In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will imminently be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To have a court declare a law unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to lose in order to sue unless it has automatic standing by action of law.
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The Council of Europe created the first international court before which individuals have automatic locus standi.[1]
In Canadian administrative law, whether an individual has standing to bring an application for judicial review, or an appeal from the decision of a tribunal, is governed by the language of the particular statute under which the application or the appeal is brought. Some statutes provide for a narrow right of standing while others provide for a broader right of standing.[2]
Frequently a litigant wishes to bring a civil action for a declaratory judgment against a public body or official. This is considered an aspect of administrative law, sometimes with a constitutional dimension, as when the litigant seeks to have legislation declared unconstitutional.
The Supreme Court of Canada developed the concept of public interest standing in three constitutional cases commonly called "the Standing trilogy": Thorson v. Canada (Attorney General),[3] Nova Scotia Board of Censors v. McNeil,[4] and Minister of Justice v. Borowski.[5] The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration):[6]
It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?[7]
Public-interest standing is also available in non-constitutional cases, as the Court found in Finlay v. Canada (Minister of Finance).[8]
In British administrative law, the applicant needs to have a sufficient interest in the matter to which the application relates.[9] This sufficient interest requirement has been construed liberally by the courts. As Lord Diplock put it:[10]
"[i]t would...be a grave lacuna in our system of public law if a pressure group...or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped."
In United States law, the Supreme Court of the United States has stated, "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."[11]
There are a number of requirements that a plaintiff must establish to have standing before a federal court. Some are based on the case or controversy requirement of the judicial power of Article Three of the United States Constitution, § 2, cl.1. As stated there, "The Judicial Power shall extend to all Cases . . .[and] to Controversies . . ." The requirement that a plaintiff have standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on the idea of separation of powers.[12] Federal courts may exercise power only "in the last resort, and as a necessity".[13]
The American doctrine of standing is assumed as having begun with the case of Frothingham v. Mellon, 262 U.S. 447 (1923). But, legal standing truly rests its first prudential origins in Fairchild v. Hughes, (1922) which was authored by Justice Brandeis. In Fairchild, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. Prior to it the doctrine was that all persons had a right to pursue a private prosecution of a public right.[14] Since then the doctrine has been embedded in judicial rules and some statutes.
In 2011, in Bond v. United States, the U.S. Supreme Court held a criminal defendant has standing to challenge the federal statute that he or she is charged with violating as being unconstitutional under the Tenth Amendment.
There are three standing requirements:
Additionally, there are three major prudential (judicially created) standing principles. Congress can override these principles via statute:
In 1984, the Supreme Court reviewed and further outlined the standing requirements in a major ruling concerning the meaning of the three standing requirements of injury, causation, and redressability.[20]
In the suit, parents of black public school children alleged that the Internal Revenue Service was not enforcing standards and procedures that would deny tax-exempt status to racially discriminatory private schools. The Court found that the plaintiffs did not have the standing necessary to bring suit.[21] Although the Court established a significant injury for one of the claims, it found the causation of the injury (the nexus between the defendant’s actions and the plaintiff’s injuries) to be too attenuated.[21] "The injury alleged was not fairly traceable to the Government conduct respondents challenge as unlawful".[22]
In another major standing case, the Supreme Court elaborated on the redressability requirement for standing.[16] The case involved a challenge to a rule promulgated by the Secretary of the Interior interpreting §7 of the Endangered Species Act of 1973 (ESA). The rule rendered §7 of the ESA applicable only to actions within the United States or on the high seas. The Court found that the plaintiffs did not have the standing necessary to bring suit, because no injury had been established.[23] The injury claimed by the plaintiffs was that damage would be caused to certain species of animals and that this in turn injures the plaintiffs by the reduced likelihood that the plaintiffs would see the species in the future. The court insisted though that the plaintiffs had to show how damage to the species would produce imminent injury to the plaintiffs.[24] The Court found that the plaintiffs did not sustain this burden of proof. "The 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured".[25] The injury must be imminent and not hypothetical.
Beyond failing to show injury, the Court found that the plaintiffs failed to demonstrate the standing requirement of redressability.[26] The Court pointed out that the respondents chose to challenge a more generalized level of Government action, "the invalidation of which would affect all overseas projects". This programmatic approach has "obvious difficulties insofar as proof of causation or redressability is concerned".
