SC Lawyer, July 2009, #5. Standing in South Carolina: What Is Required and Who Has It?.

• Author: By Jessica Clancy Crowson and C.W. Christian Shea

South Carolina Lawyer

2009.

SC Lawyer, July 2009, #5.

Standing in South Carolina: What Is Required and Who Has It?

South Carolina Lawyer July 2009 Standing in South Carolina: What Is Required and Who Has It? By Jessica Clancy Crowson and C.W. Christian Shea Introduction

Salacious facts, juicy motives and guilty parties can help create an attorney's dream case, but as any attorney can attest, there are crucial thresholds that must be met before such a case is heard by a judge or jury. Arguably, the most critical threshold a party must meet is standing. While standing is a fundamentally simple test, in practice it often requires a practiced, thorough understanding of the current law. While the substantive facts may be a winner, without the proper party a case will never reach the courtroom. In layman's terms: no standing equals no case.

However, it is not quite that simple. Generally, a party must be a real party in interest to the litigation to have standing to ensure that only true, bona fide controversies are heard by the court. Often this can be a clear-cut, easily answered inquiry relating the loss of the aggrieved party to the actions of the defendant. However, many disputes arise that leave questions as to whether a party has standing. While standing is an initial, procedural requirement in any lawsuit, it requires practitioners to have an understanding of current law to assure that every possible case reaches the courtroom.

Traditionally, South Carolina and other jurisdictions have embraced two tests for standing. The first and most clear test to obtain standing is pursuant to statute. If a statute lists the parties that have standing to bring an action related to a matter, then without question, those enumerated parties have unchallengeable standing. The second test for standing originated from the seminal case, Lujan v. Defenders of Wildlife, 504 US. 555 (1992), which sets forth a three prong test for obtaining constitutional standing.

Additionally, in South Carolina our courts have carved out a "public importance" exception to these two baseline standing tests. This exception has been the subject of extensive litigation in recent years. This "public importance" exception has gained considerable traction in a variety of cases and has been the subject of much confusion and misapplication. Understanding this exception is critical, as it is a helpful tool in the arsenal of South Carolina attorneys seeking to meet the threshold standing test.

This article briefly summarizes the two long-established, traditional tests for standing and provides a more detailed analysis and update on the developing "public importance" exception.

I. Statutory standing

The first type of standing is statutory standing. If a statute is on point and grants standing to a party, the inquiry can end right there; that party has standing. This is perhaps the simplest, most straightforward type of standing.

Where a statute's language is plain and unambiguous, the rules of statutory interpretation are not needed. This follows from the idea that whenever possible, legislative intent should be found in the plain language of the statute itself. State v. Gaines, 380 S.C. 23, 667 S.E.2d 728 (2008). As a complement, the cardinal rule of statutory construction is always to ascertain and effectuate the intent of the legislature. Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000). These considerations together are of the utmost importance because all rules of statutory construction are subservient to the maxim that legislative intent must prevail if it can be reasonably discovered in the statutory language used. State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007). Further, the statutory language must be construed in light of the intended purpose of the statute. Therefore, where such information is clear, either from the law itself or extrinsic evidence, a party will be deemed to have statutory standing.

II. Lujan constitutional standing

The second type of standing is constitutional standing, and Lujan is the controlling, federal case. Per Lujan, standing is an "essential and unchanging part of the case-or-controversy requirement of Article III." Lujan, 504 U.S.at 560. When statutes include a subjective standing requirement, such as interested or aggrieved person, or when statutes are silent on standing, constitutional standing requirements must be met. Lujan established a three prong test that was adopted by the S.C. Supreme Court in Sea Pines Ass'n for Prot. of Wildlife, Inc. v. S.C. Dep't of Natural Res., 345 S.C. 594, 550 S.E.2d 287 (2001). This three prong test has since been followed by our state courts.

To qualify for constitutional standing, a plaintiff must first have suffered an injury in fact which is (a) concrete and particularized and (b) imminent or actual rather than merely speculative. Id. Second, there must be a causal connection between the injury and the conduct complained of that is directly attributable to the defendant. This second element requires that the injury complained of by the plaintiff be fairly traceable to the conduct of the defendant. Id. Third, it must be likely and not just speculative that adjudication of the case will redress the injury and stop its cause. Id. This third element has been interpreted as requiring the plaintiff to show that he is likely to receive a favorable decision from the courts as to the merits of his claim if he is deemed to have standing in this initial inquiry. Id.

