF had properly served the State with process in
8
ruled in favor of the State on the merits, finding that SB 9 did not
violate the federal or state constitutions or any provision of federal
or state law, as variously alleged by Saunders and BVMF.
On July 13, 2021, the trial court entered a written order
memorializing most of its rulings. 8 In addition to ruling that the
appellants’ legal challenges lacked merit, the court summarily
concluded that the State of Georgia was the only proper defendant,
and it dismissed all of the remaining defendants. The court also
summarily concluded that Saunders and BVMF had “standing to
assert an action for [d]eclaratory [j]udgment.”
Saunders, in Case No. S21A1263, and BVMF, in Case Nos.
S21A1261 and S21A1262, appealed from this order, arguing that the
trial court erred in concluding that SB 9 was valid and enforceable.
Neither Saunders nor BVMF asserts in their appellate briefs that
the trial court erred in dismissing Governor Kemp and the Counties
the consolidated actions. There is no evidence in the record that the State
waived any of its defenses in this or in any prior hearing.
8 In its written order, the trial court did not address whether BVMF had
perfected service on the State of Georgia.
9
from the consolidated actions. The State cross-appealed in Case Nos.
S21X1326 and S22X0007, asserting, among other things, (1) that the
trial court erred in ruling that BVMF had standing to pursue its
claims; and (2) that the appellants had failed to perfect service of
process on the State in the consolidated actions.9 Because we agree
with the State that the trial court should have dismissed these three
suits, we do not address the claims of error raised in Saunders’s or
BVMF’s appellate briefs.
Case Nos. S21A1261 and 1262
1. In its appellate briefs, BVMF challenges the trial court’s
ruling that SB 9 was valid and enforceable. The State, however,
contends that the trial court erred in reaching the merits of BVMF’s
claims because BVMF lacked standing to sue the State on any of the
9 Governor Kemp joined in the State’s cross-appeal in Case No.
S22X0007, arguing, among other things, that the doctrine of sovereign
immunity barred all claims against him in his official capacity and that he was
never served in his individual capacity. Because the Governor was dismissed
as a defendant and the appellants do not challenge that ruling, we do not reach
the Governor’s claims of error.
10
claims asserted in BVMF I or BVMF II. 10 We agree.
Under Georgia law, a trial court lacks subject matter
jurisdiction to address the merits of a constitutional challenge to a
statute brought by a party who does not have standing to bring that
challenge. See Parker v. Leeuwenburg, 300 Ga. 789, 790 (797 SE2d
908) (2017) (“[S]tanding . . . is a jurisdictional issue[.]” (citations
omitted)); Blackmon v. Tenet Healthsystem Spalding, Inc., 284 Ga.
369, 371 (667 SE2d 348) (2008) (“[A] plaintiff with standing is a
prerequisite for the existence of subject matter jurisdiction[.]”
(footnote omitted)); Perdue v. Lake, 282 Ga. 348, 348 (1) (647 SE2d
6) (2007) (“[S]tanding must be determined at the time at which the
plaintiff’s complaint is filed in order to place an actual case or
controversy within the purview of the court.” (citations and
punctuation omitted)). Additionally, a trial court’s lack of subject
10 In its final judgment, the trial court did not specify whether it ruled
that BVMF had standing to sue in its own right (organizational standing) or
as a representative of its purported members (associational standing). The
court stated only: “Both Willie Saunders and Black Voters Matter Fund have
standing to assert an action for [d]eclaratory [j]udgment.” We consider the
issue of BVMF’s standing under both theories.
11
matter jurisdiction “cannot be waived and may be raised at any time
either in the trial court, in a collateral attack on a judgment, or in
an appeal.” (Citation and punctuation omitted.) Abushmais v. Erby,
282 Ga. 619, 622 (3) (652 SE2d 549) (2007).
“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.” (Citations omitted; emphasis supplied.)
Feminist Women’s Health Center v. Burgess, 282 Ga. 433, 434 (1)
(651 SE2d 36) (2007). However this Court has also recognized the
right of an association to bring suit on behalf of its members. See
Aldridge v. Ga. Hospitality & Travel Assn., 251 Ga. 234, 236 (1) (304
SE2d 708) (1983). To avoid dismissal of its claims or actions based
on a lack of standing, BVMF, as the party invoking the jurisdiction
of the court, had the burden of demonstrating that it had either
direct or associational standing to sue. See, e.g., New Cingular
Wireless PCS, LLC v. Dept. of Revenue, 308 Ga. 729, 732 (843 SE2d
431) (2020) (A party “must establish standing to sue on the ground
asserted, which requires showing an injury in fact that was caused
12
by the breach of a duty owed by the defendants to the plaintiffs and
that will be redressed by a favorable decision from the court.”
(citations and punctuation omitted)); Dept. of Human Resources v.
Allison, 276 Ga. 175, 178 (575 SE2d 876) (2003) (“The burden of
proving the interest necessary to demonstrate a particular party’s
standing is ordinarily placed on that party.” (citations omitted)).
A trial court’s determination on the issue of standing will not
be disturbed unless its factual determinations are clearly erroneous;
however, the trial court’s application of law to the facts is subject to
de novo appellate review. In re Haney, 355 Ga. App. 658, 658 (845
SE2d 380) (2020) (“Under Georgia law, a trial court’s decision with
respect to standing will not be reversed absent clear error, although
we review de novo any questions of law inherent in that decision.”
(citation and punctuation omitted)). See also Stuttering Foundation,
Inc. v. Glynn County, 301 Ga. 492, 503 (2) (801 SE2d 793) (2017) (“A
trial court’s determination on the issue of standing in a zoning case
will not be disturbed unless its factual determinations are clearly
erroneous.” (citation omitted)).
13
(a) BVMF does not have direct organizational standing. Under
Georgia law, “[t]here is no question that an association may have
standing in its own right to seek judicial relief from injury to itself
and to vindicate whatever rights and immunities the association
itself may enjoy[.]” Sawnee Elec. Membership Corp. v. Dept. of
Revenue, 279 Ga. 22 (1) (608 SE2d 611) (2005).11 Organizational
standing, as opposed to associational standing, does not depend on
the standing of an organization’s members; instead, organizational
standing permits an organization to sue in its own right if it meets
the same standing test applicable to individuals. Thus, to maintain
an action challenging the constitutionality of SB 9 on this basis,
BVMF must establish standing to sue on the grounds asserted,
which requires showing (1) an injury in fact (2) a causal connection
between the injury and the alleged wrong, and (3) the likelihood that
11 Under federal standing law, a corporation may challenge a
government regulation that causes it economic injury, see Arnold Tours, Inc.
v. Camp, 400 U. S. 45, 46 (91 SCt 158, 27 LE2d 179 (1970) (per curiam), and
may also sue a government for injuring its constitutional rights, see Susan B.
Anthony List v. Driehaus, 573 U. S. 149, 158 (134 SCt 2334, 189 LE2d 246)
(2014).