In a 2000 case, Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000),[27] the United States Supreme Court endorsed the "partial assignment" approach to qui tam relator standing to sue under the False Claims Act — allowing private individuals to sue on behalf of the U.S. government for injuries suffered solely by the government.[28]
The initial case that established the doctrine of standing, Frothingham v. Mellon, was a taxpayer standing case.
Taxpayer standing is the concept that any person who pays taxes should have standing to file a lawsuit against the taxing body if that body allocates funds in a way that the taxpayer feels is improper. The United States Supreme Court has held that taxpayer standing is not a sufficient basis for standing against the United States government, unless the government has allocated funds in a way that violates the Establishment Clause found in the First Amendment of the Constitution.[29] The Court has consistently found that the conduct of the federal government is too far removed from individual taxpayer returns for any injury to the taxpayer to be traced to the use of tax revenues.
In DaimlerChrysler Corp. v. Cuno,[30] the Court extended this analysis to state governments as well. However, the Supreme Court has also held that taxpayer standing is "constitutionally" sufficient to sue a municipal government in a federal court.
States are also protected against lawsuits by their sovereign immunity. Even where states waive their sovereign immunity, they may nonetheless have their own rules limiting standing against simple taxpayer standing against the state. Furthermore, states have the power to determine what will constitute standing for a litigant to be heard in a state court, and may deny access to the courts premised on taxpayer standing alone.
In Florida, a taxpayer has standing to sue if the state government is acting unconstitutionally with respect to public funds, or if government action is causing some special injury to the taxpayer that is not shared by taxpayers in general. In Virginia, the Supreme Court of Virginia has more-or-less adopted a similar rule. An individual taxpayer generally has standing to challenge an act of a city or county where they live, but does not have general standing to challenge state expenditures.
With limited exceptions, a party cannot have standing to challenge the constitutionality of a statute unless they will be subjected to the provisions of that statute. Courts will accept First Amendment challenges to a statute on overbreadth grounds, where a person who is only partially affected by a statute can challenge parts that do not affect them on the grounds that laws that restrict speech have a chilling effect on other people's right to free speech.
The only other way someone can have standing to challenge the constitutionality of a statute is if the existence of the statute would otherwise deprive them of a right or a privilege even if the statute itself would not apply to them. The Virginia Supreme Court made this point clear in the case of Martin v. Ziherl 607 S.E.2d 367 (Va. 2005). Martin and Ziherl were girlfriend and boyfriend when Martin discovered that Ziherl gave her herpes. She sued him for damages. Because (at the time the case was filed) it was illegal to have sex with someone you're not married to, Martin could not sue Ziherl because joint tortfeasors - those involved in committing a crime - cannot sue each other over acts occurring as a result of a criminal act (Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990)). Martin argued that because of the U.S. Supreme Court decision in Lawrence v. Texas (finding that state's sodomy law unconstitutional), Virginia's anti-fornication law was also unconstitutional for the reasons cited in Lawrence. Martin argued, therefore, she could, in fact, sue Ziherl for damages.
Lower courts decided that because the Commonwealth's Attorney doesn't prosecute fornication cases, Martin had no risk of prosecution and thus lacked standing to challenge the statute [cite? or did the lower courts just decide that the statute was still constitutional, so that Martin could not sue? Maybe the issue was that Ziherl asserted Martin was unlikely to be prosecuted under the little-used statute?]. Martin appealed. Since Martin has something to lose - the ability to sue Ziherl for damages - if the statute is upheld, she had standing to challenge the constitutionality of the statute. And since the U.S. Supreme Court in Lawrence has found that there is a privacy right in one's private, noncommercial sexual practices, the Virginia Supreme Court decided that the statute against fornication was unconstitutional. The finding gave Martin standing to sue Ziherl since the decision in Zysk is no longer applicable.
However, the only reason Martin had standing to challenge the statute was that she had something to lose if it stayed on the books.
State law on standing differs substantially from federal law and varies considerably from state to state.
On December 29, 2009, the California Court of Appeal for the Sixth District ruled that California Code of Civil Procedure Section 367 cannot be read as imposing a federal-style standing doctrine on California's code pleading system of civil procedure.[31] In California, the fundamental inquiry is always whether the plaintiff has sufficiently pleaded a cause of action, not whether the plaintiff has some entitlement to judicial action separate from proof of the substantive merits of the claim advanced.[31] The court acknowledged that the word "standing" is often sloppily used to refer to what is really jus tertii, and held that jus tertii in state law is not the same thing as the federal standing doctrine.[31]