Many practitioners have lost standing challenges based on a deficiency of proof for the first element of the Lujan test, which requires a two part showing regarding the injury. The particularized injury requirement means that a private person may not invoke the judicial power to determine the validity of government action unless that person has sustained or is in immediate danger of sustaining individual injury or prejudice from the action. The injury must affect the plaintiff in such a personal and individual way that it is not a common injury shared by all. Often, a citizen tries to bring suit alleging injury as a direct result of government action based on his status as a taxpayer. Because this is an injury shared by all others of similar status, this challenge would fail for want of a personal, particularized injury under Lujan.

III. Public importance exception to standing in South Carolina

The third way to obtain standing is via the developing "public importance" exception to the two traditional standing tests. This exception has become a favorite of plaintiffs because unlike Lujan's particularized injury requirement, pursuant to the "public importance" exception, standing can be conferred "without requiring the plaintiff to show he has an interest greater than the other plaintiffs." Davis v. Richland County Council, 372 S.C. 497, 642 S.E.2d 740 (2007).

To invoke this exception, a plaintiff must meet a two prong test. The initial test laid out by Sloan v. Dep't of Transp., 365 S.C. 299, 618 S.E.2d 876 (2005), and adopted by the Davis court establishes that standing is not inflexible and may be conferred on a party where (a) there is a showing of an issue of great public importance and (b) the issue requires resolution for future guidance. Davis, 372 S.C.at 500, 642 S.E.2d at 741.

However, it should be understood from the outset that the mere fact that an issue may be of public importance does not confer standing upon any citizen to invoke the right of judicial review of the issue challenged. Crews v. Beattie, 197 S.C. 32, 14 S.E.2d 851 (1941).

A. Showing of great public importance

The first component of the "public importance" exception is a showing of great public importance. This is understandably inexact in its terms. Determining whether a case or issue is of great public importance requires a balancing between the competing policy concerns underlying the issue of standing. The court must weigh a citizen's right to be afforded access to the judicial process versus the recognition that standing cannot be granted to every individual with a grievance. Furthermore, the right to access will be weighed against the expense to judicial economy, freedom of government decisions from challenge through individual lawsuits, and the necessity for action by municipalities. Our courts have been cognizant of the fact that while citizen suits are an important check on the government, public officials need to be free from vexatious review of every decision. Otherwise, our system of governance would grind to a halt as public officials were forced to spend more time litigating and defending their decisions than actually making such decisions.

The S.C. Supreme Court addressed this very point in ATC South v. Charleston County, 380 S.C. 191, 669 S.E.2d 337 (2008), which recognized the overarching importance of ensuring government action for the citizenry. In doing so, the Supreme Court had to weigh the competing interests of the plaintiff versus the County's inherent need to take action in zoning matters brought before its county council. The Court recognized the conflicts involved, stating that while "zoning is a matter of public importance the same may be said of most legislative and executive action." Id. at 199, 669 S.E.2d at 341. In other words, while giving credence to the plaintiff's desire for judicial redress and the need for accountability of the municipality, the Supreme Court recognized the importance of allowing a proper county zoning decision to stand rather than face a challenge from a disgruntled competitor.

B. Need for resolution for future guidance

The second component of the "public importance" exception is a showing of need for resolution for future guidance. Thus, a case involving facts expected to arise again is more likely to meet this requirement, and a case involving facts doubtful to arise again will likely fail to meet this prong. The key then for attorneys seeking standing under this exception is to frame an issue around the need for resolution from the court based upon the likely reoccurrence of the same factual issue.

Establishing the gravity of this element, the ATC South decision clarified that to satisfy the second part of the test, the matter must be inextricably connected to the public need for resolution for future guidance.

From the Sloan cases to the ATC South case

The "public importance" exception has been largely shaped by what is often referred to as the Sloan line of cases. See Sloan v. Greenville County, 356 S.C. 531, 590 S.E.2d 338 (2003); Sloan v. Dep't of Transp.,365 S.C. 299, 618 S.E.2d 876 (2005); Sloan v. Sanford, 357 S.C. 431, 593 S.E.2d 470 (2004); Sloan v. Sch. Dist. of Greenville County, 342 S.C. 515, 537 S.E.2d 299 (2000). These cases center on a common plaintiff who brought multiple challenges to various governmental actions. Taken as a whole, they provide helpful examples as well as a framework for understanding how to effectively apply the "public importance" exception.

In Sloan v. Greenville County, the plaintiff successfully used the "public importance" exception to gain standing to challenge the county's alleged failure to comply with its procurement ordinances. Recognizing the importance of allowing this suit to proceed, the Court granted "taxpayer standing" to the plaintiff and explained that a party suing on behalf of fellow taxpayers must allege a common concern shared by them as a group in order to gain such standing. Explaining the future guidance prong, the Court stated that "[r]esolution of this issue will likely have an impact beyond the confines of the case itself." Sloan v. Greenville County, 356 S.C. at 551, 590 S.E.2d at 349. This statement reflected the Court's belief that proper adjudication would assure integrity in future government action and accountability in later actions.