14
the injury will be redressed with a favorable decision. See New
Cingular Wireless, 308 Ga. at 732; Granite State Outdoor
Advertising, Inc. v. City of Roswell, 283 Ga. 417, 418 (1) (658 SE2d
587) (2008). An “injury in fact” is one that is both “concrete and
particularized” and “actual or imminent, not conjectural or
hypothetical.” (Citations and punctuation omitted) Center for a
Sustainable Coast, Inc. v. Turner, 324 Ga. App. 762, 764 (751 SE2d
555) (2013). See also Women’s Surgical Center, LLC v. Berry, 302
Ga. 349, 351 (1) (806 SE2d 606) (2017) (“[A] party has standing to
pursue a declaratory action where the threat of an injury in fact is
‘actual and imminent, not conjectural or hypothetical.’”) (citation
omitted)); Manlove v. United Government of Athens-Clarke County,
285 Ga. 637, 638 (680 SE2d 405) (2009) (A litigant has standing to
challenge a law “only if the law has an adverse impact on that
litigant’s own rights,” which means that the litigant must establish
a “threat of injury in fact” that is “‘actual and imminent, not
conjectural or hypothetical.’”). Cf. Cheeks v. Miller, 262 Ga. 687, 688
(425 SE2d 278) (1993) (“A controversy is justiciable when it is
15
definite and concrete, rather than being hypothetical, abstract,
academic, or moot.” (citation omitted)). On the record before us,
BVMF cannot establish that it has direct organizational standing to
sue because BVMF has not shown that it suffered an injury in fact
as a result of the passage of SB 9.
BVMF is a nonprofit corporation. It is not a person entitled to
vote in the Augusta Judicial Circuit. 12 Further, the 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. See
Georgiacarry.org, Inc. v. Allen, 299 Ga. 716, 717-718 (791 SE2d 800)
(2016) (“[T]he fact that Georgia Carry may claim to have an ‘interest’
in the offices held by the [Code Revision] Commission members does
12 As we have explained, “the denial of the right [to elect public officials]
is such an injury to the personal right of any voter as would authorize him to
attack the constitutionality of an act used by officials to justify refusing to hold
required elections.” (Emphasis supplied.) Manning v. Upshaw, 204 Ga. 324,
327 (2) (49 SE2d 874) (1948). See also Barrow v. Raffensperger, 308 Ga. 660,
660, 678 (842 SE2d 884) (2020) (A Georgia voter has a right to pursue a
mandamus claim to enforce the Georgia Secretary of State’s duty to conduct an
election that is legally required.).
16
not transform Georgia Carry into a ‘person’ [entitled to bring an
action for quo warranto] under OCGA § 9-6-60.”).13
We note that we asked the parties to provide supplemental
briefing on the federal “diversion of resources theory” of standing,
whether other states have accepted or rejected it, and whether, as a
matter of Georgia law, an organization may have standing to sue
based solely on a “diversion of resources” theory. While the parties
have correctly observed that there is no Georgia precedent directly
addressing the “diversion of resources” theory and that this Court
has, in the past, cited federal cases on the issue of standing, we are
not bound to follow federal standing law. Standing is a question of
judicial power to adjudicate a dispute, and the text, history, and
precedents relating to judicial power under the Georgia Constitution
and the United States Constitution are not identical. With that in
mind, we must determine whether, under Georgia law, BVMF
13 Under federal standing law, an organization must show a concrete
injury to the organization’s activities and not simply a setback to the
organization’s abstract social interests. See Havens Realty Corp. v. Coleman,
455 U. S. 363, 379 (102 SCt 1114, 71 LE2d 214) (1982).
17
sustained an actual injury to its own interest that was fairly
traceable to the passage of SB 9.
Fundamentally, BVMF’s argument in support of the
application of a “diversion of resources” theory of standing is that
the passage of SB 9 frustrated its voter advocacy mission because it
was compelled to challenge the constitutionality of SB 9, and in
doing so, it diverted resources it would have otherwise directed to
other advocacy efforts.14 BVMF contends that this diversion of
resources and consequent frustration of certain aspects of its
mission is an injury sufficient to establish standing under federal
and state law. Even assuming that a “diversion of resources” theory
like that in federal law exists under Georgia law, we do not believe
that BVMF’s allegations support standing under such a theory.
14 In its second amended complaint, which was verified, BVMF averred
that its mission is to promote and protect the voting rights of Black voters in
Georgia through grass roots campaigning, public relations, political
endorsements, lobbying, and litigation. In furtherance of these goals, it
allocates its limited financial resources, staff, and volunteers to activities like
text and phone campaigns, voter registration drives, and grass roots campaign
and protest events. BVMF alleged: “As a result of [the State’s] illegal actions
herein, [BVMF] has had to divert funds away from the activities listed . . . in
order to pay for the costs associated with the litigation herein.”
18
The seminal federal “diversion of resources” theory case is
Havens Realty Corp. v. Coleman, 455 U. S. 363, 379 (102 SCt 1114,
71 LE2d 214) (1982). In that case, the plaintiff organization,
Housing Opportunities Made Equal (“HOME”), alleged that Havens,
a real estate company, steered African-American applicants, but not
white applicants, away from its apartments. See 455 U. S. at 368.
HOME, a nonprofit organization whose purpose was “to make equal
opportunity in housing a reality in the Richmond[, Virginia,]
Metropolitan Area” id., alleged that it was injured because Havens’
racial steering practices had frustrated its counseling and referral
services and, consequently, served as a drain on its resources.
Litigation was not a part of HOME’s mission. See id. at 369. HOME
alleged:
Plaintiff HOME has been frustrated by [Havens’] racial
steering practices in its efforts to assist equal access to
housing through counseling and other referral services.
Plaintiff HOME has had to devote significant resources to
identify and counteract [Havens’] racially discriminatory
steering practices.
(Punctuation omitted.) Id. at 379. Based on these allegations, the
19
United States Supreme Court held:
If, as broadly alleged, [Havens’] steering practices have
perceptibly impaired HOME’s ability to provide
counseling and referral services for low- and moderate-
income homeseekers, there can be no question that the
organization has suffered injury in fact. Such concrete
and demonstrable injury to the organization’s activities –
with the consequent drain on the organization’s resources
– constitutes far more than simply a setback to the
organization’s abstract social interests[.]
Id. HOME therefore had organizational standing under federal law.
In the years since Havens was decided, a split has developed in
the federal appellate courts as to whether simply diverting resources
to address an alleged wrong constitutes an injury in fact under a
“diversion of resources” theory. 15 Some federal courts have
interpreted Havens broadly, allowing an organization to show injury
in fact by showing only that the organization diverted resources
15 See Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc., 210
Fed. Appx. 469, 473-475 (6th Cir. 2006) (“The circuit courts differ, however, on
the extent to which they will consider injury related to litigation in reviewing
standing. Several courts have taken a more restrictive approach, holding that
to show standing, an organization must demonstrate that it suffered a concrete
injury that is completely independent from the economic and non-economic
costs of the litigation. . . . Other circuits have taken a more lenient approach,
allowing organizations to prove standing by showing that they diverted
resources toward litigation to counteract the defendant’s [actions].” (footnote
omitted)).
