KKK Step Closer To Participate in Georgia’s ‘Adopt-A-Highway’ Program

STATE OF GEORGIA ET AL. V. INTERNATIONAL KEYSTONE KNIGHTS OF THE KU KLUX KLAN, INC. (S16A0367)

The Ku Klux Klan has won a partial victory under a decision today by the Supreme Court of Georgia.

In today’s unanimous opinion, written by Justice Keith Blackwell, the high court has dismissed the State’s appeal of a Fulton County court ruling because the state Department of Transportation failed to follow the correct procedure in filing its appeal.

As a result, the Klan’s lawsuit against the State for denying its application to participate in Georgia’s “Adopt-A-Highway” program may proceed to trial.

According to the facts of the case, 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 state Department of Transportation, 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, according to briefs filed in the case.

On Sept, 13, 2012, the KKK sued the State in Fulton County Superior Court, naming the Department of Transportation, the Commissioner and Governor as defendants. The Klan sought 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. It sought a “writ of mandamus” to force the Department to approve its application. 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 the Klan’s mandamus claim but allowed the claims for a permanent injunction and the declaratory judgment to go forward.
In March 2014, both sides filed motions for “summary judgment,” which a judge grants after deciding a trial is unnecessary because the facts are undisputed and the law falls squarely on the side of one of the parties. 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 regarding free speech. The judge stated in her 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 of free speech,” and she further prohibited the Department of Transportation from “denying applications to the [program] for public concern related to a group’s history of civil disturbance.” The State then appealed to the Georgia Supreme Court.

In today’s opinion, the high court has provided an extensive explanation of an area of appellate law that has caused tremendous difficulty in the past. In this case, it has concluded that it lacks the authority – or jurisdiction – to consider the State’s appeal.
“To invoke the jurisdiction of an appellate court, an appellant must bring its appeal in a way that comports with the requirements of the Appellate Practice Act of 1965 as amended,” today’s 33-page opinion states. If one has an automatic right to appeal under the law, he may do so by filing a “notice of appeal” in the trial court. In some cases, however, there is no automatic right to appeal and one must file an application to appeal, asking the court to exercise its discretion and grant the appeal.

In this case, the Department had no automatic right to appeal under Georgia Code § 5-6-35 (a) (1) because it involved a judgment by a superior court regarding a decision by a state administrative agency. Yet the Department failed to file an application to appeal.
“Because the Department appeals from a decision of a superior court reviewing a decision of a state administrative agency, it was required under § 5-6-35 (a) (1) to bring its appeal by way of an application for discretionary review,” the opinion concludes. “The Department failed to do so, and that circumstance leaves this Court without appellate jurisdiction. Accordingly, this appeal must be dismissed.”

Attorneys for Appellants (State): Samuel Olens, Attorney General, W. Wright Banks, Jr., Dep. A.G., Julie Jacobs, Sr. Asst. A.G., Daniel Strowe, Asst. A.G., Brittany Bolton, Asst. A.G.
Attorneys for Appellees (KKK): Alan Begner, Cory Begner, Nora Benavidez

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