Georgia’s “Judicial Power”

Anthony Sanders · October 26, 2022

“Standing” is the first key to the courthouse door. (Unfortunately for civil rights plaintiffs, there are several other keys but they’re not our focus in this post.) In essence, standing is the idea that if you file a lawsuit and prevail you’ll get something out of it beyond the satisfaction of winning and doing good. In federal court there are various statutes that recognize various people as having standing, but those laws can’t go beyond the bounds of the Constitution. The same is true in state court.

This week the Georgia Supreme Court explored some of the bounds of the Georgia Constitution in Sons of Confederate Veterans v. Henry Board of Commissioners. It’s an opinion of special interest for students of state constitutions because, in contrast to some of its previous cases, the court was careful to distinguish Georgia’s constitutional rules from those that apply in federal court. And in so doing the court demonstrated that it’s often easier—but not that easy—to fit the key of standing in a state courthouse door than a federal one.

Judicial power > cases and controversies

The underlying lawsuit involved a controversial subject—various people trying to prevent a city from taking down a Confederate monument. But that question wasn’t before the state supreme court. It only addressed whether the monument’s supporters could sue to save it. A Georgia statute allowed just about anyone to sue to do exactly that. The court examined whether that grant went beyond the bounds of the Georgia Constitution.

Article III of the U.S. Constitution limits the federal courts’ jurisdiction to “cases and controversies.” The Supreme Court has interpreted this to mean, among other things, that a plaintiff in a lawsuit must have an injury specific to them that they want the court to redress. Simply wanting the court to do good isn’t enough, nor is a “generalized grievance,” such as simply being a taxpayer and disagreeing with an illegal expenditure of tax dollars. In the latter case the injury, although real, doesn’t suffice because it isn’t particular enough. In other words, all taxpayers are injured, so no one has standing to sue. Maybe it doesn’t make sense, but that’s what the Supreme Court has said.

At the state level, however, things can be quite different. Many states do not have “cases or controversies” language in their constitutions. Georgia’s constitution, and the constitutions of many other states, simply refers to the courts having the state’s “judicial power.” Thus, if a court acts outside of the “judicial power” it would be acting outside its constitutional authority. There may be room, however, inside the “judicial power” but outside the federal understanding of mere “cases and controversies.”

For example, a few years ago in Couey v. Atkins, Oregon’s supreme court said that its “judicial power” was broader than federal standing and mootness rules. Instead, the limits on jurisdiction were more prudential, and flexible. Courts can take cases when they are simply of statewide importance, even if the plaintiffs might not exactly have anything in the lawsuit beyond making a point. (The Couey opinion has an excellent summary of early English and American understandings of “judicial power” that any student of the area would enjoy.)

Stakeholder standing

In the Confederate monument case, the Georgia Supreme Court took a middle path between the rules of standing in federal cases and a more open-ended approach like in Oregon. As in that case, the court surveyed common law understandings of “judicial power” and how that phrase in the state constitution (which has been in various versions of the Georgia Constitution since 1798) has been understood over the years. It came to the conclusion that Georgia’s standing rules do not require an injury at the same level as the U.S. Supreme Court has demanded for “cases and controversies.” The court particularly noted the common law practice of writs of mandamus, and other writs, used to prevent local governments from violating “public rights.” In one Georgia case, for example, residents of a city were able to sue the board of commissioners because they had failed to select a city manager, in violation of the law. None of them were directly injured by this, other than in the sense that all residents were injured through their government not performing its legal duties. (I myself am familiar with this practice, as I once asked for a writ of mandamus on behalf of a few residents of Atlanta and Fulton County when local law enforcement failed to publish their forfeiture reports.) And the court also noted the common acceptance of taxpayer standing in suits against local governments for all kinds of things, such as illegally spending city money or issuing illegal bonds.

In contrast to these “stakeholder standing” examples—where residents, voters, or taxpayers are injured in a general sense—the court discussed plaintiffs who aren’t taxpayers or residents and simply want to see the government follow the law. They do not have standing, said the Georgia Supreme Court, because the “judicial power” doesn’t go as far as to simply right wrongs. In the actual case this led the court to conclude that one plaintiff who was a resident of the city had standing to try and prevent the Confederate monument’s removal, but people from elsewhere did not. The court then remanded for the case to move forward with the one remaining plaintiff.

Further, the court expressly said the opinion only concerned local governments. It claimed that suits against the state, especially to have a state statute declared unconstitutional, raise additional concerns, such as separation of powers, and left that question for another day. I myself think that the logic would be the same there, but we shall see. There is some precedent that local governments, as corporations (as they’re usually called) can be sued by residents in the same way that shareholders can sue the company they hold shares in. For states, as “sovereigns” not corporations, the authority might be different.

The meaning of time

The case is also extremely interesting for anyone into the intersection of originalism and states with multiple constitutions. I wrote earlier this year about the concept of “interconstitutionalism,” where language from an older constitution is used in a newer one and whether the “original meaning” of the older version should be imputed to the newer. You can also find a scholarly article on the subject by Jason Mazzone and Cem Tecimer here, and this talk by retired Georgia Justice Keith Blackwell here, from the Center for Judicial Engagement’s Forum on the Georgia Constitution from earlier this year. This issue comes up in Georgia more than in most states because the state has had approximately (there’s some disagreement on exactly how many) ten constitutions over its history, so there’s all kinds of “borrowing” of past constitutional text on many different levels.

The court in the Confederate monument case reasserted what it has said before, which is that there is a “presumption of constitutional continuity.” That is, the meaning of a provision when it is first adopted—in this case in 1798—is presumed to be carried forward to its readoption in a future constitution if the text isn’t altered. This is quite extreme here, as Georgia’s present constitution was only adopted in 1983. This presumption is only that, however, and can be rebutted with evidence of a changed meaning.

There’s a lot that could be said about this approach and the presumption, but it doesn’t seem to have done very much work in the Confederate monument case. Even though the court started with the presumption, it examined cases throughout Georgia history allowing suits of local governments. This practice it found to inform what “judicial power” means for the present constitution, and led to the conclusion that the meaning today—in Georgia at least—of that phrase is essentially the same as it was in 1798. Thus, it reaffirmed the presumption, which, after all, is just a presumption, not an “irrebuttable presumption” such as sometimes happens in cases applying the rational basis test.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.