20
from its mission-oriented programs to activities intended to combat
the defendant’s allegedly wrongful conduct, including litigation. For
example, the Eighth Circuit Court of Appeals has held that an
organization can show an injury in fact in order to have standing to
bring suit by demonstrating that it deflected resources from its
mission-oriented efforts to legal efforts aimed at combating the
defendant’s conduct. See Arkansas ACORN Fair Housing, Inc. v.
Greystone Dev., Ltd., 160 F3d 433, 434 (8th Cir. 1998) (a deflection
of resources from a fair housing promotion organization’s counseling
or educational programs to legal efforts under the Fair Housing Act
to combat the defendant’s discrimination against homebuyers was
sufficient to constitute an injury). 16
16 See also Moya v. U. S. Dept. of Homeland Sec., 975 F3d 120, 130 (2d
Cir. 2020) (“[A] plaintiff needs to allege only some perceptible opportunity cost
from the expenditure of resources that could be spent on other activities.”
(citations and punctuation omitted)); Fla. State Conf. of NAACP v. Browning,
522 F3d 1153, 1166 (11th Cir. 2008) (Even if an organization arguably diverts
its resources voluntarily, a court will find organizational standing if the “drain
on [the] organization’s resources arises from the organization’s need to
counteract the defendants’ assertedly illegal practices [because] that drain is
simply another manifestation of the injury to the organization’s noneconomic
goals.” (citations and citation omitted)); Village of Bellwood v. Dwivedi, 895
F2d 1521, 1526 (7th Cir. 1990) (holding that a fair housing agency can establish
21
Other federal courts have interpreted Havens narrowly,
requiring the organization to show that it has suffered injuries
independent of the diversion of resources, particularly when
resources are diverted to litigation alone. For example, the Fifth
Circuit has held that
[a]n organization suffers an injury in fact if a defendant’s
actions “perceptibly impair” the organization’s activities
and consequently drain the organization’s resources.
However, an organization does not automatically suffer a
cognizable injury in fact by diverting resources in
response to a defendant’s conduct. For example, the mere
fact that an organization redirects some of its resources
to litigation and legal counseling in response to actions or
inactions of another party is insufficient to impart
standing upon the organization. Further, the
organization’s reaction to the allegedly unlawful conduct
standing simply by diverting time and money to legal efforts addressing the
defendant’s discrimination); Fair Fight Action v. Raffensperger, 413 F.Supp. 3d
1251, 1267-1268 (N. D. Ga. 2019) (The district court held that the plaintiffs
had standing sufficient to withstand a motion to dismiss because they had
alleged “reasonably anticipating having to shift resources from general
activities to new programs aimed directly at counteracting the activities
Defendants allegedly engaged in[.]”); Black Voters Matter Fund v.
Raffensperger, 478 F.Supp. 3d 1278, 1302 (II) (A) (N.D. Ga. 2020) (The district
court held that “BVMF’s allegations and evidence are sufficient to establish
injury to the organization under a diversion of resources theory. Plaintiff
BVMF has offered evidence that absent an injunction requiring the Secretary
of State to provide pre-paid postage for mail in absentee ballots, BVMF’s efforts
to increase voting by mail in low-income communities of color has likely been
adversely affected and will continue to be adversely affected.”).
22
must differ from its routine activities.
(Punctuation and footnotes omitted.) El Paso County. v. Trump, 982
F3d 332, 343-344 (5th Cir. 2020).17
We believe that the narrower approach is more consistent with
the reasoning in Havens – which, although not binding, is the
seminal federal precedent we examine here. Under our reading of
Havens, an organization suffers an injury in fact for purposes of
standing when the defendant’s actions impair the organization’s
ability to provide its services or to perform its activities and, as a
17 See also Food & Water Watch, Inc. v. Vilsack, 808 F3d 905, 420 (D.C.
Cir. 2015) (“An organization must allege more than a frustration of its purpose
because frustration of an organization’s objectives is the type of abstract
concern that does not impart standing. . . . [T]o establish [an organization’s]
standing in its own right, it must have suffered a concrete and demonstrable
injury to its activities. Making this determination is a two part inquiry – we
ask, first, whether the [defendant’s] action or omission to act injured the
organization’s interest and, second, whether the organization used its
resources to counteract that harm.” (citations and punctuation omitted));
NAACP v. City of Kyle, 626 F3d 233, 238 (5th Cir. 2010) (“[T]he mere fact that
an organization redirects some of its resources to litigation and legal
counseling in response to actions or inactions of another party is insufficient to
impart standing upon the organization.” (citations omitted)); Fair Housing
Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F3d 71, 80
(3d Cir. 1998) (“[T]he pursuit of litigation alone cannot constitute an injury
sufficient to establish standing under Article III.”); Spann v. Colonial Village,
Inc., 899 F2d 24, 27 (D.C. Cir. 1990) (An organization may establish Article III
standing if it is forced to devote resources, independent of its lawsuit, to
address the defendant’s actions.).
23
consequence of that injury, require a diversion of an organization’s
resources to combat that impairment. But we see no basis in Havens
to conclude that the diversion of resources to litigation, standing
alone, qualifies as an injury sufficient to confer standing on an
organization. If simply choosing to engage in litigation were
sufficient to confer standing to sue, then any special interest group
could manufacture standing to sue by simply asserting an
organizational purpose contrary to the issue being litigated and then
filing a lawsuit. See Spann v. Colonial Village, 899 F2d 24, 27 (D.C.
Cir. 1990) (An organization cannot “manufacture the injury
necessary to maintain a suit from its expenditure of resources on
that very suit.”).
Additionally, the broader approach, which BVMF relies on, is
inconsistent with the traditional requirement of Georgia standing
law that the organization itself suffer an actual, concrete, and
particularized injury as a result of a defendant’s actions. See, e.g.,
Manlove, 285 Ga. at 638 (An injury in fact must be “imminent” and
“concrete.”); Sustainable Coast, 324 Ga. App. at 764 (An “injury in
24
fact” is one that is both “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” (citations and
punctuation omitted)). Moreover, “when the plaintiff is not [itself]
the object of the government action or inaction [it] challenges,
standing is not precluded, but it is ordinarily substantially more
difficult to establish.” Sustainable Coast, 324 Ga. App. at 764.
Here, there was no evidence at the final hearing that the
passage of SB 9 impaired BVMF’s ability to carry out its voter
advocacy programs. BVMF has not shown how the division of one
judicial circuit into two circuits impaired its ability to register
voters, to advocate for voting rights, to engage in grassroots
campaigns, public relations, mission-oriented litigation, and so on. 18
This is particularly true given that litigation is one of BVMF’s stated
18 The case on which BVMF primarily relies does not support its
argument. In Black Voters Matter Fund v. Raffensperger, the district court
found that BVMF’s allegations and evidence were sufficient to establish injury
to the organization under a broad diversion of resources theory because BVMF
offered evidence that, absent an injunction requiring the Secretary of State to
provide pre-paid postage for mail-in absentee ballots, it would need to spend
thousands of dollars on postage and other advocacy efforts to increase voting
by mail in low-income communities of color. See 478 FSupp.3d at 1302 (II) (A).
