Georgia Supreme Court: KKK suit over Adopt-A-Highway denial may go forward

ATLANTA — A 2012 lawsuit over whether the state’s denial of a Ku Klux Klan application to participate in Georgia’s Adopt-A-Highway program was proper has been cleared to go to trial after the Georgia Supreme Court dismissed the state’s appeal of a Superior Court ruling.

In a ruling Tuesday, the state high court ruled unanimously to dismiss the state’s appeal of a Fulton County Superior Court ruling, stating that the Georgia Department of Transportation had failed to follow correct procedure in filing its appeal.

The Adopt-A-Highway program, begun in 1989 and administered by GDOT, enlists volunteers to remove litter from state roadsides. Volunteers accepted by the program agree to clean at least a 1-mile stretch on both sides at least four times a year for a two-year period. The high court said that, according to the program’s brochure, applicants can include any “civic-minded organization, business, individual, family, city, county, state or federal agency,” and, in recognition, GDOT will erect a sign with the program logo and the name of the participating organization.

According to information from a Supreme Court news release Tuesday, in May 2012, members of the International Keystone Knights of the Ku Klux Klan submitted an application to Union County to participate in the program and clean up a portion of Georgia Highway 515, asking that “Georgia IKK Ku Klux Klan” be placed on the sign. They were issued bags and safety vests by the county but were told they had to apply to GDOT, which denied their application, citing the Klan’s “long-rooted history of civil disturbance.”

The Klan, arguing that its right to free speech was being denied, filed suit against the state in September 2012 in Fulton County Superior Court, with the state asking the court to dismiss the suit under the sovereign immunity doctrine. The court denied the Klan’s request to force GDOT to immediately OK its application but allowed claims for a permanent injunction against the state and declaratory judgment to go forward.

In March 2014, the trial court rejected the state’s claim of sovereign immunity, stating that denying the Klan’s application because of public concern over its history represented an unconstitutional infringement on the applicants’ right to free speech.

The Supreme Court, in its dismissal, said it had determined it had no jurisdiction to consider the state’s appeal of the trial court’s decision because GDOT had no automatic right to appeal and failed to file an application to appeal with the trial court, asking the court to exercise its discretion and grant the appeal.

“Because the Department appeals from a decision of a Superior Court reviewing a decision of a state administrative agency, it was required … to bring its appeal by way of an application for discretionary review,” the opinion concludes. “The Department failed to do so, and that circumstance leaves this Court without appellate jurisdiction. Accordingly, this appeal must be dismissed.”