BLACK VOTERS MATTER FUND INC. v. KEMP

ELLINGTON, Justice.

On March 25, 2021, Governor Kemp signed into law Senate Bill 9 ("SB 9"), which created from the former Augusta Judicial Circuit two new judicial circuits: the Columbia Judicial Circuit, comprised of Columbia County, and the Augusta Judicial Circuit, comprised of Burke and Richmond Counties. The judicial circuit split, which was slated to become effective on July 1, 2021, was briefly stayed by three lawsuits challenging the constitutionality of SB 9. The lawsuits were filed in the Superior Court of Richmond County, one by Columbia County citizen Willie Saunders and two by the nonprofit, voting advocacy organization, Black Voters Matter Fund, Inc. ("BVMF"). At the heart of each of these suits is an assertion that Columbia County officials sought to form their own judicial circuit as a racially discriminatory reaction to the election of District Attorney Jared Williams in November 2020. Williams is the first African American elected as District Attorney for the former Augusta Judicial Circuit. He continues in that office in the new Augusta Judicial Circuit.

These appeals and cross-appeals arise from the trial court's July 13, 2021 final judgment addressing the merits of the appellants' challenges to SB 9 in each of the three suits. After an evidentiary hearing, the trial court rejected the appellants' challenges to SB 9, declaring it "valid and enforceable" and allowing the circuit split to proceed. However, as explained more fully in Division 1 below, we vacate the trial court's judgment as to BVMF and remand those cases to the trial court with instruction that they be dismissed because BVMF lacks standing to pursue its actions. As to Saunders, we do not reach the merits of his appeal because, as explained in Division 2 below, Saunders failed to challenge the trial court's dispositive ruling dismissing the defendants he sued. Thus, we also vacate the judgment as to Saunders's complaint and direct the trial court to dismiss his action upon remand.

The facts pertinent to the resolution of these appeals are as follows. On April 28, 2021, Saunders filed a verified complaint against Governor Kemp and the counties comprising the former Augusta Judicial Circuit (Burke, Columbia, and Richmond, collectively, "the Counties"). Saunders asserted a claim for declaratory relief against Governor Kemp and a claim for injunctive relief against the Counties.1 On June 14, BVMF filed an unverified complaint ("BVMF I") that was virtually identical to the Saunders suit and which sought the same relief against the same defendants.2 In BVMF I, BVMF alleged that it is a nonprofit Georgia corporation that represents the voting interests of African American voters in the Counties.

BVMF thereafter filed a motion to consolidate BVMF I with Saunders's suit. On June 28, BVMF amended its original complaint in BVMF I, purporting to add the State of Georgia as a defendant.3 BVMF also alleged that it is a "nonprofit organization registered in the State of Georgia whose purpose and mission is to promote and protect the voting rights of Black voters in Georgia through grass roots campaigning, public relations, political endorsements, lobbying, and litigation."

After a June 30 hearing addressing various motions, the trial court entered orders consolidating the BVMF I and Saunders actions. Also on June 30, the trial court dismissed Saunders's claim for declaratory relief, but not his claims for injunctive relief. And the trial court extended the temporary restraining order against the defendants, amending it to include the State of Georgia. On July 8, BVMF filed a second amended complaint in the consolidated actions. This complaint was verified. In this complaint, BVMF alleged for the first time that it "has citizens in Georgia as members, including members in the Augusta Judicial Circuit." BVMF, however, did not identify any of those members or allege that they were eligible voters. In its response and special appearance, as well as in its motion to dismiss, the State asserted a number of defenses, including that BVMF lacked standing to sue and that service of process on the State was insufficient.

On July 6, BVMF filed a separate verified complaint for declaratory relief against the State of Georgia only ("BVMF II"). In this complaint, BVMF asserted the same grounds for declaratory relief that it had asserted in its prior action.4 BVMF did not move to consolidate its second complaint with the two previously consolidated actions, nor did the trial court enter such an order. The court's final order, however, reflects that its final judgment was entered in all three actions.

On July 7, upon granting applications for discretionary appeal brought by Governor Kemp and the State of Georgia from an order of the trial court granting a temporary restraining order in the consolidated actions, this Court directed the trial court to hold a hearing to consider the following:

On July 12, 2021, the trial court conducted an evidentiary hearing addressing the merits of the claims asserted in the consolidated actions (Saunders and BVMF I) and in BVMF II, which had been filed just six days before the hearing. The trial court did not follow all of this Court's instructions; instead, it announced at the outset of the hearing that it intended to address first "whether Senate Bill 9 is void or valid."5 After receiving documentary evidence and witness testimony on that issue, the trial court summarily rejected arguments pertaining to whether BVMF or Saunders had satisfied their burden of establishing standing to sue and whether the named defendants were proper parties.6 Instead, without explaining its reasoning, the trial court held that the State was the only proper defendant in the cases, that BVMF and Saunders had standing to sue, and that BVMF had perfected service of process on the State of Georgia.7 At the end of the hearing, the trial court orally ruled in favor of the State on the merits, finding that SB 9 did not violate the federal or state constitutions or any provision of federal or state law, as variously alleged by Saunders and BVMF.

