Proposed Citizens Right to Standing Act-finding the Keys to Unlock the Courthouse Doors

• Publication year: 1979

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 3, No.1FALL 1979

Proposed Citizens Right To Standing Act-Finding The Keys To Unlock The Courthouse Doors

Harold W. Wood, Jr.

Recent Supreme Court decisions severely restrict the right of citizens to litigate in federal courts.(fn1) The Court's standing requirements not only limit the ability of citizens to successfully invoke federal court jurisdiction, but also confuse lower courts and litigants attempting to apply the requirements.(fn2) The restrictive standing requirements have met with increasing criticism,(fn3) and Congress is now considering legislative modification of standing doctrine.(fn4) Unfortunately, the Court's employment of constitutional foundations in establishing current standing requirements imposes substantial roadblocks Congress must avoid to enact remedial standing legislation. This comment examines the constitutional and pragmatic difficulties of statutory modification of standing requirements and recommends an approach to remedial legislation. After comparing recent proposals for standing legislation, this comment concludes that positive and comprehensive legislation is needed for citizens and taxpayers to adequately challenge unlawful government action in federal courts.

I. Background

Standing doctrine determines whether plaintiffs have a right to present a case.(fn5) Although theoretically the right to appear in court is an issue in all suits, as a practical matter problems with standing occur only when plaintiffs assert public causes of action. Standing issues commonly occur when citizens challenge administrative agency action, challenge the constitutionality of a statute, challenge federal expenditures as taxpayers, or attempt enforcement of a regulatory statute.(fn6)

The doctrine of standing to sue, especially in federal courts, once imposed severe restrictions on litigation, then underwent a period of modern liberalization, and most recently has again posed a barrier to judicial access. Early federal standing law required a plaintiff to allege that government action invaded a legal right. This restrictive test denied standing to a person alleging injury resulting from government action "unless the right invaded was a legal right,-one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege."(fn7) In 1970, the Supreme Court rejected this legal right test in the landmark case of Association of Data Processing Service Organizations v. Camp.(fn8) Data Processing established a two-pronged test for standing to challenge administrative agency action: a constitutional requirement of "injury in fact"(fn9) and a nonconstitutional requirement that the litigant's interest be "arguably within the zone of interests" of the substantive statute, if any, forming the basis of the action.(fn10) This two-pronged test became the universal standard permitting an increasing number of litigants to challenge unlawful government actions by invoking federal court jurisdiction.(fn11)

Although commentators and litigants praised the liberalized law of standing,(fn12) the Court retained the relative simplicity of the Data Processing test only briefly. The doors to the courthouse began to swing closed again when the Court began to find new grounds to deny standing, notwithstanding the presence of an injury. First, in Linda R. S. v. Richard D.,(fn13) the Court denied standing for lack of sufficient causation between an alleged injury and the challenged government action.(fn14) Then, in United States v. Richardson(fn15) and Schlesinger v. Reservists Committee to Stop the War,(fn16) the Court denied standing because plaintiffs' complaints were generalized grievances common to all members of the public. Third, in Warth v. Seldin,(fn17)the Court developed a requirement demanding a substantial probability that judicial relief would directly provide the plaintiffs' desired remedy.(fn18) These three tests have been the focus of recent proposals for legislative correction.(fn19)

II. Constitutional vs. Prudential Derivation of Standing Rules

Congressional power to modify standing requirements depends on whether the standing doctrine in question is constitutionally, or merely prudentially, grounded. The Supreme Court frequently has stated that Congress may create a statutory right conferring standing, subject only to article III limitations.(fn20) Unfortunately, evolving conceptions of standing fail to differentiate clearly between constitutional and "prudential" requirements. This ambiguity makes the assessment of Congress's power to enact corrective legislation difficult.

In federal courts, the standing concept has two distinct elements, one constitutionally derived and the second judicially created. The "case" or "controversy" clause of the United States Constitution(fn21) supports an indefeasible requirement. The second aspect of standing involves prudential rules. The Court has developed these nonconstitutional requirements as rules of self-restraint.(fn22) The distinction between the two sources of standing doctrine is important because Congress can modify prudential, but not constitutional, requirements.(fn23)

The Supreme Court articulated its rationale for constitutional standing requirements in Flast v. Cohen.(fn24) The Court identified three criteria for the article III limitation on standing: con-creteness, adverseness, and adequacy of representation.(fn25) To assure the adequate presentation of issues in an adversary context, the Court has held that constitutional standing requires a "personal stake"(fn26) or an "injury in fact."(fn27)

By contrast, the prudential requirements are founded on principles of judicial self-restraint.(fn28) The Court, however, has not distinguished the differing rationales for prudential and constitutional standing.(fn29) This confusion between prudential and constitutional considerations resulted in a blending of rationales in Simon v. Eastern Kentucky Welfare Rights Organization.(fn30) Without discussion, the Eastern Kentucky Court imposed a new constitutional test for standing. The Court required constitutionally not only injury in fact but also the formerly prudential elements of causation and substantial likelihood that a favorable judicial determination would redress the plaintiffs injury.(fn31)

By constitutionalizing standing barriers, the Court failed to distinguish properly between prudential concerns and constitutional restrictions.(fn32) The need for judicial self-restraint motivated the development of prudential requirements. Paradoxically, however, complex standing rules promote only judicial diseconomy by causing time delays and litigant confusion.(fn33) By contrast, the Constitution historically permitted a court appearance by any plaintiff presenting specific claims in an adversary context.(fn34) Dissatisfied with restrictive standing barriers, Congress is considering legislative action aimed at reducing standing to this constitutional minimum.

III. Congressional Augmentation of Standing

Responding to the Supreme Court's restrictive approach to standing, members of the House and Senate Judiciary Committees have proposed the "Citizens Right to Standing in Federal Courts Act."(fn35) The bill, introduced by Senator Howard Metzen-baum and others, specifies in a negative, prohibitory fashion four grounds the federal courts may not apply in dismissing an action for lack of a plaintiffs standing.(fn36) The four prohibited grounds for dismissal are: first, the injury complained of is a generalized grievance; second, the defendant's conduct is not the primary cause of the injury; third, a decision for the plaintiff on the merits of the case is not substantially likely to remedy or redress the injury the plaintiff suffered; or fourth, the plaintiff seeks to protect an interest not arguably within the zone of the interests protected by the law in question. The bill's obvious purpose is to declare the holdings of recent restrictive standing cases void.(fn37)

The congressional proposal creates several potential separation of powers problems, impacting both judicial independence and, perhaps, the balance of powers. Any legislation modifying standing doctrine reduces the power of courts to decide which cases to hear. Such action clearly infringes on judicial independence. This infringement is a critical issue today because of the Supreme Court's current emphasis on judicial self-restraint.(fn38) At least one commentator believes that "judicial power expands as the requirements of standing are relaxed."(fn39) This observation questions whether judicial power may be excessively expanded, thus upsetting the balance of coordinate branches of government. Both the judicial independence and the balance of powers considerations are relevant in analyzing the validity of any congressional action modifying standing barriers.

The situation most analogous to congressional alteration of standing requirements is congressional authority to adjust the jurisdiction of the federal courts. While many cases and commentators assert that Congress has extremely broad power to alter federal court jurisdiction,(fn40) limitations exist, resting upon both concern for the independence of the judiciary(fn41) and due process requirements.(fn42)

Whatever may be the due process limits to withdrawing jurisdiction and thereby preventing persons harmed by government...