A lawsuit from the Ku Klux Klan over adopting part of a highway in Union County for litter pickup may go forward to trial following a ruling from the Georgia Supreme Court.
The Georgia Department of Transportation had denied a 2012 application from the KKK to the Adopt-A-Highway program, which requires volunteers remove litter from a roadway at least four times a year in exchange for a sign posted with the organization’s name.
In a unanimous decision announced Tuesday, justices dismissed the state’s appeal of a lower court ruling. Court officials say the DOT failed to follow the correct procedures in filing its appeal.
The high court called its decision a “partial victory” for the KKK.
Nick Genesi, spokesman for Attorney General Sam Olens, said the state is “reviewing the decision and considering our options but will have no further comment because the matter is still pending before the courts.”
The International Keystone Knights of the Ku Klux Klan had sued the state after it denied the group’s application to participate in Georgia’s “Adopt-A-Highway” program, which enlists volunteer groups to clean up roadside litter.
The American Civil Liberties Union Foundation sued on the KKK’s behalf, saying its free speech rights were violated.
April Chambers and Harley Hanson, members of the KKK group, submitted the application in May 2012 to adopt a stretch of Ga. 515, according to the court summary.
The application requested the name Georgia IKK Ku Klux Klan be posted on a sign along the road. A county commissioner gave the members trash bags and vests, but the DOT later denied the application due to the KKK’s “long-rooted history of civil disturbance” and the “potential for social unrest,” according to the summary.
On Sept. 13, 2012, the KKK sued the state in Fulton County Superior Court, naming the DOT, its commissioner and the governor as defendants. The lawsuit claimed the Adopt-A-Highway program violates the state Constitution and the KKK’s right to free speech.
In March 2014, the lower court judge rejected the state’s argument that the claims were barred by sovereign immunity.
The judge further banned the DOT from “denying applications … related to a group’s history of civil disturbance,” the summary states.
Fulton County Superior Court Judge Shawn Ellen LaGrua said the KKK's group's application was treated differently than others and that “viewpoint-based discrimination” is not allowed under the Georgia Constitution.
The state appealed to the Georgia Court of Appeals, arguing that the KKK group's arguments were barred by the principle of sovereign immunity, which shields the state and state agencies from being sued in their official capacity unless the General Assembly waives that protection.
In November, the Court of Appeals said it doesn't have jurisdiction in cases involving the construction of the state or federal constitutions in which the constitutionality of a law, ordinance or constitutional provision is questioned. It transferred the case to the Georgia Supreme Court.
The DOT had no automatic right to appeal the judgment by a superior court regarding a decision by a state administrative agency and, therefore, would have had to file an application to appeal, the Supreme Court opinion says. The department failed to do that, leaving the high court without jurisdiction and with no choice but to dismiss the appeal, the opinion says.
Alan Begner, an attorney for the KKK group, said the group is considering the ruling a victory, though he and his clients would have liked the Supreme Court to weigh in on the underlying issue of sovereign immunity in cases of constitutional challenges to government actions.
“The ACLU of Georgia is pleased that the trial court’s order stands,” according to a statement from the organization.
“Government cannot limit participation in government programs to those groups or organizations it prefers. Government must allow all to participate on an equal basis and not discriminate based upon who the organization is or what the organization stands for.”