On July 13, 2021, the trial court entered a written order memorializing most of its rulings.8 In addition to ruling that the appellants' legal challenges lacked merit, the court summarily concluded that the State of Georgia was the only proper defendant, and it dismissed all of the remaining defendants. The court also summarily concluded that Saunders and BVMF had "standing to assert an action for [d]eclaratory [j]udgment."

Saunders, in Case No. S21A1263, and BVMF, in Case Nos. S21A1261 and S21A1262, appealed from this order, arguing that the trial court erred in concluding that SB 9 was valid and enforceable. Neither Saunders nor BVMF asserts in their appellate briefs that the trial court erred in dismissing Governor Kemp and the Counties from the consolidated actions. The State cross-appealed in Case Nos. S21X1326 and S22X0007, asserting, among other things, (1) that the trial court erred in ruling that BVMF had standing to pursue its claims; and (2) that the appellants had failed to perfect service of process on the State in the consolidated actions.9 Because we agree with the State that the trial court should have dismissed these three suits, we do not address the claims of error raised in Saunders's or BVMF's appellate briefs.

Case Nos. S21A1261 and 1262

1. In its appellate briefs, BVMF challenges the trial court's ruling that SB 9 was valid and enforceable. The State, however, contends that the trial court erred in reaching the merits of BVMF's claims because BVMF lacked standing to sue the State on any of the claims asserted in BVMF I or BVMF II.10 We agree.

Under Georgia law, a trial court lacks subject matter jurisdiction to address the merits of a constitutional challenge to a statute brought by a party who does not have standing to bring that challenge. See Parker v. Leeuwenburg, 300 Ga. 789, 790 (797 S.E.2d 908) (2017) ("[S]tanding . . . is a jurisdictional issue[.]" (citations omitted)); Blackmon v. Tenet Healthsystem Spalding, Inc., 284 Ga. 369, 371 (667 S.E.2d 348) (2008) ("[A] plaintiff with standing is a prerequisite for the existence of subject matter jurisdiction[.]" (footnote omitted)); Perdue v. Lake, 282 Ga. 348, 348 (1) (647 S.E.2d 6) (2007) ("[S]tanding must be determined at the time at which the plaintiff's complaint is filed in order to place an actual case or controversy within the purview of the court." (citations and punctuation omitted)). Additionally, a trial court's lack of subject matter jurisdiction "cannot be waived and may be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal." (Citation and punctuation omitted.) Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 S.E.2d 549) (2007).

"As a general rule, a litigant has standing to challenge the constitutionality of a law only if the law has an adverse impact on that litigant's own rights." (Citations omitted; emphasis supplied.) Feminist Women's Health Center v. Burgess, 282 Ga. 433, 434 (1) (651 S.E.2d 36) (2007). However this Court has also recognized the right of an association to bring suit on behalf of its members. See Aldridge v. Ga. Hospitality & Travel Assn., 251 Ga. 234, 236 (1) (304 S.E.2d 708) (1983). To avoid dismissal of its claims or actions based on a lack of standing, BVMF, as the party invoking the jurisdiction of the court, had the burden of demonstrating that it had either direct or associational standing to sue. See, e.g., New Cingular Wireless PCS, LLC v. Dept. of Revenue, 308 Ga. 729, 732 (843 S.E.2d 431) (2020) (A party "must establish standing to sue on the ground asserted, which requires showing an injury in fact that was caused by the breach of a duty owed by the defendants to the plaintiffs and that will be redressed by a favorable decision from the court." (citations and punctuation omitted)); Dept. of Human Resources v. Allison, 276 Ga. 175, 178 (575 S.E.2d 876) (2003) ("The burden of proving the interest necessary to demonstrate a particular party's standing is ordinarily placed on that party." (citations omitted)).

A trial court's determination on the issue of standing will not be disturbed unless its factual determinations are clearly erroneous; however, the trial court's application of law to the facts is subject to de novo appellate review. In re Haney, 355 Ga.App. 658, 658 (845 S.E.2d 380) (2020) ("Under Georgia law, a trial court's decision with respect to standing will not be reversed absent clear error, although we review de novo any questions of law inherent in that decision." (citation and punctuation omitted)). See also Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492, 503 (2) (801 S.E.2d 793) (2017) ("A trial court's determination on the issue of standing in a zoning case will not be disturbed unless its factual determinations are clearly erroneous." (citation omitted)).

