The Georgia Department of Transportation and a faction of the Ku Klux Klan will go to battle in the Monday afternoon session of the Supreme Court of Georgia.
At issue is an almost-four year battle between GDOT and the International Keystone Knights of the KKK over participation in the Adopt-a-Highway program. The Klan group applied in May 2012 to adopt a stretch of SR 515 in northern Union County. Initially the group was told it could participate in the highway clean-up effort by a local elected official, but the state later denied the group's application, citing the Klan's history of "civil disturbance."
With help from the American Civil Liberties Union (ACLU), the Georgia IKK Ku Klux Klan filed a lawsuit against the state alleging, among other things, that the group's right to free speech had been violated. The state asked that the lawsuit be dismissed, but a Fulton County Superior Court judge ruled that the lawsuit could move forward. Now, the state is asking the High Court to overturn that decision.
Oral arguments will begin sometime after 2 p.m. on February 22.
The following narrative in the case was provided by the Supreme Court of Georgia:
FACTS: The Adopt-a-Highway program was created in 1989 and is administered by the Georgia Department of Transportation. The program’s purpose is to enlist volunteers to help remove litter from state roadsides. Volunteers accepted into the program adopt at least a one-mile stretch of highway and agree to remove litter from both sides of the road at least four times a year for a two-year period. According to the program’s brochure, applicants include any “civic-minded organization, business, individual, family, city, county, state, or federal agency.” In exchange for the volunteer work, the brochure states that to “show the community that you are doing your part to clean up Georgia, the department will erect a sign with the Adopt-a-Highway logo and your group’s name.” In May 2012, April Chambers and Harley Hanson, members of the International Keystone Knights of the Ku Klux Klan, submitted to Union County an application to participate in the Adopt-a-Highway program and remove trash along a portion of State Route 515. In their application, they requested that “Georgia IKK Ku Klux Klan” be the name listed on the signs that would be placed along both sides of the highway. A County Commissioner gave them trash bags and vests they could use to begin picking up the trash. Later that month, however, they received a letter stating they needed to apply instead directly to the DOT, which they did. On June 12, 2012, Chambers and Hanson received a letter from the then-Commissioner of Transportation, denying their application due to the Ku Klux Klan’s “long-rooted history of civil disturbance” and the “potential for social unrest.” The letter from the State said 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.” The same day, the State also published a press release announcing its denial of the Klan’s application.
On Sept, 13, 2012, the KKK sued the State in Fulton County Superior Court, seeking among other things a permanent injunction prohibiting the State from denying the Klan an Adopt-a-Highway Permit and a “declaratory judgment” declaring that the State was wrong to deny the permit and that the Adopt-a-Highway program violated the state Constitution, as well as the Klan’s right to free speech. The State filed a motion asking the court to dismiss the lawsuit on the ground that the Klan’s claims for declaratory and injunctive relief were prohibited by the legal doctrine of sovereign immunity, which shields the State and its agencies from being sued. On May 31, 2013, the trial judge dismissed all the Klan’s claims but the claims for a permanent injunction and the declaratory judgment. In March 2014, both sides filed motions for “summary judgment,” which a judge grants after deciding a jury trial is unnecessary because the facts are undisputed and the law falls squarely on the side of one of the parties. In the judge’s final order, the trial court partially granted the Klan’s motion for summary judgment and denied the State’s. Specifically, the judge rejected the State’s argument that the claims were barred by sovereign immunity. In her ruling, the judge acknowledged the state Supreme Court’s recent 2014 ruling in Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., which stated that sovereign immunity bars claims for injunctive relief. However, the judge held that this case was different because the Klan was raising constitutional claims. The State now appeals to the Georgia Supreme Court.
ARGUMENTS: The Attorney General’s office, representing the state, argues the Fulton County court ignored precedent and erred in ruling that a party may sue the State for injunctive relief and declaratory judgment based on constitutional claims. The Georgia Constitution specifically states that the “sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” “In reaching its conclusion, the trial court ignored a litany of appellate cases, which plainly establish that a party may only maintain a suit against the State of Georgia if the sovereign immunity of the State of Georgia has been waived by an act of the General Assembly or the State Constitution,” the State’s attorneys argue in briefs. In this case, “neither the Georgia Constitution nor any statute enacted by the General Assembly provides for an express waiver of sovereign immunity for the KKK’s claim for injunctive relief.” And in its Sustainable Coast decision, this Court specifically ruled that “the plain language of [the state Constitution] explicitly bars suits against the State or its officers and employees sued in their official capacities, until and unless sovereign immunity has been waived by the General Assembly…the straightforward text of the 1991 amendment does not allow for exceptions.” “Even if the KKK’s claims for declaratory and injunctive relief could be maintained against the State, which they cannot, said claims would still fail on the merits, as any speech implicated by the Adopt-a-Highway program is government speech that is not subject to First Amendment claims,” the State argues. The state sign that would appear along the highway bearing the Klan’s name would appear under the State seal. Rather than acknowledging the program as government speech, which entitles the State to choose between the messages with which it chooses to associate, the trial court incorrectly deemed the program a “forum” and held that the State must be neutral in picking participants. “There is a critical difference between the government’s regulation of private speech, which is subject to First Amendment scrutiny, and government speech, which is not,” the State argues. “It is clear that the government signs in this case, which are erected on government property, represent government speech. This is true even though the names of private entities appear on the State’s signs.” “The purpose of the Adopt-a-Highway program is to advance the State’s message of litter control, not to open a forum for private expression.” “The State has made no effort to silence the traditional free speech rights of the KKK. Rather, the State has simply exercised its own right to control the message it communicates with the public, by disassociating itself with messages and images it does not wish to propagate.”
Attorneys for the Ku Klux Klan argue that the only applicant to the Adopt-a-Highway program ever denied participation is the Klan, whose application was denied because the State disagreed with its “ideology and history.” The International Keystone Knights of the Ku Klux Klan “seeks to be heard on the merits of a constitutional claim, regarding its right to free speech, a civil liberty, and is entitled to bring such a claim to court,” the attorneys argue in briefs. “Georgia case law supports this right for citizens to bring claims against the State when their constitutional rights have been violated….Accordingly, the doctrine of sovereign immunity may not protect the State from the Court hearing the [Klan’s] constitutional claims.” “Both federal and state courts have consistently ruled that the principle of a doctrine intended to financially protect the state, such as sovereign immunity, may not be extended to shield state agencies from suit for their violations of constitutional rights.” “In the cases that the state cites in support of its claim of sovereign immunity, no constitutional claims were decided.” In this Court’s Sustainable Coast decision, “this Court specifically noted that it was not addressing the constitutional claims made by the Center for a Sustainable Coast.” “If this Court were to find sovereign immunity were a bar to the enforcement of constitutional rights afforded to citizens under the Georgia Constitution, such as the right to freedom of speech and the right to be free from unconstitutional takings, there would be no mechanism for citizens to defend or for courts to enforce these most cherished freedoms,” the Klan’s attorneys argue. The Adopt-a-Highway program does not involve government speech but rather involves the private speech of its participants, and the State’s denial of the Klan’s application violated the Klan’s constitutional right to free speech. The Adopt-a-Highway program is a “forum,” the attorneys contend, and once the government creates a forum, “it cannot discriminate against speakers based on the content of the speech, the viewpoint of the speech, or the identity of the speaker.” The Georgia Supreme Court should uphold the Fulton County court ruling, the Klan’s attorneys argue.