The court did not premise its ruling on the claim that BVMF had to divert
resources as a consequence of the lawsuit that it had filed.
25
organizational purposes. Thus, BVMF has not demonstrated how
this litigation was necessary to remedy any alleged impairment of
its organizational activities. Because BVMF failed to prove that it
sustained an actual injury to its own interest that was fairly
traceable to the passage of SB 9, BVMF lacks standing to sue in its
own right. See New Cingular Wireless, 308 Ga. at 732; Granite State,
283 Ga. at 418 (1).
(b) BVMF does not have associational standing. Because BVMF
cannot establish that it has organizational standing to sue in its own
right, it must demonstrate that it has associational standing to
challenge SB 9. It must prove, among other things, that it was acting
in this litigation as a representative of members who suffered an
injury traceable to the passage of SB 9. Under Georgia law,
associational standing 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.
26
Aldridge, 251 Ga. at 236 (1). See also Atlanta Taxicab Co. Owners
Assn. v. City of Atlanta, 281 Ga. 342, 344 (2) (638 SE2d 307) (2006).
BVMF failed to present evidence satisfying the first prong of
this test. BVMF did not show that it has members who are citizens
eligible to vote in either the new or the former Augusta Judicial
Circuit (and who thus would have standing to sue in their own
right). Because voting is a personal right, BVMF was required to do
more than establish that it has members. It must establish that it
has members who are eligible to vote in the Augusta Judicial
Circuit. 19 This it entirely failed to do.
Moreover, BVMF failed to prove that it has any members
whatsoever. Although BVMF averred in its verified complaint that
it had members who reside in the former Augusta Judicial Circuit,
it offered no evidence at the evidentiary hearing to substantiate that
averment.20 The State, on the other hand, presented evidence that
19 See footnote 12 above.
20 In its second amended complaint, which was verified, BVMF alleged
for the first time that it “has citizens in Georgia as members, including
27
BVMF is a nonprofit corporation without members. The State
introduced in evidence a certified copy of BVMF’s articles of
incorporation, a document filed with the Secretary of State’s office
pursuant to OCGA § 14-2-201. The document expressly stated that
“[t]he corporation will not have members.” BVMF did not show the
trial court that it had amended the articles to add members, much
less members who were eligible voters, nor did it identify any
members in the Augusta Judicial Circuit.” BVMF asserted in its supplemental
appellate brief that it “presented” the trial court with its second amended
complaint during the July 12 evidentiary hearing. However, it has not shown
this Court by citation to the record where the amended complaint was entered
in evidence, and we have not been able to locate any such evidence. Because
BVMF did not put its verified allegations into evidence, it did not establish a
contested issue of fact at the hearing, where the burden of proof was on BVMF
to present admissible evidence, such as proper exhibits or testimony by
witnesses with personal knowledge who can be cross-examined. See, e.g.,
Sherman v. City of Atlanta, 293 Ga. 169, 174 (4) (744 SE2d 689) (2013) (At
trial, statements in the intervenors’ pleadings coupled with a verification were
insufficient to establish a contested issue of fact as to the intervenors’ standing
to object to a bond validation.).
Further, the record does not show that the trial court found that BVMF
had members prior to the July 12 evidentiary hearing. We note that, toward
the end of the July 12 evidentiary hearing, the trial court, referring to the June
30 motions hearing, stated: “I thought I ruled last week [that BVMF had
standing,] but my orders didn’t seem to reflect that.” The court went on to say:
“I found this morning before we started that both of [the defendants] have
direct – I was going to read this at the end, direct and associate [sic] standing
. . . . So that’s established[.]” It is not clear from the hearing transcript from
what document the trial court was reading. We have found no evidence in the
record or in the transcripts from the June 30 or July 12 hearings to support a
finding of fact by the trial court that BVMF has “members.”
28
eligible voter who claimed membership in the corporation.
Rather than identifying any specific Columbia, Richmond, or
Burke County eligible voter who is a member of BVMF, BVMF
argued in its appellate brief that its “members” are any of the voters
whom it contends had his or her vote “nullified” by SB 9. This Court
has not defined what it means to be a “member” of an association for
purposes of demonstrating associational standing. Although the
United States Supreme Court has permitted an organization that
does not have traditional, voluntary members to assert associational
standing, it did not premise such standing merely on the fact that
the organization claims to represent the interests of a group of
people or business entities. Rather, there had to be specific “indicia
of membership.” As the Supreme Court explained:
[W]hile the apple growers and dealers are not “members”
of the [Washington State Apple Advertising]
Commission[, a state agency,] in the traditional trade
association sense, they possess all of the indicia of
membership in an organization. They alone elect the
members of the Commission; they alone may serve on the
Commission; they alone finance its activities, including
the costs of this lawsuit, through assessments levied upon
them. In a very real sense, therefore, the Commission
29
represents the State’s growers and dealers and provides
the means by which they express their collective views
and protect their collective interests. Nor do we find it
significant in determining whether the Commission may
properly represent its constituency that “membership” is
“compelled” in the form of mandatory assessments.
Membership in a union, or its equivalent, is often
required. Likewise, membership in a bar association,
which may also be an agency of the State, is often a
prerequisite to the practice of law. Yet in neither instance
would it be reasonable to suggest that such an
organization lacked standing to assert the claims of its
constituents.
Hunt v. Washington State Apple Advertising Comm., 432 U. S. 333,
344-345 (2) (97 SCt 2434, 53 LE2d 383) (1977).21 BVMF has not
demonstrated any such indicia of membership, nor has it pointed to
any persuasive authority embracing a definition of “member” so
broad that it would include any person with whom an organization
purports to share a common cause. In fact, we have found persuasive
authority to the contrary. 22
21 This Court deemed Hunt persuasive authority in adopting its three-
part test for associational standing in Aldridge. See 251 Ga. at 236 (1).
22 See, e.g., Fund Democracy, LLC v. Securities Exchange Comm., 278
F3d 21, 25-26 (D.C. Cir. 2002) (A business that served as an advocate and
information resource for mutual fund investors could not claim associational
standing, because none of the individuals or groups it claimed to represent
30
Finally, BVMF’s assertion that this Court’s decision in
Aldridge supports its argument that it has satisfied the first prong
of the three-part test for associational standing is without merit. In
Aldridge, this Court did not examine what it meant to be a member
of an association, as that issue was not raised. See Aldridge, 251 Ga.
at 236 (1). Instead, applying the criteria set forth in Hunt, we held
that the Georgia Hospitality & Travel Association (“GHTA”) was an
unincorporated voluntary trade association that represented the
business interests of its member hotels, motels, restaurants, and
various travel-related industries. See id. (“[T]he record clearly
demonstrates that GHTA is a zealous advocate of its members’
acted as members of the business.); Sorenson Communications, LLC v. Fed.