(a) BVMF does not have direct organizational standing. Under Georgia law, "[t]here is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy[.]" Sawnee Elec. Membership Corp. v. Dept. of Revenue, 279 Ga. 22 (1) (608 S.E.2d 611) (2005).11 Organizational standing, as opposed to associational standing, does not depend on the standing of an organization's members; instead, organizational standing permits an organization to sue in its own right if it meets the same standing test applicable to individuals. Thus, to maintain an action challenging the constitutionality of SB 9 on this basis, BVMF must establish standing to sue on the grounds asserted, which requires showing (1) an injury in fact (2) a causal connection between the injury and the alleged wrong, and (3) the likelihood that the injury will be redressed with a favorable decision. See New Cingular Wireless, 308 Ga. at 732; Granite State Outdoor Advertising, Inc. v. City of Roswell, 283 Ga. 417, 418 (1) (658 S.E.2d 587) (2008). An "injury in fact" is one that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." (Citations and punctuation omitted) Center for a Sustainable Coast, Inc. v. Turner, 324 Ga.App. 762, 764 (751 S.E.2d 555) (2013). See also Women's Surgical Center, LLC v. Berry, 302 Ga. 349, 351 (1) (806 S.E.2d 606) (2017) ("[A] party has standing to pursue a declaratory action where the threat of an injury in fact is `actual and imminent, not conjectural or hypothetical.'") (citation omitted)); Manlove v. United Government of Athens-Clarke County, 285 Ga. 637, 638 (680 S.E.2d 405) (2009) (A litigant has standing to challenge a law "only if the law has an adverse impact on that litigant's own rights," which means that the litigant must establish a "threat of injury in fact" that is "`actual and imminent, not conjectural or hypothetical.'"). Cf. Cheeks v. Miller, 262 Ga. 687, 688 (425 S.E.2d 278) (1993) ("A controversy is justiciable when it is definite and concrete, rather than being hypothetical, abstract, academic, or moot." (citation omitted)). On the record before us, BVMF cannot establish that it has direct organizational standing to sue because BVMF has not shown that it suffered an injury in fact as a result of the passage of SB 9.

BVMF is a nonprofit corporation. It is not a person entitled to vote in the Augusta Judicial Circuit.12 Further, the fact that BVMF's corporate mission includes an interest in advocating for the rights of Georgia voters by engaging in litigation does not, in and of itself, give it direct standing to challenge SB 9, as if it were a voter. See Georgiacarry.org, Inc. v. Allen, 299 Ga. 716, 717-718 (791 S.E.2d 800) (2016) ("[T]he fact that Georgia Carry may claim to have an `interest' in the offices held by the [Code Revision] Commission members does not transform Georgia Carry into a `person' [entitled to bring an action for quo warranto] under OCGA § 9-6-60.").13

We note that we asked the parties to provide supplemental briefing on the federal "diversion of resources theory" of standing, whether other states have accepted or rejected it, and whether, as a matter of Georgia law, an organization may have standing to sue based solely on a "diversion of resources" theory. While the parties have correctly observed that there is no Georgia precedent directly addressing the "diversion of resources" theory and that this Court has, in the past, cited federal cases on the issue of standing, we are not bound to follow federal standing law. Standing is a question of judicial power to adjudicate a dispute, and the text, history, and precedents relating to judicial power under the Georgia Constitution and the United States Constitution are not identical. With that in mind, we must determine whether, under Georgia law, BVMF sustained an actual injury to its own interest that was fairly traceable to the passage of SB 9.

Fundamentally, BVMF's argument in support of the application of a "diversion of resources" theory of standing is that the passage of SB 9 frustrated its voter advocacy mission because it was compelled to challenge the constitutionality of SB 9, and in doing so, it diverted resources it would have otherwise directed to other advocacy efforts.14 BVMF contends that this diversion of resources and consequent frustration of certain aspects of its mission is an injury sufficient to establish standing under federal and state law. Even assuming that a "diversion of resources" theory like that in federal law exists under Georgia law, we do not believe that BVMF's allegations support standing under such a theory.

The seminal federal "diversion of resources" theory case is Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (102 S.Ct. 1114, 71 L.Ed.2d 214) (1982). In that case, the plaintiff organization, Housing Opportunities Made Equal ("HOME"), alleged that Havens, a real estate company, steered African-American applicants, but not white applicants, away from its apartments. See 455 U. S. at 368. HOME, a nonprofit organization whose purpose was "to make equal opportunity in housing a reality in the Richmond[, Virginia,] Metropolitan Area" id., alleged that it was injured because Havens' racial steering practices had frustrated its counseling and referral services and, consequently, served as a drain on its resources. Litigation was not a part of HOME's mission. See id. at 369. HOME alleged:

(Punctuation omitted.) Id. at 379. Based on these allegations, the United States Supreme Court held:

Id. HOME therefore had organizational standing under federal law.

In the years since Havens was decided, a split has developed in the federal appellate courts as to whether simply diverting resources to address an alleged wrong constitutes an injury in fact under a "diversion of resources" theory.15 Some federal courts have interpreted Havens broadly, allowing an organization to show injury in fact by showing only that the organization diverted resources from its mission-oriented programs to activities intended to combat the defendant's allegedly wrongful conduct, including litigation. For example, the Eighth Circuit Court of Appeals has held that an organization can show an injury in fact in order to have standing to bring suit by demonstrating that it deflected resources from its mission-oriented efforts to legal efforts aimed at combating the defendant's conduct. See Arkansas ACORN Fair Housing, Inc. v. Greystone Dev., Ltd., 160 F.3d 433, 434 (8th Cir. 1998) (a deflection of resources from a fair housing promotion organization's counseling or educational programs to legal efforts under the Fair Housing Act to combat the defendant's discrimination against homebuyers was sufficient to constitute an injury).16

