ATLANTA — Georgia Supreme Court justices on Thursday heard an attorney argue the Sons of Confederate Veterans could sue for damages in a case that could determine the future of a historic statue on the Covington Square.
The Supreme Court listened to appeals from both sides in their review of the mid-2021 decision by the state Court of Appeals in a lawsuit filed by the Georgia Sons of Confederate Veterans (SCV) group seeking damages from Newton County’s planned removal of a Confederate monument from downtown Covington.
The Court of Appeals in July 2021 agreed with a Newton County Superior Court 2020 ruling that the SCV could not sue a government because the “constitutional doctrine of standing still requires that a cause of action involve a concrete and particularized injury” rather than an injury considered more psychological in nature.
SCV attorney Kyle King said the state’s Open Meetings Law allows individuals to sue government entities for violations without having to prove they suffered any direct harm — which is “essentially what we’re doing here.”
He said the SCV was in the position of enforcing a “public right,” just as open meetings laws require meetings to be open to the public for the same reason.
King told the justices the statue’s removal may not be a “concrete” injury to an individual.
“It’s a harm to the body politic, it’s a harm to the state,” King said.
In addition “we can’t just pocket the money” if the SCV wins damages, King said.
“We have to go spend the money to do what it was intended to do,” he said. “Given the existence of the Open Records Act, the Open Meetings Act, and the fact that these damages have to then be used for the benefit of the public, it does create enough of an injury for the (SCV), that this statute is within whatever standing limitation that the constitution provides.”
Justice Nels Peterson said if the rule of “standing” — requiring a “concrete” injury be shown in order to sue — applied in all courts in Georgia “it is hard for me to see” how laws like the Open Meetings Act could be upheld.
Newton County government attorney Patrick Jaugstetter said the SCV lawsuits seek to recover damages to provide the money to repair a Confederate memorial statue that had been removed.
Those bringing lawsuits under the Open Meetings Act want a civil penalty to enforce a “public right,” he said.
“Under the Open Meetings Act you’re not allowed to sue for damages. You can only obtain a civil penalty,” Jaugstetter said.
“If I’m suing you for damages I must show you an injury. Damages exist only to address injuries. These plaintiffs have not established (that).”
Jaugstetter said the case — combining Sons of Confederate Veterans (SCV) lawsuits against the Newton and Henry counties’ boards of commissioners — rested on whether the issue of determining legal standing to sue the two counties rested with the state government’s judicial branch or the legislative branch including the General Assembly.
“This court and only this court can establish (standing),” he said.
The SCV maintained the 2019 state law called the Statue Protection Act set no limits on who could bring a legal action against a government to stop it from removing a monument.
The law stated in part that a “public entity owning a monument or any person, group, or legal entity” had a right to bring a cause of action to stop its removal.
The Newton County part of the case stems from the Board of Commissioners’ vote in July 2020 to remove the 116-year-old “To the Confederate Dead of Newton County” monument from the middle of a county-owned park on the Covington Square.
However, the state and Newton County SCV chapters joined with a county resident to sue to halt its removal and seek damages because of the removal’s likely effect on some county residents.
A Newton County Superior Court judge later ordered neither side to remove the statue until all legal appeals were exhausted.
Henry County commissioners voted to remove a 112-year-old Confederate memorial statue from a county-owned site on the McDonough square in July 2020.
The Court of Appeals in July 2021 agreed with a Newton County Superior Court ruling that the SCV could not sue the counties because the “constitutional doctrine of standing still requires that a cause of action involve a concrete and particularized injury” rather than injury considered more psychological in nature.
The SCV appealed and stated the Court of Appeals was wrong in saying the state Constitution required an individualized injury be present to establish standing to sue. Newton and Henry counties say the Georgia Constitution does not specifically give anyone without injury standing to sue.
Chief Justice David Nahmias said the court would make its ruling as soon as possible but did not give a timetable.