Communications Comm., 897 F3d 214, 225 (D.C. Cir. 2018) (holding that it was
unclear that an organization would qualify as a “membership association” for
standing purposes when its claimed membership consisted of passive
subscribers to its email list and its Facebook followers who did not finance
organization’s activities or play a role in selecting leadership and 100 percent
of financial support was supplied by a co-plaintiff); DAI v. New York Coalition
for Quality Assisted Living, 675 F3d 149, 157-159 (2d Cir. 2012) (“[T]here is no
evidence that the individuals with mental illness on behalf of whom [the
advocacy organization] brought this case have anything approaching the
indicia of membership that is required under Hunt, much less that [the
organization] functions effectively as a membership organization.” (citation
and punctuation omitted)).
31
interests, and has provided adequate representation in this suit.”
(emphasis supplied)).
It is plain from the record before us that BVMF has neither
identified a specific member of its organization eligible to vote nor
shown that the voters it purports to represent qualify as members
of BVMF based on any indicia of membership in the organization,
such as financing BVMF’s activities or electing it leadership.
Because BVMF failed to show that it has members eligible to vote,
it cannot satisfy the criteria for associational standing; therefore, it
lacks standing to sue under that theory. See Aldridge, 251 Ga. at
236 (1); Atlanta Taxicab, 281 Ga. at 344 (2).
Absent a plaintiff with standing, the trial court lacked subject
matter jurisdiction to address the merits of BVMF’s complaints.
Because BVMF has not established standing to sue in its own right
or as a representative of its purported members, these lawsuits
should have been dismissed prior to any adjudication on the merits.
See Parker, 300 Ga. at 790; Blackmon, 284 Ga. at 371; Perdue, 282
Ga. at 348 (1). Consequently, we vacate the trial court’s order as to
32
BVMF’s complaints, and those complaints must be dismissed upon
remand to the trial court.
Case No. S21A1263
2. In Case No. S21A1263, Saunders challenges the trial court’s
judgment that SB 9 was valid and enforceable. As noted above,
Saunders’s complaint named only Governor Kemp and the Counties
as defendants. In its final judgment, the trial court ruled that the
State of Georgia was the only proper defendant and, on that basis,
dismissed Governor Kemp and the Counties. Although this ruling
effectively dismissed all of Saunders’s claims for relief, he has not
challenged this dispositive ruling on appeal. Accordingly, we do not
reach the merits of the claims of error Saunders enumerated in his
appellate brief. See Love v. Fulton County Bd. of Tax Assessors, 311
Ga. 682, 698 (3) (e) (859 SE2d 33) (2021) (Where the trial court did
not allow the petitioners to amend their petition to add necessary
parties as defendants, which ruling effectively eliminated their
claim for a tax refund, and the petitioners did not challenge that
ruling on appeal, this Court was not required to address the trial
33
court’s alternative rationale for dismissing the petitioners’ claim for
a refund.).
The trial court purported to rule on the merits of Saunders’s
claims, even though no defendant remained in his case. The trial
court should have dismissed Saunders’s case instead. We therefore
vacate the trial court’s order as to Saunders’s complaint and remand
with direction to dismiss the case.
3. Given our holdings in Divisions 1 and 2 above, we need not
address the issues raised in the State’s cross-appeals. Consequently,
we dismiss the cross-appeals as moot.
Judgments in Case Nos. S21A1261, S21A1262, and S21A1263
vacated, and cases remanded with direction. Appeals in Case Nos.
S21X1326 and S22X0007 dismissed as moot. All the Justices concur.
34
PETERSON, Justice, concurring.
The Court holds today, as it frequently has, that in order to
challenge the constitutionality of a statute, a plaintiff must have
“standing.” I concur fully in the Court’s opinion as a faithful
application of our precedent. I write separately with some
observations on the lack of clarity in our standing doctrine.
Our jurisdictional requirement of standing may sound familiar
from federal constitutional jurisprudence. See, e.g., Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (112 SCt 2130, 119
LE2d 351) (1992). But that federal jurisprudence is based on text in
the United States Constitution that qualifies the federal judicial
power. See U.S. Const. Art. III, Sec. II, Cl. I (the federal “judicial
[p]ower shall extend” only to certain kinds of “[c]ases” and
“[c]ontroversies”). No such concrete qualification appears in the
Georgia Constitution’s only provision that explicitly mentions the
state judicial power. See Ga. Const. of 1983, Art. VI, Sec. I, Par. I
(“The judicial power of the state shall be vested exclusively in the
35
following classes of courts . . . .”). 23 But we nevertheless have
standing requirements, too.
Despite the textual difference between the United States and
Georgia Constitutions, we have frequently cited federal standing
precedent in deciding Georgia cases without actually explaining why
federal case law interpreting Article III of the U.S. Constitution
should be considered persuasive authority for the different question
of Georgia standing law. See, e.g., Gaddy v. Ga. Dept. of Revenue,
301 Ga. 552, 555-556 (1) (a) (i) (802 SE2d 225) (2017); Parker v.
Leeuwenburg, 300 Ga. 789, 792-793 (797 SE2d 908) (2017); Oasis
23 The word “case” does appear elsewhere in Article VI of the Georgia
Constitution, although only in provisions with limited application. See, e.g.,
Art. VI, Sec. I, Par. VIII (“Any court shall transfer to the appropriate court in
the state any civil case in which it determines that jurisdiction or venue lies
elsewhere.”); see also generally Art. VI, Sec. II (governing venue for certain
types of “cases” and “suits”). And although at least one such provision is about
jurisdiction, see Art. VI, Sec. IV, Par. I (“The superior courts shall have
jurisdiction in all cases, except as otherwise provided in this Constitution.”),
other jurisdiction-vesting provisions — even beyond the judicial-power-vesting
provision discussed above — do not. See, e.g., Art. VI, Sec. III, Par. I (“The
magistrate, juvenile, and state courts shall have uniform jurisdiction as
provided by law. Probate courts shall have such jurisdiction as now or hereafter
provided by law, without regard to uniformity.”); Art. VI, Sec. III, Par. II (“The
state-wide business court shall have state-wide jurisdiction as provided by
law.”). So far as I can tell, we appear never to have considered whether any
such provisions might be read as a qualification on any portion of the state
judicial power.
36
Goodtime Emporium I, Inc. v. City of Doraville, 297 Ga. 513, 518 (2)
(773 SE2d 728) (2015). And from time to time in recent decades, we
have announced new rules of Georgia law by adopting wholesale
such federal precedent. See, e.g., Feminist Women’s Health Ctr. v.
Burgess, 282 Ga. 433, 435 (1) (651 SE2d 36) (2007) (adopting federal
third-party standing doctrine as defined in Powers v. Ohio, 499 U.S.
400, 411 (111 SCt 1364, 113 LE2d 411) (1991)); Bo Fancy Prods. v.
Rabun Cty. Bd. of Comm’rs, 267 Ga. 341, 344-345 (2) (a) (478 SE2d
373) (1996) (adopting federal doctrine of relaxed standing
requirements in First Amendment cases, citing Freedman v.