Other federal courts have interpreted Havens narrowly, requiring the organization to show that it has suffered injuries independent of the diversion of resources, particularly when resources are diverted to litigation alone. For example, the Fifth Circuit has held that

(Punctuation and footnotes omitted.) El Paso County. v. Trump, 982 F.3d 332, 343-344 (5th Cir. 2020).17

We believe that the narrower approach is more consistent with the reasoning in Havens — which, although not binding, is the seminal federal precedent we examine here. Under our reading of Havens, an organization suffers an injury in fact for purposes of standing when the defendant's actions impair the organization's ability to provide its services or to perform its activities and, as a consequence of that injury, require a diversion of an organization's resources to combat that impairment. But we see no basis in Havens to conclude that the diversion of resources to litigation, standing alone, qualifies as an injury sufficient to confer standing on an organization. If simply choosing to engage in litigation were sufficient to confer standing to sue, then any special interest group could manufacture standing to sue by simply asserting an organizational purpose contrary to the issue being litigated and then filing a lawsuit. See Spann v. Colonial Village, 899 F.2d 24, 27 (D.C. Cir. 1990) (An organization cannot "manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.").

Additionally, the broader approach, which BVMF relies on, is inconsistent with the traditional requirement of Georgia standing law that the organization itself suffer an actual, concrete, and particularized injury as a result of a defendant's actions. See, e.g., Manlove, 285 Ga. at 638 (An injury in fact must be "imminent" and "concrete."); Sustainable Coast, 324 Ga. App. at 764 (An "injury in fact" is one that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." (citations and punctuation omitted)). Moreover, "when the plaintiff is not [itself] the object of the government action or inaction [it] challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish." Sustainable Coast, 324 Ga. App. at 764.

Here, there was no evidence at the final hearing that the passage of SB 9 impaired BVMF's ability to carry out its voter advocacy programs. BVMF has not shown how the division of one judicial circuit into two circuits impaired its ability to register voters, to advocate for voting rights, to engage in grassroots campaigns, public relations, mission-oriented litigation, and so on.18 This is particularly true given that litigation is one of BVMF's stated organizational purposes. Thus, BVMF has not demonstrated how this litigation was necessary to remedy any alleged impairment of its organizational activities. Because BVMF failed to prove that it sustained an actual injury to its own interest that was fairly traceable to the passage of SB 9, BVMF lacks standing to sue in its own right. See New Cingular Wireless, 308 Ga. at 732; Granite State, 283 Ga. at 418 (1).

(b) BVMF does not have associational standing. Because BVMF cannot establish that it has organizational standing to sue in its own right, it must demonstrate that it has associational standing to challenge SB 9. It must prove, among other things, that it was acting in this litigation as a representative of members who suffered an injury traceable to the passage of SB 9. Under Georgia law, associational standing permits an organization that has suffered no direct injury to sue on behalf of its members when:

Aldridge, 251 Ga. at 236 (1). See also Atlanta Taxicab Co. Owners Assn. v. City of Atlanta, 281 Ga. 342, 344 (2) (638 S.E.2d 307) (2006).

BVMF failed to present evidence satisfying the first prong of this test. BVMF did not show that it has members who are citizens eligible to vote in either the new or the former Augusta Judicial Circuit (and who thus would have standing to sue in their own right). Because voting is a personal right, BVMF was required to do more than establish that it has members. It must establish that it has members who are eligible to vote in the Augusta Judicial Circuit.19 This it entirely failed to do.

Moreover, BVMF failed to prove that it has any members whatsoever. Although BVMF averred in its verified complaint that it had members who reside in the former Augusta Judicial Circuit, it offered no evidence at the evidentiary hearing to substantiate that averment.20 The State, on the other hand, presented evidence that BVMF is a nonprofit corporation without members. The State introduced in evidence a certified copy of BVMF's articles of incorporation, a document filed with the Secretary of State's office pursuant to OCGA § 14-2-201. The document expressly stated that "[t]he corporation will not have members." BVMF did not show the trial court that it had amended the articles to add members, much less members who were eligible voters, nor did it identify any eligible voter who claimed membership in the corporation.

Rather than identifying any specific Columbia, Richmond, or Burke County eligible voter who is a member of BVMF, BVMF argued in its appellate brief that its "members" are any of the voters whom it contends had his or her vote "nullified" by SB 9. This Court has not defined what it means to be a "member" of an association for purposes of demonstrating associational standing. Although the United States Supreme Court has permitted an organization that does not have traditional, voluntary members to assert associational standing, it did not premise such standing merely on the fact that the organization claims to represent the interests of a group of people or business entities. Rather, there had to be specific "indicia of membership." As the Supreme Court explained:

Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333, 344-345 (2) (97 S.Ct. 2434, 53 L.Ed.2d 383) (1977).21 BVMF has not demonstrated any such indicia of membership, nor has it pointed to any persuasive authority embracing a definition of "member" so broad that it would include any person with whom an organization purports to share a common cause. In fact, we have found persuasive authority to the contrary.22