Another Sloan case, Sloan v. Dep't of Transp.,involved a challenge raised where the S.C. Department of Transportation allegedly failed to abide by existing bidding requirements. The plaintiff was granted "taxpayer standing" under the "public importance" exception, even though he had no real, material interest in the action and had no personal stake in the matter. Sloan v. Dep't of Transp.,365 S.C. at 304-05, 618 S.E.2d at 878-79.

In a similar case, Sloan v. Sch. Dist. of Greenville County, the Court of Appeals held that in addition to Sloan's "taxpayer standing," Sloan had standing because the "issues involved 'are of such wide concern' that this declaratory judgment action should be decided for future guidance in the expenditure of public funds pursuant to competitive sealed bidding requirements." Sloan v. Sch. Dist. of Greenville County, 342 S.C. at 524, 537 S.E.2d at 304. These cases cumulatively establish that expenditure of public funds is one instance where South Carolina courts will grant taxpayers standing to file suit under the "public importance" exception.

Another Sloan case resulted in a grant of standing without particularized injury where Sloan challenged the constitutionality of the governor serving in the armed forces. See Sloan v. Sanford, 357 S.C. 431, 593 S.E.2d 470 (2004). The Court found that adjudication was necessary due to the importance of its implications regarding separation of powers. That decision relied on Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999), which also granted the petitioner standing to challenge the issuance of hospital bonds.In Baird,the Court concluded that the issuance of hospital bonds clearly impacted a profound public interest-the public health and welfare. Id. at 531, 511 S.E.2d at 75.

Accordingly, both Baird and several Sloan cases demonstrate that South Carolina courts view the use of public funds to be an appropriate basis for application of the "public importance" exception. While it cannot be said that every public expenditure challenge would be granted standing under the "public importance" exception, it seems clear that such a claim would be supported by substantial case law.

Following the Sloan cases, ATC South Inc. v. Charleston County, 380 S.C. 191, 669 S.E.2d 337 (2008),set an important limitation for "public importance" exceptions. In ATC South, ATC,which was a competitor tower company, sought standing to challenge a municipality's rezoning of property that allowed another tower company to construct a cell tower that ATC disfavored. ATC brought its challenge based upon the competition that would result once the two towers were built. ATC conceded that it did not have standing under either of the two traditional standing tests. Instead, it sought standing pursuant to the "public importance" exception. ATC argued that zoning matters, including the county's rezoning of the subject property, were always of such great public importance as to justify standing for ATC to challenge the matter pursuant to the "public importance" exception. The Court distilled ATC's cause of action down to that of a disgruntled competitor, holding this to be insufficient under the "public importance" exception. Emphasizing that where a municipality followed proper procedure to narrowly rezone only one parcel, the Court stated there could be no shared public injury and thus no standing for ATC to bring suit. Id. at 200, 669 S.E.2d at 342. As the Court concluded, "ATC's efforts to cloak its zoning challenge as a matter of 'public importance' for the purpose of acquiring standing finds no traction in this record." Id. at 200, 669 S.E.2d at 342-43.

The complete implications of the ATC South decision have yet to be fully defined. However, this decision places a clear limitation upon the previous Sloan cases in denying standing to a mere business competitor. As the Court stated in the ATC South opinion, "There is nothing public about ATC's concern with a competing cell-phone tower." Id. at 199-200, 669 S.E.2d at 341. Accordingly, it is clear that in future cases, courts should focus on the first prong of the "public importance" exception in requiring a potential plaintiff to make a clear showing of the great public interest at stake in the matter brought before the court. Failure to make such a showing will likely end in a similar result as in the ATC South case-a denial of standing. Furthermore, given the Supreme Court's rejection of ATC's argument that zoning's public importance should allow standing, it appears that this decision will likely set a high bar in any zoning challenges brought under the "public importance" exception.

Conclusion

The "public importance" exception to traditional standing is a developing body of law that continues to evolve. Its true limits will emerge as new plaintiffs bring challenges before the courts and test its boundaries. Still, it appears evident after ATC South that competitors will have a difficult time establishing standing under this exception unless that competitor can clearly show its interest is beyond that of a mere competitor displeased with a municipality's action.

In the meantime, practitioners should remember that this developing "public importance" concept is still just an exception, not a rule. However, the proper application may result in a party gaining standing where otherwise it would have found the courtroom doors closed based upon a lack of standing.

Jessica Clancy Crowson is an attorney with Pennington Law Firm in Columbia. Christian Shea is a second-year law student at the University of South Carolina School of Law.