Maryland, 380 U.S. 51, 56 (85 SCt 734, 13 LE2d 649) (1965));
Aldridge v. Ga. Hosp. & Travel Assoc., 251 Ga. 234, 235-236 (1) (304
SE2d 708) (1983) (adopting federal associational standing doctrine
as defined in Hunt v. Wash. State Apple Advertising Comm., 432
U.S. 333, 341 (97 SCt 2434, 53 LE2d 383) (1977)). And in making
standing arguments before us, litigants very frequently rely on
federal precedent without any attempt to explain why Georgia
courts should apply such decisions. (Given our historical tendency to
37
adopt federal precedent without meaningful analysis, this approach
by litigants is understandable, if unhelpful to our efforts to
articulate Georgia law in a principled fashion.)
It seems to me well past time to consider the source and nature
of Georgia’s standing doctrine, and the extent to which our reliance
on federal standing jurisprudence really is appropriate in
interpreting and applying Georgia standing doctrine.24 A review of
our case law reveals no clear answer to such questions. One clear
line of case law — which we properly apply today — holds that
persons seeking to challenge a state statute as unconstitutional may
do so only if that statute has injured them in some specific way.
24 After further consideration, I have concluded that I was incorrect when
I previously suggested that standing requirements derive from our
Constitution’s grant to this Court of appellate jurisdiction over certain “cases.”
See Parker, 300 Ga. at 793 (Peterson, J., dissenting) (citing Ga. Const. of 1983,
Art. VI, Sec. VI, Pars. II, III, & V). Although standing of the kind I discuss in
this concurrence is a question of subject-matter jurisdiction, and we also speak
of our appellate jurisdiction in terms of subject-matter jurisdiction, they are
actually two distinct kinds of jurisdiction. The subject-matter jurisdiction at
issue with respect to standing addresses whether any Georgia court has the
power to decide a case. The subject-matter jurisdiction at issue with appellate
jurisdiction addresses a much narrower question: which Georgia appellate
court — this Court or the Court of Appeals — has the power to decide a
particular appeal.
38
Several subsets of this case law relax the injury requirement in
particular circumstances. And a second clear line of cases requires
no individualized injury at all so long as the plaintiff seeks to enforce
a public, rather than a private, right.
The first line of cases appears, perhaps, to have arisen from
considerations of separation of powers. And the second line of cases
appears to have arisen in the municipal context by analogizing the
rights of taxpayers and citizens of municipal corporations to those of
shareholders in private corporations, who can assert the
corporation’s own rights against its officers and directors in
derivative litigation. But it wasn’t long before we extended that line
of case law — without analysis — well beyond the municipal context.
The resulting hodge-podge of precedents leaves me uncertain as to
the source and nature of our standing doctrine. Until that
uncertainty is resolved, we cannot know how relevant any particular
federal precedent is to Georgia standing doctrine.
It seems to me that there are several conclusions to draw from
this uncertainty. First, we should stop making new Georgia
39
standing law based solely on federal law without explaining why
that federal law is persuasive in the Georgia context. Second,
litigants should stop citing federal case law in making arguments
about Georgia standing doctrine without explaining why that case
law is persuasive in the Georgia context. Third, our past precedent
relying on federal case law — even if wrongly decided — is precedent
binding on lower courts, and the principle of stare decisis tells us to
apply it ourselves until and unless we overrule it. And, finally, at
least some of our precedent that adopted new federal standing
doctrines wholesale may warrant reconsideration in an appropriate
case.25
1. Standing is a necessary prerequisite to challenge statutes as
unconstitutional.
As early as 1884, we recognized that principles underlying the
25I join in full the Court’s application of Aldridge in this case, as no party
has suggested we reconsider it, the question is not briefed, and ultimately the
conclusion is that standing is absent even under Aldridge. And the Court’s
analysis of the federal doctrine of “diversion of resources” expressly does not
adopt any such theory as a matter of Georgia law; rather, it concludes that any
such decision is unnecessary here, because the only version of the theory that
could plausibly give plaintiffs any relief is too broad to be compatible with
Georgia law.
40
separation of powers should also limit occasions on which we
determine whether statutes violate the Georgia Constitution to
those where such a decision was truly necessary. We gave expression
to this principle in several different ways. We first held that
[c]omity to a co-ordinate department of the government
requires, according to many decisions of this and other
courts, that causes shall not be disposed of upon
constitutional grounds when it is possible to avoid such
questions, without a sacrifice of the rights of parties . . . .
Bd. of Educ. of Glynn County v. Mayor of Brunswick, 72 Ga. 353,
354-355 (1) (1884). Two years later, we rejected a challenge to a
statute and held that only once “the law operates upon the private
property of an individual, and that is seized or destroyed or
confiscated, or the individual is arrested and indicted thereunder for
its violation” can the “portion of the law thus affecting his private
property and personal liberty . . . be assailed by him as
unconstitutional or illegal[.]” Scoville v. Calhoun, 76 Ga. 263, 269
(1886). The reason was again the separation of powers. The courts
had to “giv[e] the benefit of doubts to the co-ordinate branches of
government” and “never decide laws unconstitutional, if cases can
41
be otherwise adjudicated.” Id. These early decisions — although not
about standing — respected the separation of powers by withholding
judicial review of the constitutionality of a statute when the case
could properly be resolved in some other way.
In 1888, we identified the absence of standing as a threshold
matter that foreclosed judicial review. See Reid v. Mayor & c.
Eatonton, 80 Ga. 755, 757 (6 SE 602) (1888). We relied primarily on
a leading constitutional law treatise for this proposition that a court
“‘will not listen to an objection made to the constitutionality of an
act by a party whose rights it does not affect, and who has, therefore,
no interest in defeating it.’” Id. at 757 (quoting Thomas Cooley, A
TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON
THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION
197 (5th ed.) (1888)). By the turn of the century, we deemed it “a
well-settled rule of law” that before “a law can be attacked by any
citizen on the ground of its unconstitutionality, he must show that
its enforcement is an infringement upon his rights of person or
property.” Plumb v. Christie, 103 Ga. 686, 692 (30 SE 759) (1898).
42
Although the separation of powers required us to refrain from
deciding constitutional questions unnecessarily, a plaintiff
satisfying an individualized standing requirement in raising a
constitutional challenge presented a constitutional question that
could not be avoided.26 Without such individualized standing,
however, the obligation to avoid unnecessary constitutional
questions prevailed. We continued to apply our standing rule
throughout the duration of the 1877 Constitution. See Stegall v. Sw.