Finally, BVMF's assertion that this Court's decision in Aldridge supports its argument that it has satisfied the first prong of the three-part test for associational standing is without merit. In Aldridge, this Court did not examine what it meant to be a member of an association, as that issue was not raised. See Aldridge, 251 Ga. at 236 (1). Instead, applying the criteria set forth in Hunt, we held that the Georgia Hospitality & Travel Association ("GHTA") was an unincorporated voluntary trade association that represented the business interests of its member hotels, motels, restaurants, and various travel-related industries. See id. ("[T]he record clearly demonstrates that GHTA is a zealous advocate of its members' interests, and has provided adequate representation in this suit." (emphasis supplied)).

It is plain from the record before us that BVMF has neither identified a specific member of its organization eligible to vote nor shown that the voters it purports to represent qualify as members of BVMF based on any indicia of membership in the organization, such as financing BVMF's activities or electing it leadership. Because BVMF failed to show that it has members eligible to vote, it cannot satisfy the criteria for associational standing; therefore, it lacks standing to sue under that theory. See Aldridge, 251 Ga. at 236 (1); Atlanta Taxicab, 281 Ga. at 344 (2).

Absent a plaintiff with standing, the trial court lacked subject matter jurisdiction to address the merits of BVMF's complaints. Because BVMF has not established standing to sue in its own right or as a representative of its purported members, these lawsuits should have been dismissed prior to any adjudication on the merits. See Parker, 300 Ga. at 790; Blackmon, 284 Ga. at 371; Perdue, 282 Ga. at 348 (1). Consequently, we vacate the trial court's order as to BVMF's complaints, and those complaints must be dismissed upon remand to the trial court.

Case No. S21A1263

2. In Case No. S21A1263, Saunders challenges the trial court's judgment that SB 9 was valid and enforceable. As noted above, Saunders's complaint named only Governor Kemp and the Counties as defendants. In its final judgment, the trial court ruled that the State of Georgia was the only proper defendant and, on that basis, dismissed Governor Kemp and the Counties. Although this ruling effectively dismissed all of Saunders's claims for relief, he has not challenged this dispositive ruling on appeal. Accordingly, we do not reach the merits of the claims of error Saunders enumerated in his appellate brief. See Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 698 (3) (e) (859 S.E.2d 33) (2021) (Where the trial court did not allow the petitioners to amend their petition to add necessary parties as defendants, which ruling effectively eliminated their claim for a tax refund, and the petitioners did not challenge that ruling on appeal, this Court was not required to address the trial court's alternative rationale for dismissing the petitioners' claim for a refund.).

The trial court purported to rule on the merits of Saunders's claims, even though no defendant remained in his case. The trial court should have dismissed Saunders's case instead. We therefore vacate the trial court's order as to Saunders's complaint and remand with direction to dismiss the case.

3. Given our holdings in Divisions 1 and 2 above, we need not address the issues raised in the State's cross-appeals. Consequently, we dismiss the cross-appeals as moot.

Judgments in Case Nos. S21A1261, S21A1262, and S21A1263 vacated, and cases remanded with direction. Appeals in Case Nos. S21X1326 and S22X0007 dismissed as moot. All the Justices concur.

PETERSON, Justice, concurring.

The Court holds today, as it frequently has, that in order to challenge the constitutionality of a statute, a plaintiff must have "standing." I concur fully in the Court's opinion as a faithful application of our precedent. I write separately with some observations on the lack of clarity in our standing doctrine.

Our jurisdictional requirement of standing may sound familiar from federal constitutional jurisprudence. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (112 S.Ct. 2130, 119 L.Ed.2d 351) (1992). But that federal jurisprudence is based on text in the United States Constitution that qualifies the federal judicial power. See U.S. Const. Art. III, Sec. II, Cl. I (the federal "judicial [p]ower shall extend" only to certain kinds of "[c]ases" and "[c]ontroversies"). No such concrete qualification appears in the Georgia Constitution's only provision that explicitly mentions the state judicial power. See Ga. Const. of 1983, Art. VI, Sec. I, Par. I ("The judicial power of the state shall be vested exclusively in the following classes of courts. . . .").23 But we nevertheless have standing requirements, too.

