The American Civil Liberties Union Foundation sued last month on behalf of the International Keystone Knights of the KKK in Union County, saying the state violated the group’s right to free speech. The state on Monday filed its response and supporting brief in Fulton County Superior Court.
The lawsuit, which names the state and various state agencies and officials, asks the court to force the state to issue an Adopt-a-Highway permit to the KKK; issue a permanent injunction preventing the state from denying the KKK such a permit; and declare that the state wrongfully denied the group’s application and violated due process.
The response argues that claims against state agencies and officials are generally barred in state courts by sovereign immunity. Even if that were not the case, the suit should be dismissed because the KKK didn’t file the lawsuit in time, lacks standing to request an injunction and didn’t take advantage of other existing legal avenues for appeal, the state argues.
The state argues that the KKK should have challenged the denial of the application within 30 days based on a 1981 Georgia Supreme Court opinion.
The state also argues that an injunction is meant to prevent a future action, which means the KKK can’t pursue an injunction to reverse a past action – in this case the denial of the application.
Finally, the KKK could have appealed the state Department of Transportation’s denial of the application to the Office of State Administrative Hearings under the Administrative Procedure Act. That remedy must be pursued before a lawsuit is filed, the state argues.
The Klan group applied in May to the state’s “Adopt-A-Highway” program, seeking to clean up part of Route 515 in the Appalachian Mountains. The state program enlists civic groups, companies and other volunteers to pick up trash. The groups are recognized with signs along the roads they adopt.
Transportation Department officials denied the group’s application in June after meeting with lawyers from the state Attorney General’s Office and consulting with Gov. Nathan Deal. The agency said at the time that the program is aimed at “civic-minded organizations in good standing.”
“Promoting an organization with a history of inciting civil disturbance and social unrest would present a grave concern to the department. Issuing this permit would have the potential to negatively impact the quality of life, commerce and economic development of Union County and all of Georgia,” transportation officials said in a statement in June.
The statement asserted that motorists who drive past signs promoting the KKK or who see members picking up trash could be distracted – creating a safety issue – and that the section of highway the group wanted to adopt is ineligible because of its 55 mph speed limit.
Similar groups in other states have won legal battles after initially being turned down for highway cleanup programs.
The U.S. Supreme Court in 2005 rejected Missouri’s attempt to turn down a controversial group’s application, saying membership in the program cannot be denied because of a group’s political beliefs. In Kentucky, transportation officials who feared an unsuccessful legal battle accepted a white-separatist group’s contract to participate in the state’s highway cleanup program.