Ga. Rgl. Hous. Auth., 197 Ga. 571, 583 (30 SE2d 196) (1944); Webb
v. City of Atlanta, 186 Ga. 430, 444-445 (5) (198 SE 50) (1938);
Witherow v. Bd. of Drainage Commrs., 155 Ga. 476, 476 (117 SE 329)
(1923); Cooper v. Rollins, 152 Ga. 588, 593 (110 SE 726) (1922); see
also Harrell v. Cane Growers’ Co-op. Assn., 160 Ga. 30, 72 (126 SE
531) (1925) (Russell, C.J., concurring). Under the 1945 and 1976
26The United States Supreme Court appears to have adopted a similar
approach over a century ago: “Considerations of propriety, as well as long-
established practice, demand that we refrain from passing upon the
constitutionality of an act of Congress unless obliged to do so in the proper
performance of our judicial function, when the question is raised by a party
whose interests entitle him to raise it.” Blair v. United States, 250 U.S. 273,
279 (39 SCt 468, 63 LEd 979) (1919).
43
Constitutions, we consistently applied the same standing rule. See,
e.g., St. John’s Melkite Catholic Church v. Commr. of Rev., 240 Ga.
733, 735 (3) (242 SE2d 108) (1978); Northeast Factor & Discount Co.
v. Jackson, 223 Ga. 709, 711 (1) (157 SE2d 731) (1967); S. Ga. Nat.
Gas Co. v. Ga. Pub. Serv. Comm’n, 214 Ga. 174, 175 (1958); West v.
Hous. Auth. of Atlanta, 211 Ga. 133, 136 (1954).
We also have at least two contexts — taxes and voting — in
which we accept a less-individualized kind of injury as satisfying
this standing requirement. We have long held that taxpayers
generally have standing to contest unlawful expenditures of public
funds when they are “in danger of injury through loss of public funds
or property.” Morris v. City Council of Augusta, 201 Ga. 666, 670 (1)
(40 SE2d 710) (1946) (distinguishing cases not allowing such suits
as lacking that danger); see also, e.g., Williams v. DeKalb County,
308 Ga. 265, 272 (3) (b) (ii) & n.13 (840 SE2d 423) (2020). Similarly,
we have held that taxpayers have standing to challenge
unconstitutional tax exemptions, because of each taxpayer’s
particularized injury from another’s unlawful exemption. See Lowry
44
v. McDuffie, 269 Ga. 202, 203-204 (1) (496 SE2d 727) (1998) (“Each
taxpayer has an interest in seeing that no other taxpayer is illegally
exempted from the payment of [a] tax. An illegal exemption places a
greater tax burden upon those taxpayers being required to pay.”).
And we have long held that voters — by virtue of being voters — can
have standing to constitutionally challenge election laws. Our
rationale has been that “the denial of the right [to elect public
officials] is such an injury to the personal right of any voter as would
authorize him to attack the constitutionality of an act[.]” Manning
v. Upshaw, 204 Ga. 324, 327 (2) (49 SE2d 874) (1948) (emphasis
added); see also Barrow v. Raffensperger, 308 Ga. 660, 667 (2) (b)
(842 SE2d 884) (2020) (citing Manning). Both of these contexts still
require a showing of a kind of injury, even though that showing may
be more relaxed than in other contexts.
To the extent that our standing injury requirement arises from
our Constitution’s Separation of Powers Provision, there’s thus a
45
good argument that it was baked into the 1983 Constitution. 27 See
Elliott v. State, 305 Ga. 179, 181-182 (II) (824 SE2d 265) (2019).28
27 The current text of our Separation of Powers Provision has been part
of every Georgia Constitution since 1877. See Ga. Const. of 1983, Art. I, Sec.
II, Par. III (“The legislative, judicial, and executive powers shall forever remain
separate and distinct.”); Ga. Const. of 1976, Art. I, Sec. II, Par. IV; Ga. Const.
of 1945, Art. I, Sec. I, Par. XXIII; Ga. Const. of 1877, Art. I, Sec. I, Par. XXIII.
And although expressed in different words, the underlying constitutional
requirement that the powers of the three branches remain separate is as old
as our State’s independence from England. See Ga. Const. of 1861, Art. II, Sec.
I, Par. I (“The Legislative, Executive and Judicial departments, shall be
distinct . . . .”); Ga. Const. of 1798, Art. I, Sec. I (“The legislative, executive, and
judiciary departments of Government shall be distinct, and each department
shall be confided to a separate body of magistracy . . . .”); Ga. Const. of 1789,
Arts. I-III (separating three branches); Ga. Const. of 1777, Art. I (“The
legislative, executive, and judiciary departments shall be separate and
distinct, so that neither exercise the powers properly belonging to the other.”);
cf. 1776 R. & Reg. of Colony of Ga. 3d, 5th, & 7th (separating three branches).
28 Whether this rule that arose in the context of constitutional challenges
to statutes might extend more broadly is a question for another day. The
Georgia Constitution vests only the “judicial power of the state” in Georgia’s
courts. Ga. Const. of 1983, Art. VI, Sec. I, Par. I. At least some of our case law
suggests that this limits jurisdiction to cases with standing. See, e.g., Jersawitz
v. Eldridge, 262 Ga. 19, 20 (413 SE2d 725) (1992) (holding “the existence of an
actual controversy was necessary” before “judicial power” could be exercised,
and concluding that trial court exceeded the judicial power by issuing an order
interpreting a statute without a case or adversarial parties before it); Gas-
Light Co. v. West, 78 Ga. 318, 319 (1886) (“A judicial power extends to deciding,
determining controversies which arise between persons and individuals
according to law.”). And we have questioned whether the General Assembly
can grant Georgia courts jurisdiction over subject matter that is not
“inherently judicial.” See Harris v. Sheffield, 128 Ga. 299, 303 (57 SE 305)
(1907). But as noted below, we also have long adjudicated cases involving
public rights without applying the standing rules discussed here. See also
Jones v. Boone, 297 Ga. 437, 439 (1) (774 SE2d 668) (2015) (noting longstanding
46
And given that we’ve often said a lack of standing deprives us of
subject-matter jurisdiction — the power to decide a case — it would
be odd for standing to have a sub-constitutional status. But our case
law lacks clarity on this point.
2. At least some claims expressly do not require standing.
While the standing prerequisite for constitutional challenges
to statutes dates back to the 1800s, so too does a line of cases
expressly disclaiming such a requirement. Apparently beginning in
1897, we have consistently held that citizens and taxpayers may sue
government officials to enforce publicly owed legal duties, and to
contest their ultra vires act. This line appears to have its origins in
Keen v. Mayor & Council of Waycross, 101 Ga. 588 (29 SE 42) (1897).
There, citing only treatises, we held that
taxpayers may enjoin municipal corporations and their
officers from transcending their lawful powers or
precedent that quo warranto action challenging right to public office may be
brought by local resident or taxpayer). It seems to me that an effort to root
standing principles in the limited nature of “the judicial power” that is vested
in Georgia courts, if applied to all cases to which the judicial power extends,
could be difficult to square with our well-established public rights precedents.
But no such argument is present in this case, and so I reserve any conclusion
on that point.
47
violating their legal duties in any mode which will injure
the taxpayers, — such as making an unauthorized
appropriation of the corporate funds, or an illegal
disposition of the corporate property.
Id. at 592 (citation and punctuation omitted). Framed slightly
differently,
any property-holder or municipal taxpayer may resort to
equity to prevent municipal corporations or officials from
exceeding their lawful powers or neglecting or violating
their legal duties, under any circumstances where the
taxpayer’s interest will be injuriously affected.