Despite the textual difference between the United States and Georgia Constitutions, we have frequently cited federal standing precedent in deciding Georgia cases without actually explaining why federal case law interpreting Article III of the U.S. Constitution should be considered persuasive authority for the different question of Georgia standing law. See, e.g., Gaddy v. Ga. Dept. of Revenue, 301 Ga. 552, 555-556 (1) (a) (i) (802 S.E.2d 225) (2017); Parker v. Leeuwenburg, 300 Ga. 789, 792-793 (797 S.E.2d 908) (2017); Oasis Goodtime Emporium I, Inc. v. City of Doraville, 297 Ga. 513, 518 (2) (773 S.E.2d 728) (2015). And from time to time in recent decades, we have announced new rules of Georgia law by adopting wholesale such federal precedent. See, e.g., Feminist Women's Health Ctr. v. Burgess, 282 Ga. 433, 435 (1) (651 S.E.2d 36) (2007) (adopting federal third-party standing doctrine as defined in Powers v. Ohio, 499 U.S. 400, 411 (111 S.Ct. 1364, 113 L.Ed.2d 411) (1991)); Bo Fancy Prods. v. Rabun Cty. Bd. of Comm'rs, 267 Ga. 341, 344-345 (2) (a) (478 S.E.2d 373) (1996) (adopting federal doctrine of relaxed standing requirements in First Amendment cases, citing Freedman v. Maryland, 380 U.S. 51, 56 (85 S.Ct. 734, 13 L.Ed.2d 649) (1965)); Aldridge v. Ga. Hosp. & Travel Assoc., 251 Ga. 234, 235-236 (1) (304 S.E.2d 708) (1983) (adopting federal associational standing doctrine as defined in Hunt v. Wash. State Apple Advertising Comm., 432 U.S. 333, 341 (97 S.Ct. 2434, 53 L.Ed.2d 383) (1977)). And in making standing arguments before us, litigants very frequently rely on federal precedent without any attempt to explain why Georgia courts should apply such decisions. (Given our historical tendency to adopt federal precedent without meaningful analysis, this approach by litigants is understandable, if unhelpful to our efforts to articulate Georgia law in a principled fashion.)

It seems to me well past time to consider the source and nature of Georgia's standing doctrine, and the extent to which our reliance on federal standing jurisprudence really is appropriate in interpreting and applying Georgia standing doctrine.24 A review of our case law reveals no clear answer to such questions. One clear line of case law — which we properly apply today — holds that persons seeking to challenge a state statute as unconstitutional may do so only if that statute has injured them in some specific way. Several subsets of this case law relax the injury requirement in particular circumstances. And a second clear line of cases requires no individualized injury at all so long as the plaintiff seeks to enforce a public, rather than a private, right.

The first line of cases appears, perhaps, to have arisen from considerations of separation of powers. And the second line of cases appears to have arisen in the municipal context by analogizing the rights of taxpayers and citizens of municipal corporations to those of shareholders in private corporations, who can assert the corporation's own rights against its officers and directors in derivative litigation. But it wasn't long before we extended that line of case law — without analysis — well beyond the municipal context. The resulting hodge-podge of precedents leaves me uncertain as to the source and nature of our standing doctrine. Until that uncertainty is resolved, we cannot know how relevant any particular federal precedent is to Georgia standing doctrine.

It seems to me that there are several conclusions to draw from this uncertainty. First, we should stop making new Georgia standing law based solely on federal law without explaining why that federal law is persuasive in the Georgia context. Second, litigants should stop citing federal case law in making arguments about Georgia standing doctrine without explaining why that case law is persuasive in the Georgia context. Third, our past precedent relying on federal case law — even if wrongly decided — is precedent binding on lower courts, and the principle of stare decisis tells us to apply it ourselves until and unless we overrule it. And, finally, at least some of our precedent that adopted new federal standing doctrines wholesale may warrant reconsideration in an appropriate case.25

1. Standing is a necessary prerequisite to challenge statutes as unconstitutional.

As early as 1884, we recognized that principles underlying the separation of powers should also limit occasions on which we determine whether statutes violate the Georgia Constitution to those where such a decision was truly necessary. We gave expression to this principle in several different ways. We first held that

Bd. of Educ. of Glynn County v. Mayor of Brunswick, 72 Ga. 353, 354-355 (1) (1884). Two years later, we rejected a challenge to a statute and held that only once "the law operates upon the private property of an individual, and that is seized or destroyed or confiscated, or the individual is arrested and indicted thereunder for its violation" can the "portion of the law thus affecting his private property and personal liberty . . . be assailed by him as unconstitutional or illegal[.]" Scoville v. Calhoun, 76 Ga. 263, 269 (1886). The reason was again the separation of powers. The courts had to "giv[e] the benefit of doubts to the co-ordinate branches of government" and "never decide laws unconstitutional, if cases can be otherwise adjudicated." Id. These early decisions — although not about standing — respected the separation of powers by withholding judicial review of the constitutionality of a statute when the case could properly be resolved in some other way.

