Key Points

  • The Court of Appeals reversed the OCGA § 9-15-14(a) fee award to Fulton County because the challengers' Immunity Amendment waiver theory was at least arguable when asserted, before the Supreme Court had interpreted the amendment's reach to "past, current, and prospective acts."
  • The court remanded for the trial court to decide whether the county may recover fees under OCGA § 9-15-14(b) for unnecessary expansion of the proceedings, with express findings of fact.
  • The court affirmed the § 9-15-14(a) fee award to the Fulton County clerk of the superior court because the challengers never alleged any unlawful act by the clerk, whom they sued only to preserve the ballots.
  • The court held the Favorito petitioners abandoned their declaratory judgment, due process and equal protection claims by failing to offer meaningful argument or authority.
  • The court held that the defendants' purported lack of opposition to substitution did not bar fees, because substitution is procedural and sovereign immunity is a separate, substantive defense.

The Georgia Court of Appeals on Monday reversed an order requiring four challengers to Fulton County's handling of ballots in the November 2020 general election to pay the county's attorney fees. The court held that the challengers' theory for suing the county, which rested on a new constitutional waiver of sovereign immunity, was arguable when they raised it.

The same panel upheld a separate fee award to the Fulton County clerk of the superior court, whom the challengers had sued only to keep the ballots preserved, because they never alleged that the clerk acted unlawfully. Judge Hodges wrote for the court, joined by Barnes, P. J., and Markle, J. The panel also affirmed the dismissal of the remaining claims of Favorito, Peck and Terris after finding that their briefs offered no meaningful argument to save them.

The decision lifts the mandatory fee award to the county under OCGA § 9-15-14(a), which requires fees when a claim shows "such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position." The county may still recover. The panel sent the case back for the trial court to decide whether the challengers owe fees under subsection (b), which permits fees against a party who unnecessarily expands a proceeding.

The appellants are Garland Favorito, Caroline Jeffords, Christopher Peck and Trevor Terris, and the fee award makes them jointly and severally liable. They and others filed the case in December 2020 against officials in their individual capacities, alleging illegal conduct in the handling and counting of ballots in Fulton County. In January 2021, they asked to substitute Fulton County and the clerk as defendants. The superior court allowed the substitution in April 2021, and both new defendants moved to dismiss the next month.

The case was on its second trip to the Court of Appeals, which in 2022 affirmed a ruling that the petitioners lacked standing. After the Georgia Supreme Court vacated that opinion, the Court of Appeals held in 2023 that the appellants had standing as community stakeholders.

In February 2026, the superior court dismissed the claims at issue and ordered fees under both subsections of the statute. The trial court reasoned that the county "enters litigation sheathed in sovereign immunity." It found that the dismissed claims "presented zero factual or legal questions ... because the [c]ounty was immune to such claims."

The challengers had relied on a constitutional amendment approved by Georgia voters, which the opinion calls the Immunity Amendment. It allows suits for declaratory and related injunctive relief against the state and its counties for acts "outside the scope of lawful authority or in violation of the laws or the constitution of this state or the Constitution of the United States." The amendment states that the waiver applies "to past, current, and prospective acts which occur on or after January 1, 2021."

When the challengers sought to add the county, the Georgia Supreme Court had not yet explained which acts that language reaches. "Regardless of whether the appellants' claims regarding the November 2020 election could have supported a waiver of sovereign immunity, we conclude that the appellants' position was not so unreasonable that they could not have believed a trial court would accept it at the time it was filed," Judge Hodges wrote.

The panel counted at least five later appellate decisions interpreting the amendment. It found most informative a 2025 Supreme Court decision, Republican National Committee v. Eternal Vigilance Action, which applied the waiver to a challenge to State Election Board rules because voters "faced a risk of taking future undirected action that would nullify their votes." The panel also cited Fraser v. Glynn County, a split 2025 Court of Appeals decision that found no waiver over a disputed county deed. "We find it notable that nothing in the Fraser case suggested the petitioners were acting in a frivolous or vexatious manner," Judge Hodges wrote.

The county had argued that the challengers delayed the case through "many attempts to modify parties" and "a ping-pong litigation strategy." The trial court wrote that "[t]here was nothing to litigate" on substitution, but the panel found it unclear whether that finding supported a lack of justification or an unnecessary expansion of the case. The trial court must now decide whether the challengers "unnecessarily expanded the proceeding[s] by other improper conduct" and, if so, enter findings of fact.

The analysis for the clerk was "much simpler," the panel said. The challengers added the clerk solely because the office "claims that it currently has possession of the ballots that [the appellants] seek to view," and at the substitution hearing they sought only to bind the clerk to a preservation order. "Without any such allegation of an unlawful act, it is patent that there was never a justiciable issue of law regarding the clerk's waiver of sovereign immunity, and any claim of such a waiver lacked substantial justification," Judge Hodges wrote.

The panel rejected the challengers' argument that the county and clerk had forfeited fees because counsel had called the substitution motion "unopposed." The court held that "[i]ssues of substitution and sovereign immunity are separate inquiries" and noted that both defendants raised immunity with their first act after joining the case.

On the merits, the panel held that the challengers who appealed the dismissal had abandoned their declaratory judgment, due process and equal protection claims. Their brief cited basic authority "with absolutely no attempt to apply any of the myriad (including very recent) case law regarding where declaratory judgments will lie to the facts of this case," the court said, and cited none on the constitutional claims. "Because we refuse to invent arguments for counsel, these enumerations are abandoned," Judge Hodges wrote.

Jeffords, whose appeal reached the court on an interlocutory application limited to the fee award, still has an equal protection claim pending in the trial court. The panel denied the county and clerk's motion to dismiss the other appeal as premature, noting that the other three appellants had been severed from Jeffords since April 2021.

The case now returns to the superior court for findings on the county's request for fees under subsection (b). The opinion notes that motions for reconsideration must be received by 4:30 p.m. on the 10th day after the decision.