Id. at 592-593. We noted that this “privilege of the taxpayer” was not
a matter of statute. Id. at 593. And we explained that this rule was
the same as the rule for shareholders of private companies, who can
assert the rights of the corporation against the corporation’s
directors and officers through derivative litigation. Id.Incongruously, we also quoted a treatise extending the rule to
actions against “county, town, or city authorities[.]” Id. (quoting “1
Pom. Eq. Jur. § 260, pp. 347, 348”).
By the adoption of the 1933 Code, the rule was codified in
statute in what is now OCGA § 9-6-24. And the more than 120 years
since Keen have seen us apply this rule in all sorts of contexts, both
48
municipal and beyond: cities, counties, school boards, hospital
authorities, etc. See, e.g., Rothschild v. Columbus Consol. Govt., 285
Ga. 477, 479 (678 SE2d 76) (2009) (county); Tift County Hosp. Auth.
v. MRS of Tifton, Inc., 255 Ga. 164, 165 (1) (335 SE2d 546) (1985)
(hospital authority); League of Women Voters of Atlanta-Fulton
County, Inc. v. City of Atlanta, 245 Ga. 301, 303 (1) (264 SE2d 859)
(1980) (city); Stephens v. Moran, 221 Ga. 4, 5 (1) (142 SE2d 845)
(1965) (city); Floyd v. Thomas, 211 Ga. 656, 656 (1) (87 SE2d 846)
(1955) (county commissioners); Irwin v. Crawford, 210 Ga. 222, 224
(78 SE2d 609) (1953) (county board of education); Colston v.
Hutchinson, 208 Ga. 559, 561 (67 SE2d 763) (1951) (same); Smith v.
McMichael, 203 Ga. 74, 74 (1) (45 SE2d 431) (1947) (county
commissioners); Thomas v. Ragsdale, 188 Ga. 238, 239-240 (1) (3
SE2d 567) (1939) (same); Atlanta Title & Trust Co. v. Tidwell, 173
Ga. 499, 507-508 (1) (160 SE 620) (1931) (superior court clerk);
Plainfield Consol. Sch. Dist. v. Cook, 173 Ga. 447, 448 (1) (160 SE
617) (1931) (school board); Bd. of Comm’rs of City of Manchester v.
Montgomery, 170 Ga. 361, 366 (2) (153 SE 34) (1930) (city);
49
McGinnis v. McKinnon, 165 Ga. 713, 713 (1) (141 SE 910) (1928)
(county commissioners).
A small handful of decisions have even applied the public-
rights rule to relieve the necessity for individualized standing in
suits against state officials. See, e.g., Villyard v. Regents of Univ.
Sys. of Ga., 204 Ga. 517, 522-523 (50 SE2d 313) (1948) (rejecting
equal protection challenge for lack of standing but considering same
petitioners’ constitutional challenge based on other provisions);
Bankers’ Savings & Loan Co. v. Better Bus. Div. of Atlanta Chamber
of Commerce, 177 Ga. 334, 335-337 (170 SE 291) (1933) (holding
public-rights rule sufficient to provide standing for suit to compel
state banking superintendent to regulate particular entity). And at
least one decision applied this rule to allow a challenge to local
legislation enacted by the General Assembly without acknowledging
our case law requiring individualized standing to challenge statutes.
See Smith v. McMichael, 203 Ga. 74, 74-75 (1) (45 SE2d 431) (1947).
It is not obvious that all of these cases can be reconciled into a
50
coherent framework. I certainly do not purport to do so here.29
3. Without clearly identifying the source and nature of
Georgia’s standing requirements, we should be very hesitant
to rely on federal precedents.
We often rely on decisions of federal courts or sister states
when we find them persuasive on a Georgia law question. But such
foreign decisions “generally will prove persuasive only to the extent”
that the foreign courts “actually were guided by th[e] same
language, history, and context” as the Georgia law at issue. Elliott,
305 Ga. at 188 (II) (C). It is not possible to determine how persuasive
we should find federal standing precedents when we have not
identified clearly the Georgia authority from which our standing
requirements arise.
It does seem to me that the most basic part of federal standing
29 This case law also seems fundamentally inconsistent with Justice
Thomas’s description of the common law as placing a higher burden for
showing injury on a plaintiff seeking to vindicate a public right than existed
for a plaintiff seeking to vindicate only a private right against a private party.
See Spokeo, Inc. v. Robins, 578 U.S. 330, 343-346 (136 SCt 1540, 194 LE2d 635)
(2016) (Thomas, J., concurring). Of course, the common law of England as of
1777 is the law of Georgia except to the extent it has been displaced by the
constitution or a statute. See OCGA § 1-1-10 (c) (1). But our precedent long ago
took another path.
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doctrine is a useful framework for thinking about Georgia standing
in cases that require it. In Lujan, the United States Supreme Court
articulated three longstanding building blocks of standing: injury in
fact (i.e., the plaintiff has suffered an actual, concrete injury),
causation (that injury was caused by and traceable to the wrong the
plaintiff challenges), and redressability (it is possible to remedy the
injury through court action). See Lujan, 504 U.S. at 560-561. That
three-part formulation makes sense when we consider the principle
we have applied in our standing cases. We have required a party to
have a concrete and particularized interest in stopping a statute
from being applied to it. See, e.g., Northeast Factor & Discount Co.,
223 Ga. at 710 (1) (“An attack made upon the constitutionality of an
Act of the General Assembly to be valid must be made by a party
whose rights are affected and who therefore has an interest in such
Act.”); Webb, 186 Ga. at 444-445 (5) (“[T]he general law and special
law above referred to would have no application to the petitioners,
and they could not be injuriously affected by the application and
enforcement of the special law. Therefore they could not attack its
52
constitutionality; and under the above rulings this court will not
pass upon such attack.”); Plumb, 103 Ga. at 692. Similarly, if an
injury was not caused by the challenged statute, then the party —
injured or not — has had no interest in challenging it. See, e.g., Reid,
80 Ga. at 757 (observing that we could not “see what right” plaintiff
had to file suit, as he did not “allege any injury accruing to him by
the enforcement of the act”). And the same logic holds true if holding
a statute unconstitutional would not redress the claimed injury.
Accordingly, those federal principles, at their most basic, do not
appear to be inconsistent with Georgia standing law.
But over time, the federal courts have developed a complex web
of applications of and exceptions to the standing doctrine. Before we
rely upon such federal decisions, we ought to be confident that they
are consistent with Georgia standing law. See, e.g., Elliott, 305 Ga.
at 187-189 (II) (C) (federal interpretations of the federal constitution
generally will prove persuasive in interpreting equivalent state
provisions “only to the extent that the [federal] decisions actually
were guided by [the] language, history, and context” of the state
53
legal provision at issue). Unless and until we can explain the source
and nature of Georgia standing requirements, it will be difficult at
best to achieve such confidence in most cases.
I am authorized to state that Justice Warren joins in this
concurrence.
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