In 1888, we identified the absence of standing as a threshold matter that foreclosed judicial review. See Reid v. Mayor & c. Eatonton, 80 Ga. 755, 757 (6 SE 602) (1888). We relied primarily on a leading constitutional law treatise for this proposition that a court "`will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has, therefore, no interest in defeating it.'" Id. at 757 (quoting Thomas Cooley, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 197 (5th ed.) (1888)). By the turn of the century, we deemed it "a well-settled rule of law" that before "a law can be attacked by any citizen on the ground of its unconstitutionality, he must show that its enforcement is an infringement upon his rights of person or property." Plumb v. Christie, 103 Ga. 686, 692 (30 SE 759) (1898). Although the separation of powers required us to refrain from deciding constitutional questions unnecessarily, a plaintiff satisfying an individualized standing requirement in raising a constitutional challenge presented a constitutional question that could not be avoided.26 Without such individualized standing, however, the obligation to avoid unnecessary constitutional questions prevailed. We continued to apply our standing rule throughout the duration of the 1877 Constitution. See Stegall v. Sw. Ga. Rgl. Hous. Auth., 197 Ga. 571, 583 (30 S.E.2d 196) (1944); Webb v. City of Atlanta, 186 Ga. 430, 444-445 (5) (198 SE 50) (1938); Witherow v. Bd. of Drainage Commrs., 155 Ga. 476, 476 (117 SE 329) (1923); Cooper v. Rollins, 152 Ga. 588, 593 (110 SE 726) (1922); see also Harrell v. Cane Growers' Co-op. Assn., 160 Ga. 30, 72 (126 SE 531) (1925) (Russell, C.J., concurring). Under the 1945 and 1976 Constitutions, we consistently applied the same standing rule. See, e.g., St. John's Melkite Catholic Church v. Commr. of Rev., 240 Ga. 733, 735 (3) (242 S.E.2d 108) (1978); Northeast Factor & Discount Co. v. Jackson, 223 Ga. 709, 711 (1) (157 S.E.2d 731) (1967); S. Ga. Nat. Gas Co. v. Ga. Pub. Serv. Comm'n, 214 Ga. 174, 175 (1958); West v. Hous. Auth. of Atlanta, 211 Ga. 133, 136 (1954).

We also have at least two contexts — taxes and voting — in which we accept a less-individualized kind of injury as satisfying this standing requirement. We have long held that taxpayers generally have standing to contest unlawful expenditures of public funds when they are "in danger of injury through loss of public funds or property." Morris v. City Council of Augusta, 201 Ga. 666, 670 (1) (40 S.E.2d 710) (1946) (distinguishing cases not allowing such suits as lacking that danger); see also, e.g., Williams v. DeKalb County, 308 Ga. 265, 272 (3) (b) (ii) & n.13 (840 S.E.2d 423) (2020). Similarly, we have held that taxpayers have standing to challenge unconstitutional tax exemptions, because of each taxpayer's particularized injury from another's unlawful exemption. See Lowry v. McDuffie, 269 Ga. 202, 203-204 (1) (496 S.E.2d 727) (1998) ("Each taxpayer has an interest in seeing that no other taxpayer is illegally exempted from the payment of [a] tax. An illegal exemption places a greater tax burden upon those taxpayers being required to pay."). And we have long held that voters — by virtue of being voters — can have standing to constitutionally challenge election laws. Our rationale has been that "the denial of the right [to elect public officials] is such an injury to the personal right of any voter as would authorize him to attack the constitutionality of an act[.]" Manning v. Upshaw, 204 Ga. 324, 327 (2) (49 S.E.2d 874) (1948) (emphasis added); see also Barrow v. Raffensperger, 308 Ga. 660, 667 (2) (b) (842 S.E.2d 884) (2020) (citing Manning). Both of these contexts still require a showing of a kind of injury, even though that showing may be more relaxed than in other contexts.

To the extent that our standing injury requirement arises from our Constitution's Separation of Powers Provision, there's thus a good argument that it was baked into the 1983 Constitution.27 See Elliott v. State, 305 Ga. 179, 181-182 (II) (824 S.E.2d 265) (2019).28 And given that we've often said a lack of standing deprives us of subject-matter jurisdiction — the power to decide a case — it would be odd for standing to have a sub-constitutional status. But our case law lacks clarity on this point.

2. At least some claims expressly do not require standing.

While the standing prerequisite for constitutional challenges to statutes dates back to the 1800s, so too does a line of cases expressly disclaiming such a requirement. Apparently beginning in 1897, we have consistently held that citizens and taxpayers may sue government officials to enforce publicly owed legal duties, and to contest their ultra vires act. This line appears to have its origins in Keen v. Mayor & Council of Waycross, 101 Ga. 588 (29 SE 42) (1897). There, citing only treatises, we held that

Id. at 592 (citation and punctuation omitted). Framed slightly differently,

Id. at 592-593. We noted that this "privilege of the taxpayer" was not a matter of statute. Id. at 593. And we explained that this rule was the same as the rule for shareholders of private companies, who can assert the rights of the corporation against the corporation's directors and officers through derivative litigation. Id. Incongruously, we also quoted a treatise extending the rule to actions against "county, town, or city authorities[.]" Id. (quoting "1 Pom. Eq. Jur. § 260, pp. 347, 348").

