ATLANTA — Attorneys argued about a government’s “insulation” from interference with its official actions and if a group had legal “standing” to stop removal of a statue from Covington Square in court filings before a long-awaited Tuesday hearing in Atlanta.

The attorneys representing the Newton County Board of Commissioners and the Georgia chapter of the Sons of Confederate Veterans filed their arguments in recent months before the Georgia Court of Appeals was to consider the separate but related cases Tuesday, April 13, at 10:30 a.m

Newton County resident Tiffany Humphries and the Georgia chapter of the Sons of Confederate Veterans were appealing a judge’s October 2020 ruling that they could not stop the county government’s removal of the 115-year-old Confederate memorial statue from the Covington Square.

The Humphries and SCV cases mostly mirror each other in their assertions each is legally entitled to ask a court to stop the county’s removal of the statue following the Board of Commissioners’ July vote to do so.

Attorneys argued two parts of Newton County Superior Court Judge John Ott’s ruling that Humphries and the SCV lacked legal “standing” and the county government had sovereign immunity from legal actions against its official actions.

SOVEREIGN IMMUNITY

Attorney Kyle King, representing the Sons of Confederate Veterans, wrote in a brief filed with the Court of Appeals that the Newton County court wrongly ruled the doctrine of sovereign immunity “insulates” Newton County Board of Commissioners and the county government from being sued.

The Georgia Constitution includes a provision called sovereign immunity that states a government cannot be sued for an action done in its legal operating capacity.

King wrote that Georgia governments claiming sovereign immunity often cite a 2014 case that claimed the same protection.

However, King said the Supreme Court has ruled that sovereign immunity does not protect government officers “in all circumstances.” 

He cited a 2020 case in Valdosta in which the state Supreme Court ruled that governments may be protected but individual government officers “acting beyond their legal authority” are not protected from an injunction.

King wrote that a 2019 state law “expressly permits such suits to be brought” against the Board of Commissioners and the county government because they meet the law’s definition of agencies that can be stopped from removing a Confederate monument.

King also wrote that the Covington Confederate memorial meets the state law’s definition of a structure that can be protected from removal.

The law does allow a government to remove a Confederate monument in some specific instances, such as the need for construction of a traffic project in its place. However, it specifies the memorial must be moved to a place of equal prominence and not to a cemetery or museum.

County attorney Megan Martin argued that the state Constitution says sovereign immunity “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.” 

“This constitutional immunity from suits extends to counties,” Martin wrote.

She also cited a 2000 case from Athens-Clarke County that she said established that “immunity from suit is a privilege, and the waiver must be established by the party seeking to benefit from the waiver.”

She also said the Georgia Supreme Court stated in a 2014 case that the state and “all of its departments and agencies,” including Newton County, were protected.

In a 2017 case, the court ruled that “we held that the doctrine extends to suits for injunctive relief,” Martin said.

She also wrote that a review of the 2019 law protecting Confederate memorial statues “reveals that there is no specific provision waiving the county’s sovereign immunity as to claims for injunctive relief.:

“As such, the trial court did not err in concluding that sovereign immunity barred appellants’ claims for injunctive relief.”

LEGAL “STANDING”

King said Ott ruled the Sons of Confederate Veterans lacked legal “standing” to file the injunction because they did not suffer an “actual injury” — only one that violated their beliefs. 

The SCV attorney wrote that the state Supreme Court “held that an association has standing to bring suit on behalf of its members (if) the interests it seeks to protect are germane to the organization’s purpose.” 

He said the 2019 state law says that “any person, group, or legal entity shall have a right to bring a cause of action for any conduct prohibited” by the same law.

“(That) unmistakably confers standing upon both individual members of the Sons of Confederate Veterans and the organization as a whole to sue in their own right,” King wrote.

King wrote that a 2020 U.S. Supreme Court case involving the federal Religious Freedom Restoration Act, also known as RFRA, stated individuals who sued the government about an action affecting their religious beliefs could be parties to a case because, “It is also the only form of relief that can remedy some [statutory] violations.”

Martin said the same federal law stated claims may be brought against a government employee in an individual capacity but does not allow suits against a government.

“As noted above, since a “local government”, such as (Newton County) is an ‘agency’” as defined in the 2019 state law and because the same state law “does not authorize suits against an ‘agency’” the federal case could be “construed as not authorizing a suit against a local government” such as Newton County.

Martin also said the SCV named the “Newton County Board of Commissioners” and not “Newton County” as a defendant.

“Courts routinely recognize that the various departments of a local government are merely the mechanism through which a local government fulfills its various functions and is not a proper party defendant,” Martin wrote.

“The law is well settled in Georgia that, absent a special act by the General Assembly, non-legal entities, such as school boards and departments of local governments, are not entities with the capacity to be sued.”