By the adoption of the 1933 Code, the rule was codified in statute in what is now OCGA § 9-6-24. And the more than 120 years since Keen have seen us apply this rule in all sorts of contexts, both municipal and beyond: cities, counties, school boards, hospital authorities, etc. See, e.g., Rothschild v. Columbus Consol. Govt., 285 Ga. 477, 479 (678 S.E.2d 76) (2009) (county); Tift County Hosp. Auth. v. MRS of Tifton, Inc., 255 Ga. 164, 165 (1) (335 S.E.2d 546) (1985) (hospital authority); League of Women Voters of Atlanta-Fulton County, Inc. v. City of Atlanta, 245 Ga. 301, 303 (1) (264 S.E.2d 859) (1980) (city); Stephens v. Moran, 221 Ga. 4, 5 (1) (142 S.E.2d 845) (1965) (city); Floyd v. Thomas, 211 Ga. 656, 656 (1) (87 S.E.2d 846) (1955) (county commissioners); Irwin v. Crawford, 210 Ga. 222, 224 (78 S.E.2d 609) (1953) (county board of education); Colston v. Hutchinson, 208 Ga. 559, 561 (67 S.E.2d 763) (1951) (same); Smith v. McMichael, 203 Ga. 74, 74 (1) (45 S.E.2d 431) (1947) (county commissioners); Thomas v. Ragsdale, 188 Ga. 238, 239-240 (1) (3 S.E.2d 567) (1939) (same); Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499, 507-508 (1) (160 SE 620) (1931) (superior court clerk); Plainfield Consol. Sch. Dist. v. Cook, 173 Ga. 447, 448 (1) (160 SE 617) (1931) (school board); Bd. of Comm'rs of City of Manchester v. Montgomery, 170 Ga. 361, 366 (2) (153 SE 34) (1930) (city); McGinnis v. McKinnon, 165 Ga. 713, 713 (1) (141 SE 910) (1928) (county commissioners).

A small handful of decisions have even applied the public-rights rule to relieve the necessity for individualized standing in suits against state officials. See, e.g., Villyard v. Regents of Univ. Sys. of Ga., 204 Ga. 517, 522-523 (50 S.E.2d 313) (1948) (rejecting equal protection challenge for lack of standing but considering same petitioners' constitutional challenge based on other provisions); Bankers' Savings & Loan Co. v. Better Bus. Div. of Atlanta Chamber of Commerce, 177 Ga. 334, 335-337 (170 SE 291) (1933) (holding public-rights rule sufficient to provide standing for suit to compel state banking superintendent to regulate particular entity). And at least one decision applied this rule to allow a challenge to local legislation enacted by the General Assembly without acknowledging our case law requiring individualized standing to challenge statutes. See Smith v. McMichael, 203 Ga. 74, 74-75 (1) (45 S.E.2d 431) (1947). It is not obvious that all of these cases can be reconciled into a coherent framework. I certainly do not purport to do so here.29

3. Without clearly identifying the source and nature of Georgia's standing requirements, we should be very hesitant to rely on federal precedents.

We often rely on decisions of federal courts or sister states when we find them persuasive on a Georgia law question. But such foreign decisions "generally will prove persuasive only to the extent" that the foreign courts "actually were guided by th[e] same language, history, and context" as the Georgia law at issue. Elliott, 305 Ga. at 188 (II) (C). It is not possible to determine how persuasive we should find federal standing precedents when we have not identified clearly the Georgia authority from which our standing requirements arise.

It does seem to me that the most basic part of federal standing doctrine is a useful framework for thinking about Georgia standing in cases that require it. In Lujan, the United States Supreme Court articulated three longstanding building blocks of standing: injury in fact (i.e., the plaintiff has suffered an actual, concrete injury), causation (that injury was caused by and traceable to the wrong the plaintiff challenges), and redressability (it is possible to remedy the injury through court action). See Lujan, 504 U.S. at 560-561. That three-part formulation makes sense when we consider the principle we have applied in our standing cases. We have required a party to have a concrete and particularized interest in stopping a statute from being applied to it. See, e.g., Northeast Factor & Discount Co., 223 Ga. at 710 (1) ("An attack made upon the constitutionality of an Act of the General Assembly to be valid must be made by a party whose rights are affected and who therefore has an interest in such Act."); Webb, 186 Ga. at 444-445 (5) ("[T]he general law and special law above referred to would have no application to the petitioners, and they could not be injuriously affected by the application and enforcement of the special law. Therefore they could not attack its constitutionality; and under the above rulings this court will not pass upon such attack."); Plumb, 103 Ga. at 692. Similarly, if an injury was not caused by the challenged statute, then the party — injured or not — has had no interest in challenging it. See, e.g., Reid, 80 Ga. at 757 (observing that we could not "see what right" plaintiff had to file suit, as he did not "allege any injury accruing to him by the enforcement of the act"). And the same logic holds true if holding a statute unconstitutional would not redress the claimed injury. Accordingly, those federal principles, at their most basic, do not appear to be inconsistent with Georgia standing law.

But over time, the federal courts have developed a complex web of applications of and exceptions to the standing doctrine. Before we rely upon such federal decisions, we ought to be confident that they are consistent with Georgia standing law. See, e.g., Elliott, 305 Ga. at 187-189 (II) (C) (federal interpretations of the federal constitution generally will prove persuasive in interpreting equivalent state provisions "only to the extent that the [federal] decisions actually were guided by [the] language, history, and context" of the state legal provision at issue). Unless and until we can explain the source and nature of Georgia standing requirements, it will be difficult at best to achieve such confidence in most cases.

I am authorized to state that Justice Warren joins in this concurrence.